Religious Discrimination Legislation in Australia: Critical Essay

As the values, attitudes, and beliefs of the Australian population change, the laws and government must evolve accordingly to reflect this, extending to the country’s Church-State relationship. New religious discrimination legislation was proposed off the back of the same-sex marriage plebiscite, which, amongst many other issues, runs the risk of prioritizing freedom of religious expression over other recognized human rights. Regulating the extremely complicated Religion-State relationship historically has been embedded in Australia's Constitution with a goal to ensure peace and justice between all members of society. However, religious recognition, privilege, or law, as well as the institutional establishment in the Constitution poses a potential threat to the rights of religious minorities and people without religion. A proposed new bill, the Religious Discrimination Bill, potentially forces both religious and state officials to prioritize certain human rights over others. The bill would impact traditionally state issues such as healthcare and education that are grounded in religion. Resultantly, the Church-State relationship in Australia would become increasingly strained, necessitating some compromise to ensure religious freedom as well as equal access to human rights.

Since settlement, the Religion-State relationship in Australia has remained complicated due to the vague parameters contained in current legislation. Christianity has traditionally been the most common major religion, with 97% of Australians identifying as Christians at the time of federation in 1901. The Constitution reflects this stating in its preamble “humbly relying on the blessing of Almighty God” (The Australian Constitution, 1901). Conversely, another reference to religion in Section 116 of the Constitution prevents the establishment of a national church or the favoring of one church over another (The Australian Constitution, 1901), promoting secularism. Canadian philosopher Charles Taylor defines secularism as the “presence of religion in the public sphere as one voice among many, including those with no religion” (Taylor, 2007). Therefore, by definition, Australia is a secular democracy, despite the preamble of the Constitution reflecting a Christian-based perspective. Census data has seen a prominent shift towards secularism, with a 29.3% increase in the number of people identifying as a-religious since 1966 (Australian Bureau of Statistics, 2007). As the population grapples with a changing social landscape and fewer Australians consider themselves religious, the Church-State relationship faces immense change. Consequently, religious groups and organizations that represent less of the population are experiencing diminished power and influence over legislation.

Inevitably, as religious organizations lose their influence over traditional state issues (i.e., healthcare, education, and marriage), some have advocated for the passing of the Religious Discrimination Bill. Proposed in 2019, the bill would see state protection for religious entities to flout state laws on religious grounds and would enable direct and indirect discrimination for actions grounded in theological belief. This draft bill was introduced following the passing of the same-sex marriage plebiscite, which brought to the forefront the issue of religious freedom which can be disputed by state law in situations involving the tension between a religious conviction and discrimination. Some state groups emphasize the necessity for a law to introduce important protections for Australia’s religiously diverse population. However, most government authorities share the opinion of the Law Council of Australia that this bill could potentially trump the right not to be discriminated against on the grounds of race, sex, sexual orientation, disability, or age, as well as the right to healthcare. This creates an impossible divide between Church and State. Opposing such a bill could lead to the denial of religious freedom – a basic human right outlined in the Constitution of Australia. Supporting it would mean prioritizing religious freedom over other human rights such as healthcare, condoning unjustified protection for people to express harmful discriminatory views, and overriding state and territory protections that ensure fair treatment. Despite being a secular society, the Church and the State are undeniably interconnected. The proposed Religious Discrimination Bill may go some way to clarify issues, but may also introduce further complications as a result of the changing relationship as more Australians move away from religious affiliation.

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Many issues which have become more prominent in the 21st century such as same-sex marriage, terrorism, immigration, abortion, and vaccinations have an inherently religious angle that necessitates the interconnection of the Church and the State. There is an endless conflict between the requirements of Australia's secular democracy to support religious freedom while also supporting equal opportunity and treatment for all Australians. One example, the vaccination debate has raged between certain religious entities who oppose mandatory vaccination programs due to religious beliefs and state requirements. One such vaccine, Gardasil, which protects from HPV, has polarized religious groups as it arguably condones sexual activity before marriage. While many Christians are in support of the vaccine, with a 99% protection rate, a study by the Journal of Religion and Health (December 2013) found that Protestant Christians were the most likely denomination to refuse HPV vaccinations (2.01%). Reportedly, even the most liberal Protestant churches profess that all sex outside of marriage is the sin of fornication, as outlined in 1 Corinthians 6:18: “Don’t be immoral in matters of sex. That is a sin against your body in a way that no other sin is”. Orthodox Protestant schools have also discouraged students from partaking in the government-issued vaccination program. Removal of this right to healthcare has put students (including reporter, Stevie Troy) at risk of endangerment to themselves and others.

Currently in Australia, the enclaves of religious-based objections are not as prominent as we see in some other countries, and therefore non-medical exemptions from vaccines including religion, are not accepted. The introduction of the Religious Discrimination Bill would change this. Furthermore, many vaccines, including Gardasil, provide not only direct individual protection but also generate herd immunity, benefitting the broader population when threshold levels of coverage are reached. The passing of the proposed Religious Discrimination Bill would prioritize freedom of religion over national laws surrounding religious discrimination in schools, medical centers, workplaces, and mandatory health care programs. Consequently, Australia would fall further below the threshold of herd immunity, placing the entire population at risk of contracting HPV and associated diseases. As a result of the changing religious demographic and the Religion-State relationship in Australia, it is clear that a small percentage of traditionalist Australians do not feel represented in current legislation and are advocating for a new Religious Discrimination Bill. However, if passed, it has the potential to endanger the health of Australians by prioritizing religious freedom. The Gardasil vaccine debate is just one example implicated by the Religion and State conflict that would require clarification.

In a recent court summary, Chief Justice Latham observed almost any matter of state may become an element in religious belief or religious conduct. As a secular society with freedom of religion and no state church, and as religious influence over the Australian population is at an all-time low, the democratic laws and government must reflect the evolution of the population. Recently, however, certain issues such as same-sex marriage have seen this right to freedom of religion threatened to prioritize other human rights (i.e., freedom of choice). This has led to the proposal of the Religious Discrimination Bill, requesting state protection for religious groups to discriminate on the basis of their beliefs. One impact of this bill can be observed within healthcare relating to vaccines. As a secular democracy, Australia advocates for religious freedom as well as equal access to healthcare and impartiality in schools and workplaces. The Constitution mandates this. The conflict between the Church and the State arises when an advance for one of these rights hinders people's access to the other. In a changing social and religious landscape, the stakeholders must be mindful of the implications for all to ensure a satisfactory outcome.

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