Submission to Religious Freedom Bills Second Exposure Drafts

Religious Discrimination Bill 2019

Religious Discrimination (Consequential Amendments) Bill 2019

Human Rights Legislation Amendment (Freedom of Religion) Bill 2019

AUTHORS

Yvonne Patterson M Psych (Clinical), MBA, Perth, Western Australia

Career expertise

Clinical Psychology, services management and state-wide policy in Health, Mental Health, Disability,

Community Services, Justice and Child Protection in WA

Paula Nathan M Psych (Clinical), AO, Perth, Western Australia

Career expertise

Clinical Psychology and Mental Health, founding Director of the Centre for Clinical Interventions WA

Date: 26 January 2020

SECTIONS

  • 1.0 Introduction
  • 2.0 Objects of ‘equality for all’ contradict the legalising of discrimination under ‘religious privilege’
  • 3.0 Establishing theocracy in secular Australia
  • 4.0 Erasing individual choice of religion or no religion: imposing effects of all religious beliefs on all
  • 5.0 Pretending that ‘discrimination is not discrimination’ if it is linked to a religious belief
  • 6.0 In the name of religious belief: what we have seen
    • 6.1 Abuses of children
    • 6.2 Abuses of women
    • 6.3 Abuses of LGBTI citizens
  • 7.0 In the name of religious belief: what will be licensed under these Bills
  • 8.0 Erasing antidiscrimination law: religious beliefs enabled to discriminate on protected attributes
  • 9.0 Justifying discrimination: the fallacy of choice of service or employment
  • 10.0 Religious organisations do provide ‘public services’ and receive public funds and are therefore subject to the same standards as non religious providers
  • 11.0 Legalising segregation of LGBTI citizens
    • 11.1 Marriage Act 1961: legitimising refusal to respect legal marriages of same sex couples
    • 11.2 Charities Act 2013: tax exemptions for discriminating against same sex married couples
  • 12.0 Conclusion

1.0 Introduction

Australians already have the right to practice religion. This is not in doubt. The Government has not yet explained the real reasons that these Bills are being pursued. This submission focuses specifically on the religious privilege aspect of the Bills and its negative consequences.

In Australia we need to be able to come together as communities to heal and to grow resilience in this changing planetary environment. To do this we must prioritise respect, empathy, compassion and caring for one another. The Bills will burn apart the very bonds of caring, respect and civility that we most need.

There were many submissions to the first draft which did highlight that all people’s human rights were not properly and equally balanced. However the second draft ignores these and is even more problematic by extending the scope for privileged religious discrimination. It does not balance all Australians’ rights equally.

A broader range of services, including commercial businesses appear to become eligible for charitable tax exemptions and licensed to discriminate on religious belief. Many of these organisations receive government funding and are essentially ‘public services’ and must be held to the same standard as everyone else. The boundary between genuine charitable organisations and commercial public services has been blurred.

Australian citizens’ taxes fund the offsetting of charitable tax exemptions for religious organisations to discriminate against themselves. It is unreasonable for citizens to fund their own discrimination. Organisational tax exemptions should be revised to ensure this does not happen and is certainly not extended.

The Bills’ provisions contradict statements made by Attorney-General Christian Porter and Prime Minister Scott Morrison at various times which assured that “the laws will protect people from being discriminated against, but will not give them a licence to discriminate against other people” (The Guardian, 20 August 2019).

They go far beyond supporting the right to practice religion as in a normal antidiscrimination Bill and positively legislate to give immunity for discrimination on the basis of, unspecified, religious or conscientious beliefs. The Bills also list a large number of very specific health and human services that can be denied with impunity.

Legislation is not needed to license people to be decent and kind. It is sought by those wanting to treat people in ways that are nasty, harmful and not approved of by most Australians. Religious belief does not entitle people to break civil laws, to override social norms or to justify or ignore harmful and abusive consequences of their actions. The hypocrisy is evident in providing legal immunity for perpetrators of discrimination.

