June 15th 2019

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Articles from this issue:

COVER STORY Anthony Albanese: NSW left factional warlord takes charge

EDITORIAL Religious freedom: the political and legislative challenges

CANBERRA OBSERVED Will Bill Shorten emerge from the shadows again?

FEDERAL ELECTION Queensland voted for jobs, life and country

NATIONAL AFFAIRS Keating's 'nutters': Don't blame the messenger

ECONOMICS AND SOCIETY Health policy is not immune from neoliberal infection

HUMAN RIGHTS Canada accepts Asia Bibi and family as refugees

FAMILY AND SOCIETY Families keeping the faith: the Benedict and other options

IDEOLOGY Feminist claims for equality, Part 1: The context

HISTORY OF SCIENCE Faith and reason and Father Stanley Jaki, Part 3: More on science and ancient cultures

LIFE ISSUES Families, youth boost crowd at WA Rally for Life

MUSIC Muse of delight: The laugh ascending

CINEMA Asterix: The Secret of the Magic Potion

BOOK REVIEW Pioneering aviator's flights and fancies

BOOK REVIEW Catholic resistance in a forgotten war

BOOK REVIEW AFA patron's long life of public service


NATIONAL AFFAIRS Cardinal Pell's appeal, June 5-6, 2019: An account from the live streaming

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Religious freedom: the political and legislative challenges

by Patrick J. Byrne

News Weekly, June 15, 2019

Following widespread public concerns over threats to religious freedom during the federal election, the Morrison Government has promised a religious discrimination act by July.

Human rights law is a tricky, problematic area of law. As militant secularists want to restrict religious freedoms by making religious freedom legislation as ineffective as possible, there are concerns that a new law could reduce, rather than comprehensively protect, freedoms.

Consider the complexity of issues with the 2013 changes to the Sex Discrimination Act 1984 (SDA)that made a person’s gender identity and sexual orientation protected attributes.

Effectively, the Act’s protections for a person’s gender identity allow a biological boy/man who self-identifies as female to claim the same rights as girls/women.

All that’s required for a sex/gender change is a statement from a registered medical practitioner or psychologist, a passport or Australian Government travel document, an amended birth certificate, or a state or territory Gender Recognition Certificate or Recognised Details Certificate. These documents are easy to obtain.

As the SDA covers state schools, state education departments have issued policies requiring their school authorities to negotiate with transgender students as to which toilets, change rooms, sport, camps, dormitories and other services they can access at school.

For example, the NSW Education Department’s policy – it’s 11-page Legal Issues Bulletin No 55, December 2014 – assessed the risks for “use of toilet and change rooms” as “high”. It set out risk-management procedures: “Doors provided to change room cubicles of their identified gender. Student must change in cubicle. Staff to monitor length of time in change room. Staff and student to report any incidents in the change room to Principal … Zero tolerance to “skylarking” in change rooms.”

Further, the department’s policy says compliance also requires allowing uniforms to be worn according to a person’s preferred gender; support for medical transition of a child using puberty blockers and sex-change hormones; inclusion of transgender issues in the curriculum; inclusion in single-sex schools according to a person’s preferred gender identity; and teachers and students required to use appropriate pronouns.

The South Australian Education Department’s policy explicitly warns: “Failure to provide transgender students with access to appropriate toilet and change facilities may breach anti-discrimination legislation.”

This means that school principals and teachers could face legal penalties for non-compliance with these policies, and face disciplinary action, loss of professional qualifications and employment. Action could be taken for not letting a biological boy who identifies as a girl into the girls’ change rooms.

Whereas the SDA covers state schools, it carves out freedoms in the form of exemptions for faith-based schools. While there are conditions on these exemptions, nevertheless they provide protections against policies that the states are imposing on state schools, as described above.

These exemptions are now under review. After the Ruddock Inquiry into religious freedom, the Attorney-General referred the issue of freedoms and exemptions for religious schools to the Australian Law Reform Commission (ALRC), to report by April 2020.

The planned July bill means the Government is not waiting for the ALRC report.

While the form of the Government’s bill is unknown, the terms of reference for the ALRC are revealing. It called for a review of laws to guarantee “the right of religious institutions to conduct their affairs in a way consistent with their religious ethos”, but at the same time to “limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination” from the SDA and other laws.

This poses many difficulties.

Philip Ruddock

Would a religious discrimination act protect the freedom of religious institutions in the absence of exemptions in the SDA? For example, would such an act protect a religious school’s belief that biological sex is fixed and immutable from the full force of the SDA, which says a person must not be treated “less favourably” or be “disadvantaged” because of their “gender identity”?

Also, the PM has stated that he doesn’t want religious schools expelling gay students. How would a religious anti-discrimination act distinguish between a same-sex attracted student and LGBT activist students and staff campaigning to change the ethos of the school? How would it protect the freedom of schools to enrol and employ people in accordance with the school’s religious ethos?

Therefore, should exemptions in the SDA remain in place until a religious discrimination act has shown that it can effectively protect the freedoms of faith-based schools?

Further, the Attorney-General’s terms of reference to the ALRC calls for the removal of “any legal impediments [federal, state or territory] to the expression of a view” that marriage is between a man and a woman.

How would a religious anti-discrimination act protect a person’s freedom publicly to express their moral beliefs about sexual behaviour and man+woman marriage, when some anti-discrimination acts say that a person cannot be discriminated against on grounds of their sexual orientation, gender identity and marital status? Tasmania’s Archbishop Julian Porteous was threatened with prosecution under the Tasmanian anti-discrimination Act for publishing his Church’s view on traditional marriage.

How would a religious discrimination act protect employees (religious or secular) whose public views conflict with their company or profession accreditation authority endorsing same-sex marriage and LGBT affirmation policies? Rugby Australia terminated the contract of champion player Israel Folau over his social media posts on a range of moral issues, including sexual behaviour.

In the end, creating legislation to protect freedom of religion requires an understanding that difference is not discrimination so as to protect everyone’s freedom of speech, which is the foundation of a tolerant and free democracy. Getting it right without going backwards is going to be an enormous legislative and political challenge.

Patrick J. Byrne is national president of the National Civic Council.

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Last Modified:
April 4, 2018, 6:45 pm