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Limits on the Freedom of Religious Organisations

Written by Prof. Patrick Parkinson

'The limits on the freedom of religious organisations to select staff consistent with their ethos'

Transcript of Prof. Patrick Parkinson’s talk at Freedom18 on 23 May 2018

Well, thank you for that very kind introduction. May I begin, first of all, by thanking John Anderson for a very inspiring and helpful speech, but also to give you some encouragement. We are making progress. We are making progress in this very, very important work. Freedom for Faith was formed about six years ago. I was one of the two co-founders of it, as it happens - Jim Wallis was the other - and we saw the writing on the wall. We could see that there was a need for this sort of work.

I'm really encouraged by the way Freedom for Faith has come off, the support we have received. We need to grow a lot more. We need to become a lot stronger, but we've come a long long way.

And I've been kept very closely in touch with the Ruddock Inquiry. The Prime Minister's office has been keeping me informed about what's going on. And I can say with confidence we are making progress. We should be encouraged. We need to be as the ... as eventually the report is released, and the government's response to it is released, we can see it as a glass half full thing. Will we get all that we'd like to see? Absolutely not. But I never thought that we remotely would.

We're twelve months away from federal election, or less. If you know the rhythm of politics, you'll understand. There's only so much you can achieve or any government will put forward in the twelve months or less before an election is called and that's just the way things are. A lot of the issues, I think most of the issues of religious freedom are actually the state territory laws, not federal laws.

So I do want to encourage you that eventually the report will be released. Eventually the government will release its response. Eventually the parliament will have a chance to consider all of those issues. But I do think we are making progress, that we are seeing. We are being listened to. And we're being listened to by both sides of politics.

Can I acknowledge Jacinta Collins who's here, who has been a great friend to freedom of religion over many, many years and is now. Chris Hayes is another. There are others on the Left side of politics as well. We have to govern for a multicultural society. We have to govern for a multicultural society. And that means that we have to acknowledge true diversity across the population. And that's an issue for both sides of politics, or if you are agreeing with my book, all sides of politics. It is an issue for everybody to see how can we live and let live and live together well and that's what Freedom for Faith is all about. That's part of the symbolism of two F’s talking to each other. Communicating and being able to respect and value different points of view - that is real diversity. And that is the message which we need to get over. So can I say be encouraged. We are making progress. There will be I think fruit from the Ruddock Report and I am very hopeful of it.

But the issues are mainly the states and territories and this is going to be a ten year issue for us at the very least, not a ten month issue. The Freedom for Faith submission which Michael kindly

referred to is setting out a very long-term agenda for how we need to reshape our laws, reshape the values of our society, some things will be picked up, a lot of things won't, but we need to keep pushing forward. And the message I think we need to give, the message I think is being heard on both sides of politics, is that churches and other faith communities are really serious about this. This is a number one issue for a very very large number of people in the population. We need to keep emphasizing that strongly and firmly. I had the privilege a few weeks ago with Michael Kellahan of going to talk with the Eastern bishops. Who on earth are the Eastern bishops? They're actually the bishops of the Catholic and Orthodox churches, which are not in the Catholic Church, Roman Catholic - they are Maronite, they are Malkite, they are all sorts of things. And in the Orthodox, the Coptics, the [inaudible 00:04:27] and so on.

And I had never met Christian leaders who are so concerned about religious freedom - and why? Because one of them was a refugee from Iraq. Because one of them is Bishop of the Coptic Church, based largely in Egypt, experiencing enormous persecution. And they see in a way that we do not see that there are significant threats to religious freedom in the Western world. They understand that and they are passionate. We all need to be passionate and to say if we're going to be a multicultural society, the government must govern for all of us.

Now, my own topic is about limits of religious freedom. Funny that, but it is an important issue because any discussion about religious freedom must be religious freedom for all faiths and there are issues – there are issues around national security, issues around public safety. There are issues around protection of women. There are issues around protection of children. All of which are issues about limits on religious freedom. We need to acknowledge that it is part of the story that we need to talk about. My own topic today is about the limits on the freedom of religious organizations to select staff consistent with their ethos because as John Anderson says, this is one of the really political issues and we need I think to have some very clear thinking about this. So I can't promise you clear thinking but I'll do my best at least to make it at least a little bit clearer.