The Bills will be seen as a statement by government that ‘its OK to treat others badly’. Through these Bills the Australian Government is modeling and condoning disrespectful and harmful discriminatory behaviour.

Even if in any technical legal sense some antidiscrimination laws remain intact, the very existence of these Religious Freedom Bills gives a strong signal that it is ‘ok to discriminate against others’. This results in discriminatory behaviour that, while perhaps under some thresholds for a formal discrimination complaint, remains harmful and undermines positive social bonds.

Given the complexity and nuances of Australia’s secular, multi-faith and multi-cultural society, these Bills undermine the rights to respect, dignity and equality of every single Australian. They pit people with differing faith based beliefs against each other. They subordinate secular belief to religious belief.

By legally sanctioning discrimination the government undermines its own policy objectives in mental health, health, productivity and other areas. It undermines its own service standards in every type of human service, including aged care, where policies explicitly seek that all people, specifically including LGBTI people, must be treated equally and with respect and dignity.

A particularly serious consequence of these Bills is that institutions, by their nature, resist change. Systemic practices identified by the Royal Commission into Institutional Responses to Child Sexual Abuse (Commonwealth of Australia, 2017) will re-emerge. This is evidenced by religious spokespeople who still refuse to acknowledge their accountability and refuse to implement the Commission’s recommendations. For all those victims who had the fortitude to testify, religious organisations must step up. These Bills would allow them to build stronger walls to shield their accountability.

There are no winners in the consequences of ‘privileging’ religious belief in contemporary secular, multi-faith Australia. We have seen segregation in Australia and other countries. We do not want it re-emerging or to see remaining facets of it becoming more entrenched along new fault-lines. For the few people demanding these privileges, this is just a beginning to their seeking ever more power over others and civil society.

There is no ‘them and us’. The Bills are a zero sum game where every Australian loses dignity, respect and basic rights. Perpetrators lose integrity and respect. Victims are demeaned and harmed. Respect for religion will diminish. Bystanders and legislators are complicit. There is a paucity of empathy and humanity and a sense of malice, behind the Bills.

How can a civil government mandate by civil law that religious beliefs should control the lives of all citizens who are in fact, at liberty to choose not to subscribe to them. Clause S116 of the Constitution prohibits the Commonwealth making a law for ‘imposing any religious observance’, and yet these Bills effectively do this by imposing the effect of religious beliefs on the lives of everyone. It appears as if the federal government is acting as an emissary for the imposition of religious beliefs and thereby stepping outside its role in civil law and conflating the separation of State and Church.

In summary the Bills appear to:

  • establish theocracy by privileging religious beliefs;
  • establish separate classes of citizens – those who are at liberty to discriminate by citing chosen religious and conscientious beliefs, and those who are the victims of the harm caused by privileged discrimination;
  • subordinate secular belief to religious beliefs;
  • erase existing discrimination law protections for virtually all Australians;
  • pretend that ‘discrimination is not discrimination’ if its linked to a religious or conscientious belief;
  • segregate LGBTI citizens through targeted discriminations, legitimising the denial of marriage equality for same sex couples and providing tax exemptions to religious organisations for denying marriage equality;
  • extend tax exemptions for organisations through the blurring of the distinctions between specific religious functions and commercial and public service functions;
  • open the way for ongoing encroachments of civil law and civil rights.

The effect of discrimination, under any justification, remains discrimination.

These Bills, if they became law, will irreparably damage the Australian psyche. They would segregate and fracture civil society along new fissures. They are unworkable, unnecessary and dangerous. In a few years Australia will have to formally redress the harm caused. Religious spokespeople report that they do not want to discriminate against others and do not want or need these Bills.

The Bills must be scrapped in their entirety and exemptions licensing discrimination in existing Discrimination Acts and the Marriage Act must also be repealed. Every citizen must be treated equally.

2.0 Objects of ‘equality for all’ contradict the legalizing of discrimination under ‘religious privilege’

The aims stated in the Objects of the Explanatory Notes of the second exposure draft directly contradict the actual content of the Bills: “All Australians, regardless of their religious belief or activity, should be able to participate fully in our society. All people are entitled not to be discriminated against on the basis of their religious belief or activities in public life, and are entitled to the equal and effective protection of the law”.

