The Institute for Civil Society made the following submission to the Review Panel on Religious Freedom in February 2018. A PDF of the submission can be found here, including full references and appendices.

SUBMISSION TO THE REVIEW PANEL ON RELIGIOUS FREEDOM

Recommendations:

1. A general statutory limitation on government (Federal, State, Territory and local) interference with religious freedom based either on the US Religious Freedom Restoration Act 1993 or on Article 18 of the International Covenant on Civil and Political Rights.
2. Religious belief and conduct should be made a protected attribute under federal anti-discrimination law
3. Lift the bar on vilification laws for reasonable expression of genuine religious beliefs regarding morality of conduct
4. Protect religious associations from anti-discrimination rules which prevent them from applying a religious values filter and conduct filter in employment decisions and, if feasible, extend this to non-religious associations whose mission is to represent a worldview and way of life of a non-religious community to the public
5. Give parents the right to have their child excused from that part of school classes which is antithetical to the religious and moral convictions of the child’s parents (as does the NZ Education Act).
6. Enact specific protections for persons and organisations and charities who hold, express or act on specified beliefs in favour of man-woman marriage, but not protecting any conduct which is discrimination contrary to the Sex Discrimination Act or conduct which threatens or harasses persons because of sexual orientation etc. The occasion for calling this inquiry was the debate about protecting freedom of religion and belief of those who remain opposed to same sex marriage (approximately 4.9 million Australians voted No in the national postal survey). The ALP voted against amendments proposed in the Parliament intended to protect those freedoms on the basis that those amendments and the issues they raise would be considered in this Inquiry. We recommend consideration of the following proposals.
   1. That an anti-detriment shield be created as a legal protection against unfavourable treatment initiated by a public authority or by a person acting on the request or requirement of a public authority against persons and entities because the person or entity holds, expresses (or in some cases acts upon) specified genuine religious or conscientious beliefs in favour of man-woman marriage However, this provision would not create any shield or protection for such persons or entities any conduct which is discrimination contrary to the Sex Discrimination Act or conduct which threatens or harasses persons because of sexual orientation etc
   2. that a person or entity cannot be required to express or publish or endorse or promote a statement or opinion in favour of same-sex marriage which is contrary to their genuine religious or conscientious belief.
   3. that governments cannot decline to provide funding, impose conditions or withdraw funding from an individual or entity solely because that individual or entity holds a relevant belief.
   4. that charities that hold a relevant belief will not lose their charitable status as a result of the changes to the Marriage Act permitting same sex marriage, as has happened in some other countries.
   5. that bodies established for religious purposes and educational institutions established for religious purposes may perform acts consistent with a relevant belief.

7. Create an office of a federal Religious Freedom Commissioner

Part One: The State of Religion and Spiritual Belief and Religious Freedom in Australia

From the first human settlers, spirituality and beliefs in the transcendent and supernatural which guide human lives has been part of human society in Australia. British settlement in the eighteenth century then imported the Christian religion, the developing concepts of freedom of religion and belief, the legacy of the Reformation and the legal tolerance of most forms of Protestant Christianity, along with Enlightenment thought including both religious tolerance and the seeds of secularism. Catholic Christians obtained legal emancipation through the nineteenth century. Migration, especially in the twentieth and twenty-first centuries, has brought many different religions to Australia. Secularising influences have led to an increase in the number of Australians who either have no religious belief or have spiritual beliefs but do not identify with an organised religion.

Today, Australia is a pluralist society made up of those who identify with a particular religion, those who have spiritual beliefs that are not tied to an organised religion and those who have no spiritual beliefs. The 2016 census identified that 52.1% of Australians classify themselves as Christian (22.6% identifying themselves as Catholic and 13.3% as Anglican). Another 8.2% of Australians identify themselves as followers of non-Christian religions (making a total of 60.3% who identified as affiliated with a named religion). 30.1% categorised themselves as having “No religion”. The ABS defined ‘No religion’ as equivalent to ‘Secular Beliefs and Other Spiritual Beliefs and No Religious Affiliation’.  Thus, it is not clear how this group divides among atheists, agnostics and those with spiritual beliefs but who do not affiliate with a named religion. Just under 10% did not answer the question.

An increased hostility toward religion among cultural elites

These figures from the general population do not seem to reflect the attitudes and increasing suspicion of, or hostility to, religion among many Australian cultural elites. There are several causes for this. Some are discussed below.

Secularism

The word “secular” relevantly means “concerned with the affairs of this world,” or “not connected with religion or spiritual matters.” It does not mean opposed to religion.

Australia is and has been a secular state in the sense that:

1. The institutions of government are not tied to or controlled by a particular religion or influenced by a particular religion (other than through the normal representative democratic processes);
2. the institutions of government do not control any religion or prefer one religion over another;
3. the State is neutral as to religious truth claims and to the claim that there is no God or transcendent, non-material reality, but is not hostile to religious belief or non-belief and supports and accommodates and protects the freedom of its citizens and their communities and associations to hold and express and live by their religious belief or non-belief.

The Australian polity has developed, both legally and socially broadly in line with this understanding of a secular state. It has not followed the model of the USA where, since the 1940s, the US Supreme Court has required a strict separation of church and State in the sense of no government support for religion (although the Court has backtracked on that position in many cases).

Part of the success of Australia as a multi-cultural and multi-religious country has been its ability to allow the expression of a range of religious beliefs by individuals and communities and their organisations supported on a non-preferential basis by government. For example, in Australia government funding supports private schools and tertiary institutions run by religious organisations on an equitable basis with other private non-religious institutions. Government supports religious bodies and religious and non-religious charities with tax deductions. Government schools have long allowed religious education to be provided by external volunteers to students whose parents approved such instruction. Government contracts with religious welfare agencies to deliver welfare services for government.  Section 116 of the Commonwealth Constitution prevents the Commonwealth from making a law prohibiting the free exercise of any religion or requiring a religious test for public office or for establishing any religion (as the national religion), but allows the Commonwealth to support religions on an equitable basis among themselves and with secular activities.

A good example of this principle is found in the 1981 case of AG (Vic) ex rel Black v The Commonwealth, in which the High Court held that federal government funding of religious schools on the same basis as funding to non-religious private schools did not violate that part of section 116 of the Constitution which provides that the Commonwealth must not make any law for establishing any religion. The Court held that section 116 did not erect “a wall of separation between Church and State”, a phrase from Thomas Jefferson which the US Supreme Court had held was implied by similar words in that country’s Constitution’s First Amendment.

More recently there are attempts to redefine a secular Australian state on what might be called secularist terms. Charles Taylor, in his widely-revered book A Secular Age, refers to a number of ways in which the idea of “the secular” (or what he calls “secularity”) can be understood. One is that public spaces are emptied of God or “any reference to ultimate reality.” Taylor perceives this emptying as happening in any number of different ways, not merely in “the public square” or political life. But this idea that the religious should be absent from public life in particular has gained widespread currency in the last 60 or so years. We perceive this to be a perverse understanding of the relationship between religion and public life, an understanding which often goes by the name of “secularism.”

Secularism is well described by Hunter Baker when he writes that it sees the public square as “a neutral space in the polity benevolently keeping religions from dangerous, disharmonious, and potentially oppressive activity.” Secularism is, according to Baker, “much more than a formal financial and legal separation of church institutions from state institutions”. It is, rather, “a way of living together in community that emphasizes clean conceptual boundaries over organic beliefs and traditions.” Secularism is, put very simply, the conviction that people’s religious beliefs ought to be restricted to their private lives: “Individuals and subcommunities may believe fervently, but that is not something to impact public business or our professional lives.”

