Calls to Remove ‘Blanket Religious Exemptions’ for Faith-Based Charities

Two prominent legal charities have urged a Religious Freedom Review panel to support the LGBTI community, by narrowing “the blanket religious exemptions which allow religious organisations to discriminate”.  

The Human Rights Law Centre (HRLC) and Justice Connect’s (JC) Not-for-profit Law Service both recently made submissions to a religious freedom inquiry, led by former Liberal MP Philip Ruddock.

The review was announced in November last year, in wake of concerns raised by church leaders across Australia that religious freedom was under threat due to the legislation of same-sex marriage.

HRLC’s submission recommended that: “Existing exemptions that allow religious organisations to discriminate in the provision of facilities, goods and services [and employment] should be repealed and replaced with a general limitations clause”.

The submission said faith-based charities were acting discriminatory towards LGBTI people.

“We have heard anecdotal examples from refugees who have experienced discrimination from religious charities because of their sexual orientation and gender identity, but are reluctant to speak out or lodge a complaint because they still rely on these services,” the submission said.

Human rights laws protect common values of fairness, dignity, equality & respect for all of us. Religious freedoms inquiry is an opportunity to better protect human rights in law, in a coherent way & not at expense of #LGBTI equality rights: https://t.co/ohLrmVxmMP

— Hugh de Kretser (@HughdeKretser) February 14, 2018

Anna Brown, the director of legal advocacy at HRLC, said that existing religious exemptions went too far.

“People are largely free to observe and practice their faith in Australia. We actually need to narrow broad exemptions for religious bodies in discrimination law that prevent vulnerable people, including LGBTI people, from accessing critical services. This inquiry is an opportunity to get the balance right,” Brown said.

“Religious exemptions already act as a barrier to vulnerable and marginalised Australians accessing the support services they need. We have spoken to lesbian, gay and transgender people who have been discriminated against when seeking help, and they are afraid to speak out or seek assistance from other religious charities.

“We need strong discrimination laws but blanket exemptions that bow to the interests of certain groups over other Australians must be avoided.”

The submission from JC’s Not-for-profit Law Service looked at “the extent to which religious bodies should be able to discriminate”, and endorsed HRLC’s recommendations to repeal the blanket religious exemptions.

But JC said no changes were needed to charity legislation, arguing that the ability of religious organisations to discriminate should be dealt with in discrimination laws.

“We recommend that the ability to discriminate should continue to be dealt with in discrimination law, rather than in the legislation dealing with charities, primarily for the sake of coherence and simplicity, which promotes compliance, but also recognising that there are many charities and other NFPs which are not registered with the ACNC [Australian Charities and Not-for-profit Commission],” the submission said.

JC also noted that: “An organisation’s charity status, and therefore related charity tax concessions and benefits, will not be at risk all of a sudden because of the legalisation of same sex marriage.

“[But] charities must comply with discrimination laws (whatever they may be), must not have a disqualifying purpose (such as engaging in activities which are unlawful or contrary to public policy or promoting a political party) and must be for public benefit.”

We've published our submission to the Expert Panel on Religious Freedom chaired by @philipruddockmp. We argue no changes are needed to charity legislation. Read more: https://t.co/yBiw7BOrIj

— Not-for-profit Law (@nfp_law) February 14, 2018

The submission did warn however, that if blanket religious exemptions were removed, it could affect the charity status of faith-based organisations if they acted unlawfully.

“Some charities may choose to express their opposition to same sex marriage by breaking the law. This could involve isolated instances, or a workplace policy which promotes civil disobedience,” it said.

“For example a charity which adopts a policy that employees are at liberty to discriminate unlawfully against same sex couples in the provision of services, or a policy that requires employees to do so.

“If this amounted to a purpose of engaging in or promoting activities that are unlawful, then it would be a disqualifying purpose, and the organisation would not be eligible for charity status.”

JC also stressed that all charities will be able to legally advocate for traditional marriage – as long as it is in pursuit of their charitable purpose – despite the legalisation of same-sex marriage.

“Some are concerned that the ACNC may revoke charity status on the grounds that because Parliament has now legislated to allow same sex couples to marry, this means that it is public policy to allow same sex couples to marry, and this means that it is contrary to public policy to continue to promote a traditional view of marriage,” the submission said.

“This concern is based on a misunderstanding of the nature of the legal definition of ‘public policy’ for the purposes of Australian charity law.

“Even if same sex marriage is to be regarded as government policy, there is no prohibition against opposing it. Charities opposing it would not be acting contrary to public policy, only expressing a view which is contrary to government policy.”

Ian Carter, the CEO of Anglicare WA, told Pro Bono News that his faith-based charity did not believe religious freedom was under threat because of same-sex marriage.

He noted though, that removing religious exemptions which allow faith-based charities to discriminate would be “complex” for faith-based charities tied to the church, but was not an issue for Anglicare WA.

“The complex issue is with charities like The Salvation Army which sit directly under the church and have their employees actually employed by the church, whereas my staff are employed by Anglicare WA – which is a separate incorporated body,” Carter said.

“Inclusion is one of Anglicare WA’s key values and we play that out fearlessly and importantly in the way that we operate both in terms of our clients and our staff.”

Carter also agreed that no changes were needed to charity legislation, but said Anglicare WA and other faith-based charities needed to have their right to advocate protected.

“Our submission to the religious freedom inquiry talks about the fact that our role in advocacy needs to be protected as part of this process. We are clearly an organisation that works with and supports the vulnerable people in the community,” he said.

“And that has to include advocacy as well as service delivery. We are the voice for the voiceless and we have an absolute obligation and responsibility to make sure that we speak out on the issues affecting those who are vulnerable.

”Our right to advocate is absolutely crucial to this debate.”

Pro Bono News contacted The Salvation Army, who said they were unable to make comment on the issue at this time.   

The Religious Freedom Review panel will report their findings by 31 March 2018.