ࡱ> EGBCD%` bjbj"x"x <^@@ TTTTTTTV8ĥ$dpVȨȨȨIKKKKKK$ hhoTȮȨȨȮȮoTTH@@@ȮTTTI@ȮI@@TTTat @g*:I0O8taa\TȨN@ ȨȨȨooȴxȨȨȨȮȮȮȮdpdpdp$4dpdpdpTTVVTTTTTT Australian Association of Christian Schools Ltd Submission to the Human Rights Commission On behalf of the member schools of the Australian Association of Christian Schools, thank you for the opportunity to make a submission to this investigation of the 鱨վ. The Australian Association of Christian Schools represents approximately 100 schools, 30,000 students and around 80 parent Associations across Australia. We have schools located in every state and territory and they range in size from very small (< 20 students) primary schools in remote areas to very large (>1300 students) combined primary-secondary schools in larger urban centres. Most of our schools are owned and governed by parent associations (all members of Christian Education National), though a small number are governed as a ministry arm of a particular church congregation. In all cases, our schools are incorporated under either State or Federal law. In the case of those under State law, they are generally incorporated non-profit associations. In the case of those under Federal law, they are generally non-profit companies limited by guarantee. All schools are eligible to receive government funding and are either registered or exempt from registration (though compliant under State regulations). [The registration provisions vary a little from State to State.] Each school association is governed under its own Constitution (Memorandum and Articles) which generally identifies in its statements of purpose and/or objects that it exists to educate the enrolled children within a context of Christian beliefs, a Christian worldview and/or Christian values as identified in the Christian scriptures, the Bible. In most, if not all cases, the schools will have incorporated into their constitutions a Statement of Faith or a Creed that specifies their communitys particular beliefs or simply references their beliefs to the Bible. It is important to note here that our schools are not necessarily identified with a particular Christian denomination, but are more generally identified with the Christian faith in an inter-denominational or non-denominational sense. In this sense, their activities, beliefs or objects should not be referenced to the beliefs or public statements of a particular denomination. Rather, their activities should be referenced only to their objects (as stated in their Constitution) or to the authority on which they rely (the Bible). For the most part, our schools have an open enrolment policy, but are specifically designed to support Christian parents in the education of their children from a Christian perspective. As such, together with parents, the schools are an integral part of the formation of religious beliefs (in the Biblical Christian tradition). They are not restricted by denominational traditions though they may choose to draw on certain broad traditions from within the breadth of Christian history (eg Protestant, Reformed, Evangelical, Pentecostal, etc). This is an important distinction to identify at the start of this submission as our Association is aware that some schools (Vic and NSW) have been targeted for legal action (for discrimination in employment) on the grounds that those schools are not involved in the formation of a particular religion (religion in this case being taken to be synonymous with denomination). There is clearly a great deal of vincible ignorance as to what constitutes a religion when our legal system allows an action to be taken in which the actual religion (Christianity) is disqualified yet one of its many denominational expressions is portrayed as the religion rather than a branch of that religion. It is because of such palpable confusion that we propose to present this submission in three sections: 1. A submission relating to definitions of key terms. 2. A submission relating to a number of key issues referred to in the Discussion Paper 3. Comments in response to some of the questions raised in the Discussion Paper However, before moving into the body of our submission, we wish to affirm, on behalf of our member schools: o Our commitment to an open and inclusive society based on mutual respect between persons, irrespective of differences in belief and/or culture. o Our commitment to the rule of law, though, where the law is in direct conflict with our religious beliefs, we reserve the right to apply for exemptions from such law and/or to express our conscientious objection to such law on the grounds of religious beliefs. (We note that such provisions are allowed for in relation to some laws and believe this to be a constructive way of dealing with beliefs and conscience. However, we also acknowledge that such provisions ought not to be exercised without due regard to the reasoned basis for those exemptions.) We are committed to living at peace with other Australians, accepting that there will be those who hold beliefs that are in direct conflict with our own beliefs. We are also committed to constructive and open dialogue with those who hold different beliefs without demeaning them as persons. We are committed to avoiding any intentional action that might incite anger, violence or hatred against such persons. We expect the protection of law to allow our Associations to freely practice, promote and apply our religious beliefs in communities and service organizations that openly declare their religious foundations. We accept that such communities and organizations will be required to demonstrate substantive consistency in exercising their religious principles and standards. Finally, with specific reference to the scope and content of school curriculum, we claim the right to be exempt from any provisions in State or Federal law or regulation that might require specific teaching or interpretation of content to the exclusion of other interpretations or alternative content. We also claim the right to employ only those persons who have a thorough understanding of and commitment to the schools Christian worldview and Statement of Faith and who, in their personal lives, are able and willing to model consistently a person standard of conduct and lifestyle choices that aligns to the worldview and Statement of Faith of the school in which they have applied to teach/work. Definitions AACS is concerned that key terminology that will inevitably be considered in the context of this investigation be carefully defined so that any report and recommendations arising from the investigation will not be undermined by uncertain interpretations. In this regard, we present some observations in relation to 5 terms that are of particular interest to our members. 