This week on Voice for Values, University of Newcastle Law and religion Associate Professor Neil Foster, has some fascinating insights into the balance between freedom of religion and anti-discrimination law.
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ASSOCIATE PROFESSOR NEIL FOSTER ON VOICE FOR VALUES
THURSDAY 2ND JUNE 2016
Lyle Shelton: Hello and welcome to Voice for Values. It’s Lyle Shelton from the Australian Christian Lobby. We’re going to be talking about the federal election, just over four weeks to go and this election is shaping up as a contest about religious freedom of all things. We’ve seen the Greens make some statements about removing religious freedom, protections from law and Labor wanting to review those. With me to talk about this is one of Australia’s great experts in this area. It’s Associate Professor Neil Foster. He teaches at the Law School at the University of Newcastle and he teaches law and religion. Neil it’s great to have you with us today on Voice for Values. Welcome.
Neil Foster: Thank you Lyle. It’s a great pleasure to be able to chat to you.
Lyle Shelton: Well Neil I know you will have been watching this very closely because this is very much in your area of discipline. We saw the Greens just a couple of weeks ago make a big policy announcement that they are going to abolish religious freedom as it appears in the commonwealth anti-discrimination legislations, the exceptions and exemptions for religious freedom. Can you just help us understand the significance of that and what that means because I think a lot of people wouldn’t even know that these sorts of exceptions and exemptions and protections even existed.
Neil Foster: Yes, it’s a very significant proposal as you say, Lyle and it’s quite a worry for those of us who are interested in the cause of religious freedom in Australia. Religious freedom is about people being able to live in accordance with their deep commitments that they have to their worldview, I guess, and we’ve recognised for a long time in Australia that it’s a fundamental right that people have. It’s protected in international law that Australia is signed up to in the international covenant on civil and political rights so it’s a really important principle, and it’s been recognised for a number of years in the area of discrimination laws and most religious people, myself included, would thoroughly support the idea of laws that make it unlawful to discriminate between people on the basis of irrelevant grounds, of keeping people away from jobs or other things simply as a matter of prejudice or bigotry but there are many areas where it’s recognised that particularly churches and religious groups differentiate between people on the basis of their fundamental religious commitments for reasons that are based on their worldview. We want to allow them to live out so something like the Sex Discrimination Act for example, there are exceptions in there that allow churches that for, I guess you’d have to say for thousands of years, have run themselves in certain ways, and some of the churches which have chosen, such as the Roman Catholic church and parts of other churches, not to ordain women, to allow that a provision that recognises their right not to be bound in that particular area by the sex discrimination legislation.
Lyle Shelton: So this can affect particularly the Anglican Church and the Roman Catholic Church, which have a clear position on the ordination of women and so if the Greens abolish the ability of these churches to practice that belief by taking these exemptions and exceptions out of the law, that could affect those churches.
Neil Foster: Yes, that’s right and that’s not the only area. There are other areas where religious groups wish to conduct their activities in accordance with the ethos of their particular religious group and we, broadly speaking, the view that’s been around in Australia for many years is that we value contribution that religious groups make to society. So much work is done for the poor and the vulnerable and the needy in our society by religious groups and so we allow them to operate in accordance with their ethos so for example a school that runs itself on religious grounds and invites parents if they agree with those religious grounds to send children along, is allowed to say that we want to maintain an ethos that’s consistent with our religious belief and so we would only employ people who are committed to that ethos, so that’s another area where the law allows religious groups to live in accordance with their religious beliefs.
Lyle Shelton: So this is where it could affect a Christian school in particular, where they might require their staff as a matter of policy, to live by the standards of Biblical morality when it comes to sexual conduct.
Neil Foster: Yes, entirely that’s right. So obviously Christian groups that want to live in accordance with the Bible are sometimes in disagreement with the majority sexual orthodoxy of our culture today and yet they are setting up these institutions to run in accordance with their fundamental beliefs and the reason they’re setting them up is because they’re living out their religious faith and so it seems quite reasonable that if you want to be a part of that group that’s working towards representing that ethos in the public sphere that you share those commitments including the commitments about sexual behaviour and the traditional Christian view certainly has been that sexual intercourse is only legitimate when expressed between a man and a woman in a marriage relationship so if you want to join in a group like that then that’s the sort of lifestyle that the churches may require. So there are some areas where we have currently recognised for many years that religious groups are allowed to operate in accordance with their ethos.
