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The fresh anti-discrimination legislation in the Australian Capital Territory will reduce religious freedom even further, applying the strictures upon faith-based schools to other religious institutions like hospitals and aged care, and even places of worship or university student societies.

The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.

Current ACT Law

The ACT DA already contains some of the narrowest religious freedom protections in the country, after amendments to the Act made in 2018 (which I commented on at the time when they were proposed.) One result of these changes was that the previous freedom of faith-based schools and educational institutions to conduct their activities in accordance with their faith, was greatly reduced.

Under s 32 of the DA as it now stands since 2018 (even before any further changes are made), “religious bodies” other than schools are generally allowed to apply their doctrines and beliefs in decision-making in

(d)     any other act or practice… of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

However, this freedom is explicitly not applicable to a “defined act” by a religious body, which is defined in s 32(2) as follows:

(2)     In this section:

“defined act”, by a religious body, means an act or practice in relation to—

(a)     the employment or contracting of a person by the body to work in an educational institution; or

(b)     the admission, treatment or continued enrolment of a person as a student at an educational institution.

There is a provision, s 44, allowing faith-based schools and religious groups providing health care to make employment decisions based on religious belief, “if the duties of the employment or work involve, or would involve, the participation by the employee or worker in the teaching, observance or practice of the relevant religion”.

But this is narrowly drafted and would probably only apply to staff whose job was to actually teach religious studies or run religious services in hospitals. Section 46 allows enrolment and staffing decisions in faith-based schools to be based on religious belief, but only if clearly announced in a formal public policy document.

This means, however, that a faith-based school may not set out a policy requiring staff or students to comply with the moral code required by their religion. For example, where a staff member decides to move in with a de facto partner without being married, this would be contrary to classical Biblical teaching that sexual relations are only appropriate in marriage. The school may want all staff to set an example of living in accordance with the tenets of their faith (and parents may send their children expecting this.)

But the staff member may be able to claim that dismissal or discipline in this situation would be discrimination on the grounds of “relationship status” under s 7(1)(s) (which term includes, according to the Dictionary at the end of the Act, being a “domestic partner” of someone else).

Or the school may expect students to adhere to a code of conduct that is consistent with the values of the faith, and students may decide to defy this code and claim that they are being discriminated against on one of the grounds under the Act.

The proposed amendments

(a) “Reasonable, proportionate and justified” — but who decides?

The proposed amendments will, in effect, roll out similar limits to apply to other religious bodies other than schools. The amendments to s 32 would mean that decisions of religious bodies made in accordance with their faith (other than a closely defined set of decisions relating to ordination, training for ordination, or religious services — though see below on this), will not only have to be justified by their faith, but now also be shown to be “reasonable, proportionate and justifiable in the circumstances” (new s 32(1)(d)(ii)).

While these adjectives all sound sensible and mild, the fact is that where this criterion is imposed, the decision on what is “reasonable” (etc) will have to be made by a tribunal or a court which will not share the faith commitments of the body.

As I have noted in an article entitled “Respecting the Dignity of religious organisations: Courts deciding theology?”, there are some issues of “private law”, involving contracts, torts (civil wrongs) or property held under trust, where secular courts will need to come to a view on religious matters. These will almost always be cases where both parties have expressly or impliedly agreed to be bound by religious principles.

But in other situations, where obligations are imposed on religious bodies externally, by the wider community, respect for religious freedom means that religious bodies should be allowed to determine for themselves the content of what their faith requires.

Part of the respect that should be offered to a religious group, then, is that it be left to order its life in accordance with its own understanding of the religious doctrines that shape its existence.

Of course, there are some circumstances where the living out of those doctrines may need to be controlled in the interests of fundamental rights of members of the group or members of the public — where a religious group, for example, inflicts physical or sexual abuse on children or other vulnerable persons.

There are well recognised limits to religious freedom. But even in those cases, there are significant questions to be raised as to whether the State should be interpreting, or “re-interpreting” doctrine, or rather simply saying that “whatever your doctrine means, we cannot allow this behaviour”.

The latter response is more consistent with the dignity of the group, which is not undermined but actually affirmed when the group is held accountable for the lived consequences of its doctrines.

Foster, “Respecting the Dignity” (2020) at 177.

There is another amendment to s 32 which may have a further narrowing effect. As noted, the current provision in section 32(1)(a)-(c) exempts ordination and training and religious service decisions altogether from the operation of the Act. But the new version of s 32(1) will add a requirement that the decision “conforms to the doctrines, tenets or beliefs of the body’s religion”.