The promotion of this very different (and in our view very wrong) understanding of the relationship between religion and public life over the past number of decades has shifted the tone of public discourse considerably. Secularists have, whether deliberately or not, promoted disdain for, and hostility towards, religion in the public square. And secularism has become increasingly assertive in public education, the media, political parties and the public service in Australia. Some of the examples in Part 3 are instructive. State education department bureaucrats in Victoria and Queensland were not content with policing the role of  religious volunteers in delivering optional religious instructions but have sought to restrict the religious freedom of state school students to discuss religion and even bring religious texts to school.

When proponents of secularism (once again, not to be confused with the secular non-discriminatory support model of section 116 of the Constitution) claim that Australia is a secular country or state, what they often mean is that our state and federal governments should provide no assistance or support of religion or religious people or religious belief or positions grounded in religious belief at all. In short, according to the secularist, the State ought to be opposed to connecting religion to any aspect of public life and the public square.

Under secularism, there should be no support of religious schools by government, no preferential tax treatment for religious bodies, and no religious teaching in government schools even to students whose parents have agreed in advance to their children receiving such teaching. More strident forms of secularism seek to exclude all religious views from the public square simply because they are religious and are presumed to have nothing of value to say to rational, secular people. This line of argument was commonly deployed in the recent euthanasia debate in Victoria.

We would maintain that this understanding is not only unhelpful, but also does not cohere with the framework laid down in the Australian Constitution. That framework is one which is intended to ensure equal treatment of all religions, and of all people regardless of their religious belief or lack of religious belief. The secularist framework argues for something quite different, and this is contributing to a political and social environment which is quite hostile to religion and religious believers. This has manifested itself in various ways.

Proponents of some modern agendas in conflict with traditional religions

Over the last 40 years, some progressive agendas (for example, abortion on demand and same sex marriage) have been successfully prosecuted by their proponents over the opposition of many traditional or conservative Christians, Jews and Muslims (but not all members of those religions). This has led to significant conflict between some progressive groups and some more traditional religious groups and an increase in hostility towards those traditional forms of religion by some progressives in public education, the media, political parties and the public service.

The prime example of recent times is those who are in, or who support those in, same sex sexual relationships expressing hostility to those religious individuals, organisations and schools which continue to hold to the traditional view that a sexual relationship should only be between a man and woman within the confines of marriage. The disagreement and hostility arise from many sources, including emotional hurt from a sense of affront to dignity and a sense of rejection. Behind this lies a clash in broader meta-beliefs– whether there are transcendent absolute truths, whether everything is permissible as long as it does not hurt others, whether anyone is entitled to criticise another’s lifestyle choices and whether it is possible to respect a person without accepting an aspect of their personhood and conduct which they consider crucial to their identity

A high-profile victim of this hostility is Tim Farron, former leader of the UK Liberal Democrats. Farron felt compelled to resign in June 2017 when journalists kept pursuing him over his views as a Christian on same sex relationships, gay marriage and abortion, which overshadowed his attempts to advocate his party’s platform. He said:

To be a political leader – especially of a progressive, liberal party in 2017 – and to live as a committed Christian, to hold faithfully to the Bible’s teaching, has felt impossible for me…  I seem to be the subject of suspicion because of what I believe and who my faith is in. In which case we are kidding ourselves if we think we yet live in a tolerant, liberal society.

Other causes of hostility

The scandal of cover-ups of child abuse in some religious institutions has dented the respect of many Australians towards those institutions and has certainly been a potent and legitimate source of attack for their opponents.

Finally, concerns about some expressions of Islam, such as the different dress and role and treatment of women in traditional Islam compared with Western social norms, and radical Islamism promoting terrorist acts, has led to a suspicion of, or hostility towards, Muslims in Australia.

The net effect has been an increased suspicion of, or hostility to, religion, which has provided the context for some significant incursions into religious freedom.

The above is not to suggest that religious individuals and organisations are never hostile to those with secularist, relativist, or hedonist worldviews. At times they have also resorted to abuse, mockery and other inappropriate behaviour. However, in general, religious individuals and organisations are much less likely to resort to legal complaints and remedies than their opponents. To the extent that hostilities manifest in legal action, those with traditional religious beliefs find themselves on a very uneven legal playing field. Traditional religionists are in a minority (albeit sometimes a large minority) in the public debate on many issues of sexual and relationship morality. They lack significant legal protections of freedoms of religion and belief while most of their opponents on issues to do with sexuality enjoy many legal rights through anti-discrimination law (which protects the attributes of sexual orientation and lawful sexual activity) and anti-vilification laws. So traditional religionists find the law is more often used as a means of lawfare against them, resulting in the legal suppression of the expression of their religious worldview rather than affirming their freedom to speak and act consistently with their religious convictions.

Threats to Religious Freedom in Australia

In modern Australia, religious freedom is not widely threatened by sectarian conflict between religions. However, there are significant examples of social hostility to Islamic people and practices in some places including opposition to the building of mosques and violence in both directions.

Religious freedom is also not widely threatened by any blatant restriction on worship or religious observance in private or in religious communities.

Beside the important issues of hostility to Muslims and the threat and reality of radical Islamist terrorism, we consider that the broadest threat to religious freedom comes from a range of efforts by those hostile to traditional religious views to discourage people and organisations with those views from expressing them outside the private sphere and to minimise or eliminate any serious consideration of such views in the public square.

We consider that some of the current threats to religious freedom include the following. Specific examples where these threats have materialised into interferences with religious freedom are set out in Part 3.

1. The use of education policies, workplace policies, contracts or commercial or social pressure, or the use of legal processes to silence or stop the expression of, and acting on, religious views by religious individuals and organisations outside the purely private sphere where those views conflict with secularist agendas.
2. The exercise of discretion by governments and public authorities (including public education authorities) to exclude religious voices and practices from their domains or to discriminate against them in funding and in the provision of economic and other benefits where the religious views or practices conflict with progressive agendas.
3. The use of low-bar vilification laws which make conduct unlawful if it is reasonably likely to insult or offend a person on the basis of a protected attribute to stifle the expression of religious views about a protected attribute, even if the view is expressed in a reasonable and moderate manner. This has been done in three complaints under Tasmania’s low-bar vilification provision in its Anti-Discrimination Act. Effectively, this use of anti-vilification laws turns a disagreement (e.g. as to whether adultery or homosexual sexual conduct is morally right or wrong) into a legal weapon to silence an opposing viewpoint in public discourse.
4. The use of anti-discrimination law complaints to force religiously motivated organisations to disregard the conformity of a person’s belief and behaviour to religious precepts when making employment decisions about officers, staff or volunteers. This is a particular issue for religious schools and ministry and welfare organisations which do not meet the test of a body established for religious purposes in anti-discrimination law “exemptions”.
5. The use of anti-discrimination law complaints to force religiously motivated organisations and individuals to act contrary to their religious convictions or be made liable for discrimination against others (e.g. in relation to supplying goods or services to a person on the grounds of the broadening class of protected attributes such as lawful sexual activity, sexual orientation, gender identity and intersex status). These cases require a careful balancing of rights of the person with the protected attribute and the religious person or organisation. But too rarely in such complaints is there an acknowledgement that the religious person or organisations would also be discriminated against if forced to act contrary to their religious convictions as well as having their freedom of religion impaired.
6. Add to items 4 and 5 the relentless campaign to remove or wind back religious “exemptions” from anti-discrimination legislation which provide balancing protections for religious freedom. The result of that campaign, where successful, is to expose more religiously motivated conduct to complaint and public shaming and correction.
7. The failure in domestic law to guarantee parental rights to ensure the religious and moral education of their children in accordance with their religious convictions. And this, despite the fact that this is an international human rights obligation to which Australia is a party (e.g. International Covenant on Civil and Political Rights (ICCPR), Article 18(4)). Most prominently, some of the content of the Safe Schools program has raised significant parental concern but, other than removing their child from government education and paying for private education, parents have no ability to enforce this right. The States cannot be relied on to implement ICCPR Article 18(4). For example, the Victorian Government funds its own Safe Schools program which it will roll out to all State high schools this year. Section 25A of the Education Act 1989 (NZ) gives parents a right to have their child excused from attending that part of classes where material is to be taught which is antithetical to the religious and moral convictions of the home. A federal law providing this right would be a reasonable and useful implementation of ICCPR Article 18(4). In practice, it would parallel the right given to parents to have their child excused from attending religious instruction classes in government schools.
8. The threat to religious charities’ charitable status and hence tax exemptions if they pursue policies or advocate for positions which are contrary to new progressive social norms (such as same sex adoption or marriage) as shown by cases in England, New Zealand and the USA.