The Objects of the Religious Discrimination Bill 2019 second Exposure Draft, Clause 2 state “In giving effect to the objects of this Act, regard is to be had to: (a) the indivisibility and universality of human rights, and their equal status in international law; and (b) the principle that every person is free and equal in dignity and rights”.

The content of the Bills is primarily about the exact opposite of these Objects. The Bills delineate how Religious belief will override secular belief and override the rights of Australian citizens protected in the existing Australian antidiscrimination laws.

The Bills give a legislative mandate and absolute privilege to both individuals and organisations to behave in ways that are discriminatory towards most Australians, including all women, people with disability and LGBTI citizens, if the behaviour is claimed as a religious or conscientious belief.

Every citizens’ rights must be treated equally. These Bills do the opposite and must be scrapped.

3.0 Establishing theocracy in secular Australia

The Bills explicitly privilege any religious belief over secular belief in contradiction to the Objects which state that everyone’s rights are equal. They go far beyond the remit of normal antidiscrimination legislation. They create a religious theocracy in secular Australia. A civil government legislating to mandate the privileging of Religious Belief through civil law appears to compromise the separation of church and state. Clause S116 of the Constitution prohibits the Commonwealth making a law for ‘imposing any religious observance’, and yet these Bills effectively do this by imposing the effect of religious beliefs on the lives of everyone.

The Bills license and privilege religiously motivated discrimination by individuals and organisations, effectively segregating Australia into separate classes based on religious belief:

  • privileging religious perpetrators of discrimination above their victims; and
  • privileging religious belief above secular belief.

The Bills override everyone’s rights to be free from discrimination and in practice, erase existing human rights in all State and Federal anti-discrimination laws. Will religious tribunals be established to define religious beliefs and adjudicate on complaints bought forward under the Bills? Australians would not accept such an encroachment into civil law and secular society.

The Bills license discrimination in employment and in obtaining access to all manner of human services and specifically target LGBTI people, 13 million women, people with disability, people from culturally diverse communities and ironically also those of religious faith, especially those of small faith groups.

Essentially any and every Australian, religious and secular can become a target of licensed discrimination.

4.0 Erasing individual choice of religion or no religion: imposing effects of all religious beliefs on all

Australians have the right to choose to subscribe to a religion, to choose which religion, or to choose no religion at all. Religious privileging has no place in contemporary secular Australia and overrides this choice.

The Bills effectively legislate to allow religious organisations to pick and choose the civil laws and contemporary social norms that they will follow. Religious beliefs often lag behind or are at odds with contemporary norms.

Legislating for religious privilege contradicts the fact that Australia is predominantly a secular country with ‘No Religion’ reported in the 2016 Census as the fastest growing group at 30.1%. Australia is a complex multi-faith and multi cultural country. There were 19 religions listed in the 2016 census and every faith has many subgroups or sects with differing beliefs on any particular matter.

A logical conclusion is that the Australian government, responsible for civil law, is legislating for every single individual Australian to essentially ‘sign-up’ to every religious belief. Everyone would have to expect that any other person’s belief could be privileged to demean or discriminate against them. This is not acceptable.

The effect of the Bills would pit citizen against citizen, religious belief against religious belief and religion against secularism. It would be a playground for powerful organisations, for bullies, for those who choose to act out grudges and those who simply do not respect others. The privilege to discriminate will be misused in those religious organisations where status is derived primarily by exercising power over others.

Given the large diversity of religions and beliefs, these Bills could not even logically operate in the real world.

The legal privileging of personally chosen religious and conscientious beliefs effectively sets up any individual as judge and jury for fellow citizens with no realistic checks and balances on their behaviour. This does not, even remotely, balance fairly the rights of all of us or enable the effective operation of a fair and civil society.

