Limiting discrimination won't harm religious freedoms

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Cleaner - Flickr image by givepeaceachanceBy the mid to late 20th century, increased diversity and the horrors of state-sanctioned religious and racial hatred led Australia to exempt religious institutions from more secular laws than taxation and property laws. The rise of anti-discrimination laws in the 1970s gave them immunity from the duty not to discriminate against members of vulnerable groups.

In Victoria the Equal Opportunity Act exemptions are under review generally; amendments proposed to the religious ones have caused a predictable opposition.

The exemption from the duty to discriminate was meant to protect (initially) individual religious people's human right to believe, worship, demonstrate and promulgate their faith. The Victorian Discussion Paper acknowledges that state's Charter of Human Rights and Responsibilities requires finding a balance between the individual right to freedom of thought, conscience religion and belief, and the right of all human beings not to be subjected to discrimination on any ground at all.

The Equal Opportunity Act allows religious and quasi-religious groups and individuals to 'discriminate' lawfully. The Paper proposes to remove the blanket exemption for 'religious' activities which appear to be really secular, leaving intact total exemptions for 'core' or intrinsic religious practice, such as appointing persons to be involved in religious ceremonies and responsibilities — ministers/priests, preachers and ceremonial participants.

Not so, however, for exemptions protecting Church-established schools. Section 75 (3) of the Act, first passed in 1977, allows religious institutions to discriminate (on any ground) in employing their staff if the school is directly under, 'a body established for religious purposes'.

The Discussion Paper suggests limiting this exemption, together with the 1994 amendment in Section 76, which extended the same broad exemption to schools established 'to be conducted in accordance with religious beliefs or principles', but not directed or governed by a religious institution.

It's worth mentioning that this amendment came after an intelligent, well-behaved year 12 student successfully complained of sex discrimination because he was excluded from one of these 'para-religious' schools for wearing a neat haircut no longer than an average female student's. The Supreme Court ruled against the immunity claim of the publicly funded, private school that was not, but wanted to appear to be, Anglican.

Religious bodies argue that limiting blanket exemptions will destroy religious freedoms. Actually, many of 'their' activities are now run by separately incorporated entities, governed and managed like any business, publicly funded to provide services subject to rigorous contractual obligations that don't include 'God'.

Both sorts of organisations have been able to refuse to employ or dismiss any staff for an otherwise discriminatory reason, such as living in de facto relationship, out-of-wedlock pregnancy, sexual orientation, or unacceptable marital (i.e. divorcee) status.

This is still defended on the basis that any service can be a religious vocation and that a 'religious environment' requires certain pureties of everyone in employment. With respect, it is difficult to see the relevance of the beliefs or lifestyles of, say, a cleaner, gardener or clerk, in an independent, para-religious school.

The paper suggests broad exemptions for 'core' (that is, in-house) religious functions and a limited one for extended or 'non-core' activities, such as service-provision, which the organisation should have to prove is of an 'inherent religious nature'.

It's suggested that provision of services to the public is not 'core' to the observance of religion. But this won't work. Most major religions require believers to act out their faith in daily life: Christians and Jews alike believe that God requires them to 'act justly, love mercy, and walk humbly with your God'. A believer's spiritual and temporal life should be indivisible.

But should that entitle that individual to disobey a secular law not to discriminate? And what is it about the 'cold steel' of proving the 'reasonableness' of proposed discrimination in 'para-religious' institutions that causes offense?

One great leader said, 'Render unto Caesar that which is Caesar's, and unto God that which is God's'. If the activities are 'inherently religious' surely it would be easy to provide the evidence that religious values and faith drive the services rather than meeting a contractual arrangement.

After all, it was the same leader who bantered with a Samaritan womanl, respected and placed women among his disciples, socialised with 'sinners and publicans' some of whom became his apostles, welcomed children, wept over the dead, and embraced and healed society's lepers and other outcasts, without discrimination.

Distilled from the paper Religious freedom and secular society by Moira Rayner. Futher reading: Freedom of religion important for Catholic social services, by Denis Fitzgerald, Executive Director of Catholic Social Services Victoria.


Moira RaynerMoira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.

Topic tags: Moira Rayner, equal opportunity, victora, ngos, catholic schools

 

 

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Existing comments

Ms Rayner is right to call for a better balance between the right to freedom of thought and the right not to be discriminated against.

Legislative and judicial activity over the past 30 years or so has swung greatly in favour of the second type of right to the detriment of the first.

Left-liberal social engineering projects typically proceed in incremental fashion. I remember we South Australians being solemnly reassured 40 years ago that liberalised abortion would only ever be used to save women from psychological and phyiscal damage or in the case of severely-deformed children. We now have de facto abortion on demand for any reason. About the same time the states began, rightly, to decriminalise homosexual activity. Who would have thought then that we would have men wanting to marry each other now?

The coverage of anti-discrimination policy is always being extended. About 10 years ago Prof. Hilary Charlesworth wrote an article in "Eureka Street" (then still in print form) arguing for the abolition of civil immunities enabling the Catholic Church to refuse clerical candidature and ordination to women.

The problem with the notion of 'core' religious practices is that the 'core' can always be made smaller, like politicians' core promises.
Sylvester | 13 August 2009


Well and truly said, Ms Rayner.

I find it sadly hypocritical that many so-called "Christian" organisations do not follow the important dictum, "love thy neighbour as thyself". There is nothing loving about discrimination based on prejudice and ignorance against those who do no harm to others.
Patricia | 13 August 2009


What's not addressed here is the right of Catholic institutions to influence and create a culture for their institutions. Administration staff, and teachers of subjects like mathematics and phys ed might not be essential to teaching religion, but they are essential to the culture and life of a school.