What is a faith-based organization? We use that phrase in Freedom for Faith's mission extensively and talk about faith-based communities and faith-based organisations ... It's actually not an easy question to answer because there are a lot of organizations, John Anderson mentioned AMP, which used to be faith-based organizations which are no longer. A faith-based organizations to me is one which has a faith-based mission. Now, a lot of Christian work is amongst the poor and disadvantaged in our community and we need to I think really refocus on this as a faith-based commission. Years and years and years ago, when I was still reading books, I read a book by Bishop David Shepherd. David Shepherd was Bishop of Liverpool, he'd been I think the English cricket captain in a former life. Great man. And he had become the Anglican Bishop of Liverpool and he wrote a book called "Bias to the Poor." And his message was that God has a bias to the poor. When you think about it, think all the way through Scripture. That has to be true.

It's true of the Old Testament, it's true of the laws around Jubilee about forgiving debts every seven years. It's true of the command of God to be concerned with the alien, the fatherless, and the widow. The alien being the refugee, the stranger to our country. Concern for the poor, concern for the disadvantaged. You read the book of Ruth and that wonderful story of Ruth seeking help from a kinsman. But the rule that she relied upon, the rule that provided food for her and for her mother was the rule you have to leave the edges of the fields unharvested so that poor people can actually harvest it ... Look at Jesus and his whole teaching. God has a bias to the poor. And our society has a bias to the more wealthy. And I say that because if you actually look at what happens in government, what happens in the conversations we have, in politics and newspapers

and television, you'll find a dominance of the concerns of the top ten percent of the population. Jim Spigelman put it very well. Jim Spigelman, former Chief Justice of the Supreme Court of New South Wales, ended up as the chair of the ABC after he retired, a good Labour man Jim Spigelman. Very much so.

But Spigelman was commenting on the allegations of bias against the ABC. He said it's not that they talk the whole time about climate change. That's not the problem. The problem is they don't talk about electricity prices. And can you see how in that simple example the discourse is around a concern which is a valid and important concern. But the concerns of other people and how they're going to pay the electricity bill next week can get really lost in the shuffle. There's a very good article, a very disturbing article, in The Atlantic. It's a North American magazine which has a lot of quality articles, lengthy articles. And it talks in this month's issue about the fact that the society, in this case the American society, is dominated by the 9.9%. What does the author mean by that? Well, what he's saying is that it’s actually the 0.1% who have an extraordinary proportion of the total wealth of the country. So that’s the 0.1%. But the 9.9% (which I believe makes 10% in total) dominate in terms of control of universities, of media, of society as a whole, and government tends to focus around the needs and concerns of the ten percent, the 9.9% as he points out, who don't actually have all the wealth.

These are the doctors, these are the lawyers, these are the you and these are the me. And if you look at both sides of politics, you'll find it dominated by inner-city urban professionals. All university educated. There aren’t many miners who are acting as political advisors in Canberra on either side of politics, I can tell you that. The pathway whether you are Labour or Coalition or Greens or any other party is a pathway of university into being a political staffer. Maybe if you're on the Labour side, you might work for the union for a few years but you're still coming from the privileged inner-city elites who go to the top universities and go on into professional life. And that's the reality on both sides of politics. There is a bias towards the top ten percent in issues where rich people are concerned, the issues of the top ten percent. I'm involved in family law reform, it's very frustrating because the whole system works for the top ten percent. The 90% who go through marriage breakdowns, relationship breakdowns, and have other problems with their children, are really stuffed around by the system and the opposition to any change comes from the top ten percent.

So what is a faith-based organization? A faith-based organization has a faith-based mission and that is of vast importance. That is a bias towards ordinary Australians with ordinary needs and ordinary difficulties. And if we lose that, then we lose something of the heart of gold. The second thing about a faith-based organization is it must have a faith-based motivation. Driven by the love of God for everybody, whatever their situation may be. God so loved the world, that He sent His only Son. Isn't that the heart of the Gospel in John 3:16? God loves everybody, whether they know Him or not, whether they accept Him or not, whether they are opposed to Him or not. God so loved the world He sent His only Son. What could be a more remarkable picture of love? A faith- based motivation leads us to care for and support those who may have enormous difficulties, who might be very hard to look after, they're hard to care for. But they need to know about God.

And fundamentally a faith-based manner. What does a faith-based organization do? It brings, we hope, the way Jesus would like us to behave into our professional world, into our daily lives. A faith-based organization ought to live out Christianity, its mission and its motivation, the way it treats others. The most important assessment, I think, of a Christian man or woman in professional life is how you treat your secretary. And faith-based manner is what we should expect from a

faith-based organization. Now, we are in trouble on all these issues in many ways because if you think about what's happened to many faith-based organizations, they've become industrial scam, major institutions in public life. You think about Christian organizations in aged care. Aged care is a huge industry these days in which there's a lot of government money going in and it will only become a lot bigger because of the aging of the population. So aged care is a huge industry these days. Welfare services, huge industries these days. Mission Australia and many others have enormous budgets and a very very large chunk of that comes from the government.