This means that even in the fundamental decision as to who can be a minister of religion, for example, a church will need to be able to show (again, to the satisfaction of a secular tribunal or court) that a criterion they use flows from their own “doctrine, tenets or beliefs”.

For example, given the deep differences of opinion among Bible scholars over whether women can be appointed to lead churches, even such a core matter as the Roman Catholic church only ordaining male priests might be challenged before an ACT tribunal.

(b) Restrictions on religious groups supplying “goods, services or facilities”

Under the proposed ACT amendments, the existing removal of religious freedom protections under s 32 from schools, will now be extended further to all religious bodies in cases where “discrimination is not on the ground of religious conviction — [to] the provision of goods, services or facilities” (new s 32(2)(a)(iii)). This will have the effect that any religious body providing these things to others, will be forbidden from choosing not to provide those things on any other ground other than “religious conviction”.

This will mean, for example, that a local church that hires out its hall during the week may still be allowed not to hire it to another religious group (as this would be a matter of “religious conviction”). But if asked to provide the hall to a “same-sex support group” whose aim is to present homosexual activity as a normal and accepted part of life (a belief contrary to the church’s commitments to the Bible) — the church would now be required to do so.

The reach of this new provision is unclear. Suppose, for example, that a church provides communion in its Sunday service — a formal religious service where bread and wine (or grape juice) are used to symbolise Christ’s death and resurrection. Suppose that could be regarded as the provision of a “service” to congregation members.

But one Sunday, someone presents to receive communion who has been told by the leaders of the church that they are not to take communion because they are engaged in behaviour that rejects the teaching of the church. If that behaviour can be characterised as a prohibited ground of discrimination (such as living in a de facto relationship), the church may be required to offer communion to that person despite their deeply held religious beliefs.

(c) Religious groups and “functions of a public nature”

In a further restrictive move, protections under s 32(1) are removed under s 32(2)(b) from:

(b) a religious body—

(i) when performing a function of a public nature; or

(ii) whose sole or main purpose is a commercial purpose.

A “function of a public nature” is defined in the exposure draft by reference to s 40A of the Human Rights Act 2004 (ACT) (“HRA”). That provision spells out that it includes a number of what might be called “public utilities” such as electricity, gas and water supply, “public education”, and “public health services”.

But the definition under s 40A(1) provides a range of “matters to be considered” which are fairly open-ended, including under s 40A(1)(d) “whether the entity is publicly funded to perform the function”. It might be possible for someone to argue that provision of health care by a religious hospital or aged care provider, if done with access to “public funds”, transforms the provider into a body “performing a function of a public nature”.

That this is a possible view of the law can be seen in the official “Fact Sheet” about the amendments issued by the ACT government, in which we read that:

A religious body providing public health services cannot rely on the exception [in s 32]

Fact Sheet, p 2.

Related to this point, one of the new provisions inserted by the Exposure Draft would be s 23C:

23C Public functions 

It is unlawful for a public authority to discriminate against another person when performing a function of a public nature.

Again, the definition of “public authority” is referred to the HRA (s 40 this time) and is fairly open-ended. In s 40(1)(g) it extends to:

an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

While at the moment this may not include a religious health care provider or aged care provider, there may be some pressure to see the definition interpreted in that way. It would be wise for the legislation to make it clear that these bodies are not included.

(d) Tightening decisions based on religious beliefs

The limited protections currently provided under s 44 (for employment decisions based on religious convictions) are now further narrowed under the new version of s 44, which will require that such decisions can only be made

(b) conformity with the doctrines, tenets or principles of the religion is a genuine occupational qualification for the position; and

(c) the discrimination is reasonable, proportionate and justifiable in the circumstances.

These added requirements, again, will have to be judged by a secular tribunal or court. It is now also made clear under s 44(2) that these limited protections which will apply to “religious groups” do not apply to schools or bodies “whose sole or main purpose is a commercial purpose”.

(e) Clubs and voluntary groups

Another provision that may have an impact on religious freedom is newly redrafted s 31:

31 Clubs and voluntary bodies 

It is not unlawful for a club or voluntary body, or the committee of management or a member of the committee of management of the club or body, to discriminate against a person if—

(a) the club or body is established to benefit people sharing a protected attribute; and

(b) the discrimination—

(i) is in relation to the provision of membership, benefits, facilities or services to the person; and

(ii) occurs because the person does not have the protected attribute; and

(iii) is reasonable, proportionate and justifiable in the circumstances.