5.0 Pretending that ‘discrimination is not discrimination’ if it is linked to a religious belief

The Bills legislate to reframe discrimination i.e.‘an act which would normally be discriminatory, is not discrimination if its linked to a religious or conscientious belief’. Seriously?

Irrespective of this transparent attempt at redefining something into its opposite, religiously motivated discrimination can be absolutely and undeniably still harmful discrimination. It can be very harmful and if so, is unacceptable in a civil and respectful society. Relabeling it does not ipso facto remove its harm.

In fact relabeling discrimination as being acceptable if perpetrated by a religious organisation can cause extreme harm. This is because the perpetrator organisation is usually powerful and protected. This power imbalance magnifies the harm of their discrimination. These dynamics are apparent in the reports of the Royal Commission into Institutional Responses to Child Sexual Abuse (Commonwealth of Australia, 2017).

The Bills primarily deal with providing a legal shield to permit and privilege a potentially huge array of negative discriminatory behaviours that are manifestly harmful to everyone.

The effect of discrimination can be catastrophic in any one instance. Cumulative harm from being the target of ongoing daily demeaning behaviour can be just as devastating over the longer term.

Although it might seem to some people that some slights and discrimination based on religious beliefs are ‘not worth worrying about’ in a few years Australians will look back and realise how much civility has been lost.

It is like the story of the frog sitting in water that is gradually heated and it is not until it is boiling that the frog realizes it is in deep trouble and it is too late.

In Europe last century we saw the rise of fascist governments where citizens lost and continue to lose, all rights. We see it in many countries today. The Religious Freedom Bills will herald the same in Australia if we do not now realise the dangers and seek a civil society, not one torn apart by hate, mistrust and discrimination.

Many religious spokespeople have in fact said they do not want to discriminate against others and do not want or need this legislation.

There is no ‘them and us’. The Bills are a zero sum game where every Australian loses dignity, respect and basic rights: both the perpetrators of discrimination and their victims. These Bills will create unnecessary, unwanted, artificial seismic divisions between and within Australian communities.

6.0 In the name of religious belief: what we have seen

In the name of religious beliefs extensive harm has been done and is still being done to many people in many countries including Australia. It has primarily been when governments responsible for civil law have taken action that these practices have been properly investigated and action taken to stop them.

Religious organisations seek to be self-policing and have sought to hide their abuses and resist accountability. They have sought to justify their behaviour on the grounds of religious beliefs. Even now some religious spokespeople publically refuse to take full accountability and take full remedial action.

Below are several high profile examples of enormous harm caused by religious organisations.

6.1 Abuses of children

Numbers of western countries have sought to address widespread sexual and other abuses perpetrated by religious organisations and institutions. The Royal Commission into Institutional Responses to Child Sexual Abuse (Commonwealth of Australia, 2017)reported a vast number of sexual abuses and deliberate systemic practices within institutions that covered up abuses, intimidated and silenced victims and shielded perpetrators.

Even now in January 2020 some senior religious spokespeople, including most recently Brisbane’s Catholic Archbishop, appear to be resisting implementing recommendations of the Commission (Australian Associated Press, 16 January 2020).

In 2001 an Inquiry by the Australian Senate uncovered practices of the appalling cruelty perpetrated in Homes operated by a number of Religious Groups in Australia. This was part of the story of the Child Migrants shipped from the United kingdom. Bindoon, which was operated by Catholic Christian Brothers, was the most brutal place, but others were also very bad. The Methodist Wesley Mission and the Catholic Sisters of Mercy were examples of two other groups who managed some homes.

The abuses were horrific and the trauma lasted for lifetimes. It including sexual, physical and psychological abuses, forced labour and a severing of ties with any family they may have had (Harriet Sherwood, The Guardian, 3 November 2016).

These crimes are abuses of children on an extraordinary scale. They were committed by religious organisations and justified as being based on religious beliefs. Citizens have lost trust in the integrity of institutions perpetrating these abuses.

The Religious Freedom Bills will lead to strengthening the resolve of some religious leaders to continue to refuse to abide by the Royal Commission findings. Their systemic failings will re-emerge.

