ࡱ>  Ybjbj J2$"#$$$$$$$8$\7%,$c^c%c%y%y%y%'','cb$(&"'((?$?$y%y%m=,=,=,(?$8y%$y%=,(=,=,{<w$y%wH$[):J30cŌ*ŌŌ$\'"'=,((('''+'''c((((Ō''''''''' ": Anglican Church Diocese of Sydney Level 2, St Andrews House SYDNEY SQUARE NSW 2000 Phone: 9265-1671 Fax: 9265-1621 Email: rjw@sydney.anglican.asn.au Submission in response to the 鱨վs discussion paper on Protection from discrimination on the basis of sexual orientation and sex and/or gender identity This submission is made on behalf of the Standing Committee of the Synod of the Anglican Church Diocese of Sydney. Inherent human dignity and worth of all persons The Christian faith profoundly believes in the inherent dignity and worth of every human individual, not depending on the contribution they may or may not make or even their own personal qualities. This deep conviction comes from both understanding that human dignity is ultimately a gift from the God who made us and awareness that we are commanded in loving our neighbour as ourselves to value people in themselves as ends and never simply as means. This means that people can never simply be seen instrumentally or as being less worthy of human dignity by virtue of their sexuality, their achievement, their physical appearance and so on. In fact, it may well be the case that this belief in the inherent human dignity of all persons is one of the beneficial consequences of the long Christian faith history in Western society. How is the inherent human dignity and worth of all persons upheld in practice by the Anglican Church Diocese of Sydney The Anglican Church Diocese of Sydney and its agencies are motivated by this belief in the inherent dignity of all persons as we seek to care for the physical, social, emotional and spiritual needs of others. In practice we do this through the provision of a wide range of social services including aged care, disability support, counselling, family support services, youth services, emergency relief for people in crisis, foster care, adoption services, migrant & refugee services, opportunity shops, emergency management in times of disaster and chaplains in hospitals, prisons, mental health facilities and juvenile justice institutions. These social services are delivered in partnership with the parish churches of the Diocese and, where possible, with the wider community as appropriate. We seek to uphold and enhance the dignity of people who come into contact with our services. We do this by taking a holistic approach to care where possible, including addressing the underlying causes of need; seeking to connect people with communities and services and enrich their relationships; by furthering their resilience, sustainability and inclusion; by enabling people to make decisions and take control of their lives and by giving people hope for a better future. In relation to the issue of discrimination that lies at the heart of the AHRC discussion paper, we seek, as a general principle, to treat all people with respect and dignity, as an outworking of the biblical understanding that all people are made in the image of God. We believe that Christian care should not be hindered by racial, cultural, socio-economic or other barriers. In practice we seek to make our services available to all people in need, subject to the eligibility criteria that are typical of service provision across the welfare sector. In principle support for the extension of federal anti-discrimination law to cover sexual orientation and sex and/or gender identity In principle we therefore support the extension of federal anti-discrimination law to cover sexual orientation and sex and/or gender identity on the understanding that there is sound evidence that such persons suffer unfairly in society as a result of these characteristics. Having said this, we do recognise that anti-discrimination law can be a blunt instrument which does not properly distinguish contexts in which discrimination ought to be lawful. We note with concern comments in the discussion paper that the inclusion of same-sex relationships within the definition of marital status could mean that State and Territory laws restricting adoption to heterosexual couples may be inconsistent with federal laws and therefore void to the extent of inconsistency under section 109 of the Australian Constitution. We also note comments in the discussion paper concerning the impact that such changes may have on the debate on same-sex marriage (notwithstanding that marriage is a matter for the Federal Parliament and would therefore require separate legislation). Whatever opinion is held on matters such as same-sex adoption and marriage, clearly there is divided opinion within the Australian community on these matters; any change therefore to allow either should only come about after significant community consultation and a considered debate on the principles and implications. Change should not be allowed to occur through a back-door legal challenge to State or Territory laws. We recommend that a provision which operates in a similar manner to that in section 351(2)(a) of the Fair Work Act 2009 be included with any