PO Box 520 Stirling SA 5152
Religious Freedom Review Supplementary Submission of the Church of the Flying Spaghetti Monster Australia
Captain Tanya Watkins
[February 28 2018. Captain Watkins was invited to meet with the review panel, led by Philip Ruddock, looking at “religious freedom”, but they had only 15 minutes to spare. Tanya says, “Mr Ruddock was interested in how I thought it would be possible to protect individuals human rights if their institutions did not also have the ability to protect.. but we ran out of time because they have to rush off to the airport to catch a plane. So, I was asked to submit another submission”. This is the additional submission]
Dear Mr Ruddock,
Thank you for giving me the opportunity to make a supplementary submission on this complex issue. You asked me to elaborate on how an individual’s rights could be protected if organisations surrounding or founded upon religious beliefs did not have similar protections.
As John Stuart Mill so accurately observed;
‘The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-preservation. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.’1
It is clear that Mill believed that the individual was sovereign over their own body and mind and they should not be compelled to do what is considered wise, right or moral in the eyes of others. This idea that the rights and freedoms of an individual or group only extends until they infringe on the rights of others is a central concept in modern liberal societies.2
Clearly, to have a situation in Australia where an individual is compelled to follow a belief (that they do not hold) in order to obtain a service provided to the public (subsidised by tax payer funding), to keep their employment or to remain as a student in an educational facility, goes against Article 18.2 of the International Covenant on Civil and Political Rights which states;
‘No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice.’
If a person is compelled to follow the religious teachings of the service provider, then that severely infringes upon their right to hold a different belief, whether that be a differing religious or non-religious belief. A similar situation that had been occurring in the United Kingdom was solved by the passing of the Equality Act 2010.
The UK Equality Act 2010 built upon the earlier 2006 Equality Act, and additionally it consolidated and simplified over 35 different pieces of UK legislation in regards to anti-discrimination and equality (including, but not limited to, the Equality Pay Act (1970), the Sex Discrimination Act (1975), the Race Relations Act (1975), the Disability Discrimination Act (1995), the Employment Equality (Religion or Belief) and Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007), along with a substantial number of sub-ordinate legislation and policy documents.3
One important thing that the UK Equality Act does is that it requires equal treatment in private and public services and access to employment for persons regardless of their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.4 Conduct that is prohibited under the Act includes discrimination, harassment and victimisation on any of the aforementioned grounds. There are exceptions for transactions conducted on religious premises, allowing religious organisations to employ, for instance, a priest of a particular gender, or to rent out a church building only to particular groups or particular purposes, at their discretion.5 However, where an organisation (religious or otherwise) is providing a service on behalf of a public authority (such as an educational facility for the public, a hospital or social service) they are unable to discriminate against potential users on any of the ‘protected characteristics’ defined in the Act. 6
Far from being seen as a threat to their religious freedom, the Catholic Church of England and Wales welcomed the Act due to its advancing the law against discrimination on the grounds of religion and belief, and that it reflected the Catholic teachings of social justice.7 The Methodist Church, the Baptist Union of Great Britain and the United Reformed Church released a ‘Joint Briefing’ stating that the Equality Act was unlikely to be detrimental to the religious freedoms and requirements of churches or individual Christians, and that the Act strengthened protections for faith communities.8
As an example of how the Equality Act was received in the UK by religious service providers, I will provide information on what occurred in the adoption sector. The new Act meant that adoption agencies could not discriminate against people in the provision of adoption services. When looking specifically at the eleven (11) Catholic adoption agencies, only two (2) decided to close, whereas the other nine (9) continued to provide adoption services in a non-discriminatory manner.9
As an example of how the Equality Act is able to protect the rights of individuals, I will highlight the case of two nurses who were Roman Catholics. They both had religious objections to abortion, and did not want to assist with those medical procedures or work in a clinic that provided those services. Under the Act they were successful in stating that their belief in ‘the sanctity of life from conception on’ meant that they did not have to participate in any abortion procedure or work at clinic providing such services, and that their refusal would not have any negative impact on their nursing careers.10
The UK Equality Act is a working example of how the individual’s right to religion and belief is protected, without allowing a religious organisation to discriminate against individuals in society on the basis of a ‘protected characteristic’.
Jonathan Seglow’s analysis of the Equality Act shows that the legislation successfully brings together the three competing rights of sexual equality, religious freedom and property rights.11 Where these rights intersect, a delicate balance must be struck between the competing rights’ claims, including majority versus minority rights,12 and their relevance for a possible hierarchy of rights where certain rights are perceived as superior, more intrinsically valued than others.13 The UK Equality Act has managed, in practice, to effectively find the correct balance to allow the greatest amount of protection of equality, and protection from discrimination over a broad sphere of human rights.
I hope you will take the UK Equality Act into consideration as a model piece of legislation in any recommendations on religious freedom in Australia. It has been shown to protect the rights of individuals on all of the covered ‘protected characteristics’, whilst at the same time bringing religious and non-religious organisations under the same applicable obligations to not discriminate against individuals when providing goods and services in the public sphere.
Captain Tanya Watkins
Church of the Flying Spaghetti Monster Australia
ORIGINAL TEXT, WITH FOOTNOTES