We also adopt the detailed analysis provided by Freedom for Faith in its submission of the current challenges to religious freedom. We also adopt the detailed analysis supporting the need for religious freedoms for individuals and organisations holding traditional marriage beliefs contained in the Appendix in the Supplementary Explanatory Memorandum to the five amendments proposed to be made to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 and we ask the Panel to give that Explanatory Memorandum and the amendments its careful consideration.

The Need to Build True Tolerance in the Culture Including Through Balanced Legal Protections of Freedom of Religion

With increasing pluralism in Australian society comes increasing awareness of the differences among us as individuals, groups and sub-cultures, leading to discomfort and anxiety.

In Australia, we are struggling with how to discuss these deep differences with each other privately and in the public square, how to negotiate the differences where public decisions may or must involve a choice between them and how to live together before, during and after such decision without hostility in a civil society.

A too common approach is to go to war – to win the battle on the issue of the day outright– and to do so by demonising opponents and opposing views rather than rather than acknowledging that they may have some valid points to be negotiated and that they have the right to disagree.

A significant problem is that such wars don’t necessarily end, even when there is a democratic decision on the issue. Too often, the war footing carries on and for some winners the losing view (and the losers) must be excluded forever, at least from the public square. Some religious people have done this in the past to their opponents; today, religious people are in a practical democratic minority on some issues and feel it is being done to them. But regardless of who is the victor on the issue, the consequence of a “my way or the highway” exclusion of the opponent’s views from the public square will be to increase division not eliminate it. All of us need to resist the temptation to live in a social tribe and a social or mainstream media chamber where only one or a few views on an issue are “right” and continually reinforced.

“True tolerance” and diversity in a civil society requires that each of us accept that:

• other Australians have the right to be wrong in my eyes; and
• I have an obligation to defend other Australians’ right to be wrong in my eyes rather than to ridicule, dismiss or exclude them or their views.

Attaining that true tolerance in a civil society will require our political, civic, religious, media and education leaders to make civil discourse and respect for those with other views a priority in education and in public debate and discussion, and to model it in their leadership (rather than defining and immediately dismissing views they do not like as “hate speech” or “extremism” from the “loony left” or “far right”).

In the context of this inquiry, attaining true tolerance will also require better legal protection of freedom of religion in Australian law which applies at all levels of government. Otherwise, the forces pushing to restrict religious freedom to express unpopular views can operate unhindered by legal restraint.

Re-establishing freedom of religion for all (including the freedom to hold no religious belief) as a prime cultural value is a key element on the road to true tolerance.

Legal protections alone will not create a culture which values freedom of religion, and will not produce true tolerance. It needs to be a cultural value or a “habit of the heart”. But as the Freedom for Faith submission demonstrates, the state of legal protection of religious freedom in Australian law is poor, so legal protections are, nonetheless, part of the solution.

Part 2 of this submission proposes reasonable legal protections for freedom of religion and belief in federal law, carefully balanced to protect the human rights of other Australians (including same sex oriented Australians), which, for the first time, would see Australia fulfil its international commitments to protect the human right of freedom of religion and belief expressed in Article 18 of the ICCPR and in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief of 1981.

Part Two: Proposed Forms of Religious Freedom Protection

Several forms of legal protection for religious freedom in federal law are recommended. These will need to bind States and Territory governments and the federal executive. They could be included in a federal Religious Freedom Act.

I. A general statutory limitation on government (Federal, State, Territory and local) interference with religious freedom

Option 1 – use ICCPR Article 18 as a starting point

This could be based on Article 18(1) to (3) of the ICCPR, which provides:

• That everyone shall have the right to (inter alia) freedom of religion;
• That this right shall include: the freedom to have or to adopt a religion or belief of one’s choice and the freedom, either individually or in community with others and in public or private, to manifest one’s religion or belief in worship, observance, practice and teaching;
• That no one shall be subject to coercion which would impair their freedom to have or to adopt, or to refuse to have or adopt, a religion or belief of their choice;
• That the freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

If this model is followed, it is important to remember that Article 18(3) is one of only a few non-derogable rights (not suspendable in emergencies) and to retain the Article 18(3) strict wording that any permissible limitations on the freedom must be prescribed by law (not executive discretion) and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

By contrast, the Charters of Rights in Victoria and the ACT permit “reasonable limitations” on all rights, which gives interpreters much more flexibility to permit incursions into religious freedom.

We readily concede that no human right, including religious freedom, can be absolute. Accordingly, it must yield to certain limitations. However, broadly worded limitations, while unavoidable when included in a human rights instrument, need to be delineated in order to avoid definitional inflation in their application. Thus, considerable care should be taken to confine the concepts of “public safety, order, health or morals” so they are not given an expansive meaning which undermines the protection of religious freedom.  We therefore recommend that the legislation address each limitation referred to in Article 18(3) as follows.

Public safety

The most obvious and uncontroversial application of this limitation on freedom of religion is where the expression of one person’s religious belief would cause physical harm to another, an extreme example being a terrorist attack undertaken in the name of religion. However, the problem with this qualification is that the reference to safety can be deliberately (and in our view improperly) extended to include feelings of well-being, affirmation and belonging. If so, any expressed religious viewpoints that evoke feelings of unbelonging, unease or rejection among sections of the community becomes amenable to being characterised as a threat to public safety. The following examples illustrate our concern:

• during the same sex marriage debate it was commonly asserted that to express a view against same sex marriage was to jeopardise the mental health of persons in the LGBTIQ community, an outcome for which the speaker should feel responsible (see also examples in Part Three of Darebin Council, the IT manager who was sacked because his temperate statement of his religious views on homosexual relations allegedly created an “unsafe” workplace and the Australian university student who was suspended for making a fellow student feel unsafe by expressing (when asked to do so) his religious understanding of homosexual relations);
• The Communications, Electrical and Plumbing Union initially pressured Australia Post not to deliver “No” campaign material because its mere presence in their mailbag would traumatise posties who do not hold that belief;
• The banning of the Christian Union from the “freshers fair” by student leaders at Balliol College at Oxford University (refer example in Part Three);
• The increasing use of trigger warnings by universities in western countries to protect students from “unsafe” speech could be used to prevent people from expressing religious views.

While we understand that extreme bullying behaviour can drive people to suicide, we are concerned that the notion that religious persons should be held responsible for the reactions of those with whose views or lifestyles they have simply expressed disagreement might be used to sustain an argument that religious freedoms must be curtailed in order to protect public safety.