1. Religion In Recommendation R2.5 of HREOCs 1998 Report on Article 18 of the ICCPR, there is a strongly worded imperative calling for a wide meaning to be given to religion and belief covering the broad spectrum of personal convictions and matters of conscience. It goes on to recommend that the meaning should include theistic, non-theistic and atheistic beliefs and should include minority and non-mainstream religions and belief systems as well as those of a more traditional or institutionalized nature. In expanding on those premises, the recommendation states that Religion or belief should be defined as a particular collection of ideas and/or practices: o That relate to the nature and place of humanity in the universe and, where applicable, the relation of humanity to things supernatural. o That encourage or require adherents to observe particular standards or codes of conduct or, where applicable, to participate in specific practices having supernatural significance. o That are held by an identifiable group regardless of how loosely knit and varying in belief and practice o That are seen by adherents as constituting a religion or system of belief. (Appendix 1 Discussion Paper) AACS is very strongly committed to a wide definition of religion and belief systems of the kind specified above. We hold the view that a definition based more in philosophical reasoning than in Australian case law is warranted if genuine equality between organizations with discernable belief systems is going to be achieved in our society. AACS believes that it is important to maintain the reference to the broad spectrum of personal convictions and matters of conscience including theistic, non-theistic and atheistic. However, we believe that it is also worth noting that there are those who are anti-theistic for whom there are significant alignments between their beliefs and the dot points listed in the 1998 definition proposed above. This may well be considered as a sub-set of atheism, however, there are clearly those who purpose to believe that there is no god, outside of any reasoning, because it is an inconvenience to their lifestyle choices. While evidence-based reasoning is called upon as the baseline for many of those who would claim no religion or agnosticism or atheism, there are none that can call upon evidence or reason to indisputably account for: o Time o Space o The building blocks of matter o Energy o The purpose of Human History o The nature of prime reality o The basis of moral judgement o The nature of humanness etc All these, and many other aspects of our existence must be accounted for either by assumption, presupposition or assertion which, in substance, are little different from an expression of personal faith or belief (ie a personal commitment to rely on something without the ability to prove it). There are many within our nation who would advocate strongly for limitations to be placed on the influence and freedoms of religions, religious agencies and religious leaders based primarily on their own beliefs. Theirs is a strategic opposition that is used as leverage to influence public policy, yet it is based in a belief system that is either non-theistic, agnostic, atheistic or anti-theistic. It suits their accounts to organize against the influence of religions. Yet their own philosophical position stands in the place of religion and certainly embodies a system of beliefs. In relation to such groups, however loosely identified, to provide a shelter for their belief communities outside the definition of religion, allows them a privileged position to operate in society and to organize politically and legally against religious groups without comparable scrutiny. This creates an uneven playing field. It becomes the foundation of a new set of inequities where certain rights, powers and duties of some groups are legislated for or against, while others escape scrutiny altogether. An interesting and relevant illustration of the importance of the point that we make here is the recent move by the WA President of the Humanist Society, Diana Warnock, (former state Labour MP) who is intending to approach the WA Curriculum Council (as the Victorian Humanist Society did in their state) with a view to developing a curriculum in humanist applied ethics for primary school pupils. In relation to this proposed initiative, Ms Warnock is quoted as saying: If anyone else is offering instructions about values Id certainly like the the opportunity to do that as well because I think there are plenty of ways you can teach people to behave the right way without giving them religious instruction. Under the Victorian plan, Humanist volunteers will be able to teach their philosophy in the class time designated for religious instruction, though parents would have the option to withdraw their children. It is interesting to note that despite a relatively old Australian case law definition of religion (High Court The Church of the New Faith v the Commissioner of Payroll Tax (Victoria) (1983) there is American case law (a little older) in the Appellate Court in Newark, New Jersey, (1977) where the judge concluded that a set of ideas constitutes a religion over the objection and protestations of secularity by those espousing those ideas; and an even earlier 1957 case before a Californian Supreme Court where the judge cited a scholar of religion in his findings: A new definition of religion itself is already emerging .... (which allows for) ... non-theistic religions ... An inclusive definition, then, must recognize both varieties of religion, theistic and nontheistic (including Humanism). AACS would strongly advocate for the retention of a broad definition of religion and belief systems that is not restricted to the findings in Australian case law. 2. Freedom of expression in relation to religions and belief systems Freedom of expression encompassing both speech and writing is a fundamental defining characteristic of a democracy and it is a brave government that would legislate to erode this fundamental freedom. Yet, as with other fundamental freedoms (rights) there are clearly responsibilities that must be assumed in order for the democracy to survive and thrive. AACS recognizes this tension and accepts that there must be reasonable conditions scaffolding any freedom of expression as there is always the possibility that such freedoms could be used in such a way as to deprive some citizens of other fundamental protections under the rule-of-law. The recent emergence of anti-vilification and anti-coercion sentiment and legislation is evidence of these concerns. (See below for specific discussion of these terms.) It is in this situation that an inevitable, perhaps insoluble, conflict emerges for a society that seeks to satisfy the aspirations of all citizens. We have a single legal reference point that underpins what is permissible in Australia. It must, by definition, exclude incompatible reference points that are permissible in other law frameworks. For example, indigenous communities have sought at times to reject Australian legal norms in favour of indigenous Tribal Law. Some Muslims have a primary commitment to Sharia Law and, on certain matters fundamental to their faith, would reject the rule of law as understood in the Australian democratic setting. If this situation is insoluble, Australian legislators and their agencies must come to a determination as to the meaning of freedom of expression and have the courage to nominate the specific standards at law against which freedom of expression is defined and permitted. It is at this point that AACS would draw attention to the fact that the historical values framework in which much Australian law is framed comes originally out of a strong Judeo-Christian heritage. Issues such as polygamy, child marriage and consummation, brutality in discipline, female genital mutilation, revenge as a basis for legal restoration, concubinage (sex slavery), severe punitive measures for questioning the words of Mohammed or the Qran, the legitimate abandonment of child widows under Hindu religious law: all are examples of issues that could be taught and practiced as normative and permissible in some communities within Australia under the Freedom of Religion and Freedom of Expression provisions of our nation, yet all (and many other examples) would be in serious contravention of Australian law if prosecuted. Freedoms of expression for people of religious communities or faith-based systems must be predicated on agreed legal standards that will then form the basis of any protections offered to them Freedom of Religion protocols. While AACS is supportive of an inclusive and multicultural Australia, it recognizes that certain freedoms and protections that have historically been afforded to the Christian religion within the Australian legal framework are now coming under severe strain because of demands from new populations with different legal standards for equality, even though equivalent protections would be incompatible with Australian legal standards. While not wanting to be prejudicial towards those who hold to beliefs with which we would not agree, AACS does need to express its deep concern about the spectre of losing long-standing and well-respected freedoms and protections for majority populations in deference to minorities whose standards are drawn from other frameworks that are incompatible with Australian law. 3. Vilification Vilification has made a somewhat undignified entry to the stage of Australian law with individuals in Victoria taking advantage of a poorly drafted, ill-conceived piece of legislation that allowed for individual citizens to take capricious actions against other citizens on the basis of very weak argument and evidence, as evidenced by a subsequent successful appeal. Clearly the term vilification is a very strong term that is loaded with the meaning to intentionally cause harm of a nature that is serious enough to invoke widespread attitudes of hatred towards a citizen or citizens. It is at the far end of a scale of words ranging from criticism through rejection, marginalization, bullying and abuse to vilification. It seems fairly clear that the existence of such legislation should only ever be sanctioned to deal with extreme behaviours that potentially impact on the safety of citizens in the community. It should never be conceived of as an instrument for curtailing informative teaching, instructive discussion, robust and constructive enquiry and debate and substantive and well-intentioned critiquing of beliefs, rituals, behaviours, values, arguments, etc. Professor Patrick Parkinson (Sydney University School of Law) has made a strong point on this same issue in his submission to this investigation with which we are in agreement. While anti-vilification law may have a place in a democratic society, it should certainly not be used to silence people of faith, to crush informative comment and debate, to eliminate freedoms of expression and belief or to intimidate citizens who demonstrate goodwill and constructive law-abiding engagement in society. 4. Coercion The term coercion also has the potential to be used in an opportunistic manner in an attempt to silence those with whom there is disagreement. Again, it is a very strong term intended for specific contexts in which a vulnerable person is rendered powerless to act independently because of the physical, psychological, material, or spiritual power of another to invoke consequences that cause extreme fear for ones present of future well-being. It is seen primarily in extreme fundamentalist, religious communities and in settings like sects and cults and covens. These groups or organizations are frequently centred around a central figure(s) who are attributed with power(s) and authority to the exclusion of all others. It is a term to be differentiated from the persuasive impact of one who speaks authoritatively and persuasively, but who does not seek to control the behaviour, decisions, rights or independence of others and who does not threaten material consequences on adherents. As a term that refers to extreme circumstances, its application in law and social policy must be preserved for rare and serious situations. AACS is therefore of the view that the role of the Commission is to ensure that the definitions and examples that scaffold this term in law and in social covenants and declarations are very carefully proscribed from capricious or opportunistic use against mainstream, responsible and law-abiding religious groups. 5. Pluralism Again, this is a term in common use in social and political circles that has both a descriptive use and prescriptive, philosophical-cum-religious meaning. In the descriptive use, it intends to capture the reality of the rich plurality of cultures and faiths present in society. However, when it is endowed with more prescriptive imperatives that invite the society to embrace a diversity of beliefs, ideas, cultural values, etc, it becomes more akin to a belief system. The intent to create and maintain a pluralist policy appears, in large measure, to be a nation-wide determination to avoid the ugly phenomena of racism and discrimination and to ensure that these degrading attitudes do not get a greater foothold in our nation than they already have. As a nation, we have gone to great lengths to ensure that people of all nations, cultures and faiths are welcome in our land, and that seems appropriate within sensible guidelines and boundaries laid down by government. However, its one thing to describe our nation as a pluralist society. Its another thing altogether to suggest that we as a nation should subscribe to pluralism as if it were a national doctrine or public creed an acceptance of all religious paths as equally valid. As an ism, pluralism presents its credentials as a serious contender for the hearts and minds of citizens an alternative to, or a blend of, the traditional religious offerings of our society. In a rather unsophisticated sleight of hand, pluralism presumes to be representative of all the religions/philosophies of the world yet, in effect, denying any one of them full expression. The public face of the more prescriptive pluralism as presented by the media, politicians, academics and bureaucrats is portrayed as drawing all people together under a sanitized selection of beliefs and values that, in theory, is intended to inspire and satisfy everyone, irrespective of their beliefs, to live together in harmony. Yet, almost nowhere, apart from in politics and the media, do we hear or see it being thoroughly formulated, coherently expounded, passionately celebrated or seriously commemorated. Why? Pluralism as a belief-system is really a phantom. Very few believe in it in practice because, to believe in it, one would have to fillet the world religions/philosophies of their characteristic beliefs and values, traditions and practices, symbols and authorities. In reality, its an empty shell a impotent, pragmatic ideal. Some might argue that pluralism is about the promotion and protection of tolerance. Tolerance may well be its intent (and an honourable intent at that), but intolerance is its outworking its methodology. Why? Because it insists on robbing its contibuting