6.2 Abuses of women

One example of substantial abuses of women is where Religious organisations operated deliberate practices to take babies from women after childbirth and to have them adopted. This has sometimes been a commercial arrangement for the benefit of the religious organization. The women were usually single mothers and poor women. Babies were effectively stolen and women traumatised over a lifetime.

In very recent years there has been some acknowledgement of this in the United Kingdom, Ireland and Australia. In 2011 the Catholic Church in Australia apologised for the forced adoptions of 150,000 babies in Catholic-run hospitals (Harriet Sherwood, The Guardian, 3 November 2016).

6.3 Abuses of LGBTI citizens

Although some discrimination has been removed, there is still more to be done to ensure full equality. Under the guise of religious belief same sex couples were refused the full rights of married couples and marriage until December 2017. The majority of Australians demonstrated their support for equal rights. However some few religious spokespeople still seek to refuse to recognize marriage rights even though it is law.

There are substantial and inhumane LGBTI specific discriminations legalized in these Bill. Those religious organisations seeking these privileges are choosing to deny the wishes of the vast majority of Australians.

The kinds of discriminations LGBTI citizens have experienced, solely by being LGBTI, are legion and I will not enumerate them here. Section 7.0 provides a few examples of the kind of discrimination that LGBTI and other citizens will experience under these Bills. Suffice to say, past discriminations will re-emerge.

The Religious Freedom Bills are extraordinarily abusive in their singling out LGBTI citizens for discrimination. A decent civil society removes discrimination. It does not give potential perpetrators immunity.

7.0 In the name of religious belief: what will be licensed under these Bills

In effect the Bills mean that straight forward access to respectful services will became a lottery. People will feel unsafe and their quality of life and health will be diminished. The Bills list a whole range of specific types of ordinary modern day services and health procedures that can be denied with impunity.

If religious belief is used to perpetrate hateful behaviour what does that say about the ethics and integrity of perpetrators? The more unacceptable and discriminatory behaviour that individuals and organisations invoke in the name of religious belief, the more Australians will lose respect for all religion.

Discrimination can be overt or subtle. The harm of overt denial of services or employment is obvious. However it is the ongoing subtle slights, demeaning comments or deliberately poor quality care by individual staff members, business providers, work colleagues or neighbours that is just as traumatic. The negative effects accumulate and eat away at people over time, compromising health, social engagement and work.

While it would be expected that most people will behave decently irrespective of legislation like the Religious Freedom Bills, there will be more than enough who will also see it as licensing bad behaviour and this is what is so destructive. Some will use a claimed religious belief to hide behind to act out bad behaviours e.g. personal prejudices, desires to bully others and power plays in employment or schools. Religious belief can and will be used as a shield for immunity for anyone to ‘beat up on’ someone else.

People with disability have overcome enormous hardships, stigma and social marginalisation and even now much remains to be done to improve quality of life. Because people do not always understand the nature of disabilities they have been seen as the mark of sinfulness or evil. We cannot risk insults and discrimination arising from these sorts of beliefs enabled by these Bills.

LGBTI school pupils will continue to be expelled by religious schools because they are seen as sinful.

The federal government has refused to honour its promise to repeal this exemption from discrimination. Examples of what would be encouraged:

  • a doctor could refuse to treat a disabled patient who is seeking stem cell treatment;
  • psychologically abusive and scientifically invalid ‘conversion practices’ of gay people will become more prevalent instead of ceasing as they must;
  • an LGBTI teacher in a religious school who refuses to teach their class that LGBTI people are sinners and same sex marriage is sinful could be fired by the school;
  • a sole pharmacist in a small town would be able to refuse to sell contraception;
  • a woman who works with a male manager who says that her divorce was a sin and that women should submit to their husbands would have no avenue for appeal under discrimination law;
  • a student who decides they are agnostic and refuses to attend morning chapel could be expelled from their faith-based school;
  • teachers can be sacked if they marry their same sex partner, or become divorced, or are single parents;
  • people who are blind or vision impaired who use a guide dog could be refused taxi service because the driver considers animals unclean;
  • people with a disability could be told that their disability is a divine punishment for some kind of sin;
  • couples who have been together for a lifetime could be denied access to aged care as a couple if they are unmarried, are a same sex couple, or not of the faith of a provider even if there is no other aged care service anywhere near; in Australia the next one could be 1,000’s of kilometres away.

