Religious Freedom Review Reignites Discrimination Exemptions Debate

The Religious Freedom Review’s completion has prompted calls to remove religious exemptions from discrimination laws, but the Salvation Army has warned exemptions are necessary to allow religious bodies to appoint staff “that subscribe to the beliefs of the organisation”.  

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.

On Friday, Prime Minister Malcolm Turnbull announced he had received the final report from the expert panel, but revealed it would not yet be made available to the public.

“I would like to thank the chair, the Hon. Philip Ruddock, and other members of the panel for their work in exploring this important issue in such a comprehensive and respectful way,” Turnbull said.

“I look forward to considering the report in detail and will consult with members of the government before releasing it to the public and responding to its findings.

“I have asked the attorney-general, the Hon. Christian Porter MP, to lead the government’s deliberation and response to the report.”

With the Ruddock review on religious freedoms being finalised today, its important that any recommendations facilitate harmony and healing, and don’t stoke division – especially after such a bruising year for the LGBTI community. Australia voted for equality not discrimination.

— Alex Greenwich MP (@AlexGreenwich) May 17, 2018

In anticipation of the report, the Human Rights Law Centre has called on the government to remove “outdated” religious exemptions from discrimination laws.

Anna Brown, HRLC’s director of legal advocacy, said now was the time to remove these exemptions.

“Prime Minister Turnbull must not diminish Australia’s longstanding protections from discrimination. If anything outdated laws allowing religious organisations to discriminate against single mothers, pregnant women or LGBTI people should be repealed,” Brown said.

“Australians fundamentally believe that we should be treated with fairness and equality when we apply for a job, when we study or go to a support service for help.

“For six months, couples have been happily giving vows of love and commitment around the country. Scaremongering that marriage equality would somehow lead to attacks on religion freedoms have proven absolutely false. Marriage equality has brought joy to many, and taken away from no one.”

A recent Galaxy poll revealed that about four in five Australians strongly supported discrimination protections for LGBTI people, including against discrimination from religious groups.

“An overwhelming majority of Australians do not support taxpayer-funded religious organisations and schools being able to fire a teacher or expel a student because of their sexuality or gender identity,” Brown said.

“Everyone is entitled to their religious beliefs, but those beliefs shouldn’t be used as a justification to treat people less favourably. Everyone has an equal right to be free from discrimination.”

HRLC’s submission to the religious freedom inquiry 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 also said faith-based charities were acting discriminatorily 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.

Scaremongering that #marriageequality would lead to attacks on religion freedoms has proven absolutely false. Our laws already privilege religious freedom over equality in many ways. This review is an opportunity to ensure all Australian are treated fairly #auspol https://t.co/EWFDEmgvuh

— Anna Brown (@AnnaHRLC) May 17, 2018

But prominent faith-based charity The Salvation Army, has argued in its submission to the inquiry that exemptions from anti-discrimination law were necessary for religious bodies, to allow them to appoint staff which subscribed to the beliefs of the organisation.                        

“This is necessary in order for organisations to maintain their unique character and identity and continue to operate according to their faith traditions,” the submission said.

The Salvation Army’s submission expressed concerns with the religious freedom protections contained in the Marriage Amendment Act.

This bill – which enshrined same-sex marriage into law – said bodies established for religious purposes may refuse to make facilities available or provide goods or services, when relating to same-sex marriage.

However, the Salvation Army said the definition of “body established for religious purposes” needed to be broadened to protect faith-based charities.

“Any such definition should include ‘faith based charities’, such as adoption agencies, aged care services and out-of-home care services,” their submission said.

“This is of particular importance for The Salvation Army as many of the aforementioned services that we provide are primarily offered for charitable purposes rather than directly for religious purposes.

“Without such protections for organisations such as The Salvation Army (and all relevant individual decision makers within such bodies), religious institutions will suffer greater limitations to their religious freedoms than what are required in order to give effect to same-sex marriage.”

The Salvation Army also expressed concerns that their charitable status was at risk due to the legalisation of same-sex marriage in Australia.

“In regard to the various intersections between religious freedom and the recent changes to marriage law in Australia, perhaps those most likely to directly impact The Salvation Army, along with many other charitable institutions, are the potential implications to charitable status, government funding and tax exemptions,” the submission said.

“In New Zealand, the charitable status of Family First New Zealand was removed on the basis that its promotion of traditional marriage and family was no longer considered to be in the ‘public benefit in a way previously accepted as charitable’.

“The New Zealand Charities Registration Board’s decision was based on the common law of charities and as such, it is reasonable to anticipate that a similar decision could be reached with regard to Australian charities.”

The submission said that given this case in New Zealand and other cases in the UK and the US, it was possible the beliefs of an Australian charity regarding same-sex marriage “may become a determining factor in a decision as to whether such an organisation continues to be registrable as a charity at law”.

“The Salvation Army strongly believes that without appropriate exemptions in charity law, religious institutions and faith-based charities such as The Salvation Army may be at risk of losing their charitable status and may also be prevented from obtaining government funding, specifically where such funding is awarded on the basis of charitable status,” the submission said.

However in Justice Connect’s Not-for-profit Law Service’s submission to the inquiry, it said no changes were needed to charity legislation.

“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,” their submission said.

“[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.”

Pro Bono News contacted The Salvation Army to respond to the HRLC and to clarify its position on anti-discrimination law exemptions, but the charity was unable to provide comment at this time.