NATIONAL AFFAIRS: by Terri M. KelleherNews Weekly
Last-minute law change a threat to religious freedom
, July 6, 2013
Australians once used to enjoy freedom of religion. Later, under anti-discrimination laws, they were still permitted special exemptions and exceptions. But last week, these exemptions were eroded when the Labor-Greens government passed changes to the Commonwealth’s Sex Discrimination Act 1984.
The act, which was originally designed to protect women from workplace discrimination, has now been expanded to make it illegal to discriminate on the basis of sexual orientation, gender identity or intersex status.
What is of concern is that, despite government promises that the Sex Discrimination Act’s exceptions and exemptions for faith-based organisations would be maintained, these have in fact been wound back in the final days of parliament.
Federally-funded, church-based aged-care facilities will no longer be exempted from the act’s provisions and so will no longer be able to maintain their ethos.
There is no evidence that church-based aged-care facilities discriminate on the basis of sexual orientation or gender identity because applicants are never required to disclose such personal details in the first place. In fact, many or most people entering aged care do so on the death of a spouse or partner or when they can no longer be cared for at home. It is very seldom that a couple seek aged care.
The minority report by Coalition senators to the Senate committee inquiry into the bill drew attention to the anomaly of the removal of religious exemption in relation to aged care, while such exemptions continue in relation to the operation of educational or health facilities. How long would those remaining exemptions be allowed to apply?
The significance of the new law is that it establishes a precedent that points the way to further assaults on religious freedom.
Last year, politicians who were pushing for same-sex “marriage” assured those opposing changes to the Marriage Act that if same-sex marriage was legalised, special exemption clauses would protect churches and church-based organisations.
At the same time as this debate was taking place, the then Attorney-General, Nicola Roxon, was holding an inquiry into a government proposal to consolidate all federal anti-discrimination laws. Many legal, human rights and same-sex lobby groups told the inquiry that there should be no exemptions for churches and faith-based institutions, or that exemptions should be few and temporary.
There was a clear political strategy behind both the same-sex marriage bill and the proposed consolidation of anti-discrimination laws.
The same-sex marriage legislation, in order to appear less contentious, would allow exemptions for ministers of religion from performing same-sex marriages and allow church premises not to be used for such ceremonies. Meanwhile, the juxtaposed consolidated anti-discrimination law would allow no exemptions for ministers of religion or faith-based institutions, if the same-sex lobby and militant secularists had their way.
The two laws would then be in conflict. Either the courts would have to resolve the deadlock or one law would have to be amended to be made consistent with the other.
As it turned out, the same-sex marriage bill was decisively defeated in both the House of Representatives and the Senate.
Attorney-General Mark Dreyfus QC.
When Nicola Roxon resigned as Attorney-General in February this year, her successor, Mark Dreyfus QC, shelved further consideration of the consolidation of anti-discrimination laws until after the September elections because of widespread public resistance to it.
However, he thereupon almost immediately announced amendments to enlarge the scope of the Sex Discrimination Act to make it illegal to discriminate on the basis of sexual orientation or gender identity.
The bill was referred to a Senate committee of inquiry on March 21. Submissions were called for and the committee was to report by June 17. The bill was also referred to a House of Representatives committee for inquiry, but the only details available were its statement: “The Committee has yet to meet to determine the format of the inquiry.” In the event, no submissions were called for. The committee handed down its report on May 27, recommending the bill be passed, and it was duly passed by the House of Representatives on May 30.
No sooner had the bill been passed in the House of Representatives than Mark Dreyfus announced that he wanted the Senate to make a further amendment to remove any religious exemptions for federally-funded church-based aged-care institutions. On June 5, this bill was introduced in the Senate before the Senate committee report had even been handed down.
The Senate inquiry recommended passing the bill, but the minority report by Coalition senators warned that the removal of exemptions “could compromise the capacity of some religious organisations to operate aged care facilities in accordance with the principles which underpin and define their existence”.
On June 25, Labor, with the support of the Greens and Independents, voted through Mark Dreyfus’s changes to the Sex Discrimination Act, including the removal of exemptions for church-based aged-care facilities.
The whole history of the progress of the bill has been one of lack of any real consultation, lack of publicity, lack of transparency and unseemly haste by a government in its death throes determined to push through legislation that will have serious and far-reaching consequences for religious freedom in Australia.
Terri M. Kelleher is Victorian president of the Australian Family Association.