religions of many, if not most, of the very things they hold dear, leaving behind a shapeless and uninspiring residue to feed the hearts and minds of any who might be inclined to embrace it. It cannot be truly about tolerance at all. None of those who practice the religions from which pluralism draws its supposed, yet ill-defined, content would ever be satisfied with the reduced version of their faith bundled up with other dehydrated religions into pluralism. And even those who might be drawn to it as a platform for tolerance and peaceful co-existence have widely differing ideas as to what it means and what it really offers in practice. Some say that pluralism is simply a descriptive term indicating multiple explanations of the spiritual realm. But why have a descriptive term at all if it does little to inspire a hope and a basis for tolerance and peaceful coexistence. Tolerance does not inspire. It is a limp and condescending term that proclaims a broadmindedness at one level, but, in the end, it puts up with or lets be those who hold different views and practices. It does not embody the deep respect for persons and differences in belief that one might expect of an idea that holds out such hope. Others might say that pluralism is just another word for multiculturalism the celebration of the rich mix of culture, food, dress and customs that we can access in a country like Australia. True, that is an ism that comes closer, but it is still an ism that is sanitized or filleted of many of the core beliefs and values that infuse every culture and holds those cultures together. Its a superficial term that lets be, but does not seriously respect and embrace the fullness of each culture. AACS would hold that the Christian tradition has a comparable broad value to the idea of pluralism but one that is much, much richer and far more authentic than the appearance of pluralism. Its a tradition embedded in the heart of the Christian faith: Love God and love your neighbour as yourself. (Jesus in Luke 10:27) To live in harmony with all people, irrespective of their beliefs and cultural practices, is a worthy and important goal for any society. But it is not achieved through the promotion of the idea and practice of pluralism. Living in harmony calls for something much stronger. It demands a profound respect for and honour even love - of persons. It calls for something much richer than a mere putting up with people with whom we might have substantive differences in belief. It calls for the heart of love that extends to hospitality and friendship, advocacy and just dealings and all this without compromising strongly held personal beliefs. Discussion of Key Issues Referred to in the Discussion Paper 1. 9/11, terrorism, the war on terror and their impact on religious rights and freedoms The spectre of terrorism is, without question, an unwelcome and serious development in our world. It should certainly engage society in a careful review of all that contributes to a safe, cohesive and ordered society. However, to work for a safe and cohesive society, the beliefs, perspectives, values, codes of conduct and traditions of those with religious commitments must not be undermined or removed unthinkingly as it is these same religious elements that give these members of our society a sense of purpose, confidence, direction and belonging. To wind back religious freedoms in response to the rise of terrorism is to risk intensifying dissatisfaction and alienation and aggravating the divides already present in our society. It would be a reactive and counter-productive invasion of human rights that would rob people of the security of at least some of their freedoms that scaffold their constructive engagement in society. The issue of terrorism and the response - the war on terror - is a complex and fraught area of history, public policy and law. There seems almost as many views on this complex area as there are people who express them. But the solution to the social apprehensions caused by these issues is not to treat the freedom of religion and belief as a potential scapegoat for the reassurance of an anxious, perturbed society. Many would argue that to do so would be to exacerbate the tensions present in our society. AACS would agree with this position. Serious as they are, the twin issues of terrorism and the war on terror must not be resolved at the expense of freedoms of religion and expression of beliefs that contribute so much to the society. AACS takes seriously its responsibility to work with government in finding sustainable solutions for these troubled times that deal with the threats yet honour the rule of law and work for the peaceful operation of society. 2. A multi-cultural/multi-faith/pluralistic society In embracing multiculturism and pluralism and structuring our society to accommodate a multitude of faiths, Australia must be very careful not to go the way of failed experiments in other western democracies. The policies of accommodation, compromise and appeasement may be well-intentioned. However, unless such policies are tempered with a rigorous examination of the incompatability of Australias legal standards with some cultural practices and law codes, we are destined with other nations to degenerate into a troubling morass of destabilizing and incompatible belief systems, cultures and social norms. The European experiments built around various expressions of accommodation and appeasement have not given rise to greater cohesion and well-being. Rather, they have created ghettos of intense fundamentalism (of various religious and political persuasions) within surrounding permissive and accommodating host cultures that have no idea what to do with what they have created. The present challenge facing Australia (including this investigation by the Commission) is to anticipate and work towards a new and sustainable paradigm to the global phenomenon of multicultural, multifaith societies that does not assume a reductionist/compromise platform of accommodation and appeasement. 3. Fundamentalism and the Radicalization of Religion The world has witnessed a growing trend towards the radicalization of religion that is indeed troubling. The temptation is to seek solutions that accommodate all by curtailing the rights and freedoms afforded to faith communities (broadly defined). However, as indicated elsewhere in this submission, the very experience of having ones rights and freedoms curtailed is an alientating and frustrating journey which has a tendency to drive people in reaction towards the perceived comfort of more reactive, simplistic, rigid and legalistic alternatives. The dominance and influence of liberal, western democratic values and culture and their larger-than-life presence in the homelands of key religions and cultures has almost certainly had much to do with the rise of radicalized branches of Islam, Hinduism, judaism and Christianity. Certain aspects of the strident western culture might even be said to be the source of some radicalization in branches of Christianity in our own backyard. The added layer of the seemingly insoluble politico-historical conflicts in Israel- Palestine, with their religious overlays mixed in, just intensifies the movement towards the radicalization of some religions, notably Islam and Judaism and perhaps some branches of Christianity. Further, the destabilized world in which we now exist is a growing source of fear and uncertainty which incubates emerging fundamentalist ideas and beliefs and creates a dynamic and a momentum that is hard to arrest. But heavy-handed political-cum-legal interference with religious groups is most unlikely to reverse the trend. Alienation produces antagonism and antagonism, fundamentalism and fundamentalism, radicalization with its associated threats of hatred, anger and violence. AACS is firmly of the view that, within the boundaries of the longstanding proven standards of Australian law, ways must be found to build community safety without encroaching on religious freedoms. 