Public Order

If the manifestation of a particular person’s religious beliefs is creating a public disorder or disturbance, then this may justify the imposition of a restriction on the manifestation of such a belief. However, “public order” should not be used to justify bans on street preaching or prayer meetings in public places (such as within 500 metres of an abortion or euthanasia clinic), particularly where the disturbance might emanate from those seeking to shut down the expression of those beliefs.

Public Health

In principle, public health is a legitimate limitation on freedom of religion. We would concede, for example, that it should mean that there should be no female genital mutilation or no ability on the part of parents to refuse a life-saving blood transfusion to a child who is not Gillick competent and therefore is unable to make the decision for himself or herself. However, as is the case with public safety, the concept of public health is liable to be construed too broadly, to the extent that it overrides freedom of religion in circumstances where it should not. For example, does the concession to public health mean that Jewish parents should not be permitted to have their baby boys circumcised in case the surgery has complications? Is it a threat to public health if parents, on the basis of their religious beliefs, refuse to encourage their child to transition to a different gender?

Morals

This limitation on the freedom to manifest one’s religious beliefs may be so contentious as to lack meaning. It assumes that certain morals are shared by the public and that courts are able to recognise and articulate those morals and justifiably subordinate religious freedom in order to preserve them.

Fundamental rights and freedoms of others

This limitation acknowledges that the manifestation of one person’s religious beliefs is capable of infringing on other persons’ fundamental rights and freedoms (as set out in the ICCPR). It is possible to envisage circumstances where this might clearly be the case. However, the vagueness of the terms would permit a court which was so disposed to use this limitation to chip away at freedom of religion. Accordingly, we suggest that a Religious Freedom Act spell out in greater detail the ambit of this limitation, and use the ICCPR as the touchstone for what are fundamental rights and freedoms. We suggest that parliament only permit this limitation to be invoked where the manifestation of a person’s religious belief in practice prevents another person from enjoying or exercising their fundamental rights and freedoms.

Option 2 – use the US Religious Freedom Restoration Act 1993 as a starting point

Another and perhaps superior model is to prohibit government action which substantially interferes with religious freedom unless it pursues a class of compelling other goals and is no more restrictive of religious freedom than is necessary to achieve those goals. The US Religious Freedom Restoration Act of 1993 provides a possible model. This Act was a bipartisan measure approved by liberal and conservative lobby groups and achieved near unanimous support in the House of Representatives and the Senate. Section 3 provides:

(a) In General.–Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Exception.–Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial Relief.–A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.

This law should bind the Commonwealth, State and Territory governments and public authorities. To bind the States, it would need to be enacted in reliance on the external affairs power.

II. Religious belief and conduct should be a protected attribute under federal anti-discrimination law

Genuine religious belief and conduct which conforms to a person’s genuine religious belief should be a protected attribute under federal anti-discrimination law. This is not limited to religious observance, but should also cover lawful conduct which the person genuinely believes is required by, or conforms to, their genuine religious beliefs.

Religious belief and conduct is not a protected attribute under federal, NSW or South Australian anti-discrimination law. It should be added as a protected attribute in federal anti-discrimination law.

III. Lift the bar on vilification laws for reasonable expression of genuine religious beliefs regarding morality of conduct

The federal Parliament should provide that the expression of a genuinely held religious belief about the morality or propriety of any conduct, in a manner which does not intimidate, incite violence or hatred against, or threaten the physical safety of a person or group of persons, is not unlawful under a federal, State or Territory law prohibiting the vilification of persons.

IV. Protect religious expressive associations from anti-discrimination rules which prevent them from applying a religious values filter and conduct filter in employment decisions and, if feasible, extend this to non-religious expressive associations

Organisations which adopt and express a religious worldview and model that as the best way to live should be free to use the conformity (or otherwise) of a person’s beliefs and life to those of the organisation in their employment decisions (including regarding officers and volunteers) whether or not they are “bodies established for a religious purpose”.

The reason for this is that religious organisations need to be able to maintain their character as religious so they can represent and express their religious faith and worldview in their culture and endeavours. To do this they need to be able to employ people committed to the religious belief and way of life and not employ people whose beliefs or lives do not fit the religious faith and worldview. If they were compelled by anti-discrimination laws to employ people whose beliefs or practices were not compatible with the religion that would lead to internal cultural conflict and compromise the organisation’s ability to represent the religious faith and worldviews.

We consider this same freedom might be extended to other non-religious organisations whose mission is to represent a worldview and way of life of a non-religious community to the public. For example, political parties exist to represent and advocate for certain world views and policies of a community of people who are committed to that worldview. They are not and should not be required by antidiscrimination law to employ people who believe or live in a way that is contrary to the worldview the organisation represents.

This is an existential issue. It should be obvious that the ethos of an organisation will, over time, become compromised if it is not permitted to employ or to prefer to employ persons who adhere to its beliefs. Genuine diversity and plurality is promoted by the inclusion of this right. Diversity should not mean micro diversity within each organisation; true diversity is secured only if an organisation is able to express its own individual ethos, thereby providing different views and options to society. The same prerogative can (and is) applied to other organisations e.g.: political, sporting and environmental groups. It is a general prerogative which promotes freedom of association and therefore one which should also be possessed by both religious organisations and non-religious expressive organisations.

Effectively, this proposal is to provide a federal override of the operation of Commonwealth, State and Territory anti-discrimination law in limited circumstances in relation to some employment decisions. To bind the States, it would be enacted in reliance on the external affairs power.

V. Give parents the right to have their child excused from that part of school classes which is antithetical to the religious and moral convictions of the child’s parents (as does the NZ Education Act)

The international human right of parents to ensure the religious and moral education of their children in accordance with their own conviction (ICCPR Art 18(4)) should be protected. Currently, this human right is breached daily in Australian state schools through compulsory attendance at programs like Safe Schools.  The Federal Parliament should give parents the same right they have under the New Zealand Education Act, namely, to have their child excused from attending that part of a class which teaches material that is antithetical to their religious and moral convictions. In order to give this recommendation ‘teeth’ it will be necessary to confine controversial programs such as Safe Schools to specific ‘spaces’ in the curriculum rather than embed it throughout the curriculum.

To bind the States, this law would be enacted in reliance on the external affairs power and ICCPR Article 18(4) and other applicable international Conventions.

VI. Specific protections for persons and organisations who hold, express or act on beliefs in favour of man-woman marriage, but not protecting any conduct which is discrimination contrary to the Sex Discrimination Act or conduct which threatens or harasses persons because of sexual orientation etc.

The occasion for calling this inquiry was the debate about protecting freedom of religion and belief of those who remain opposed to same sex marriage (approximately 4.9 million Australians voted No in the national postal survey). The ALP voted against amendments proposed in the Parliament intended to protect those freedoms on the basis that those amendments and the issues they raise would be considered in this Inquiry.

Because those amendments deal with the protection of the expression of specific beliefs about the value of man-woman marriage, it is possible to be more detailed as to the protections needed for those beliefs compared with the more general protections of all genuine religious beliefs discussed in 1 and 2 above.

We recommend that each of those amendments put in the House of Representatives and the Senate to the Marriage Equality Bill and which attracted the support of a significant majority of Coalition MPs and the Ministry on a conscience vote should be considered by the Expert Panel for enactment.

Those amendments were originally contained in the Marriage Amendment (Definition and Freedoms) Bill 2017 which was withdrawn in the Senate and some of its content was put as separate amendments. (The amendment in that Bill which would have authorised suppliers of goods or services to refuse to supply a same sex wedding or related event was not put in either House). The amendments and the Supplementary Explanatory Memorandum attached as an Appendix to this submission also contain many useful definitions and interpretive provisions such as when a religious belief is to be treated as genuine and when a religious belief can be held by an organisation, and a discussion of the international and domestic law on religious freedom issues.