I'm not saying that non-religious people can't positively influence a school's culture and shouldn't be employed - Catholic schools couldn't exist without these people - but what right does a government or secular society have to prevent schools expressing a preference for people who share their beliefs and will work to enhance the school's culture - whether those are teachers or other staff? A cleaner who wears a crucifix around his neck and greets students with a smile and 'God bless' can have an enormous impact on students. But how do you 'prove' the 'inherent religious nature' of their activity?
Joseph Vine | 13 August 2009


This debate has been skewed by the hijaking of the word "discrimination" by the left-liberal establishment to mean any opposition to their own agenda.

In this sense the notion of 'discrimination"' is closely allied to the Orwellian notion of 'hate crime'. The invocation of "hate crime" is the childish attitude which says that, since someone's opposition to my views or practices cannot possibly be based on sound argument, it must because s/he hates me.

The weapon of 'hate crime' is always used against traditional groups. Extreme denigration of the Christian religion is never a 'hate crime'.

The left-liberal establishment is adept at seizing control of language. In their lexicon "discrimination" is something inherently nasty and bad, thereby evacuating the word of alternative meanings.

'Discrimination' can be something positive, as in s/he has 'discriminating' tastes or s/he is able to 'discriminate' between right and wrong.

The principle referent of 'discrimination' is the ability to observe differences accurately or to make exact distinctions.

In expressing their beliefs and organising their practices in accordance with their beliefs, religious organisations are entitled to 'discriminate' in the sense of observing differences accurately and making exact distinctions.

And they should be protected in this entitlement by the law of the land.
Sylvester | 13 August 2009


One great leader said, 'Render unto Caesar that which is Caesar's, and unto God that which is God's'.

From the way in which Moira Rayner reads and understands Jesus' admonition, it is clear why she feels the way she does about the expemptions to anti-dscrimination laws given to religious organisations.

I understand, and probably the majority of Christians understand Christ's call in a very different way. Christ is telling those who 'have ears' that Caesar may have the power and the sway to say what is right, but, it is God who authors what is right and so, to be right in ones conscience, one must 'render' to God to get the fullest understanding of truth.

Moira will need to allow us religious people to say how we understand and how we discern what is 'inherently religious' in our organisations and activities and thus how we can continue to serve our society as faithfully as we have with the very exemptions she objects to.

Otherwise, we may have a very good case for being one of those vulnerable groups in society, vulnerable to structural discrimination which need special anti-discrimination laws to protect us.

I hope she will be our barrister when the court case comes up.
Fr Mick Mac Andrew | 13 August 2009


The principle "Render unto Caesar that which is Caesar's and to God that which is God's" suggests that governments should stay out of the internal affairs of religious organisations. I thought people like Ms Rayner want separation of Church and State?

Jesus was a great "discriminator" in the positive sense that I mentioned above: observing differences and making exact distinctions.

He followed this method of teaching all the time, as in the Caesar/God distinction and discriminating between good and evil, truth and falsity, holiness and sinfulness, forgiveness and vengence, humility and pride.

He sometimes discriminated between groups of people - eg., pharisees and prostitutes, the self-righteous and repentant, the rich and the poor, the self-important and the lowly.

He discriminated betwee men and women by excluding the latter from the sacrament of Holy Orders.
Sylvester | 13 August 2009


The Catechism of the Catholic Church (para 2358) talks of unjust discrimination, all of which is to avoided. Blanket exemptions from anti-discrimiation legislation virtually remove the need to for exempt authorities to examine their decisions regarding discriminatory practices. As someone once said: "The long habit of not thinking a thing wrong,gives it a superficial appearance of being right."

I support Moira's contention that blanket exemptions should not be the way of the future in anti-discrimination legislation.
Garry Everett | 14 August 2009


Any employer has the right to employ people who are qualified and competent for the work for which they are employed. When it comes to a church school or welfare agency. The importance is not rigid allegiance to the church or denomination involved but sympathy to the causes propagated by that institution. Obviously one would not employ an ardent atheist or agnostic who is out to undermine ones institution.

Jews have been employed in Christian missions in South Africa. My parents were missionaries in Persia in the 1920's and no doubt they had locals who were not Christians working in their schools.
john ozanne | 14 August 2009


The corollary of canon 2358 is that 'just' discrimination is permissible.

This is all the Church asks for, civil protection of its responsibility to make the necessary accurate observations and exact distinctions to safeguard its teachings and the policies and practices that flow therefrom and thus guarantee the Catholic character of its pastoral, educational and social services to the community.

This freedom of movement has for quite some time been under an expanding threat from proposals like those presented by Ms Rayner.

The issue it not blanket exemption but creeping blanket suppression of the Church's capacity to act as the Church.

It is a bit like peeling away at the onion.....
Sylvester | 14 August 2009


As a 'retired' teacher with decades of teaching experience in Catholic Schools, I would like to think that the Catholic schools always uphold the values and principles of the Catholic Church.

Sadly, in my experience this was not always so. I have seen far too many examples of the use of the 'exemption' in wholly unchristian ways by people in authority, both religious and lay who claim to be upholding Christian values.

While I agree that only staff who subscribe to the ethos of the institution should be employed, I don't think withdrawal of this aspect of anti discrimination laws will change the current status quo in Catholic Institutions.

Remember the Church lost some privileges to this supposed right when it accepted 'State Aid' for its struggling schools in the 1960's.
Gavin | 14 August 2009


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