Sunday, May 24, 2009

Exemptions to Equal Opportunity Laws

A committee of the Victorian parliament is currently conducting a review of 'exceptions and exemptions' to Victorian Equal Opportunity laws. The Scrutiny of Acts and Regulations Committee has produced an Options Paper, outlining ways in which the laws could be revised.

The issues relating to religious freedom and human rights are complex and poorly understood in Australian society. There is also a rising sense of anxiety about religious freedom at the grassroots level among many (but not all) Australian Christians. At the same time among secularists there is a good deal of hostility to church's claims for exemptions from human rights legislation.

A position argued for by an Anglican 'taskforce' has been that protection of human rights through legislation could be desirable, but only provided that the standards set in the International Covenant and Civil and Political Rights (ICCPR) are followed, and adequate safeguards are built in to protect freedom of religion and conscience. For example, anti-incitement legislation could be supported, provided that incitement was narrowly defined (in terms of the ICCPR protocols) and not loosely as in the Victorian Racial and Religious Tolerance Act. To protect religious rights it is also necessary to provide reasonably broad exemptions to anti-discrimination legislation. At present religious bodies enjoy such exemptions in Victoria. However there is a strong push from secularists to remove these exemptions, or severely curtail them. The list of options in the review of exceptions and exemptions to the Equal Opportunity Act (currently before the Victorian Parliament) reflects this push.

The recent Victorian abortion law reform, which did not allow doctors to follow their conscience in the matter of assisting a patient procure an abortion, is a symptom of the prevailing current sentiment against making allowances for religious freedom. Not a word in the Act was changed, despite the most intensive lobbying.

Human Rights and responsibilities can conflict with each other. If one right is fully granted, another will be limited. For example the right to privacy can impinge upon the right of a community to live in safety. The right to equal opportunity in employment can conflict with the rights of religious groups to organize themselves in accordance with their doctrines, as it could limit their ability to use a religious test when employing staff.

Legislation and regulations to manage conflicts between human rights has been called 'balancing' of rights. This balancing process can implement a 'hierarchy' of rights: some rights will trump others, so to speak.

For example the exemptions and exceptions for religious groups in equal opportunity legislation mean that religious freedom rights can overrule equal opportunity rights, under some circumstances. For example, churches and some church agencies can employ staff, such as receptionists and counsellors, using religious tests.

Up until now religious rights, through the exemptions and exceptions system, have tended to rank high in the hierarchy of rights. There is pressure to downgrade this status.

The argument for this downgrading is essentially a) there is a view that religious groups have resorted to special pleading to avoid their human rights responsibilities and this now needs to be corrected, and b) religion is essentially a private matter, and full religious freedom should be granted only to those functions which are 'internal' to the faith.

For example, it is claimed by secularists that when a church offers a public service, such as a playgroup, a counseling centre, or an adoption agency, then religious considerations should give way to other more 'public' rights. For example, the church might not be able to insist on having a Christian playgroup coordinator, as playgroups are claimed not be a core internal function of the religion. The church might be instructed to take religious slogans off the walls of the playgroup space, because this discriminates in some way against non-Christians accessing the service.

The pressure to downgrade religious rights will be greatest on 'public authorities' (defined in the Victorian Human Rights Charter. These are basically bodies providing a service to the public, and especially those in receipt of government funding to meet what is regarded as a responsibility of the state. At present religious schools are not considered to be public authorities, but this could change.

These developments are highly significant.

The evidence from overseas is that the impact of these changes could be far-reaching.
In the UK and parts of the USA the Catholic church has moved out of adoption services altogether because of the implications of such developments (they decided that accepting government regulations for adoption, including to same-sex couples, would violate their conscience). A Church of England Bishop was fined over £50,000 for sacking a gay church youth worker. These are both cases where the rights to anti-discrimination on the ground of sexual preferences took precedence over rights to religious freedom.

In a worst-case scenario, the churches might need to withdraw from providing services across a wide range of areas, or else surrender their Christian character, or only offer these services in very limited fashion to members of their religious community, and on explicitly religious terms. Whether or not the agency is under the direct control of a religious body could be a critical factor. For example one of the options before Victorian parliament is to award a higher level of religious exemptions only to schools which are under the direct control of a religious body. A parish primary school might be able to insist on its Christian character in employment of teaching staff, but an independent church school might not.