8.0 Erasing antidiscrimination law: religious beliefs enabled to discriminate on protected attributes

Even if in any technical legal sense some antidiscrimination laws remain intact, the very fact of these Bills gives a strong signal that it is ‘ok to discriminate against others based on their attributes’. This results in discriminatory behaviour that, while perhaps under the threshold for a formal discrimination complaint, remains harmful and undermines positive social bonds.

Existing antidiscrimination laws protect individuals on various attributes, whereas the proposed Religious Freedom Bills protect both individuals and organisations on the basis of their ‘chosen beliefs’. How can an organisation be a protected attribute or have beliefs?

Religious beliefs are not defined in the Bill. Religious beliefs chosen by religious organisations change considerably over time as do the beliefs chosen to be held by any individual during the course of their own lifetime. Religious beliefs differ greatly between and within religious groups. Religion is a construct and can be acquired and dropped by an act of free will, unlike attributes in existing antidiscrimination law.

A core problem with the Religious Freedom Bills is simply that under existing antidiscrimination law people are afforded protections against a range of types of discrimination based on certain attributes. It is precisely on the basis of these exact attributes that some religious organisations and individuals choose to discriminate. They seek to be allowed to behave outside the civil laws of a civil society, outside the bounds of decency and outside contemporary Australian social norms.

For example, existing anti-discrimination laws collectively cover discrimination based on a wide range of attributes including, but not limited to: age, gender, religion, race, disability, sex (including sex, marital or relationship status, pregnancy or potential pregnancy, breast feeding, family responsibilities, sexual orientation, gender identity and intersex status), political opinion and social origin (Australian Human Rights Commission, A quick guide to Australian discrimination laws, 2014).

Existing anti-discrimination laws relate to the rights of whole populations and include access to employment, health, housing, education, clubs, sports, insurance, superannuation and other goods and services. Antidiscrimination Acts pertain to 13 million Australian women (50.4% of population), Australian men, approximately 4 million people with disabilities, approximately 11% of the population who define as LGBTIQ, indigenous Australians comprising approximately 3.3% of the population and Australia’s substantial multicultural community as represented by immigration from over 100 different countries.

Existing antidiscrimination laws do have some exemptions for religious belief. These outmoded exemptions whereby LGBTI citizens, divorced people or single parents can be refused employment and services simply because of their attributes need to be repealed. The majority of Australians do not support such discrimination.

Instead of repealing these exemptions in existing antidiscrimination laws and improving the wellbeing of citizens, the Religious Freedom Bills seek to further entrench and extend such outmoded beliefs and give perpetrators legal immunity to actively discriminate. There is no humane or ethical justification for this.

As professionals with long careers in public policy and clinical programs in human services we know that the aim in public policy is normally to seek to increase the wellbeing of Australians and reduce factors, specifically including discrimination, that undermine wellbeing. We therefore find it deeply disturbing that the second draft further extends the scope of the permitted discriminations.

The draft Religious Freedom Bills effectively erase antidiscrimination protections for millions of Australians. Existing antidiscrimination laws cannot be extinguished by religious privilege. These Bills must be scrapped.

9.0 Justifying discrimination: the fallacy of choice of service or employment

We have all heard the comment ‘well if you are a single parent, divorcee or same sex couple and you know that a faith based aged care service, hospital or school might discriminate against you, then go somewhere else.’ This type of comment seeks to justify discrimination and to pretend that its not harmful. Of course it is harmful.

There are a number of fallacies with the idea that some organisations can choose to discriminate on the basis that there is ample choice of alternative providers.