Lyle Shelton: Now anti-discrimination legislation has been around for decades and this has not been an issue of controversy until fairly recent times but it seems to be driven, I guess as society moves away from Christian sexual morality, I suppose, and particularly our friends in the gay community, they are looking at these protections of religious freedom and exceptions and exemptions and are saying, well this gives churches and schools and Christian charities the right to discriminate against them and so they make quite a moral sort of virtual case out of this so why should the churches be allowed to discriminate against gays? That’s essentially how they’ve framed this debate, isn’t it?
Neil Foster: Yes it is and in fact it’s worth though noting that it’s really not appropriate to say that churches are discriminating here. The law actually allows balancing provisions within the various pieces of legislation to allow the recognition of religious freedom rights in the context of non-discrimination rights and so the best way of viewing it, I think appropriate way of looking at what parliament’s done is to say, ok there are certain limits within which you are allowed to operate if you’re a religious group and if you’re operating within those limits, then you’re not actually discriminating, you’re not making decisions on irrelevant grounds because these issues are relevant to your fundamental commitments about the world and universe. So it’s very easy when you talk about these things as being exemptions or a licence to discriminate, to paint them in a way that well you know, who could agree with that? But the fact is, what they are is clauses in the legislation that allows the balancing of this fundamental human right to religious freedom along with other human rights such as the right not to be discriminated against.
Lyle Shelton: Yeah. This is a really important discussion because the way I described it before, and you’ve clarified it brilliantly, is the way that this has been framed and I think it’s creating a lot of confusion in people’s minds and causing people to think in a certain way against the church. I’m speaking with Associate Professor Neil Foster from the University of Newcastle. We’ll be right back after the break to continue this fascinating discussion about religious freedom and what constitutes discrimination and how this is playing out in this current election campaign. Stay with us.
Well welcome back to Voice for Values. I’m speaking with Associate Professor Neil Foster from the University of Newcastle. We’re talking about religious freedom. This has been a subject that has been coming up in the election campaign and we’ve seen the Greens put up a proposal that if they were ever to govern Australia, and of course they won’t because they’re a minor party, but they would abolish the protections for religious freedom in anti-discrimination law which would then impinge on the ability of churches and schools to maintain a Christian ethos and before the break, Neil and I were speaking about why that isn’t a licence to discriminate but why it’s really a balancing provision in the law and I think that’s really lost in this whole conversation this election campaign, isn’t it Neil?
Neil Foster: Yeah I think it’s unfortunate when things are painted in a particular way and these provisions are put up as something that’s sort of been carved out from some big provision and it’s just a temporary exemptions but yes that is, as you say, it’s been there for many years and I think one of the things that’s important to recognise in this area is that if society is getting value from the work that Christian groups are doing in the community amongst our most vulnerable and needy people, and it really is, if the non-government organisations from a religious viewpoint were evicted from the public sphere, there would be tremendous cost to our community. So that value that society gets, it’s worth the fact that well the only reason we get that value is that these groups are actually living in accordance with their religious beliefs. I mean, one set of beliefs says they must care for the needy and look out for their neighbour, another set of beliefs says that they have a sexual morality that they want to live in accordance with, and you can’t have one without the other.
Lyle Shelton: In a tolerant society, we should give room for different views on sexual morality and all these laws do is allow people who want to voluntarily associate around these values, to teach children those values, they have the right to practice those and if people disagree with them, they don’t have to go and work at a Christian school or work for a Christian charity or a church. There’s other places where they can go and work. In the same way, the Greens don’t have to employ coal industry people to work in their political offices.
Neil Foster: That’s right. It’s precisely situation. If you’re a group that’s agitating for particular types of worldview or particular public outcomes, then it’s perfectly reasonable that you actually take people on board who are in accordance with the ethos of that group and indeed I suspect if you go around these, you know, management seminars that talk about how to make your business successful, one of the things they stress is that you want everyone on board. You want to have commitment to the same message. It’s equally true in terms of religious and voluntary groups as it is in terms of business. You want people who are sharing that ethos.
Lyle Shelton: Yeah and the freedom to be able to have groups and associations. Now Neil, we’ve talked about the Greens. Their policy is clear. Now if they were ever to form or say if Labor won government with the assistance of the Greens in some sort of minority government, there’d be huge pressure on Labor to take away those religious freedom right but Labor itself has actually said during this campaign that it’s policy is to review the exceptions and exemptions that exist under anti-discrimination law. Now Bill Shorten quickly clarified that and said well he doesn’t want to get involved in the business of telling faith-based organisations how to run themselves but nonetheless, their policy is to review these protections for freedom. What could that mean if a Shorten government with the help of the Greens, was in power after July 2?
