Recent developments and future directions
HSV Public Lecture by Luke Beck, Associate Professor of Constitutional Law, Monash University, at Balwyn Library on 27 June 2019
When the Australian Constitution was being drafted in the 1890s, there was intense pressure from church officials to include recognition of god. Early colonial Australia had inherited many laws from the United Kingdom, including some pertaining to religious observance, such as the crime of Sabbath-breaking. This precluded work on Sundays and was punishable by a fine or four hours in the stocks. When a Seventh-day Adventist bricklayer, whose religion did not recognise Sunday as the Sabbath, was charged with Sabbath-breaking, the matter received intense scrutiny. As a result, the preamble to the Australian Constitution includes the sentence, “the people, humbly relying on the blessing of almighty god have agreed to unite in one, indissoluble federal Commonwealth.” While this did not confer any legal obligation, Section 116 was added to the actual Constitution to delineate more clearly the power of the government with respect to religion. It is in four parts, prohibiting the government from establishing any religion, prohibiting the free exercise of religion, imposing any religious observance, as well as precluding the requirement of any religious test for a Commonwealth position.
Prayers in parliament
Church leaders of the day also wanted parliamentary prayers to be mandated by law. Although this suggestion was rejected, prayers at the beginning of each sitting of parliament became part of standing orders. Therefore, the Speaker of the House of Representatives and the President of the Senate read two items every day, a modified prayer from the Anglican Book of Common Prayer followed by the Protestant version of the Lord’s Prayer. While this practice still has many detractors, to challenge it in the High Court would require a complainant to have standing or, in other words, to be able to prove that they were affected by the ruling. This would essentially devolve to a politician, but might extend to a member of the visitors’ gallery. In 2014, when there was a Senate enquiry into parliamentary prayers, there was no clear consensus to support change.
Blasphemy is another issue related to religious freedom. It is a crime at common law to publish, in writing or by speech, offensive material against the Christian religion. While Western Australia abolished this crime several years ago, it remains in all other jurisdictions of the country. However, the last time there was a prosecution was in 1907. One of the recommendations of the Ruddock Review into Religious Freedom in 2018 was that the crime of blasphemy be abolished.
Do we need a Federal Religious Discrimination Act?
A Federal Religious Discrimination Bill is very likely to be introduced later this year . This is mooted to address employment issues, such as hiring, firing and promotion, as well as the provision of goods and services, including education and health care. It will cover all religious denominations, as well as atheists. However, apart from New South Wales and South Australia, all other states have similar legislation in place already, making a Federal Bill somewhat redundant. If a matter of religious discrimination arises under State law, it can be adjudicated through the State’s tribunal system or, alternatively, in Court. If it were to be heard as a federal matter, it must go to Court; a process that is more costly as well as more time-consuming.
The National School Chaplaincy Program
The National School Chaplaincy Program (NSCP) was introduced by the Howard Government. In 2012, Ron Williams, a Queensland humanist and parent of four school-age children, successfully challenged it in the High Court. The Court ruled that the Federal Government had exceeded its executive powers in establishing the program. As a result, the States and Territories became responsible for its funding. However, when the Federal Religious Discrimination Act comes into effect in the near future, as is likely, the Federal Government will be in breach of it on account of the NSCP.
In Victoria, youth workers are hired by the NSCP to work in schools. Selection of staff is outsourced by the Education Department. The agencies responsible are predominantly Christian and their advertisements explicitly state that applicants need to be Christian. Following a successful case before the Victorian Civil and Administrative Tribunal (VCAT) recently, in which Luke acted for the complainant, the Victorian Education Department broadened its criteria for appointments to cover applicants from “any faith or of no faith”. Despite this amendment, further cases before VCAT are likely, as applicants are continuing to be rejected on religious grounds.
Israel Folau’s case – discrimination?
The dismissal of Israel Folau by Rugby Australia this year has generated widespread discussion about religious discrimination. The Fair Work Act states that it is unlawful to dismiss someone because of their religion, and this is the basis of Folau’s case. However, at present there is insufficient evidence in the public realm about his contract or the undertaking he gave to his employer about his activity on social media to form an opinion about the outcome of this case.
It may be critical to consider the differences between direct and indirect discrimination. The former hinges on a person’s gender, age, religion or marital status, whereas the latter occurs when there is a disproportionate impact on certain groups from imposing a rule that is generally applicable. An additional consideration is whether the rule is reasonable. For example, if a job specifies that an employee must wear a uniform, difficulties may arise due to conflicting religious practices. In the case of a Sikh fireman who usually wears a turban but needs to wear a helmet while working, it would be considered a reasonable rule that he should wear a helmet for his own safety and there would not be any grounds for claiming indirect discrimination.
Folau may argue that it is not reasonable for Rugby Australia to attempt to regulate his private life and interfere with the expression of his religion, including his social media posts. Whereas the Court will need to consider the possible countervailing argument from his employer; that his behavior, as a high-profile player, was not reasonable in that it undermined the culture of inclusiveness of Rugby Australia and caused financial damage through falling sponsorships and ticket-sales.
It may be helpful to compare the current Folau debate with the case of Scott McIntyre, who was sacked as a reporter last year for his comments about ANZAC Day. In this instance, it was a political stance at issue rather than a religious one, but there are certain parallels.
Exemptions within discrimination legislation
All current discrimination laws, both state and federal, have a variety of exemptions related to religion. These have been under review in recent years and several reforms have been introduced. There is also likely to be further whittling away in the future.
Since 2013, it has been illegal for Aged Care Homes to discriminate about who may be admitted for care. However, the same protection does not apply to staff. They may still be excluded for reasons related to religious principles, such as homosexuality or divorce, despite the fact that the institution receives public funding.
In both Queensland and Tasmanian religious schools, no exemptions are allowed at all, for either staff or students. By contrast, in Victoria, religious schools are able to sack gay teachers and students. The Ruddock Review recommended that exemptions should be more widely publicised so that the criteria being followed by an institution are easy for everyone to recognise. Luke thinks that this might act as a deterrent to discriminatory action.
At present, there is a public enquiry being conducted by the Law Reform Commission to assess the framework of religious exemptions within all anti-discrimination legislation. It is due to report in April 2020.
Beck, Luke, Religious Freedom and the Australian Constitution, Routledge, 2019.
Report by Jennie Stuart