Now why is that? Well, there are some arguments about that. There are some people who say oh you shouldn't give government money, taxpayer's money, to Christian organizations, as if Christians don't pay taxes. But there is a very fundamental reason why governments have consistently over the years been seeking to discharge their welfare delivery obligations through other non-government organizations, most of whom, at least many of whom, are faith-based. They just do it a lot better. They just do it a lot better. And there are a lot of reasons for that. If you look at the foster care area for example, there's been push for absolutely years, it started off with the Usher Report in 1992 in New South Wales, to move the care of children who can't live with their families out of government into the non-government sector. And why? There are many reasons why. One is they can actually have a funder - provider distinction. The trouble which was going on between services was if it was failing, government couldn't intervene to correct the failures. It couldn't intervene to say we're going to take funding from you if you don't form better and new practices. Why? Because it is the government. So at a very simple level, creating a funder - provider distinction is actually very helpful in terms of ensuring quality of services.

But beyond all that, organizations which are government organizations tend to get a little bit sclerotic, public service conditions, public service mentality, that can contribute. The evidence has been gathered. You're just a lot more nimble with a non-government organization. There is also in the government's point of view a transfer of risk. Very important. If government priorities change or something changes and it's a government service, they're putting all their funding in buildings, they’ve got people on permanent contracts, they’ve got heavy pension obligations etc etc. But if you can give the money to a non-government organization then the non-government organization takes the risk of building the buildings, maintaining them, looking after the employees, dealing with all of that. So it's actually smart that governments over the years have delegated if you like to fund non-government organizations, many or most of them are faith-based or have been faith- based, to deliver those services.

But it's a real challenge because what's happened and what does happen is the larger these organizations get, the harder it is for them to maintain a faith-based mission, a faith-based motivation, a faith-based manner because there’s simply just a huge workforce needed and it's going to be a diverse workforce. So one of the questions is if governments delegate the delivery of services to non-government organizations, which is certainly the case in welfare, less so in aged care because private contributions are made, it delegates delivery of those services, to what extent should those organizations be allowed to discriminate? You see where this hits. Government is funding it pretty much 100% apart from some legacy funding from wills and things, but the corporations are funded almost entirely by government. To what extent should it maintain its Christian influence or whatever faith-base it happens to be? Most of them are Christian. What I claim on this issue is this - that any faith-based organization must at least have the right to maintain the ranks of its senior staff as Christian. You can't really be a Baptist aged care association without having any connection anymore to the Baptists. If you don't, then be honest and change your name.

But these organizations have given their legacy funding, their buildings and other things, to the work of the delivery of services. And at least their top echelons, if they're going to maintain the Christian ethos, they need to have the right to maintain a positive selection of staff who adhere to the faith. I can say with the Baptist aged care organizations, I've spoken to them, that only the chair has to be Baptist. The others can be any sort of faith. They do want to maintain a generally Christian top leadership of the organization. I’m sure many other organizations do as well. Now, that's industrial scale Christian ministry and to a very large extent, it's lost its Christian ethos except in terms of history.

It's a very different position, and by the way there's a handout if you kept a copy which takes you through these quotes. It's a very different situation when you start talking about education. Because when you look at the way government funds schools, it doesn't fund private and independent schools in order to deliver a service on behalf of government.

First of all, it doesn't fund them. It helps fund them and there's a lot of private contributions from parents, it's a partnership of funding between government and parents. But also the whole point about the funding of independent and religious schools is to provide diversity of choice for parents. It's not just religious schools. It can be you want to immerse your child in French or you have a Greek-speaking school. I know they're much less common but you do get schools which actually have a language base to them, not a faith base. And central to the purpose of government in funding independent and religious schools is that they offer the parents a choice and they represent a certain value base for parents. They can send their kids to state school. Everybody has that choice. They can send their kids to an elite secular-type school. They can send their kids to a school which has a veneer of Christianity just to make them feel more comfortable but it's really about academic performance. They can send their kids to a top sporting school, whatever.

What is diversity? The whole point is to give parents choice. And fundamental therefore to the purpose of any independent school is they must offer something different from the state schools. But even more so for religious schools, it must offer a religious upbringing, a religious training, a religious content different from the state schools.

Contrast that with the big welfare organizations where they are in a sense delivering as delegates of the governments - employment services being a good example. They used to be called unemployment services, that was abolished in the Howard years and replaced by non-government organizations who'd have a contract to deliver employment services. They are acting on behalf on government to deliver service. Schools are not. Schools are not acting on behalf on government to deliver the same product. They're funded by government in part to deliver a diversity of products. And this is the distinction which gets lost in the whole debate around discrimination and staffing, that the whole point is to allow a diversity of concepts and differences of ethos in these different schools. So hold those two things as contrast for the moment. Situations when the government subcontracts the delivery of services, particularly around welfare, and situations where the government assists in funding to create diversity and choice.