extension of Federal anti-discrimination law to ensure that State and Territory laws are not over-ridden. There is a need to balance the application of anti-discrimination laws with the right to religious freedom In seeking to protect and promote a non-discriminatory approach to LGBTI people in Australia, there are aspects of this agenda which may potentially conflict with various aspects of the right to religious freedom and, indeed, with the rights and best interests of others. This can have an impact on both the practice and the viability of faith-based organisations in service provision. It should be noted that religious organisations are the largest non-Government providers of welfare, education and other social services in Australia. At times it would appear that religious freedom is treated as a mere concession to be tolerated (and increasingly not tolerated) when it is in fact a fundamental and non-derogable human right to be valued and upheld for the good of human society. Any change to Federal anti-discrimination law must uphold religious freedom to the extent contemplated by international human rights instruments, in particular the International Covenant on Civil and Political Rights and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief. Exemptions for religious bodies The discussion paper does not suggest that the AHRC is considering recommending any changes to the present exemptions in Federal anti-discrimination law applying to religious bodies and others as there is no discussion question addressing this point. Nonetheless we are aware that in 2008 HREOC recommended, in relation to the Sex Discrimination Act 1984 (Cth), that religious exemptions should be removed, retained or replaced with a more narrowly tailored exemption within three years, and that at a minimum, the exemption may be narrowed or alternatively ... could include a mechanism which would allow religious bodies ... to opt out of the exemption. These ideas seem to reflect the AHRCs general position on anti-discrimination law exemptions. Unfortunately this position does not reflect the liberality given to religious freedom in the provisions of Article 18 of the ICCPR and Article 6 of the Religion Declaration. We note that the Government has not adopted the AHRCs position in the Sex and Age Discrimination Legislation Amendment Bill 2010 that is presently before the Federal Parliament. It is appropriate therefore that exemptions in equivalent terms to those presently in Division 4 of the Sex Discrimination Act 1984 (Cth) (particularly sections 37, 38 and 39 relating to religious bodies, schools and volunteer bodies) apply to any extension of federal anti-discrimination law that may include sexual orientation and sex and/or gender identity. Although we consider that exemptions in equivalent terms to those conferred by Division 4 of the Sex Discrimination Act 1984 (Cth) would be an appropriate way forward, we do wish to make some in-principle comments on the matter of exemptions as they apply to religious bodies and schools. Some principal issues concerning exemptions We submit that the scope of the exemptions should match the broad mission of religious organisations, and reflect the liberality of ICCPR Article 18.3 and the Religion Declarations Article 6. If the AHRC is to invoke the ICCPR as the basis for change in federal anti-discrimination law it must also actively consider how to also give full effect to Article 18 of ICCPR and Article 6 of the Religion Declaration, neither of which, in any way, justify wide-sweeping limitations on freedom of religion in Australia through anti-discrimination law. The Human Rights Committee has also noted in comment 18 that: not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. To be consistent with Article 18.3 anti-discrimination laws should be applied to solve real instances of practical disadvantage and not be used in an activist sense to coerce acceptance of certain practices by religious organisations. In many cases claimants have a choice about where to procure a service or find employment. It is not necessary in those instances to limit freedom of religion in order to uphold the rights of a claimant. Freedom of religion must stand above giving a person completely free and unfettered choice about where to procure a service or find employment. There is also nothing in the ICCPR that in any way justifies a hierarchy of rights where the right to non-discrimination is at the top and freedom of religion is at the bottom. The United Nations Human Rights Committee, in its comment 24 on the Covenant has noted that there is no hierarchy of rights under the Covenant. If exemptions do not give proper accord to freedom of religion a de facto hierarchy will in effect have been created. Unfortunately, the trend, in recent times, appears to have been towards an unwarranted narrowing of exemptions. The narrowing is unwarranted because it runs counter to the liberality of religious freedoms expressed in international instruments such as ICCPR 18 and Article 6 of the Religion Declaration. Religious bodies do not construe their mission