An end to the right to discriminate

The above quote from the Christian Democratic Party (WA Branch) confirms that the exemptions are used to exclude sexual minorities, and among the submissions to the Freedom of Religion and Belief in the 21st century project are many others arguing for the continuation of the exemptions, specifically so that gays and lesbians can be excluded; so that religious bodies “if they so choose”, can continue to discriminate against homosexuals while pretending to do something completely different. In South Australia, amendments currently before State Parliament will require organisations that discriminate against homosexuals and lesbians to declare publicly that it is their policy to do so. There too, according to Legislative Council member Ann Bressington, Christian organisations are lobbying for the right to continue discriminating in secret.

Absurd extremes

In fact, the use of the exemptions for religious bodies is being carried to ridiculous extremes. In January, a job advertisement for physiotherapists (PDF 480KB) with Anglican Retirement Villages carried the strap line “The embracing of Christian values is an expectation of all staff”. No indication was given of how the work of a physiotherapist could conform to the doctrines of the Anglicanism, or how Anglican religious susceptibilities could be vulnerable to injury by a non-Anglican, or non-heterosexual physiotherapist. Another advertisement for a Microsoft Systems Technician in a Queensland Christian school (PDF 252KB) required a reference from a minister of religion, attesting that the applicant was a committed Christian. The relevant exemption to the Queensland Anti-Discrimination Act 1991 applies in relation to work “in accordance with the doctrine of the religion concerned,” but the advertisement provides no guidance about how this could possibly relate to technical work with computers.

Tasmanian experience

The exceptions and exemptions included in the Tasmanian Anti-Discrimination Act 1998 do not relate to sexual orientation. In Tasmania, the sexual orientation of a job applicant is deemed to be irrelevant, regardless of the employer’s views. Selection for employment in both religious and non-religious organisations is based on skills, experiences and attitudes demonstrated by qualifications, experience and references.

The Act provides for an organisation experiencing difficulty meeting its requirements to apply for an exemption. According to the Tasmanian Anti-Discrimination Commission’s website there are no currently granted exemptions related to sexual orientation. In spite of this, religious Tasmanians are successfully pursuing their belief practices: the conduct of religion in Tasmania has not collapsed, and fleets of Mayflowers have not been seen crossing Bass Strait. Indeed, with ten years’ experience, Tasmania provides clear proof that discrimination against sexual minorities is not necessary in order to secure religious freedom.

A conditional freedom

Australians do not have an unconditional right to religious freedom. Article 116 of the Australian Constitution constrains the Commonwealth from establishing a state religion, or giving preference to one religion over another. It does not require or enable the Commonwealth to guarantee unrestrained freedom of belief, and the High Court has borne this out several times, notably in Adelaide Company of Jehovah's Witnesses, Inc. v The Commonwealth of Australia (1943).

The International Covenant on Civil and Political Rights (CCPR), which Australia has ratified, states in Article 18.3:

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

CCPR allows circumscription of religious freedom to protect the safety, health and freedom of others. Neither CCPR nor the Australian Constitution privileges religious belief over the rights and freedoms of other groups in society. Neither instrument obliges the state to protect members of religious organisations from being offended, particularly should that protection come at others’ cost.

In good faith, Australian states have attempted to accommodate the sensibilities of religious bodies with exemptions to their anti-discrimination laws. Unfortunately many religious bodies have not managed their use of the exemptions well - rather, they have applied them arbitrarily and secretively. In Tasmania it has been shown that religious organisations can thrive in an environment that values both religious and sexual minorities.

Granting an exemption to a law bestows a great privilege, and a heavy responsibility on the beneficiary of that exemption. In failing to responsibly manage the exemptions available to them, many religious organisations have shown themselves unworthy of the privilege. At the same time, they’ve proven that the current exemptions to discrimination laws are indeed unnecessary for the free practice of religion in this country.

It’s time for the exemptions to go.