February 15, 2018

Australian churches and their institutions are generally legally free to hire and fire on religious grounds regardless of anti-discrimination law

The article below by Brian Morris deplores that. It is said to be based on a Religious Freedom Review submission by NSW barrister, Dean Stretton. Something has got lost along the way, however, as the article is founded on a belief that is wrong at law. He says "the constitution was framed on secular principles, with the foundational concept of separation between Church and State."

That is utter rubbish.  The separation of church and State is not even in the American constitution, though it has been read into the anti-establishment clause of the 1st amendment.  But nothing like that exists in the Australian case because our head of State, the Queen, is also head of the Church of England.  In her person, the Queen embodies both the church and the State. Try to split that up! So the claim that Australia should be wholly secular is without legal foundation.  It is just the preference  of the writer

And in the end it all comes down to politics.  The churches believe that their mission requires certain freedoms from restrictions and they have the political heft to ensure that they get those freedoms from the politicians.  Enough people believe in freedom of religion to ensure that the politicians go along with it.

Australians are for the greatest part happily secular but they are not dogmatic about it.  They are happy for Australia to be only partly secular.  "One size fits all" is a great Leftist prescription in the simple-minded tradition of Procrustes but not everybody is trapped in that rigid mindset.  Australians can allow exceptions to even a generally good rule where circumstances seem to warrant it.


Quite remarkably, a public majority will be unaware of the likely impact of Prime Minister Turnbull’s decision to empower the Religious Freedom Review. Few will grasp its social implications. Some may recall the PM appointing Philip Ruddock to head an ‘expert panel’ to take public submissions on ‘religious freedom’ — and to identify freedoms believed “lost” when same-sex marriage was legalised.

On 31st March, Ruddock will recommend to parliament measures to restore those “lost” freedoms.

For most, this rather solemn-sounding review will be seen simply as one more political committee — with Ruddock sifting through a few submissions to appease Christians, Muslims, and other faiths who continue to feel aggrieved about gay marriage.

But fundamentalists of all faiths see this as a rare opportunity to win new concessions. One has only to view the Australian Christian Lobby (ACL) website, with its 15-point rallying cry for devout Christians to swamp the Review with submissions.

Indisputably, religion asserts its current raft of freedoms through exclusive exemptions from Australian law. They are privileges not accessible to the 78 per cent of citizens who believe the constitution was framed on secular principles, with the foundational concept of separation between Church and State.

Under federal law, protection of ‘religious freedom’ and legal exemptions include: the Fair Work Act; Migration Act; Age Discrimination Act; Sex Discrimination Act; Evidence Act; and Section 116 of the Constitution. And religions pay no tax under the Charities Act and Tax Act — based on the sole criterion of “Advancing Religion.” International and State laws double this list of entitlements to all faiths!

Here’s the problem. Religion is now, collectively, one of the largest employers in the nation. Private religious schools currently enrol close to 40 per cent of all children — that alone is a huge workforce. Include, too, all the private hospitals, aged care facilities, employment agencies, charities, shelters, and a raft of commercial enterprises, and the total number of religious employees is staggering.

Church institutions are already free to “hire and fire” on the basis of sex, sexual orientation and marital status. Without question, submissions to the Ruddock Review will call for further entitlements to discriminate in employment in favour of the faithful — the Australian Christian Lobby website makes that clear. The truth is that most of the duties performed are not religious in nature — they are secular.

Ironically, these religious institutions will argue vigorously that it should be illegal to discriminate against them — because of their religious beliefs — but in the same breath insist they should be given further employment entitlements to discriminate against people who do not share those beliefs!

Certainly, it is fair to say many roles within private religious enterprises require training suitable to their ‘mission’. Those engaged in overt religious practice, in pastoral care, theological positions, and for advocacy, will need to meet church criteria. But for the majority of ‘secular’ positions, employment opportunities should not be barred to those who do not meet their strict standards of biblical faith.

It would be wrong for the Religious Freedom Review to extend faith-based exemptions for secular positions in education, health or social services. In fact, exemptions should be wound back for all ‘public services’ run by religious organisations.

These exemptions are not a matter of genuine religious freedom, because there is no religious law or doctrine that requires its followers to run education, health or social service facilities! Our constitution rejects a ‘religious test’ for public office; why not also for secular roles in ‘publicly funded’ religious enterprises?

If religious adherents cannot follow laws that apply to all other citizens — and without privileged legal exemptions — they should consider withdrawing from those activities and focus solely on their beliefs and religious worship. One clear example is private religious schools which are free to discriminate against secular employees, while the institutions are publicly funded to the tune of $12.8b.

Religious exemptions undermine our secular constitution; they weaken the basic rule of law that must apply to all people; and they deny the non-religious the right to their own beliefs. Why do we give exclusive entitlements to people of faith when all religion is purely a matter choice? Believers are not compelled to believe — particularly when “doubt” is uppermost in the minds of many. Every religion cannot, by pure logic, be equally true. It raises questions for people of faith to contemplate.

Special entitlements, based on arbitrary faith, are necessarily problematic. Such privileges should be equal to all — or to none. However, there seems little doubt the Ruddock Review will make a number of recommendations to parliament, to rectify the perception of “lost” freedoms.

We can only trust parliament does not acquiesce to further religious entitlements. Indeed, the process needs to be reversed — specifically for non-theological positions in faith-based institutions funded by taxpayers. The level of religious privilege and authority is already inappropriately high — in a nation that claims to be a secular democracy.

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