4. Separation of religion and state and the issue of Undue Influence The dichotomy between faith-based organizations and civil society organizations referred to in Part 3 of the Discussion Paper is, in large measure, an uncomfortable dichotomy for those who are part of Australian religious communities. (Please see discussion above under Definitions - Religion) AACS would want to see a definition of Religion in which many civil society organizations were placed on an equal footing with religions in their capacity to influence government and society. By seeking shelter outside the definition of religion, many civil society groups that organise around strongly held but loosely defined beliefs (eg the Australian Greens, the Humanist Society, some sub-groups within the Public Education sector, etc) would seek to bring strong influences to bear on governments at the expense of religious groups, yet with an undeclared reliance to their belief systems. It seems unreasonable and inequitable to provide avenues for some groups to influence government on the basis of strongly held beliefs while, at the same time, denying avenues to other groups simply because their beliefs fall within a particular definition of religion. There is a protection built into our Australian Constitution to ensure that the Australian Government does not form or promote any particular religion. This would seem to be an appropriate separation between the formal rights and powers of religious organizations/ institutions and those of government. However, to extrapolate from this safeguard to prohibit or seriously limit the right of religious leaders to bring their beliefs to bear on those charged with the responsibility of exercising political power in the nation would be an unreasonable, unnecessary, arbitrary and artificial barrier to robust discussion and debate and advocacy. It would certainly constitute a serious inequity between the rights of religious groups and civil society groups. AACS believes that the status quo that allows for representatives of all sorts of organizations, religious and civil society, to access and influence government is both equitable and reasonable and should not be disturbed. 5. Values In some, if not all religions, values have their origin and purpose deep within the fabric of their religious beliefs. As such, they are enduring values and wedded to the practice of the religion and to the lifestyle choices and codes of conduct of committed adherents. Unlike secular values that are subject to change and are embedded in social relativism, religious values are not pragmatic and their expression is not focussed on what is socially acceptable for this moment in history. Rather they are focused on the deity and/or matters of eternal spiritual significance. While, in many cases, the secular values of societies will share a great deal in common with the values of world religions, their purpose will be directed towards worship and perceptions of spiritual certitude. AACS is concerned that the Commission continue to be sensitive to this framework for values that operates within religious communities and, notably, religious/faith-based schools. We would be most concerned if our schools were forced into a values orientation that was in conflict with the values orientation adopted by our faith communities. We have significant concerns that the pressures of political correctness from political minorities that have purvaded the Australian political and social landscapes for the past two or three decades not be allowed to disturb the values framework of much larger populations that have served our society well. 6. Charter of Rights Within the mix of forces pressing for reform in Australian politics, law and society is the movement for the creation of a Charter of Rights. While there may be much to commend this movement in terms of their motivation for justice in the face of political obstacles to reform, the alternative to the political/legislative process does not evoke confidence. Though there may be many issues on which there would be significant agreement between AACS and those inclined towards a Charter of Rights (eg Mental Health Reforms, Disabilities Reforms, etc), a movement away from the regular, decisive accountability framework for elected representatives and political parties to an appointed judiciary that is very difficult to make accountable, would be a great concern. Individual members of a judiciary must make judgments based not only in the law and legal precedents, but also in their own interpretations of reasonableness, social norms, pressures for reform, political momentum and the like. It is impossible for such judgments to be objective and, as such, decisions coming from the courts have the potential to be a destabilizing and inconsistent framework for dealing with social, moral, ethical and spiritual issues. AACS would therefore oppose a recommendation for a Charter of Rights arising from this investigation. 7. Exemptions under Anti Discrimination Law The motivation of legislators to introduce a body of law that addresses discriminatory behaviour, especially against those who belong to vulnerable at-risk minorities is well-founded in notions of justice, compassion, equity, advocacy and social harmony. Even the practice of affirmative action to protect the most vulnerable of such populations seems most reasonable. However, in steering a broad course through such legislative complexities, governments have created shelter for some populations that has given rise to leverage against those in religious communities whose beliefs and values are in conflict with the freedoms claimed by these populations. For example, in the areas of sexual preference and marital status, religious beliefs and values are incompatible with some of the provisions of the law. To overcome the potential dilemma of religious organizations and communities operating in flagrant disregard for and opposition to such law, religious organizations have, in the past, sought and gained certain exemptions and exceptions which have been written into common law. Over the past decade, those within certain civic society organizations have used the protection of being outside the definition of religion to lobby hard for the removal of these exemptions and exceptions provisions. Once again, in the context of this present investigation, they will be active in trying to reduce or remove the provisions. AACS would once again draw the attention of the investigation team to our comments in other parts of this submission to the need for equal treatment before the law and government for those who operate out of firmly held beliefs, whether they be part of a recognised religious organization or not. It speaks to the importance of the definitions adopted by this investigation team and it speaks to the importance of the most robust expressions of equity. Responses to Questions Raised in the Discussion Paper The following responses to questions raised in the Discussion paper will follow the order and nomenclature with which they are presented in the Discussion Paper. 