expressly in terms of excluding people. They simply include and work with those who uphold the world-view and moral framework of the body. All are free to participate on that basis or to go their separate way. (Likewise, religious people often have to accept that they do not really belong in some settings that espouse a different view of sex, for example.) We invite the AHRC to commit more decisively to the freedoms enumerated in the Religion Declaration, and for Commission employees to engage religious practices with genuine curiosity and respect. Against that backdrop, the AHRC can go on to show where current areas of exemption do not benefit either the religious body or the community, and a new negotiation can begin. But there are no easy short-cuts. There is a need for protection against individuals being compelled to support the pursuit of activities or purposes that conflict with their genuinely held religious beliefs Many of the principles outlined above apply equally in the case of individuals. We note that the Victorian Equal Opportunity Act 1995 contains an exemption in section 77 which allows a person to discriminate where it is necessary for the person to do so in order to comply with their genuine religious beliefs and principles. We support the inclusion of the same exemption in Federal anti-discrimination law because it will prevent a person from being coerced into the active promotion of activities or practices that are contrary to the persons genuinely held religious beliefs. This is an important plank in protecting religious freedom in Australia. Such an exemption would not justify acts unless they were necessary to prevent a persons from acting contrary to their genuinely held religious beliefs. For example, a shop keeper refusing to sell food or drink to a LGBTI person ought not to be covered by the exemption, because such refusal is not necessary for the person to genuinely comply with their religious beliefs. On the other hand, the exemption should ensure that a Christian sex therapist, who believes that heterosexual marriage is the proper environment for sexual relations, can refuse to assist a same-sex or unmarried couple with the sexual aspects of their relationship. We are aware of significant unease in the Christian community in the United Kingdom where Christians have been required by their employers to facilitate practices that are contrary to their religious beliefs or face termination of their employment. Often the matters giving rise to conscientious objection are a minor part of the persons employment and it would be quite feasible for another employee in the workplace to undertake those tasks. There are few examples of the rights of Christian people in the UK being upheld in these instances; although there are insufficient safeguards in place. We are concerned that unless an exemption similar to that contained in section 77 of the Victorian Equal Opportunity Act 1995 is included in federal anti-discrimination law and in the anti-discrimination law of other States and Territories, people of religious faith will be coerced into supporting activities and purposes that are contrary to their religious faith and conscience. Such an outcome is not consistent with the protection afforded to freedom of religion in both the ICCPR and the Religious Declaration. Religious freedom also requires positive protection not just exemptions from anti-discrimination law. However that subject is beyond the scope of AHRCs discussion paper and these submissions. Some other matters The 鱨վ complaints process We submit that the present conciliatory process undertaken by the AHRC in relation to discrimination in the employment context is appropriate and should not be changed to empower the AHRC to bring matters before a court or tribunal to seek orders for enforcement. There are at least two reasons for the AHRC role remaining one of conciliation. The first is that an overreliance on law to arbitrate conflict does not enable a populace to navigate their differences civilly. Invoking a third party to arbitrate causes the parties to the dispute to avoid engaging with and understanding each other. Furthermore enforcement is unlikely to lead to change on the part of a respondent; in fact the opposite may be true. As Patrick Parkinson argues, Where ... governments impose standards of behaviour through law on a reluctant population, they risk more than they gain. Compliance is coerced rather than voluntary and the legislation undermines belief in a shared community of interest between governors and governed. ... Legislation defines legality and illegality, but legitimacy is something different. ... It is the legitimacy of law, and not its constitutional legality, which matters most for stable and harmonious societies. AHRC has an impressive record in social cohesion initiatives that do not always require powers of enforcement. A good example is the Unlocking Doors report of 2007, which began meaningful engagement between local communities and police. The second is that not all of the bases for discrimination, in relation to which the ARHC