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An eye for an eye in human rights law

By David Palmer - posted Wednesday, 23 January 2013

Last week the Fairfax press ran a series of articles and news items on religious exclusions in new anti-discrimination legislation verging on hysteria. David Marrno fan of Christianity, went so far as declaring “Labor's Human Rights and Anti-Discrimination Bill offers the religious open slather. It's a bigots' charter” (The Age, January 14, 2013).

This is unmitigated nonsense.

The explanatory notes to the Bill provided by the Attorney General’s Department make it clear that “there is no intention to change existing policy in relation to (the current specific) exceptions. That is, the exceptions will remain in place”. They even underline the sentence. In other words Ms Gillard is not promising faith based organisations anything other than what they already possess. There are no new measures. No change.


When Governments write anti-discrimination law they find it necessary to include exceptions in the legislation. Typically these are provided for religious bodies, political parties, sporting clubs, women only gymnasiums – there is a long list of such exceptions. Australians are not surprised by this. We understand that the Labor Party will not wish to employ a Coalition sympathiser or that some women may not wish to work out in gyms with men present.

It has always been understood that some religious groups do not ordain women as clergy, and to compel them to do so would be against their religious principles and if pressed would lead to civil disobedience. Although we may not agree with their principles we respect them. Well, we have up to the present time.

In similar fashion many Australian families for a variety of reasons, but often for religious reasons, choose not to send their children to State schools but rather have chosen to start new, independent faith-based schools and pay for the privilege of so-doing. Yes, these schools are supported by taxpayer funds but then why shouldn't they be taxpayerfunded? These parents are taxpayers themselves. Without question the call upon the tax payer would be much greater if there were no such privately-funded schools.

For religious bodies under the proposed legislation, discrimination on the attributes of gender identity, marital or relationship status, potential pregnancy, pregnancy, religion, sexual orientation is lawful. I can’t see the reason why potential pregnancy and pregnancy are in the list but the remainder offer protection to the religious sensitivities of the individual school community, most importantly the parents who have chosen the school for their children.

There are many Australians who believe and wish to practice for themselves and their children, however imperfectly, the ‘doctrines’ of their religion. This is a right enshrined in international law.

Article 18.3 of the International Covenant on Civil and Political Rights, declares that signatory states to the Covenant, of which Australia is one, must "undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions".


This is all the Government is doing in its proposed Bill, honouring its international obligations as well as recognising that not all Australians think alike or are ever likely to. Because majority opinion, which no doubt Mr Marr feels he is expressing, has always had the unhappy knack of suppressing minority opinion, Governments have to take measures to protect those espousing such minority opinion. And let’s face it, common sense tells us in the grand scheme of things the number of schools acting to discriminate on the basis of the attributes listed above are a rather small segment of the total educational market.

In the case of Church-related health and welfare agencies, regardless of whether there is Government funding or not, churches do not discriminate in provision of these services, it’s against the religion. Further, for these agencies in the employment of professional staff, the normal requirement for staff is to respect the religious mission of the facility and therefore to abide by its code of ethics while engaged in employment within it, whether paid or voluntary.

It may be difficult for those professing no religion, and especially those antagonistic toward religion to understand this, but how to live in the light of religious belief is a vitally important issue for religious communities.

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About the Author

David Palmer is a minister of the Presbyterian Church of Australia.

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