1. Question 1. (See the above comments on Definitions Religion, Freedom of Expression, Vilification, Coercion and Pluralism.) (See also the Discussion of Key Issues Raised in the Discussion Paper above Sections 2, 3, 4, 5 and 7.) Question 2. Clearly, some of the major relevant issues that have emerged and now dominate the world and/or national stages are Terrorism, the radicalization of religion, Challenges to the rule of law, Equity in the face of opposing legal frameworks, Freedom of religion and social cohesion, Freedom of expression and social cohesion, The spectre of race riots and ethnic gangs, Increased opposition from secular groups to religious exemptions and exceptions in the law. Specific cultural and/or religious practices that are at odds with Australian legal standards Question 3. We believe that the current exemptions and exceptions in Commonwealth law (and some State laws) available to those operating in religious organizations are both necessary and adequate. However, we have grave concerns about some State legislation, notably Anti-Vilification (Vic). It is very poorly drafted and open to capricious use and interpretation and abuse that has the effect of an alarming aggravation of tensions between groups with differing beliefs. It has accentuated the tensions and given rise to a less stable society. AACS believes that such legislation should be reconsidered in the context of a much more robust community consultation co-ordinated and resolved at Commonwealth level. Question 4. As per the comments in response to Question 3 above, AACS is very concerned with the Victorian Anti-Vilification legislation. We are even more concerned that other States are considering it as model legislation that they might follow. Poor drafting has led to at least one poor judgment under this law followed by a successful appeal. The price of this debacle was and is a divisive public response. If the legislation was intended to enhance and protect social cohesion, it has failed miserably. This law is destined to fail again with damaging fallout for the society at large. Question 5. We do not have detailed knowledge of this matter but it would seem that most of the recommendations remain just that recommendations. It is also troubling that, on these issues, there does not seem to be a co-ordinated approach to law and policy at Commonwealth and State levels. This is a disaster waiting to unfold. 2. Question 2. It is a serious challenge and, at the micro level, perhaps unresolvable in terms of the aspirations and seriously held beliefs of all Australians. Without, in any sense, entertaining racist sentiments, there has to be a point at which the reference points of historic legal, moral and ethical standards embedded in Australian society have to be the touchstones against which boundaries are set for the free expression of religious beliefs. See Discussion of Key Issues above - Freedom of expression in relation to religions and belief systems. When belief systems include polar opposites and the benchmarks of Australian society are at stake, an uncompromising stand must be taken. However, this must only take place in the context of penetrating community consultation and, ultimately, the test of the will of the people. Question 3. Yes. Please see the Discussion of Key Issues above - Separation of religion and state and the issue of Undue Influence Question 4. To the first part of the question: no. Please see the Discussion of Key Issues above - Separation of religion and state and the issue of Undue Influence. To the secondpart of the question: yes, in some instances. In Victoria, and potentially in other States/Territories, a situation exists where the Government has stepped over the line of religious freedom and created a piece of law that it cannot control. It has certainly created the situation where capricious civil actions can be taken without due protections to prevent damaging and divisive fallout within society. AACS is of a similar view to Professor Patrick Parkinson (See his submission) that, at the very least, any civil action must pass the scrutiny of the DPP and have the approval of the Attorney General to ensure that appropriate and reasonable religious freedoms are not undermined by the capricious use of such legislation. Question 5. No. Please see the Discussion of Key Issues above - Charter of Rights Question 6. While very challenging for all religious and civil society organizations to reach a satisfactory position on all these issues, the heart of the matter must be a profound respect for persons and a willingness to accept that it is not possible in a multi-faith society for individual faith groups to control all the outcomes of a code of religious freedoms for every faith group. The rule of law and the most basic of individual, family and community rights must be upheld by all religious and civil society groups. The price of any compromise or appeasement position is too high and must eventually approach either anarchy or tyranny. Where the collective beliefs of groups are at odds with the rule of law, there must be a similar response to that in which an individuals beliefs and actions may be at odds with the rule of law. The rights, roles and responsibilities of leaders/authorities in all religious and civil society groups must scaffold the safety and cohesiveness of society. If the price of this is civil or criminal action against radical extremes, it might become an uncomfortable, even painful, necessity for society (eg Anti-Terrorism Law). The management of this complex set of issues needs the combined goodwill of both law-makers and religious leaders/civilsociety leaders. Until such time as a constructive process built on a profound respect for persons is able to come to some agreement about the management of rights, powers and duties of organization and leaders, it will be difficult to move forward. In the meantime, a heavy-handed, restrictive mindset at any level is not going to produce a climate of trust, co-operation and social cohesion. In fact, the opposite is a much more likely outcome. Question 8. While there have been pockets of interfaith dialogue within a spirit of goodwill in the independent non-government school sector involving Christian, Muslim and Jewish school leaders, the focus has been more on modelling respect and understanding in the face of global religious tensions than on any concrete resolutions to act in common ways on specific issues. At the leadership level, there seems to be a climate of determination in almost all religious schools to work for social harmony, co-operation, the rule of law, respect and understanding. Perhaps government-funded and co-ordinated fora at regular intervals on specific issues should be part of the mix of protocols for building better paradigms for long-term social cohesion. Question 9. The peaceful and respectful co-existence of multiple religious