As summarised in the Explanatory Memorandum, the substantive amendments we propose the Panel consider are:

1. That an anti-detriment shield be created as a legal protection against unfavourable treatment initiated by a public authority or by a person acting on the request or requirement of a public authority against persons and entities because the person or entity:

• i. holds, expresses or acts upon a genuine religious or conscientious belief that marriage is between a man and a woman (‘relevant marriage belief’) in relation to matters such as employment, engagement as a contractor, education, supply of goods or services or economic benefits. (A relevant marriage belief is a genuine religious or conscientious belief that marriage is the union of a man and a woman to the exclusion of all others, voluntarily entered for life, and related beliefs that are constitutive, supportive or a corollary of that belief.)
• ii. holds or expresses a ‘relevant belief’ (note that there is no protective shield in relation to person or entity acting on a relevant belief unless it is a relevant marriage belief. A relevant belief includes a relevant marriage belief and a person’s genuine religious or conscientious belief that a same sex relationship is not consistent with their religious or conscientious conviction or that for most people gender is either male or female and related beliefs that are constitutive, supportive or a corollary of those beliefs.).

However these protections do not create any shield or protection for such persons or entities:

• to express their belief in a way that is reasonably likely in all the circumstances to threaten or harass another person or group on the grounds of sexual orientation, gender identity, intersex status, marital or relationship status or their family responsibilities;
• to engage in any conduct on the basis of that belief that would be unlawful discrimination under the Sex Discrimination Act against another person (e.g. on the grounds of sexual orientation, intersex status, gender identity, marital or relationship status or family responsibilities).

2. that a person or entity cannot be required to express or publish or endorse or promote a statement or opinion in favour of same-sex marriage which is contrary to their genuine religious or conscientious belief.

3. that governments cannot decline to provide funding, impose conditions or withdraw funding from an individual or entity solely because that individual or entity holds a relevant belief.

4. that charities that hold a relevant belief will not lose their charitable status as a result of the changes to the Marriage Act permitting same sex marriage, as has happened in some other countries.

5. that bodies established for religious purposes and educational institutions established for religious purposes may perform acts consistent with a relevant belief.

VII. A federal Religious Freedom Commissioner

We support the creation of an office of a federal Religious Freedom Commissioner in the form proposed and for the reasons set out in the submission by Freedom for Faith. Provided the holder of that office has a genuine passion for religious freedom, the existence of that office and its advocacy will keep religious freedom issues alive in the minds of departments and agencies, policy makers and the public.

Religious freedom issues can be forgotten or poorly understood in the development of laws and policies and in the administration of government. A recent example is the largely unrecognised impact that the Foreign Influence Transparency Scheme Bill 2017 would have had on Australian religious bodies and charities.  Because of its very broad drafting, it seems likely to catch Australian religious groups or individuals who receive funding from foreign entities or lobbying  material or requests or instructions from foreign entities and agree to or engage in influencing, communication, lobbying or donor activities. Thus it could cover policy submissions and lobbying by Australian religious groups using materials or funds from or in collaboration with an international branch of the religious groups (e.g. Anglican, Baptists, Seventh Day Adventists, Catholics, Eastern Orthodox, Latter Day Saints, various Islamic groups) and friendly foreign religious or religiously motivated groups (e.g. international mission agencies and aid agencies and lobby groups on issues such as anti-Semitism, women’s rights, euthanasia, abortion, religious freedom).

There is a limited exception in clause 27 for Australian religious bodies acting on behalf of foreign government entities to advocate for the religious beliefs or tenets of the religion of the foreign government entity. That will only assist those acting on behalf of the Vatican or Islamic governments like the government of Iran.

It seems that these implications for religious bodies and charities were not fully thought through. A Religious Freedom Commissioner could be a point of assistance and a point of critique to prompt such thinking through.

Part 3: Examples of Infringements of Religious Freedom And its Inadequate Protection in Australia and Other Western Democracies

The following examples illustrate our claim that religious freedom is under threat in Australia. We do not suggest that all of the examples should come within the purview of the law, but collectively, they reveal an increasing hostility towards some or all forms of religious expression.

1)      Australian university student suspended for making a classmate feel “unsafe” because he said he would show love to a gay friend but not agree with their lifestyle.

“Andrew” (a pseudonym) is a student at a large Australian university. He is also a Christian. That is what he told a classmate who spoke to him regarding their struggles with anxiety. He offered to pray for them, with their permission, which they granted.

Shortly thereafter, during a conversation to which the same classmate was a party, Andrew was challenged with the question, “What would you do if your friend was gay?” His response included statements to the effect that he would show love to them, but would not necessarily agree with what they were doing. Andrew was suspended from the university for at least one semester pending a review and had official disciplinary action recorded on his transcript for allegedly making his classmate feel unsafe. Lawyers affiliated with the Human Rights Law Alliance were able to represent Andrew in his negotiations with the university, ultimately securing a reversal of the decision which enabled Andrew to return to his studies without detriment.[1]

2)      Australia: Complaints against dissemination or preaching of standard Christian doctrine under Tasmania’s very broad provisions prohibiting causing offence or insult.

In Tasmania, a booklet outlining the Catholic position on same-sex marriage distributed by a Catholic Archbishop to parents of Catholic school students was held by the Anti-Discrimination Commissioner to be a possible violation of anti-vilification legislation.[2] The matter proceeded to a conciliation session but was eventually abandoned many months later by the complainant.

This is not an isolated incident. In Tasmania, complaints are current underway under the same law against Presbyterian Minister Campbell Markham and street preacher David Gee for expressing standard Christian teaching on homosexual relations and on marriage. Orthodox Jews and Muslims share the same teaching.

3)      Australia: Sacking for Expressing Traditional Religious Views

“Ryan” was the General Manager of a digital services agency in Victoria, which he grew substantially in sales, revenue, staff and operational maturity over a two-year period.  The team Ryan recruited under his leadership included members of the LGBTIQ community.

When challenged unexpectedly at work concerning the Safe Schools Coalition, Ryan explained that, while he did not want to see anyone subject to bullying, there were elements of the Safe Schools program that conflicted with his values, including the concepts of gender fluidity and the promotion of sexual diversity.  Ryan’s views were not tolerated by some in the workplace and he was summarily terminated from his role for allegedly creating an unsafe workplace through his comments.

Ryan was able to achieve a substantial settlement for his termination. However, if his case was one of demotion or unfair treatment short of dismissal, the Fair Work Act would not have helped him if his views were based on non-religious grounds.[3]  Even if his views were based on religious grounds he would not gave been protected under the anti-discrimination provisions in the Fair Work Act in NSW or SA because they only apply if the State anti-discrimination law protects that attribute (and NSW and SA laws do not have religious belief or practice as protected attributes, nor does any federal anti-discrimination law).[4]

4)     Australia: Sacking for saying it’s OK to vote No in SSM plebiscite

In Canberra a young woman contractor to Capital Parties expressed the view on her Facebook page that it was OK to vote no in the plebiscite. The business owner sacked her and said she did so because the contractor’s views expressed on Facebook showed she was a bigot and homophobe.

The young woman may have had no recourse under the Fair Work Act unfair dismissal provisions because she was a contractor. She may have had recourse under the ACT Anti-discrimination Act (again subject to the contractor point) if her views were based in religious conviction but would have had no protection if the events took place in NSW or SA.