Neil Foster: Well I think you have to say that the very fact that they’re undertaking a review, of course there’s nothing wrong with keeping legislation under review, but as a policy plank of an election platform, it sounds very much like a broad hint that they’re not inclined to agree with the current situation as adequate and certainly as you say, and I’m not across the political nuances here but if you’re in a government where you’re depending on the support of the smaller party that’s come out very strongly against these exemptions, then the chances are there’ll be a lot of pressure on that government to undertake that review. Indeed we can see to some extent historically Lyle how pressure can mount on this because a few years ago, about the end of 2012 I think it was, we had a massive proposal for a re-drawing of discrimination laws in Australia put up by the Human Rights Commission or various human rights bodies and there was a massive backlash against it because it was along the lines of vastly extending the grounds of discrimination and vastly shrinking recognition of religious freedom and if people around at that stage were prepared to put this up as a plausible public policy outcome and that was I think under the previous Labor government, I think there’s some concerns that a similar exercise might be tried in the future.
Lyle Shelton: I’d share that concern, Neil and people who know the work of ACL know that we don’t tell people who to vote for but we do highlight the policies of the parties and you mentioned that Human Rights Commission process back around 2012/2013 but one of the other significant campaign announcements that has been made relates to the Human Rights Commission and Penny Wong had an announcement about how Labor would have the taxpayer fund a new Human Rights Commissioner, an LGBTI anti-discrimination commissioner attached to the Human Rights Commission. Now what could that mean? What consequences could flow from someone in that position, Neil?
Neil Foster: Well I want to say right up front and I’m sure you share this view Lyle that no-one wants to see discrimination against LGBTI people on irrelevant grounds. It shouldn’t matter if you’re wanting to take a person on to flip burgers at McDonald’s or to become a senior financial advisor or to do any other sort of job or what a person’s sexuality is.
Lyle Shelton: Neil, could I just jump in there. I would totally agree with that and one of the things that ACL was involved in, we were involved in seeing all of the discrimination against gay people removed in 2008. So I guess the reason I ask the question, I should have framed it better…
Neil Foster: No, I accept all that I just wanted to make that clear to your listeners. I think though that the issue comes down to the resources that the Human Rights Commission has and where those resources are spent and I guess the perceived problems and perhaps one of the concerns I have about decisions in this area at the moment are that we did have a Human Rights Commissioner who was particularly concerned with religious freedom and freedom of speech issues, Tim Wilson, and for various reasons, and of course Tim has decided to move into politics but he’s moved on but there’s been no move as far as I can work out to replace that position in the Human Rights Commission. So that was an area in which it seems to me is arguably been under-resourced in the past, an area where there’s a need for serious government consideration of those problems. Of course, there can be no objection to an LBGTI human rights commissioner who is looking at this question of irrelevant discrimination in the workplace and other areas and wanting to support people there but the concern that one might have is that’s it’s very easy in this area to slide over from concern with discrimination on irrelevant grounds into the area of pushing the view that any opposition to same-sex marriage or same-sex behaviour should be regarded as somehow unlawful or inappropriate and the danger is that if someone is advocating in this area, that there’d be a swing from just looking at problems that are caused by criteria based on irrelevant grounds in the workplace into pushing an agenda which I think many people in Australia wouldn’t support which is to say, well we just have to shut down all criticism of homosexual behaviour.
Lyle Shelton: I think that’s probably the concern that I have in probably implicit in the way I asked the question because given that there is no discrimination in Australian law against same-sex attracted people and that’s as it should be, I would concerned that an LGBTI anti-discrimination commissioner funded by the taxpayer might be someone who goes around the country looking for opportunities to target people who dissent, who disagree with same-sex marriage ideology, who disagree with the so-called Safe Schools ideology, the whole gender fluid agenda that’s being forced on our children and if you started speaking out against these sort of things, you might run foul of a taxpayer funded LGBTI anti-discrimination commissioner who could then report you to various anti-discrimination tribunals as we’ve seen with Archbishop Julian Porteous down in Hobart.
Neil Foster: Yes. I think you’re right. In particular, the case involving Archbishop Porteous was very unfortunate.
Lyle Shelton: Well our time has got away from us. Neil Foster, Law and Religion Associate Professor from the University of Newcastle, it’s been great to have you with us. For those who want to know more about Neil Foster’s work from the University of Newcastle, he has his own blog. It’s called lawandreligionaustralia.wordpress.com. That’s the correct web address, is it Neil, where people can go for your blog posts on these subjects?
Neil Foster: Ah, yes that’s right.
Lyle Shelton: Very good. Lawandreligionaustralia.wordpress.com. Check out Neil’s work. If you want to know more about the discussion we’ve been having today, his recent blog post there will give you more detail. Neil, thanks so much for joining us on Voice for Values.
Neil Foster: It’s been a great pleasure, Lyle. Thank you.