communities within Australia has only been seriously destabilized within the last decade or so. At the heart of this destabilization are the radicalized elements of both religious and socio-political extremes. Demographic changes and international incidents have undoubtedly exeggerated actions and reactions within the Australian context. The media has played a significant part in exacerbating tensions between groups and individuals by featuring controversial and extreme views and beliefs. Yet, at the grass-roots level where people of different faiths and beliefs interact in professional and social settings, there is a palpable warmth and a determination to model respect and mutual acceptance. Where a social/political concern revolves around extreme minorities, it calls for responses that fit the size, the nature and the seriousness of the concern. To extrapolate to whole populations associated by name, culture or background with extreme minorities is totally counter-productive and provocative. (See comments under Definitions above - Freedom of expression in relation to religions and belief systems and the Discussion of Key Issues above - Fundamentalism and the Radicalization of Religion) 3. Question 1. First, it should be recognized that, without the faith-based agencies, the costs and supporting infrastructure for many of these services would be much, much greater. Second, there are citizens who feel much more comfortable receiving these services within a framework of policies, practices and personnel that are familiar and acceptable to them. Keeping in mind that civil society organizations embrace beliefs and values that colour the delivery-framework of their services too (even in government departments, I suspect), the benefits that accrue to society from faith-based agencies have been, and continue to be, huge. Any attempt to restrict their freedoms to act in ways consistent with their beliefs and values would have significant impacts on their synergies and on their ability to deliver quality services. Question 2. We will restrict our comments to the fields of education and faith schools. Up to this point in time, the legislative and regulatory frameworks governing what schools in the non-government sector can do with the public funds to which they have access have been quite appropriate and adequate. Very few, if any, non-government schools rely entirely on government funds for their existence. The overwhelming majority would barely, if at all, cover their personnel costs with the funds they receive from Commonwealth and State authorities. In terms of the building of places of worship, the terms of reference for Commonwealth Government Capital Grants precludes the use of public money for such purposes. The schools must rely on their own resources for such purposes. However, there may be facilities which have multiple purposes (including worship, sport, music and drama, assemblies, etc) which are supportable. In terms of the recognition of holy days, schools have some license provided that they are able to satisfy State registration authorities (the bodies that determine whether they can operate at all) that they operate for sufficient time (days of the year and hours per day) to meet mandatory curriculum requirements and targets. Some holy days do not require a closure of the school, while others may require make-up days or longer hours per day. In terms of religious symbols, we are not aware of specific problems in the Australian schooling context that would require restrictions to be imposed. To our knowledge it has been strident secular societies that have enforced such restrictions (eg France) but as to the need for such restrictions, there is considerable debate still raging. Finally, in terms of religious dress, schools have been at liberty to set their own codes. We are not aware that this has presented significant concerns in any of the schools that we represent. It certainly does not seem to present a problem in Islamic schools that I (the writer) have visited. It does, however, present some practical problems in some schools where the full or partial face cover makes it difficult for staff to see and hear students articulation of sounds when teaching language, reading, etc. There is hardly a groundswell of concern about these issues at this point in time. 4. Introductory notes. (See Discussion of Key Issues above - 9/11, terrorism, the war on terror and their impact on religious rights and freedoms) Question 1. (See comments under Definitions above - Vilification) Question 2. (See Discussion of Key Issues above - 9/11, terrorism, the war on terror and their impact on religious rights and freedoms and Fundamentalism and the Radicalization of Religion) Question 4. Undoubtedly there will be pockets of radicalism and extremism in almost every country on earth. That should not surprise us, but it should certainly evoke vigilance, protective protocols and legal solutions appropriate to the nature, the size and the seriousness of any threat to individuals or society as a whole. Where such extremism cannot be reconciled with the legal and social frameworks of the nation, the society must be given recourse to legal actions that would apply if individuals refused to accept the rule of law. It seems to AACS that most threats of this nature should be able to be dealt with under civil and criminal law codes rather than through the new limitations being imposed on religious freedoms. Question 5. The one that comes to mind is the exclusion, marginalization of academics in university departments who, for the sake of academic integrity, explore and/or sometimes embrace minority views on an issue or issues that reflect acceptance of religious presuppositions and perspectives (eg creation models in science, definitions of religion in anthropology, religious values in sociology and politics, etc). In some universities, it would be impossible to get a posting or a promotion if one revealed such religious leanings. This is also a classic example of the place of civil society belief systems that are non-theistic, atheistic or anti-theistic being a focal point in social engineering. 5. Question 1. The interfaces between religion, politics and cultural aspirations are too numerous to list. However, there are notable examples in education, welfare, aged care, mental health, prison reform, economics, superannuation, family law, sexual preference, immigration, environment, primary industries and foreign policy. There is hardly an issue that one could nominate that, for the religious academic or citizen does not interface with their religious worldview and their personal and communal aspirations. In turn, these same issues are the substance of political decisions that will not always accord with the beliefs and aspirations of the religiously minded. This equally applies to those whose beliefs are expressed through civil society organizations but which are not as clearly encoded in creeds and doctrinal statements, rituals and traditions. They nevertheless are powerful agents of influence in society. (See comments under Definitions above Religion) Question 2. Rather than moving instinctively to limit religious freedoms in a punitive, restrictive manner, it seems to me (the writer) that communal dialogue should be fully exhausted and the threats to society carefully