5)      Australia: Campaigns to have employees sacked or to force them to resign from private directorships

In Australia, a social media campaign was waged to have Mark Allaby dismissed by IBM unless he resigned as a director of another organisation (the Lachlan Macquarie Institute) that was perceived to support traditional marriage. The basis for the campaign was that Allaby’s personal time role was inconsistent with IBM’s commitment to workplace diversity (meaning, in context, gay rights and same sex marriage). Mr Allaby resigned the directorship. Mr Allaby had previously resigned from the Board of the Australian Christian Lobby after a similar social media campaign was waged against him when he worked for PricewaterhouseCoopers.[5]

Following this, the Australian Charities and Not-for-profits Commission acceded to a request from the Australian Christian Lobby and the Lachlan Macquarie Institute that the names and addresses of their board members be removed from the public record on the grounds that publication “could endanger public safety”.[6]

A social media campaign was waged to have Dr Stephen Chavura dismissed by Macquarie University unless he resigned as a director of another organisation (the Lachlan Macquarie Institute).[7]

In the USA a similar campaign forced Brendan Eich out as CEO of Mozilla for donating his own money to a referendum campaign in favour of traditional marriage.

If Allaby or Chavura had been sacked by their employer in NSW, the Fair Work Act anti-discrimination provisions would not have assisted them because they only apply if the State anti-discrimination law protects that attribute (and NSW do not have religious belief or practice as protected attributes, nor does any federal anti-discrimination law).

6)      Australia: Campaign to have a professional deregistered for her views on same sex marriage

Dr Pansy Lai was the subject of a petition, which gained 5000 signatures, circulated calling for her deregistration as a doctor due to her comments about same-sex marriage and safe schools in a No campaign TV commercial.[8] The petition was subsequently removed from the GetUp website.

7)      Australia: Federal public servant disciplined for expressing concern about pressure to march in gay pride parade

“Chris” served in a Commonwealth government department for a number of years without incident. Chris felt pressure to affirm lifestyles that were contrary to his cultural convictions and heritage. Whilst happy to work with and befriend all people, Chris believed such matters to be ones of private practice and conviction.

After raising concerns about pressure to march in a “pride” parade and a refused request to unsubscribe from a “pride” email newsletter, Chris was not only officially warned once by the departmental discipline unit, but placed under a further investigation for suspected breaches of discipline. Lawyers were able to represent Chris in negotiations with the discipline unit which ultimately saw the investigation dropped and no further action taken.

Concerns remain over the nature of the policies that saw Chris disciplined.[9]

8)      Australia and USA – commercial boycotts of businesses because they expressed or supported the expression of a belief in traditional marriage

Coopers Brewing sponsored the Bible Society to produce a video of a civil debate between two politicians about same sex marriage. As a result, several commercial hotels announced their intention to boycotted Coopers Brewing and refused to buy their products because they believed views against same sex marriage should not be expressed. Coopers backed down and withdrew its sponsorship of that video.

The Say No to No campaign was a campaign to get Australian advertising and media industry professionals to refuse to work on No campaign communications because they will always be “harmful and homophobic”. 1,709 advertising professionals have committed to refuse to supply commercial services because they disagree with a position that is the law.[10]

In the United States of America, Chick Fil A was subject to commercial boycotting because of management’s views and donations supporting traditional marriage. As part of this boycott, local governments and universities refused to allow new Chick Fil A franchise licences.[11]

In 2016 numerous companies threatened to boycott or reduce services to, and employment in, the US states of Georgia and North Carolina, after these states tabled legislation seeking to expand religious freedom exceptions regarding same sex weddings. The companies involved included Disney, Intel, Coca Cola, Unilever, and others; as well as threats from the NFL and NBA to reduce or remove match scheduling, if the laws were passed.[12]

9)      Australia: Victorian Education Department Ministerial Direction and Departmental Policy severely restricted students’ religious freedom in Victorian schools

A Ministerial Direction MD141 – Special Religious Instruction in Government Schools – was made on 14 May 2014 under the Education and Training Reform Act 2006 (Vic). These purported to relate to regulating the 30 minutes per week of religious instruction that may be delivered by accredited providers in government schools: However, in an extraordinary overreach seemingly based on the fear or hostility towards religion of the Departmental policy makers, the Direction and accompanying Departmental Policy:

• Prevented the distribution or display by any person (including students) of any material at a school if that material had the effect of promoting any particular religious practice, denomination or sect. This would effectively prevent one student from showing or handing out to another student a Bible, Koran, Torah, or verses from these or other sacred texts, religious books, pamphlets, poetry, pictures, videos etc, or having on their desk or locker a diary with a Bible verse or religious image on it. It would even seem to have prohibited students advertising that a student religious group is meeting.
• Restricted the permitted activities of student-initiated religious groups in schools to personal prayer and excluded for example study or teaching based on the Bible or Koran or other specific religious text. This policy seems to take the requirement in the Act that education provided in a government school must be secular and change it into a requirement which is not in the Act that any activity of students in a government school must be religion-free.

10)  Australia – Queensland Education Department encourages school principals to take action on student evangelism

The Queensland Education Department conducted a review into the “Godspace” religious instruction materials used by Christian volunteers who were approved to deliver religious education in government schools. The report conceded that evangelism is not explicitly prohibited by legislation nor referenced in the Religious Instruction policy but nevertheless stated that:

The department expects schools to take appropriate action if aware that students participating in religious instruction (RI) are evangelising to students who do not participate in their RI class, given this could adversely affect the school’s ability to provide a safe, supportive and inclusive environment for all students.

According to The Australian newspaper, the Education Department regards “evangelising” as “preaching or advocating a cause or religion with the object of making converts to Christianity”.

Examples cited include giving Christianity-themed Christmas cards and Christmas tree decorations and making beaded bracelets to give to friends “as a way of sharing the good news about Jesus.”[13]

11)  Australia – Pub cancels meetings by Christian group in beer garden

In November 2017 the licensee of the Rose Hotel in Chippendale (Sydney) apologetically informed a Christian group that they could no longer hold their monthly meetings – called Theology on Tap – in the pub’s beer garden because some patrons had complained that same sex marriage was being discussed and had threatened not to return if the meetings continued. It is understood that the licensee offered the group a private room instead.^[14]

12)  Australia – use of Darebin Council facilities during no campaign

During the same sex marriage plebiscite, the Darebin Council put forward a draft motion which, had it been passed, would have allowed proponents of the yes campaign to use the Council’s facilities and services free of charge during the campaign but would have prohibited the no campaign from using council facilities. The council also announced its intention to write to churches and religious groups to warn them about the consequences of campaigning against same sex marriage. Ultimately, the Council did not pass the motion, having been warned that they were on shaky legal grounds. However, it is very concerning that a local council would consider introducing such a blatantly discriminatory measure.

13)  Australia – Catholic Society students vilified and attacked for support of no campaign at Sydney University

During the same sex marriage postal plebiscite, a group of students from the Catholic Society set up a table on a Sydney University campus with placards saying “it’s OK to Vote No” in order to give the no campaign some coverage on a university campus. Video footage showed the group being vilified, abused and threatened, physically attacked and their property damaged over a number of hours.[15]

14)  Australia – University of Sydney Union threatens to deregister Evangelical Union

In 2016 the University of Sydney Union threatened to deregister the Sydney University Evangelical Union if it did not remove a declaration of faith “in the Lord Jesus Christ as my Saviour, my Lord and my God” as part of membership on the basis that union regulations required that membership of clubs and societies be equally accessible to all. Fortunately, following consultation with several faith-based groups on campus the USU agreed to amend union regulations to “allow faith-based declarations as a condition of membership and executives” of faith-based groups on campus.

