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Positive “line in the sand” drawn for religious freedom in new report that could influence law for the next 20 years: lawyer 

NEWS | Kaley Payne

Wednesday 16 March 2016

Religious freedom has been affirmed in a new report in a way that “draws a line in the sand” for future discussion, according to a Christian lawyer and religious freedom advocate.

The 600-page report, published this month by the Australian Law Reform Commission found that there was “no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, especially given the existing exemptions for religious organisations.”

Mark Fowler, a lawyer in Queensland and chair of CLEAR International Australia Ltd (a group linking state-based Christian lawyers’ associations) says the finding “impliedly refutes” the suggestion from many submissions to the Commission that exemptions from anti-discrimination laws for religious institutions should be abolished.

Commonwealth anti-discrimination laws make it unlawful to discriminate against a person on the basis of a person’s personal attributes, such as their sex or sexual orientation. Whilst the precise particulars differ across jurisdictions, generally exemptions exist for religious organisations and religious educational institutions where the discriminatory act or conduct “conforms to the doctrines, tenets or beliefs of a religion.”

Public discussion in recent years about whether exemptions to anti-discrimination legislation should be rolled back have been widely refuted by religious organisations.

“We’re talking about the rights of faith-based schools to choose teachers in accordance with their doctrine, or the rights of faith-based service providers, like community-based service providers, to employ people who are from a faith-based background,” says Fowler.

“By saying that there is no significant encroachment on freedom of religion given the existing exemptions for religious organisations, [the ALRC] is suggesting that without those exemptions there would be encroachment. That’s a very important finding. It basically refutes the calls for the removal of the exemptions.”

The report also noted a degree of community concern on religious freedom encroachments, and recommended that future reform efforts should continue to acknowledge religious freedom rights. Fowler says both statements refute any suggestion of winding back anti-discrimination law exemptions.

“This is a very important line in the sand. This report could define the way the law goes for the next 20-30 years, and we’ll be able to refer back to this report and its findings.”

The ALRC report also highlights an “alternative to the current religious organisation exemptions”, quoting a joint submission from Professor Patrick Parkinson AM from the University of Sydney and Professor Nicholas Aroney from the University of Queensland, which observed that “anti-discrimination laws may diminish freedom of religion is ‘freedom of religion is respected only grudgingly and at the margins of anti-discrimination law as a concessionary ‘exception’ to general prohibitions on discrimination.’”

The alternative is a ‘general limitations clause’ that would clarify that conduct which is necessary to achieve a legitimate objective, including freedom of religion, and is a proportionate means of achieving that objective, is not discrimination.

Fowler says the inclusion of such a possibility in the ARLC report, after years of discussion, could offers a “legitimate alternative” and a significant step forward.

Not good news for Christian bakers who wouldn’t bake a cake for same-sex weddings

According to Fowler, the ALRC report, while being on the whole a positive outcome, still had some concerning findings.

In particular, the report did not recommend that freedom of religion exemptions to anti-discrimination laws should extend to the provision of goods, services and facilities by individuals and businesses.

The Report referenced the concerns of several Coalition members in their dissent to the recent Parliamentary Joint Committee on Human Rights’ report into the Warren Entsch Same-Sex Marriage Cross Party Bill. The joint committee’s role was to report on the bill’s compliance with international human rights instruments, and the dissenting Coalition Senators found that the Cross Party Bill was inconsistent with the religious freedom rights of civil celebrants and service suppliers under international law.

However contrary to the Coalition members’ dissenting report, the ALRC found “It is not clear that freedom to manifest religion or belief should extend to refusing to provide, for example, a wedding cake for a same-sex couple. Protecting individuals from discrimination in ordinary trade and commerce seems a proportionate limitation on freedom of religion,” the report reads.

Fowler says that arguably this does not reflect Australia’s obligations under Article 18 of the International Covenant on Civil and Political Rights, which extend religious freedom beyond religious institutions to individuals and corporations.

Most of Australia’s existing religious freedom exemptions in anti-discrimination law only extend to religious institutions. The ALRC report maintains that position.

Divorcing church and state in marriage debate 

The ALRC report has suggested that reforms to clarify or more clearly separate the civil act of marriage from the religious act of solemnising marriage “may be desirable”.

“Religious celebrants could cease to be, in this sense, agents of the state, and able to dedicate themselves to religious rites unburdened by state imposed administrative duties – fully separating church and state,” the report reads.

Fowler says the suggestion would move Australia to a system like the French Civil Code, where parties go to a state-sanctioned registrar for the legal marriage, and can opt for a religious marriage the following day, though it has no legal effect.

In the continuing debate about legislating same-sex marriage, this suggestion would allow “the church to only offer the version of marriage that accords with their doctrine. This of course remains a contentious option for many who support a traditional view of marriage.”


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