Religious discrimination

This is the text of the submission the Church of the Flying Spaghetti Monster Australia submitted to the AGs Office in response to the Religious Discrimination Bill.

Who we are
We are a fast growing, but minority, religious group who believe in equality, freedom, safety and acceptance of everyone. We believe in celebrating the fact that each one of us is here. We believe that what any number of consenting adults do in their own time is none of our business. We believe we have a religious calling to point out and correct any bigotry we witness. We believe it is a really wonderful thing to want to help your fellow humans, and that when it comes to improving another’s quality of life, every small advancement is precious.

Religious Freedom
Although we do feel that as a minority religion in this country our rights are not always taken seriously, we also feel that Australia should not have a standalone Religious Freedom Act or religious freedoms introduced into other pieces of legislation. To introduce new legislation that gives additional rights and privileges to one particular sector of the community, the religious, goes against the legal, political and social basis of the Commonwealth of Australia: that all individuals are equal under the law. All people should be bound by and entitled to the same benefits and protections under the law equally.

Religion can be a wonderful, positive and very personal thing. However, some people simply wish to discriminate against other people, and religion is an easy way of validating that discrimination. That is why people tend to cherry-pick the sacred texts. This discrimination must not be allowed. A person’s gender identity and/or sexual orientation, sex, marital or relationship status, pregnancy, disability, age or race are not valid reasons to give a person fewer rights to protections from discrimination than other members of the community.

Freedom of religion and belief has never been unconditional. It is just one of a larger body of human rights. Any consideration concerning an individual’s right to religious freedom or belief must certainly examine acceptable limits on its expression in so far as it adversely impacts others’ rights, and does not discriminate.

Far from being discriminated against, religious organisations are already shown many privileges in this country. They receive tax exemptions, receive massive amounts of government funding and have very powerful and well-funded lobby groups.

Bill of Rights
This entire discussion about religious freedom could easily be addressed by simply enacting an Australian Bill of Rights. Ultimately, instead of many differing discrimination Acts, a Bill of Rights must be considered as the only logical way to implement international human rights instruments. Australia is one of the few democracies without such a document protecting the rights of people who are in this country. There are many good examples of how these sorts of Charters work in practice, for instance the European Convention on Human Rights and the Canadian Charter of Rights and Freedoms. Both of these documents have been in existence over many years, so evidence of how they have worked in practice and any amendments that were required over time can be easily studied as a basis for an Australian Bill of Rights.

The Church of the Flying Spaghetti Monster Australia believes there is a need for federal legislation to implement international human rights law. However, the implementation of any international treaty to which Australia is a party requires the implementation of the entire document, not just cherry-picked parts, to ensure that all fundamental human rights are protected. Any legislation must fully comply with relevant international treaties, covenants and declarations on fundamental rights including, but not limited to:
• The entirety of the Universal Declaration of Human Rights;
• The entirety of the International Covenant on Civil and Political Rights;
• The entirety of the Covenant on the Elimination of Discrimination Against Women;
• The entirety of the Convention on the Rights of the Child;
• The entirety of the United Nations Declaration on the Rights of Indigenous Peoples;
• The entirety of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief;
• The entirety of the Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity Resolution; and
• The entirety of the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms Declaration.

However, it must be ensured that they only allow protections of religious freedoms as far as those protections do not infringe upon others’ rights, especially in relation to women, children, the LGBTIQ+ community, and Indigenous people and include both freedom of religion and freedom from religion in any discrimination protections.

Cherry-picking must remain a pastime to be done to the sacred texts by religious adherents, and not a pastime to be done by government legislators whilst implementing international human rights instruments. People want and deserve a clear separation between the Church and the State in Australia. Theocracies, from a historical perspective along with some outstanding current examples worldwide, are generally not a lot of fun for people who are not adherents of the ‘chosen’ belief system.

This Bill of Rights should fully implement the totality of the international human rights instruments to which Australia is a party, with all their checks and balances. There is no ‘hierarchy of rights’ under accepted practice or international law. The United Nations Human Rights Committee has made it very clear that all human rights need equal protections.

When this Bill of Rights is implemented, in the context of protecting religious freedom or belief, there needs to be a clear distinction made between those practices that are an essential part of adherence or obligation to a particular religion or belief and those practices that are merely permissible under the teachings of a particular religion or belief. It must be remembered that the scope of freedom of religion or belief is not without limits. There is an element of objectivity required by demonstrating that a situation does not automatically fall within ‘religion or belief’ simply by assertion of such.

Human Rights Legislation Amendment (Freedom of Religion) Act 2019
The Church of the Flying Spaghetti Monster Australia supports the majority of the Human Rights Legislation Amendment (Freedom of Religion) Act 2019, apart from s 4 and s 7, which seem to go against the entire purpose of the proposed legislation.

