Respect for persons lost in proposed legislation 

The Ethics Centre is a strong supporter of human rights. As such, we agree with the principal purpose of the draft Religious Discrimination Bill (2019) legislation – which is to outlaw discrimination against all persons on the basis of their religion. However, we also argue that the exposure draft is deficient in a number of important ways.

We recently made a submission articulating these concerns in response to the second exposure draft of the proposed legislation.

Core to the submission is our belief that human rights form a whole and are indivisible. That is, we are disinclined to support legislation that creates broad, general exceptions to the principle of non-discrimination. This is especially so when the proposed exceptions risk abrogating the human rights of one group in favour of another.

It’s important to make it clear that the Centre’s approach is not based on a naïve belief that human rights cohere without tension. We know that this is not the case – and understand that religion is, by its very nature, a special case.

This flows from the fact that every religion makes rival, exclusive and absolute truth claims that resist any form of independent evaluation.

Add to this religion’s appeal to transcendent authority, its inclination to order the lives of its adherents and the emotional and spiritual investment it requires of individual and communal belief – and it’s not surprising that difficulties arise not only between religions but in connection with the expression of other human rights.

Our submission seeks to affirm the universal principle of ‘respect for persons’ and to propose criteria for limiting (without totally restricting) the extent to which religious belief can be used as a justification for discrimination.

‘Respect for persons’ is the ethical requirement that we each recognise the intrinsic dignity of every other person – irrespective of their, gender, sex, race, religion, age … or any other non-relevant discriminator. It is this principle that underpins all human rights – and cannot be set aside without undermining the whole edifice.

Given this, we argue that any exception to the prohibition of discrimination that is accorded to people of faith must be severely restricted. That is, lawful discrimination, by people of faith, must only be allowed to the extent strictly necessary to avoid material harm to the religious sensibilities of those affected.

In short: we set a very high bar for those seeking to discriminate against others in the name of religion.

For example, there is a good case for allowing a religious school to discriminate against a person seeking employment as its Principal while concurrently rejecting the religious beliefs that inform the school’s defining ethos.

However, there is no good reason for applying such a test to the employment of a member of the same school’s maintenance team. Nor is there any justification for discriminating against a person based, say, on their sexual orientation if, in all other respects, the person aligns with the religious beliefs of the school – as understood by a significant number of believers.

This brings us to another aspect of the Centre’s submission – that discrimination based on religion only be allowed where there is broad consensus, amongst the faithful, that a belief is a legitimate expression of their religion. This should help avoid giving protection to those who occupy the extreme fringes of religious belief.

Finally, none of the above should be read as justifying restrictions on religious belief. On the contrary, we support the right of people to believe whatever they like. Furthermore, we encourage people to act in accordance with a well-informed (and well-formed) conscience.

We also urge people to realise that to act in good conscience entails the possibility of being punished if your conduct is found to be contrary to law. Such is the case of conscientious objectors who resist conscription into the armed forces, or Roman Catholic priests who choose to respect the ‘seal of the confessional’ even if the law compels them to disclose specified admissions by penitents.

This is the balance that a society needs to maintain: respecting the moral courage of those whose religious beliefs compel them to act in a manner that society must prohibit for the sake of all.

For those who are interested, The Ethics Centre’s submission on the proposed legislation will be published by the Commonwealth Attorney General’s Department in due course.