We in Victoria could be facing a significant threat to our liberties. One of the problems in achieving a coordinated response is that comfortable middle-of-the road Christians tend to just assume everything will continue on for ever as in the past. This could be a great mistake.

The determination with which the Victorian Government brought in the abortion law reforms, trampling on religious rights of conscientious objectors to abortion, suggests to me that Victorians cannot afford to fall asleep on the watch with this issue. We must take it extremely seriously.

I have prepared a briefing paper for Christians, which be downloaded here.


  1. This comment has been removed by the author.

  2. Oh boy, here we go. I am so very sorry to hear this is happening. It is on the agenda of the same people here in the USA, who also control at the Federal and most state levels, but they have not got to it so far, which surprises me.

    It is a terrible battle to have to fight. It will winnow the Church of those who view Her as a moral club, looking on the positive side. But it is a retrograde movement for civilization.

    I and some others here estimate that the shrillness the ideology's partisans and the colossal hubris of its embodiments signals that the ideology is indeed in the mode of senescence. This is scant comfort but perhaps some because it is the case.

    Of course dying things extort a lot of collateral damage on their way out.

    My best take on a response is careful preparation of the facts and plain speaking of them into the face of the attacker. This is unlikely to deflect the partisans from their program but it is necessary to speak the truth to evil regardless of cost so long as done clearly and courageously.

    And there is this to consider, that any effort to legislate against discrimination is discriminatory. The partisans are using a two-edged sword. Cleave their own heads with it.

    This would have one or more of several salutary consequences. First, it can get them to pull back their pikes and talk sense. Second, it can force the true nature of their program out from behind pretty words and into the light, which shows it as ugly tyranny. Third, it can remind them that the last thing they want is bad press and disorder. It can speed their demise.

    One cannot tell what speaking truth into the face of error will accomplish or cause to happen. Life is ultimately indeterminate from a mundane point of reference, of course, but that fact must not discourage from doing what is right. In fact, the finest form of service is to do what is right without attachment to the consequences, whatever they are, pleasant or unpleasant.

    The point, the duty, is to speak the truth into the face of error, the rest is up to God.

    We are facing the same situation from a slightly different direction -- actually several of them at once -- here in the USA. The Church is not alone in Her experience anywhere She is.

    God Bless you and God Bless the Holy Church as we seek to do our duty!

  3. This examination of the effects of a surfeit of lawyers and laws may be of use. In brief, lawyers breed laws like cats breed kittens and happiness of society is inversely proportion to the number of its laws. Politicians with big erasers for masses of laws are indicated.

  4. Another thought:

    It is being found here that pulling the sub-structure of secularist activity into view is effective in debilitating it and halting and even dispersing its march.

    This involves addressing not the details of the proposed policies or the assumptions and "data" said to support them.

    Rather, address is made of the fear or jealousy or anger -- or all three -- driving the secularist effort from its sub-structure. The character issue rather than or at least prior to the ambiguities of the "rights" and proposals issues is found to have leverage in returning discussion to what is really going on and thus to sanity and perhaps even wisdom.

    Secularists will condemn the character issue as ad hominem. But that is the point: the condemnation demonstrates deficiency of character.

    What is going on today is not really about rights or policies or studies or data. It is about jealousies, fears and angers projected onto targets as rights, policies, studies, etc.

    Perhaps speaking truth to power involves speaking what is actually going on today, which turns out to be an issue and an action secularists are not in a position to withstand much less dissemble.

  5. Thank you for explaining the implications of the proposed changes to the Victorian Equal Opportunity laws.

    Having been born in Melbourne, I'm surreally watching the rapid but steady disintegration of our beautiful State.

    I am acutely aware of the implications of the proposed Options changes. My parents emigrated from former Yugoslavia to escape a faithless state and create a better life for their family. I will stand up for my children's right to openly live and share their life-giving faith.

    If you were to organise a walk to raise awareness, I would join you.


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