To remain in keeping with the spirit of the proposed legislation an amendment should be added to remove s23(3)(b) and s 38 of the Sex Discrimination Act 1984 and to amend s 37(2) to read;
Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:
(a) the act or practice is connected with employment or the provision of a service by a body that receives Commonwealth or State funding,
(b) the body has not made publicly available a clear statement that declares the body will apply the exemption in the operation and day to day activities of the body.

Rationale –
A person’s gender, gender identity or sexual orientation is no more a choice than a person’s age, race or disability. It seems incredibly difficult to validate the concept that religious beliefs barring interracial marriage would not justify an exemption from the racial discrimination law, but the religious belief that sex, gender identity and/or sexual orientation is ‘sinful’ would justify an exemption from gender based discrimination law. The simple fact of the matter is that maintaining religious exemptions in gender based anti-discrimination law is about continuing misogyny, homophobia, and stigmatisation of a minority group; it is not about religious freedom.

The area in which blanket exemptions have proved particularly problematic is in relation to protection from discrimination for LGBTIQ+ people, although other individuals may also experience discrimination based on sex, marital or relationship status, pregnancy or age. The continued general exemptions for religious organisations that receive taxpayer funding limit equality under the law with respect to anti-discrimination protection, and they are based solely on gender identity and/or sexual orientation and how a person conducts their private life. This sounds utterly ridiculous that this is occurring in taxpayer funded services because it is utterly ridiculous.

This is a fundamentally critical issue in the context of the increased outsourcing of government functions to religious organisations, especially in the areas of education, health, aged care, recreational services and community services. Religious organisations also provide many other publically subsidised services to the public and, as such, religious exemptions can have a significant impact on the ability of people, including women and LGBTIQ+ persons, to find and remain in work, or access essential services. While s37(2) of the Sex Discrimination Act specifically removes Commonwealth funded aged care from the exemption, religious organisations are major employers and service providers in Australia. This aged care exemption was removed under the justification that ‘when such services are provided with taxpayer dollars, it is not appropriate for providers to discriminate in the provision of those services’. We heartedly agree with this statement, and think it should be extended to all sectors where public services are provided by religious institutions that are subsidised with taxpayer dollars.

It is unacceptable that religious organisations that receive taxpayer funding are not subject to the same laws as other significant employers and organisations. As a general principle, religious organisations that receive taxpayer funding should be required to adhere to a degree of accountability that reflects their level of participation in employment and other public services, which is an area of public life clearly covered by anti-discrimination law. Religious exceptions need to be constructed in a manner that appropriately recognises the religious/secular divide and balances the right to equality with rights to freedom of thought, religion and belief.

In today’s world of high unemployment, it is not as simple as having a person find another position in a secular institution if a religious institution that receives taxpayer funding disapproves of their gender identity and/or sexual orientation or how they conduct their private life. The stark reality is that people require employment to be able to eat, pay for somewhere to live and cover household bills. People should not have to be forced to conform to doctrines they do not adhere to due to fear they will become unemployed. Threats to their job security such as those made to over 180,000 people by some leaders of the Catholic Church in 2017 are an unacceptable situation, and a shocking display of religious privilege and fear mongering. If people lose their jobs, they may be forced to attempt to access welfare services provided by religious organisations that receive taxpayer funding that will once again discriminate against them. This situation goes against ICCPR Article 18.2 that states, ‘No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.’

Religious Discrimination Act 2019
The Church of the Flying Spaghetti Monster Australia is against a separate Religious Discrimination Act being legislated. All human rights should be equally protected under a Bill of Rights. However, we will comment on a few interesting and potentially problematic sections of the proposed legislation.

s 41 – Statements of belief do not constitute discrimination etc.
This section purports to overrule every other anti-discrimination law, Commonwealth, State and Territory. This is not giving religious discrimination equal treatment to other forms of discrimination; it is overruling all other forms of discrimination protections in favour of religion. This section is a sword not a shield.

This section makes a mockery of including the words;
“In giving effect to the objects of this Act, regard is to be had to:
(a) the indivisibility and universality of human rights; and
(b) the principle that every person is free and equal in dignity and rights.”
to all the other pieces of Commonwealth anti-discrimination legislation under the Human Rights Legislation Amendment (Freedom of Religion) Act 2019 because it effectively negates all those pieces of legislation.

Favouring the expression of religious belief over all other forms of discrimination protection will mean that a claim of religious belief will effectively render worthless any protections a person currently has against discrimination against them because of attributes such as age, disability, race, sex, pregnancy, marital status, sexual orientation, or gender.