evaluated by a panel of respected and experienced statesmen and religious leaders. This is not a decision that should reside with a Human Rights Commission, though it will clearly want to speak into the discussion and debate. Neither does it belong with a judiciary, though case law may prove quite useful as a reference point. Neither does it belong with academics, though research may prove a useful point of reference. Neither does it belong with politicians acting alone outside a careful, sustained consultation with religious and civil society leaders and respected statesmen. It belongs with the society as a whole through a process of meaningful and sustained dialogue and resolution. It is time for a new paradigm and Australia is very well placed to develop that and show the world a better way than most nations have, thus far, stumbled into. Question 5. Gender equality as a term is misleading and sometimes stands in the way of sensitive and sensible outcomes for both men and women in almost every facet of society. In terms of equality of opportunity, equality before the law, equality of value in the workforce, equality in intellectual capacity, etc there is still much work to be done to give women the chance to claim that equality. Equality of opportunity should by now be an established social-cum-moral imperative. Equality in outcomes is another matter altogether and has much more to do with affirmative action agendas of lobbyists than it does the actual aspirations of society. While there are many women who still experience disadvantage in society, it is extremely doubtful that there would ever be enough women in the population with the aspirations at access opportunities to ever produce equality of outcomes in all areas. Notwithstanding, there are still situations in which organizations, religious or otherwise struggle to provide equality of opportunity in some settings. Historic structural, doctrinal, scriptural warrants make it extraordinarily difficult to legislate for gender equality in the context of rights to religious freedom. To impose gender equality in religious settings just to satisfy the aspirations of feminist lobbyists, for example, would, in all probability, only antagonize and set back the processes of reform that the religions themselves are trying to resolve. While these matters do not seem to significantly impact the schools that AACS represents, we are conscious of a social justice principle to encourage procedural fairness and objective assessment in dealing with staff and students in the area of equality of opportunity. We also endeavour to respect those faith communities that are facing up to these issues internally and recognize that we must deal sensitively with a wide body of opinion on these matters. Question 7. The language of equity and rights is so much a part of the currency of society, that consideration of them is almost unavoidable in the policy discussions, curriculum content and organizational protocols of schools. Nevertheless, they are complex issues that deserve careful examination. There must also be room for differences of opinion within communities as not everyone, even within a single gender group, will agree on these issues. Some of those differences will be located in personal aspirations, some in political idealism, some in doctrinal understandings, some in self-assessment and some in pragmatic issues. To legislate for a commonness of mind on these matters will again be counterproductive. Question 8. Most definitely. ((See Discussion of Key Issues above - Separation of religion and state and the issue of Undue Influence) 6. Question 4. Both. There are undoubtedly pockets of influence within the media that are stridently opposed to religions of all types and religious freedoms of any kind. The quality and objectivity of journalism in some cases is outstanding and in other cases appalling. The ignorance of some journalists regarding religions generally is astonishing and concerning and this helps to create a public mindset that is anything but sympathetic to religions especially Christianity. The quality of investigation and the attention to accuracy in quotations, and of contexts, is often very poor and, it would seem, intended to skew public opinion in a particular direction. Opportunity for right of reply is extremely limited and the overall impact of media is firmly weighted against accurately informing the public and accurately representing religious thinking.. Question 5. While the media has had little impact, if any, on the free practice of religion in Australia, it is certainly perceived as adopting a strong secular, anti-religious position. See comments under Question 4 in this section. Question 6. Yes. This has been a cause for concern amongst religious groups for a long time. It appears to be a domain that lacks appropriate controls, especially when it applies to serious misinformation and incitement to extremism. 7. Question 1. In our opinion, yes, though the Anti-Vilification legislation in Victoria raises some serious concerns for the future. Question 6. Each religion will have specific beliefs and codes of conduct in relation to sexual preference, sexual conduct, marital and premarital sex, marriage, divorce, defacto relationships, etc. Even within different branches of the same religion there can be quite divergent beliefs and codes of conduct. To generalize across all religions is simply not possible. However, for the schools represented by AACS, sexual purity and fidelity in a single heterosexual relationship for life is the Biblical ideal and standard. It is taken seriously and there is an expectation that our schools will seek to model consistency in relation to these standards and beliefs by ensuring that their staff are committed to this standard. Sexual diversity is not encouraged or endorsed by our communities. Question 8. In order to be consistent with our Biblical foundations that declare the standards for sexuality and sexual behaviour, it is necessary for our staff to model those standards and for the schools to seek exemptions under any legislation that would potentially threaten those standards. Question 9. While environmental concerns and beliefs flow from our understanding of the Christian faith, they are not the reason for the existence of the religion. As such, they do not shape spirituality or the values of Christianity, rather, they are derived from the character of our God and our understanding of his purposes for our world as revealed through scripture. Question 10. Yes. There are probably numerous small groups at the extremes that present a serious threat to the safety and well-being of Australians . They may be aberrations of otherwise mainstream religions. They may be cults with their own peculiar practices. There may be those who practice some of the dark arts of witchcraft which would fly in the face of criminal law (eg infanticide). There may be those that permit and shelter child abuse. There may be some that provide a cover for sexual abuse of adults. In these and other examples, there must be a point at which the freedom to hold and express beliefs runs into the standards and values underpinning Australian law. Rather than trying to accommodate and appease such extremes, there is a place to draw the line. 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