Religious Freedom Review

The Australian Government finally released the Report of the Expert Panel on Religious Freedom along with its Response in mid-December 2018. 

The Panel could see no reason to preclude faith-based organisations from continuing to be entitled to apply for public funding for their activities, or from competing to provide services on behalf of government, on the same terms as they have had to date. The Panel did not agree that public funding should be tied to religious bodies “waiving” or renouncing exceptions from anti-discrimination laws.

However, the Panel considered that, where there was only one service provider or employer in a community, thus precluding choice on the part of the consumer of that service or prospective employees, it should be open to governments to insist that the sole provider not discriminate against any part of the population, and that in circumstances of limited employment opportunities, be open to the employment of suitable and qualified persons regardless of intrinsic qualities such as their sexual orientation.

Faith-based organisations submitted that protections were needed to ensure that organisations do not lose their charitable status because of their religious beliefs. Concerned organisations pointed to overseas examples like the Family First case in New Zealand which we discussed in the final issue of these Notes for 2018. Although the Panel did not consider that charities which were established for religious purposes and which continued to advocate their religious views, including a “traditional” view of marriage, were at risk of losing their charitable status under Australian law. However, the Panel, believing that there was benefit and certainty, recommended that the Charities Act 2013 should be amended to clarify that advocacy of a “traditional” view of marriage would not, of itself, amount to a “disqualifying purpose”. The Australian government has said that it will seek to implement this recommendation as soon as practicable.

Not all Australian jurisdictions prohibit discrimination on the basis of a person’s religious belief or activity. For example, this is not a ground in New South Wales. The Panel considered that Australian laws should do more to protect the right to non-discrimination on the basis of religious or other beliefs. Accordingly, the Panel recommended that the Australian government should either amend the Racial Discrimination Act 1975 or enact a Religious Discrimination Act to render it unlawful to discriminate on the basis of a person’s “religious belief or activity”, including on the basis that a person does not hold any religious belief. The Panel added that, in doing so, consideration should be given to providing for appropriate exceptions and exemptions for religious bodies, religious schools and charities.

Please contact %96%AC%82%E4%B5%D1Ci%A8%D3%AAS if you would like further advice on the implications of the Panel’s Report for faith-based charities.