The proposed bill, as it currently written, has the potential to cause situations such as the following;
• a person leaving a particular faith being legally discriminated against by other members of that religious community for upsetting their religious sensibilities
• a work colleague can taunt a person with a disability because the disability upsets their religious sensibilities
• a religious business owner in a rural town insulting a farmer who raises cattle for slaughter because slaughtering cattle upsets their religious sensibilities
• a hotel refusing an unmarried couple a room booking because it upsets their religious sensibilities
• a person legally being able to refuse to serve bacon, even though they work in hospitality, because it upsets their religious sensibilities
• a lecturer singling out a student who is a single mum by saying her child should be born in heterosexual wedlock
• a business owner or service provider being legally allowed to harass, insult and humiliate a disabled person who utilises a guide dog because the dog upsets their religious sensibilities
• a religious charity refusing service to a person who does not share their faith because it upsets their religious sensibilities
• a religious body legally refusing services to a person because of the colour of their skin, their age, disability, marital status or the religion they follow, because to provide services would hurt their religious sensibilities
• a doctor refusing to treat the child of a same-sex couple or refusing to provide medical treatments such as IVF because it upsets their religious sensibilities
• a vegetarian landlord harassing and insulting a non-vegetarian lease holder
• that people can be humiliated, insulted and ridiculed because of their age, disability, race, sex, pregnancy, marital status, sexual orientation, or gender
• a religious school refusing to enrol the children of an interracial couple because it upsets their religious sensibilities
• religious schools expelling students simply for being agnostic
• companies will find it more difficult to promote values of diversity and inclusion

How could all these bizarre situations occur? Well, it comes from the fact absolutely any belief is a ‘religious belief’ according the definition:

s 5 – Definition of ‘religious belief or activity
In the interpretation section the definition of ‘religious belief or activity’ is defined as:
(a) holding a religious belief; or
(b) engaging in lawful religious activity; or
(c) not holding a religious belief; or
(d) not engaging in, or refusing to engage in, lawful religious activity.

Apart from being a completely circular definition, it also seems to encompass absolutely any belief or activity. Whilst this definition could quite likely lead to an absolute absurdity of claims about what people believe and how their particular activity is covered by this definition, it is in agreement with relevant UN treaties.

Article 18 of the UDHR, Article 18 of the ICCPR and article 1.1 of the Elimination of Intolerance Declaration all use the expression ‘freedom of thought, conscience and religion’. However, and most importantly, the phrase ‘or belief’ is also used in these instruments, with the drafting history of the Elimination of Intolerance Declaration indicating broad international agreement that ‘religion or belief’ encompasses theistic, non-theistic and atheistic beliefs. These interpretations are broad enough to encompass the many, varied belief systems, including Pastafarianism, and to include the spirituality prominently found in Aboriginal and Torres Strait Islander beliefs and religions.

Australian Pastafarians look forward to being able to demand every Friday off from work or school to celebrate our holy day without recourse, not to mention our boundless opportunities to wear our pirate regalia and/or colanders in certain areas of public life.

s 9 – Conduct engaged in for two or more reasons
This section means that when a person’s conduct is done for two or more reasons, if there is a religious reason for the conduct the religious reason will automatically become the main reason for the conduct. This applies even if the main motivation behind the conduct was not of a religious nature.

Although Australian Pastafarians do look forward to being able to claim that no matter what it is that we are legally doing it’s absolutely for a religious reason, even we think this is silly.

s 10 Religious bodies may act in accordance with their faith
Neither the UDHR nor the ICCPR give rights to institutions. Human rights are the domain of individual humans, not organisations. We’d like to remind you that some of the ‘religious bodies’ that this section would cover are the same institutions that were found to have concealed sexual abuse perpetuated against many children by their clergy, over many, many years. Would this section mean that any religious body that believed the mandatory reporting of child abuse would go against their beliefs would become exempt from their duty of care to protect children? This entire section is a sword, not a shield.

s 19 Access to premises
Whilst agreeing in principle that people should not be refused admission to a premise, that is otherwise accessible to members of the public, because of their religious beliefs, this section raises some issues. Would a protestor against contraceptive services be allowed to remain in a clinic telling clients and staff about how their beliefs think such contraceptives evil? Would a school chaplain be allowed to tell school children on school grounds that their parents are going to burn for eternity for an affront against the school chaplain’s beliefs? Would a husband be able to walk into a domestic violence centre and demand his wife return home because he believes that a wife should obey her husband?

Thank you for reading our submission.
Yours Faithfully,

Captain Tanya Watkins
Church of the Flying Spaghetti Monster Australia

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