Fallacy 1: The Bills seem to assume that Australians live within religious or belief ghettos and only attend schools, hospitals, shops, aged care and community services provided by those of their own faith or belief group and that therefore there is plenty of choice to avoid discrimination. This is false.

Fallacy 2: It is assumed that ‘if an organisation discriminates against you, then you are not harmed because you can just get a service elsewhere else’. This is not true. Any discrimination is harmful.

Fallacy 3: It is assumed that ‘you can easily get the same service from somewhere else’. This is false.

Governments do not plan to ensure options for choice of service provision on the basis of religious belief.

Governments do not plan services based on an analysis of religious groups within particular geographical areas. They do not plan for separate hospitals or schools or aged care places based on the religious profile of communities. They do not duplicate hospitals i.e. one for each religious and secular group in each area. They do not plan for, or fund, separate hospitals and schools which will not discriminate against everyone’s attributes.

Fallacy 4: It is assumed that there will be no discrimination ‘somewhere else’. This is false. The ‘somewhere else’ usually means a non faith based, public service, for example a public hospital like Royal Perth Hospital or Royal Northshore Hospital. The assumption is that all citizens attending these services will be treated equally and will not experience discrimination based on religious belief or conscientious objection. However, these Bills do allow individual staff members to act according to their personal religious or conscientious beliefs and this means that even clients of non religious services can face licensed discrimination.

Fallacy 5: It is assumed that there are plenty of service providers to choose from who will not exercise beliefs to discriminate against someone of a different faith or belief group. This is false. There is a vast arena of services provided by, or linked to, religious groups. In some places and service sectors there is no alternative choice. People are disenfranchised.

Service access and respectful service provision become a lottery. This is unacceptable.

10.0 Religious organisations do provide ‘public services’ and receive public funds and are therefore subject to the same standards as non religious providers

Health, education, aged care and community services operated by, or linked to, religious providers compete in the Australian marketplace for funding and receive government funding under contract. Their services are then ‘services for the public or public services’ not only for their particular religious belief group. They are expected to ‘not discriminate’ against e.g. divorced people, single parents or same sex couples or others on the basis of their religious beliefs for either employment or service access.

If they discriminate they are breaking public service obligations and breaching service standards. These organisations must be held to the same standards as any others. In providing publically funded services for the public, the religion of the operator cannot exempt the organisation from adhering to normal public standards.

In many places there may be only one provider and Australians therefore have no choice of services. In some service sectors religious organisations have a dominant market share and individuals have no real choice.

And yet these Bills would legitimise exclusion. The people turned away would have nowhere else to go. It can be seen as a breach of trust from providers and from government. Even if there are other providers it is unacceptable to refuse services on the basis of a chosen belief when the services are a ‘public service’.

There are examples of religious providers who discriminate e.g. by expelling LGBTI students and sacking teachers from schools based upon their marital or parental status. The Federal Government promised to repeal exemptions from discrimination for LGBTI school students prior to its recent election, but has not done so. Instead, in these Bills the scope of potential discrimination has been deliberately widened.

Australians who are already and would be in the future, subject to the discrimination of refusal of service or employment are actually paying for their own discrimination in two ways. Their individual taxes:

  • pay for the offsetting of the organisations’ tax exemption; and
  • contribute to government funding of these organisations’ services.

Citizens should not fund their own discrimination.

11.0 Legalising segregation of LGBTI citizens

The amendments provide for a new clause to be included in the Age, Disability, Sex and Racial Discrimination Acts : “In giving effect to the objects of this Act, regard is to be had to:(a) the indivisibility and universality of human rights, and their equal status in international law; and (b) the principle that every person is free and equal in dignity and rights”.

Same sex couples are people who are covered under this new clause. However the Marriage and Charities Acts specify a religious privilege to deliberately discriminate in contradiction with the clause.

It is as if the drafting of these Bills colludes with some few religious groups and spokespeople who want to deny reality and pretend that same sex couples are not able to be legally married.

Australians strongly oppose this as evidenced in the survey prior to December 2017 when the Marriage Act was amended to include same sex marriage. This Bill defines a wholly unacceptable segregation of LGBTI citizens.