A church or a religious club may be classified as a “voluntary body”. It could be seen to be established to “benefit” people who share a specific religious belief. Any decision on membership, by excluding someone who does not share that religious belief, would now have to be justified as “reasonable, proportionate and justifiable in the circumstances” before a secular tribunal or court.

This might apply, for example, to an Islamic Student Club at a university. The club may have been set up to serve the interests of Muslim students, but the committee may find themselves forced to defend their decision not to admit a Christian person to membership by showing why it is “proportionate”.

(f) Genuine occupational requirements — but not religious belief

There is a further restrictive provision in the proposed new s 33C. The section reads as follows:

33C Genuine occupational qualifications 

(1) It is not unlawful for a person to discriminate against another person in relation to a position as an employee, commission agent, contract worker or partner if—

(a) it is a genuine occupational qualification of the position that the position be filled by a person having a particular protected attribute; and

(b) the discrimination is reasonable, justifiable and proportionate in the circumstances.

(2) Subsection (1) does not apply to discrimination on the ground of religious conviction.

Sub-section (2) here excludes the application of sub-section (1) to any staffing decisions based on religious conviction. This means that religious bodies who are protected by s 32 may still apply their “doctrines, tenets or beliefs” (that they cannot rely on s 33C does not mean that they lose the protection of s 32).

But what it seems to mean is that any body or individual in the community who does not fall within the definition of “religious body” will not be able to apply religious conviction as a “genuine occupational qualification”. A “religious body” is “a body established for religious purposes”, under the new Dictionary definition.

Suppose a professional firm where the members would like the firm to be one with a “religious ethos”- all the members of the firm are Buddhists and they want to provide a service to the Buddhist community. But the firm is a group of doctors, or lawyers, or engineers (and so on one view, is not established for “religious purposes” alone). Under this new provision, even if they would like to advertise for new members of the firm and make “commitment to Buddhist belief and practice” a requirement of the position, they cannot do so.

(g) Banning religious boycotts

Finally, while there are other proposed amendments, it seems worth briefly commenting on proposed new section 20(2), which would seem to now make it unlawful in some cases for a member of the public to “boycott” a business because they disagree with a stance taken by that business on a moral issue. The provision reads:

(2) It is unlawful for a consumer of goods or services, or a user of facilities, to discriminate against the provider of the goods, services or facilities—

(a) by refusing to accept the goods or services or use the facilities; or

(b) in the terms or conditions on which the goods or services are accepted or the facilities are used; or

(c) in the way in which the goods or services are accepted or the facilities are used.

One of the “protected attributes” under the DA is “political conviction” (see s 7(n)). Suppose a place that you regularly shop at, one day puts up a sign indicating that the shop-owner supports the One Nation political party. You strongly object to One Nation’s policies. It seems that under this provision you will be acting unlawfully by deciding to switch your custom elsewhere!

Or suppose you support an airline as a regular customer, and one day the CEO of the airline announces that they have undergone a religious conversion and become a Presbyterian. You object to Presbyterians, and decide (and announce on social media) that you will never fly with that airline again.

This would again seem to be unlawful behaviour under new s20(2) (as it is a “protected attribute” that an entity has an “association (whether as a relative or otherwise) with a person who is identified by reference to another protected attribute” — s 7(1)(c)). This, in my view, is a provision that intrudes far too much on the general right of persons to spend their resources in ways that they choose!

Conclusion

These proposals will further limit religious freedom in the ACT. There must be some questions to be addressed as to whether they are legally valid. As I have argued previously in relation to the 2018 laws, where a subordinate jurisdiction like a Territory removes protections provided by a Commonwealth law, that Territory law may be invalid. The rules introduced here are narrower than the rules set out in the Sex Discrimination Act 1984 (Cth), sections 37 and 38. As a result, they may be inoperative.

There must also be a question of whether these restrictions are so narrow that they clash with the Constitution. While there is some debate on the matter, most Constitutional scholars today take the view that s 116 of the Constitution is applicable to Territory laws. Any law “for prohibiting the free exercise of any religion” would be invalid, at least if, as it was expressed in the main authority on the provision, it was an “undue infringement” of religious freedom.

Both of those possibilities are additional reasons not to go ahead with these laws. I encourage those concerned with these issues to contact the ACT government to let them know about these issues.

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Originally published at Law and Religion Australia.