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Making the Most of the Cross
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Higher Ground
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DEBATE Defending our rights 2

1:00am Sunday, 27th June 2010

The case against: The Federal Government is not going ahead with a human rights charter that some Christians saw as a danger to
Christian freedoms. But should we have been looking after our own rights, or others’ rights? David Palmer of the Presbyterian Church
Victoria’s Church and Nation Committee defends the campaign against the charter.

In the recent Eternity website report on the government’s back down on a Human Rights Charter, Angus MacLeay of the IsaiahOne group is reported to have expressed concern that Christians in opposing such a Charter were in effect acting to preserve their own rights at the expense of the rights of others.
Not so.
In arguing against a federal charter, Christians were not arguing against the rights of others—nowhere can this be demonstrated They were arguing, and this was by no means their only argument, that under a charter, freedom of conscience, thought and
religion would be weakened not just for themselves but for all people of religious faith.
The failure of the Victorian Charter to protect the conscience of those doctors unwilling to perform an abortion or refer for abortion under the then proposed and subsequently enacted Abortion Law Reform Bill 2008, exemplified the concern.
Despite a carryover of the fine expression of the freedom of conscience from the International Covenant on Civil and Political Rights into the Victorian Charter of Rights and Responsibilities Act 2006, when the proposed Abortion Law Reform Bill was subjected to the scrutiny of the charter, the charter failed to require freedom of conscience for doctors opposed to abortion.
The reason that this could occur was that the objective, narrowly defined limitations to freedom of conscience, thought, and religion found in the International Covenant had morphed into subjective and greatly expanded limitations in the charter, thereby rendering the charter’s freedom of conscience, thought and religion ineffective.
During the deliberations of the Brennan enquiry much was made of specific cases from the immediate past involving such matters as the locking up of children in detention centres, the cases of David Hicks, Cornelia Rau and Dr Mohammed Haneef, and the suspension of the Racial Discrimination Act during the Northern Territory intervention.
It is not at all clear that the proposed charter would have made any difference at all in any of these cases. In the case of Dr Haneef, the Federal Police bungled and Dr Haneef was released and exonerated under existing law. In relation to the children in detention, the Howard Government was voted out of office and the incoming Labor Government changed the policy. The case of the suspension of the Racial Discrimination Act to deal with child abuse in the Northern Territory highlighted one of the major problems with Charters: Whose rights are to prevail? Those of the abused or the abuser?
I for one applaud the government’s decision to ditch a Charter of Rights.
Victoria’s Equal Opportunity Act 2010
On another matter, that of the recent passage of the Equal Opportunity Act 2010 through the Victorian Parliament, considerable disquiet has been expressed that Christian Schools will be impeded in their desire to appoint Christian only staff . This concern arises from an “inherent requirements” test by way of the religious exception clauses in the act in relation to employment. This has generated concern, fuelled by commentary from the State Attorney General and the head of VEOHRC, Victorian’s Anti Discrimination Commission, that Schools may no longer be able to follow a Christian only employment policy, or if they do so, will be forced to defend their policy in the courts.
In the interests of a more balanced assessment, several things need to be said.
The first and most important is that following a vigorous campaign last year by the churches, the two main Christian School Associations, supported by the Australian Christian Lobby, the Government chose (much to the chagrin of the human rights, anti-discrimination lobby, including VEOHRC), to retain the religious exception clauses in the act. It strengthened these clauses by a broad definition of what constitutes a religious body. It retained the exception unchanged for appointment of ministers of religion and their training.
But the basis on which a religious body, including religious schools, may discriminate in the areas of membership, service delivery and employment has changed. Discrimination will still be permitted on the grounds of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, provided that the proposed discrimination “conforms with the doctrines, beliefs and principle of the religion”, or failing that, “is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion”.
Second, in the case of employment by religious bodies, including religious schools, discrimination is permitted where “conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position”.
The intention here is made clearer in a further clause that “the nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement” of the particular position. Certainly it would be wise for religious bodies to seek legal advice, as is the case with the Presbyterian Church.
Religious bodies, including schools, will need to look to what their “doctrines, beliefs and principle” are. If they have not done so, they will need to put them in writing and then relate membership, service delivery and employment requirements to those “doctrines, beliefs and principles” if they wish to discriminate.
None of this means that in the messiness of real life and with a new law to be tested, there will not be challenges and difficulties.
The fact that VEOHRC is now empowered under the new legislation to undertake investigations on its own account only increases the likelihood of some school somewhere being called upon to justify its employment policies.