11.1 Marriage Act 1961: legitimising refusal to respect legal marriages of same sex couples

Australia voted overwhelmingly for marriage equality. It voted for real marriage equality. Even so, discriminatory clauses are in the Marriage Act, such that it is in reality an unequal Marriage Act. This exempts religious organisations from choosing to fully respect same sex couples and recognise their marriage.

This is a completely contradictory situation. The marriage of same sex couples is recognised under government civil law. It is a reality. And yet religions, on the basis of chosen beliefs can simply ignore this reality and continue to demean, discriminate against and thereby, harm same sex couples and their families.

This second draft greatly extends the scope of this kind of discrimination. It would permit religious groups to teach against marriage of same sex couples in schools and other public places, even though it is legal under civil law. It will permit refusal of the use of certain premises including school facilities for any purpose that could be construed as reasonably incidental to their marriage.

The types of clauses proposed in the draft Bills were rejected by parliament when the Marriage Act was amended in 2017. By proposing these exemptions to license direct discrimination of LGBTI citizens, the federal government is completely betraying the right to dignity, respect and equality of ordinary citizens and their families. These provisions will deliberately cause direct harm to LGBTI citizens and their families, their children and communities. They will further undermine their wellbeing and productivity.

Discrimination is one of the strongest causes of psychological ill health, undermining general wellbeing and of causing social and economic marginalisation.

By seeking to legally sanction discrimination the government is undermining its own policy objectives in mental health, health, productivity and other areas. It is undermining service standards in every type of human service, including aged care, where policies explicitly seek that all people, specifically including LGBTI people, must be respected and treated equally.

Proposed new exemptions to permit even more discrimination of LGBTI citizens are wholly unacceptable. They are betray the express wishes of the majority of Australians who supported marriage equality.

11.2 Charities Act 2013: tax exemptions for discriminating against same sex married couples

The Charities Act is proposed to be amended to state” To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.”

This legitimises targeted discrimination of same sex couples, ignoring of the will of the majority of Australians supporting equality and pretends that the marriage between same sex couples is not legal. The amendment is designed purely as a shield for harmful and unpopular behaviour.

It reintroduces into law in the Charities Act, the old definition of marriage that was repealed in 2017, albeit cited as a ‘view’. There is no legal reason to do so (Australian Human Rights Commission, Religious Freedom Bills, 2019). This amendment in effect allows religious organisations to act outside the real intent of the civil marriage civil law and obfuscates civil law. These kinds of amendments were voted down in when the Marriage act was amended in December 2017.

Australians who are subject to discrimination of refusal of service or employment are paying for their own discrimination through their individual taxes offsetting the organisations’ tax exemption. If religious organisations choose to discriminate against LGBTI people, divorced people, single parents, secular people, those of other faiths and others, then these groups should not contribute to these tax exemptions.

The organisations exercising such discrimination should lose tax exemptions. This amendment is unacceptable and contradicts the Religious Freedom Bills’ overarching Objects of equality.

12.0 Conclusion

The consequence of these Bills is that they pit citizen against citizen and create artificial chasms within and between communities of citizens. In Australia today we need to strengthen civil society and forge stronger respectful bonds between all of us, not cut them apart.

Based upon the specific arguments in this submission about the harm these Bills will cause, these Bills must be scrapped in their entirety.

About the author

Yvonne Patterson is retired from clinical psychology and senior WA State Government policy director roles with experience in human services including health, mental health, disability, community and justice service. She lives in Perth, is secular and sees sound public policy as being based in reason, science and evidence. She expects that all citizens, including LGBTI citizens, have equal rights and that this is ‘not up for debate’. ________________________________________________________________________________________________________________________ Paula Nathan is a retired clinical psychologist living in Perth. She has been a Lecturer in the postgraduate UWA Clinical Psychology Program and is the founding Director of the Perth based Centre for Clinical Interventions. She received an AO in the 2018 Queens Birthday Honours for her services to psychology and mental health.