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.