can receive complaints, constitute unlawful discrimination in each State or Territory. To expand the present conciliatory process undertaken by the AHRC to allow it to bring matters before a court or tribunal will bring about a significant change in some States and Territories. For example in NSW it is not unlawful to discriminate on the grounds of religion, and nor is it unlawful in the employment context under the Fair Work Act 2009 since that Act does not render unlawful any act or practice that is not unlawful under State or Territory anti-discrimination law. Any change in this area requires extensive and transparent consultation with State and Territory governments and the community. Vilification and harassment We support outlawing vilification or harassment on the basis of sexual orientation and sex and/or gender identity in principle. However such laws do need to properly balance freedom of speech, must not stifle public debate and prevent a person from expressing an opinion, even if offensive to some, that certain practices are morally wrong or will have adverse social consequences. Having said this we do consider that the vilification and harassment of persons for reasons of sexual orientation and sex and/or gender identity remains properly a matter for each State and Territory to regulate. There is no apparent need for such laws at the federal level; it would be an unnecessary and unhelpful duplication. Recommendations 1. Federal anti-discrimination law be extended to include sexual orientation and sex and/or gender identity subject to a provision that operates in a similar manner to that in section 351(2)(a) of the Fair Work Act 2009 being put in place to ensure that State and Territory laws are not over-ridden. 2. Exemptions for religious bodies and schools in equivalent terms to those presently in the Sex Discrimination Act 1984 apply to any such extension. 3. If there is to be any change to the scope of exemption applicable to religious bodies and schools, it should match their broad mission, and reflect the liberality of ICCPR Article 18.3 and the Religion Declarations Article 6. 4. The inclusion of an exemption in Federal anti-discrimination law in similar terms to that in section 77 of the Victorian Equal Opportunity Act 1995 to prevent a person from being coerced into the active promotion of activities or practices which are contrary to the persons genuinely held religious beliefs. 5. The present conciliatory process undertaken by the AHRC in relation to discrimination in the employment context not be changed to empower the AHRC to bring matters before a court or tribunal to seek orders for enforcement. 6. Vilification and harassment on the basis of sexual orientation and sex and/or gender identity remain a matter for regulation by States and Territories and there be no duplication at the Federal level. If there is to be any duplication Federal laws must properly balance freedom of speech, for example, they must not prevent a person from expressing an opinion, even if offensive to some, that they consider certain practices to be morally wrong or to have adverse social consequences. Mr Robert Wicks, Diocesan Secretary For and on behalf of the Standing Committee of the Synod of the Anglican Church Diocese of Sydney 24 November 2010 Contact: Mr Robert Wicks Level 2, St Andrews House Sydney Square NSW 2000 Phone: (02) 9265 1671 Fax: (02) 9265 1634 Email: rjw@sydney.anglican.asn.au  HREOC Submission to the Senate Legal And Constitutional Affairs Committee on the Inquiry Into The Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender Equality, 1 September 2008, pp. 173, 167.  For example, concerning the facts in OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155, the same-sex couple could have applied to another foster care organisation that is known to offer foster care to same-sex couples. The NSW Department of Community Services and Barnardos, among other NSW agencies, offer foster care to same-sex couples. There is no need to limit Wesleys freedom of religion in order to further the rights of the same-sex couple.  For example the 2002 amendments to the Anti-discrimination Act 1991 (Qld) which narrowed exemptions for religious schools and hospitals.  Some examples: 1. Dr Sheila Matthews, a paediatrician and member of the Northhamptonshire county councils adoption panel, was forced to resign because her employer refused to accommodate her request to abstain from voting on the placement of children with same-sex couples. 2. Mr Gary McFarlane, a relationship counsellor, whose employment was terminated when he refused to give sex therapy to same-sex couples. 3. Ms Lillian Ladele, a registrar, whose employment was terminated, when she refused to conduct civil partnership ceremonies involving same-sex couples.  Patrick Parkinson, Enforcing Tolerance: Religious Vilification Laws in Australia. Paper delivered to the Eleventh Annual International Law and Religion Symposium: Religion in the Public Sphere: Challenges and Opportunities, Provo, Utah, October 2004, pp. 14-15.     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