NATIONAL AFFAIRS: by Patrick J. ByrneNews Weekly
Push for new laws to attack churches, schools
, May 26, 2012
The Gillard Labor Government’s inquiry into new anti-discrimination legislation has become the source of a concerted attack on churches, independent schools and government funding to church-based welfare organisations.
In keeping with ALP promises made at the last federal election platform, the department of federal Attorney General Nicola Roxon is holding an inquiry into consolidating the Commonwealth’s four separate anti-discrimination laws — the Racial Discrimination, Sex Discrimination, Disability Discrimination and Age Discrimination acts — as well as the Australian Human Rights Commission Act (1986) and provisions in the Fair Work Act 2009.
Ms Roxon issued a discussion paper inviting comment on a number of questions, including issues relating to possible exemptions clauses for churches and community organisations in any new anti-discrimination legislation.
The Attorney-General promised that exemptions would be allowed.
However, The Australian newspaper’s national opinion writer Paul Kelly, in commenting on similar politicians’ assurances that churches would be exempt from any new same-sex marriage law, warned that only a fool would accept the idea that “exemptions” for the churches would be effective and lasting.
Kelly was writing at the time of last November’s ALP national conference, which changed its policy to support same-sex marriage, while allowing Labor parliamentarians a so-called “conscience vote” on the issue (The Australian, November 30, 2011).
His warning is given substance by the fact that numerous gay and lesbian groups, human rights, legal and other lobby groups have told the Attorney-General’s inquiry into a new consolidated federal anti-discrimination law that:
• there must be no exemptions for the churches;
• or, if exemptions are granted, they be severely restrictive;
• or that organisations seeking exemptions be subject to onerous application provisions and conditions;
• or a combination of the above proposals.
Quoted below are the broad statements by 31 submissions to the national inquiry.
It is clear from these submissions that, if exemptions were granted, they would be merely a temporary measure designed to placate the churches and lull public opinion, only to be quietly withdrawn in the future. (A more comprehensive outline of these conditions is available at www.NewsWeekly.com.au).
Australian Lawyers for Human Rights: “Religious exemptions should only apply to the core functions and beliefs of religious institutions....”
Legal Aid Queensland “… argues for the removal of those (i.e., religious) exemptions”.
Legal Aid NSW “… does not support the retention of any exemption on religious grounds”.
Public Interest Law Clearing House (Vic) Inc: “The Consolidated Law should include no exemptions for religious organisations in relation to the protected attributes of sexual orientation and gender identity.”
Discrimination Law Experts Group: “We recommend that the religious exceptions be repealed.”
ANU College of Law “Equality Project”. It “rejects permanent exemptions on religions grounds for institutions or individuals”.
Human Rights Law Centre: “These exemptions are manifestly inappropriate and inconsistent with Australia’s human rights obligations and international best-practice.”
The South Australia Equal Opportunity Commission: “Any religious exemption should be strictly restricted to the inherent requirements of the religious belief or activities rather than apply more broadly to employment-related conduct.”
The Law Institute of Victoria: “religious exceptions … should be precise, public, and subject to sunset provisions....”
South Australian Bar Association: “If exemptions are retained, then they should not ... be available where functions are being carried out by an organisation pursuant to a Commonwealth government contract or for activities conducted using public funds.”
Australian Council of Human Rights Agencies: “There should be no religious exemptions where:
“(a) The institution is carrying out functions contracted by government in relation to the employment; or where
“(b) The institution is accessing public funds to fund the employment.”
HIV/AIDS Legal Centre: “Remove entirely any religious exemption to discrimination on the grounds of sexual orientation or gender identity.”
Public Interest Advocacy Centre: “There should be no permanent exemptions for religious organisations in respect of any protected attributes.” However, if there are exemptions, they should be limited to “the ordination, appointment, training or education of priests, ministers of religion or members of any religious orders” and to institutions involved in the “employment of staff in the provision of religious education and training”.
The National Association of Community Legal Centres: “The consolidation bill should not provide for religious exemptions in relation to the protected attributes of sexual orientation or gender identity.” However, if there are exemptions, they “should not be applicable to organisations or services in receipt of public funding”.
Young Workers’ Legal Service [SA unions]: “… religious institutions would be required to ‘opt-in’ for exemption under federal anti-discrimination laws”.
Australian Lesbian Health Coalition: “There should exist no blanket exceptions or exemptions for religious bodies.”
National LGBTI Health Alliance: “Religious bodies should not be granted exemptions from anti-discrimination legislation for their activities in the provision of services, such as aged care, health services and education.”
The Diversity Council of Australia “… does not support general exemptions for religious bodies for any acts and practices”.
Lesbian and Gay Solidarity (Melbourne) says that the federal government must “withdraw its religious exemptions from all its anti-discrimination laws”.
Equality Rights Alliance: “… exceptions for religious organisation … should not be included in the consolidated Act.”
Australian Federation of AIDS Organisations (AFAO) says there should “be no religious exemptions in the new consolidated anti-discrimination law”.
ACT Human Rights Commission: It looked favourably on exemptions, but argued that “it is essential that any remaining stand-alone exceptions are reviewed regularly and rigorously to determine whether they should be retained, amended or repealed...”.
The Coalition of Activist Lesbians Australia Inc. recommended “the complete removal of exemptions for religious organisations with regards to sexual orientation”.
Tasmanian Gay and Lesbian Rights Group said that it “does not support any legislative exemptions or exceptions that are specific to sexual orientation of gender identity and presentation”.
Liberty Victoria, Victorian Council for Civil Liberties Inc. said that religious bodies and educational institutions should be required to have a “licence to discriminate, time-limited but renewable, conditional on … specific ‘doctrines, tenets, beliefs or teachings’ (that) necessitate it”.
The Equal Rights Trust, UK, said that Australia’s new consolidated act “should expressly recognise that direct discrimination may be permitted only very exceptionally, and only when it can be justified against strictly defined criteria”.
Victorian Gay and Lesbian Rights Lobby said that it “opposes any exemption granted to religious bodies that would permit discrimination on the basis of sexual orientation or gender identity”.
Women’s Electoral Lobby Australia said: “Legislation should remove automatic exceptions for religious and other bodies from all anti-discrimination legislation, and that if any exceptions are made that they be limited to a two-year period, with no automatic extension of exemptions.”
Gay and Lesbian Rights Lobby, Embracing Equality: “Excluding special measures, there should be no religious exemptions or exceptions to Commonwealth anti-discrimination laws.”
The Australian Sex Party: “The Consolidated Act should not include religious exceptions that apply to discrimination on the grounds of sexual orientation or gender identity.... If the Act does include religious exceptions, they should apply only to the ordination or appointment of priests, ministers of religion or members of a religious order.”
ACON (formerly known as the AIDS Council of NSW) said:
“That no exemptions to the consolidated anti-discrimination legislation are available for any organisation receiving government funding when performing those government functions.
“That if exemptions do exist they should be narrow, temporary and made public by organisations utilising them, including when advertising for jobs or the provision of services.”
Patrick J. Byrne is vice-president of the National Civic Council.