15)  Australia – calls to rename Margaret Court Arena

Tennis greats Billie Jean King and Martina Navratilova publicly called for Australian Open organisers to rename Margaret Court Arena because of Margaret Court’s public views on homosexuality and same sex marriage.[16] While we would not support restrictions on this type of speech, it gives occasion to reflect on the inherent biases in some anti-vilification laws. Would these comments amount to vilification of Margaret Court on the basis of her religious belief if she was reasonably insulted or offended by them? Flipping the example, would it be vilification if Margaret Court was homosexual and publicly critical of religious conservatives who opposed homosexual sexual relations and some of those conservatives then called for the renaming of the arena because of her comments?

16)  Australia – unbalanced and patchy anti-discrimination laws give limited protection to freedom of religion

The current anti-discrimination laws in Australia protect same-sex oriented Australians from discrimination in every State and Territory and federally (and hence protect supporters of same sex marriage because that is a commonly associated characteristic with same sex orientation.)

But their protection of Australians who hold to traditional marriage is very patchy and incomplete. They do not protect at all Australians who support traditional marriage from a conscientious conviction not based in religious conviction (e.g. many parts of the Chinese community and others from traditional cultures and many indigenous Australians). And federal law, NSW and South Australian anti-discrimination laws do not protect Australians who support traditional marriage based in religious conviction. (The Fair Work Act anti-discrimination provisions do not protect people in NSW or South Australia from employment discrimination because the FWA is subject to the same limits as the State laws in those two States).

And nowhere in Australia do anti-discrimination laws protect small businesses or associations or charities or schools from detriment because they adhere to a belief in favour of traditional marriage. For example, the laws do not protect such organisations from governments discriminating against them in the provision of funding or economic benefits or licensing or permits because they support traditional marriage.

17)  UK: Loss of Charitable Status by Charities Implementing Religiously-Based Policies in Adoption and Fostering

In the United Kingdom, the Charities Commission for England and Wales removed the charitable status of 19 Catholic adoption and foster agencies because they preferred not to adopt or foster to same-sex couples. This caused many of these agencies to close down or transfer their operations as they were no longer exempt for the purposes of tax.

18)  NZ: Loss of Charitable Status by Charity Advocating for Traditional Marriage

In New Zealand, Family First was deregistered by the Charities Board because of its commitment to traditional marriage which no longer could be regarded as a public benefit:

The Board considers that Family First has a purpose to promote its own particular views about marriage and the traditional family that cannot be determined to be for the public benefit in a way previously accepted as charitable. Family First has the freedom to continue to communicate its views and influence policy and legislation but the Board has found that Family First’s pursuit of those activities do not qualify as being for the public benefit in a charitable sense.[17]

The matter has been litigated over several years.

19)  UK: Liberal Democrat leader Tim Farron forced to resign because of his Christian convictions on same sex marriage

Tim Farron the former leader of the UK Liberal Democrats felt compelled to resign in June 2017 when journalists kept pursuing him over his views as a Christian on same sex relationships, gay marriage and abortion, as these persistent questions overshadowed his attempts to advocate the party’s platform. In his resignation speech he said:

To be a political leader – especially of a progressive, liberal party in 2017 – and to live as a committed Christian, to hold faithfully to the Bible’s teaching, has felt impossible for me.

I’m a liberal to my fingertips, and that liberalism means that I am passionate about defending the rights and liberties of people who believe different things to me.

There are Christians in politics who take the view that they should impose the tenets of faith on society, but I have not taken that approach because I disagree with it – it’s not liberal and it is counterproductive when it comes to advancing the gospel.

Even so, I seem to be the subject of suspicion because of what I believe and who my faith is in.

In which case we are kidding ourselves if we think we yet live in a tolerant, liberal society.

That’s why I have chosen to step down as leader of the Liberal Democrats.[18]

20)  UK: Refusal to allow successful Christian foster parents to foster new children because of their traditional views on sexuality and marriage

In Johns v Derby County Council 2011, the English High Court supported a local council decision that a Christians couple with traditional views on sexual ethics, who had successfully fostered many children, would not make suitable foster carers because they would not be open to promoting a homosexual lifestyle.[19]

21)  UK: Removal from Government office because of personal views expressed about religious freedom

In the UK, Adrian Smith placed on his Facebook page a comment that he did not think that churches should be compelled to marry same-sex couples, although he did not object to same-sex marriage. He was accused by his employer, a housing association, of “gross misconduct” and threatened with dismissal. Because of his long service, he was only demoted. However, he lost 40% of his salary.^[20]

22)  UK: Balliol College bans Christian Union from having a presence at fair for new students

In 2017 the student leaders at Balliol College, Oxford University would not permit the college’s Christian Union to have a stand at the annual “freshers’ fair” due to their concerns that a Christian presence at activities for new university students risked “potential for harm to freshers” and that they wanted the fair to be a safe space.[21] (The Balliol Christian Union had not been accused of engaging in any discriminatory behaviour.) The student body that banned the Christian group cited the “damaging” historic influence of Christianity on marginalised communities and the use of Christianity “in many places as an excuse for homophobia and certain forms of neo-colonialism” as a reason to prevent it from holding a stall. A backlash ensued and it has since been decided that the Christian Union will be able to attend future fairs.

23)  UK: student expelled from social work course for views on homosexuality

Felix Ngole was expelled from his social work course by Sheffield University for expressing a belief that homosexuality is a sin.[22] He appealed and lost. Deputy High Court judge Collins Rice J said: “Public religious speech has to be looked at in a regulated context from the perspective of a public readership. Social workers have considerable power over the lives of vulnerable service users and trust is a precious professional commodity.”[23] The judge added: “Universities also have a wide range of interests in and responsibilities for their students – academic, social and pastoral. Where, as Sheffield does, they aspire to be welcoming environments for students from a diverse range of backgrounds, they must expect to be inclusive and supportive of that diversity.”

24)  UK: Government moves to refuse accreditation to private religious school because of inadequate promotion of homosexuality and gender reassignment

In the UK independent religious schools are under threat of deregistration for failing to conform their teaching on sexual issues to progressive agendas. OFSTED, the body responsible for school-assessment, visited Vishnitz Jewish Girls School in 2017. The school passed all academic and facilities tests of OFSTED but failed their school-assessment on one issue alone – the inadequate promotion of homosexuality and gender reassignment (the promotion of which is contrary to orthodox Jewish beliefs). Several faith schools face similar threats of closure.[24]

25)  Tutor dismissed for views on homosexuality and reported as radicalisation threat

In July 2016, a tutor in a government-funded pre-apprenticeship academy in Bristol was dismissed by the T2 Apprenticeship Academy after giving her views on homosexuality. The tutor had been asked about her views by students and replied that, ‘as a Christian, she “personally” believed the Bible says that homosexual activity was against God’s will, but that God still loves every person regardless of what they did, or who they were.’ The student who asked the tutor about her views then pointed out that another student in the group was a lesbian, to which the tutor replied that God loved her. Two days later, the Academy’s HR Officer informed the tutor that her contract was terminated with immediate effect for “gross misconduct”. The tutor’s case is currently before the Employment Tribunal. In a witness statement made to the Tribunal, the Academy’s Chief Safeguarding Officer informed the Tribunal that she had contacted the local coordinator for Prevent – the government’s ‘counter-terrorism’ strategy group – and reported the tutor as a “radicalisation threat” after students complained that they were brainwashed and preached to.[25]

26)  Canada: Tertiary graduates denied the right to practise their profession by delegated government power because their tertiary institution had adopted a covenant of orthodox religious values relating to sex and marriage.

In British Columbia, Trinity Western University required their students and staff to sign a community covenant which included a promise to abstain from sexual activity, unless it was between a husband and wife.

Due to this, the British Columbia College of Teachers voted to refuse accreditation to all teaching graduates because they might discriminate against LGBTI students. After many years of litigation, the Supreme Court of Canada upheld the right of Trinity graduates to be accredited in 2000.

Subsequently, Trinity Western has sought to open a law school. Four Provincial (State) Law societies decided to refuse accreditation to the planned law school and program of Trinity Western University on the grounds that the community covenant of the university was discriminatory, not on any grounds relating to the quality of the curriculum or faculty of the law school. The effect of the decision would be to deny graduates of the law school the right to practise law in those Provinces. Two of those Provinces reversed the decision. In the other two provinces, ligation about the decisions has been through the Provincial Courts and is now to be heard by the Supreme Court of Canada.

27)  Canada – guidelines for federal funding for summer jobs program requires applicants to express respect for abortion

In December 2017, the Trudeau Government announced new guidelines for groups and organisations intending to apply for funding from the Federal Government for the Summer Jobs Program for students. Applicants for funding are required to check a box on an electronic form acknowledging that they respect “individual human rights in Canada.” Those rights encompass women’s reproductive rights, including the right to access safe and legal abortions. The application guidelines explain that the stipulation covers both the job activity and the core mandate of the organisation applying for the funding. If the box is not checked the application cannot be submitted.

28)  Canada – failure to support gender transition is child abuse

In 2017 the Ontario legislature legislated to classify a failure by parents to support their child in identifying as, and transitioning to, a different gender as a potential form of child abuse which would enable the state to remove the child from the parents under a child protection order.[26]

 

Mark Sneddon

Executive Director

Sharon Rodrick

Research Analyst

 

[1] http://www.hrla.org.au/university

[2] Dennis Shanahan, ‘Catholic bishops called to answer in anti-discrimination test case’, The Australian (online), 13 November 2015 <http://www.theaustralian.com.au/nationalaffairs/state-politics/catholic-bishops-called-to-answer-in-anti-discrimination-test-

[3] http://www.hrla.org.au/ryan

[4] The current anti-discrimination laws in Australia y protect same sex oriented Australians from discrimination in every State and Territory and federally (and hence protect supporters of same sex marriage because that is a commonly associated characteristic with same sex orientation.)

But their protection of Australians who hold to traditional marriage is very patchy and incomplete. They do not protect at all Australians who support traditional marriage from a conscientious conviction not based in religious conviction (e.g. many parts of the Chinese community and others from traditional cultures and many indigenous Australians). And federal law, NSW and South Australian anti-discrimination laws do not protect Australians who support traditional marriage based in religious conviction. (The Fair Work Act anti-discrimination provisions do not protect people in NSW or South Australia from employment discrimination because the FWA is subject to the same limits as the State laws in those two States). And nowhere in Australia do anti-discrimination laws protect small businesses or associations or charities or schools from detriment because they adhere to a belief in favour of traditional marriage. For example, the laws do not protect such organisations from governments discriminating against them in the provision of funding or economic benefits or licensing or permits because they support traditional marriage.

[5] Jeremy Sammut, ‘Public companies are already demonstrably diverse, why sign up to extra pledges?’ The Financial Review, 3 April 2017 http://www.afr.com/opinion/public-companies-are-already-demonstrably-diverse-why-sign-up-to-extra-pledges-20170402-gvbr92

[6] ‘ACNC Moves to Withhold Charity Information’ 29 March 2017 https://probonoaustralia.com.au/news/2017/03/acnc-moves-withhold-charity-information

[7] ‘Gay Rights Activist Michael Barnett Turns on Christian Academic’, The Australian, 29 March 2017

[8] Lily Mayers and Ky Chow, ‘Same-sex marriage survey: Petition to deregister Pansy Lai, doctor in No campaign ad, taken down,’ 4 Sep 2017, http://www.abc.net.au/news/2017-09-04/same-sex-marriage-petition-against-doctor-pansy-lai-taken-down/8869260

[9] http://www.hrla.org.au/chris

[10] See: http://www.saynotono.com.au; www.theaustralian.com.au/…/say-no-to no…/6311a44ccf110af29ac3813d378bdee0

[11] See, for example: Ian Duncan, ‘UM students circulate petition to oust Chick-fil-A from campus’, The Baltimore Sun, 20 August 2012,  http://www.baltimoresun.com/news/breaking/bs-md-college-park-chick-fil-a-20120820-story.html

[12] https://www.forbes.com/sites/annafields/2016/03/23/disney-is-boycotting-homophobes-and-so-should-you/#290bc5fb6d19

[13] Rebecca Urban, ‘Jesus Unwelcome in Schoolyard Crack Down’ The Australian, 27 July 2017 https://www.theaustralian.com.au/national-affairs/education/junior-evangelists-targeted-in-schoolyard-crackdown/news-story/e719eabc9778e812fd390bd2736

[14] Miranda Devine, ‘Yes Voters Vilify Christians to the Bitter End’ The Daily Telegraph, 5 November 2017 https://www.dailytelegraph.com.au/rendezview/yes-voters-vilify-christians-to-the-bitter-end/news-story/88c2b6ed2282f9ce97f14384108629d3

[15] Miranda Devine, ‘Yes Voters Vilify Christians to the Bitter End’ The Daily Telegraph, 5 November 2017 https://www.dailytelegraph.com.au/rendezview/yes-campaigners-show-their-true-colours/news-story/6ad4b71806c4c610329a1cb7dcaa43b2

[16] Sam McPhee, ‘Billie Jean King and Martina Navratilova call for Margaret Court Arena to be renamed – saying they would refuse to play on it due to her ‘homophobic’ comments’ The Daily Mail, 12 January 2018
[17] https://charities.govt.nz/assets/Uploads/20170821-Family-First-of-New-Zealand-deregistration-decision.pdf

[18] https://www.theguardian.com/politics/2017/jun/14/tim-farron-quits-as-lib-dem-leader; https://www.libdems.org.uk/liberal-democrat-leader-tim-farron-resigns

[19] Johns v Derby County Council [2011] EWHC 375 (Admin).

[20] Smith v Trafford Housing Trust [2012] EWHC 3221.

[21] https://www.theguardian.com/education/2017/oct/09/anger-as-oxford-college-bans-christian-group-from-freshers-fair; http://www.telegraph.co.uk/education/2017/10/10/oxford-college-bans-harmful-christian-union-freshers-fair/

[22] https://www.theguardian.com/uk-news/2017/oct/27/christian-felix-ngole-thrown-out-sheffield-university-anti-gay-remarks-loses-appeal

[23] R (on the application of Ngole) v University of Sheffield [2017] EWHC 2669 (Admin).

[24] http://www.dailymail.co.uk/news/article-4694610/School-faces-closure-refusing-transgender-issues.html

[25] ‘Teacher fired, reported to counter-terrorism agency after telling lesbian student ‘God loves you,’ 5 February 2018, https://www.lifesitenews.com/news/christian-teacher-referred-to-anti-terrorism-agency-for-telling-lesbian-stu?utm_source=LifeSiteNews.com&utm_campaign=b657d0bdbb-Daily%2520Headlines%2520-%2520U.S.&utm_medium=email&utm_term=0_12387f0e3e-b657d0bdbb-401398773

[26] http://www.theblaze.com/news/2017/06/05/new-law-allows-government-to-take-children-away-if-parents-dont-accept-kids-gender-identity/; https://genderidentitywatch.com/2017/07/20/the-supporting-children-youth-and-families-act-of-2017-canada/