We actually have two sorts of organizations, both of which are government-funded but where that government funding is doing completely different things. Now, I guess there are some organizations which are somewhere in the middle of that. I'm not sure where age care sits in all that. In some ways, it's about diversity of choice for people to go into retirement where they can go to some sort of faith-based organization. You can argue about where that sits but I hope you at least see the distinction I'm trying to draw. All faith-based organizations are being threatened by

what I call the new fundamentalism. And it is as anti-logical fundamentalist a belief as you will get anywhere in the history of the Southern part of the United States. It is a deeply held fundamentalism that is almost impervious to rational argument. What it argues for, what it says, is that everybody should be able to apply for almost every job. It's a belief that all discrimination is wrong. And this is a deeply held moral value. You can do whatever you like in private. There's no boundaries on sexual conduct as long as it's consensual. There's not really too many boundaries around financial misconduct as long as nobody finds out and you don't want ASIC to be too rigorous about these things. But thou shalt not discriminate.

That is, among inner-city urban professionals, the golden rule, the most important moral value, you see this played out again and again in our public discourse. The most important moral value is that thou shalt not discriminate. And Christians are in vanguard of promoting immorality. Why? Because we keep insisting that actually, some discrimination is important, particularly around the freedom to maintain our associations as being faith-based. So we stand sometimes in view of some in moral opposition to an important moral principle. So it's vital that we unpack what this moral principle is. Is it in fact wrong to discriminate against people? And the argument is no, it's not always wrong, because there are situations with general occupational requirements or inherent requirements. I'm told by anti-discrimination scholars that there's a distinction between the two. I think it goes something like this. It's a genuine occupational requirement that you would have a woman to play a female part in a play or a film, but that's actually not necessarily an inherent requirement because in Shakespeare's time, boys always played those parts. You can't get more transgender than Shakespeare's plays.

So it's not necessarily inherent that you can't have a boy playing the part of Ophelia in Hamlet but it's a genuine occupation requirement that Ophelia should be a young woman playing that part. You get the basic concept. So there is an exception for genuine occupation requirements and there is exceptions that in some cases, you need to make choices where gender or some other characteristic is important. But beyond that, the view is that thou shalt not discriminate. If you go to page 2 of the outline, here we come to the fundamental argument around this. The argument is, if we preference a person with characteristic X, we are discriminating against everyone in the world who does not have characteristic X and this is where the rubber hits the road. Because if you say that preferring someone with characteristic X is discriminating against everyone that doesn't have that characteristic, then what you're saying is that beyond genuine occupation requirements, you can never select somebody because they have a characteristic which somebody else says is not a genuine occupation requirement.

I’ve had this argument and I've seen this argument played out, it’s very often played out in terms of Christian schools. We understand, they say, why the principal should be a Christian and accept that the top level of management should be Christian but why the Maths teacher? Why the gardener? And you see what's happening there is that there’s the view that all jobs ought to be open to everybody, all teaching jobs ought to be open to everybody, unless you can make a compelling case for saying that you need to have somebody with characteristic X or be a devout Christian, a devout Jew, whatever the issue may be, doing that job and for the secular mind-set, it's very hard to understand how it should matter whether you have a Christian or a non-Christian Maths teacher. Well, my wife is a Maths teacher and she brings God into her Maths teaching the whole time, particularly in year 12 when she's talking about very complex mathematics and what she talks about is the order of the universe. Welsh, you may know as the language of hell. Maths is the language of God.

Looking at it another way and say okay, maybe most Maths teachers are not quite as crazy as my wife to draw the link between a certain equation and the origins of the universe but why not? Why shouldn't a Christian school insist that all its staff are Christian? If you understand that it's having a faith-based mission, a faith-based motivation, and a faith-based character, faith-based manner, then you understand that the entire community in those schools is intended to be one of faith. And everybody's important here, there’s no distinction between the professionals and non- professionals. It's not about saying that the teachers matter but the admin staff don't, it doesn't matter who's on the reception desk. It matters critically who's on the reception desk when you've got a parent who's distressed. It matters critically how all staff treat all students.

So we have an argument here about genuine occupation requirements. The argument is well, you don't have to be Christian to do X or Y. But what we're arguing for is not the right to discriminate, it's simply the freedom to select. The freedom to select or if you wish ‘to prefer’ those who have a certain faith. Let me emphasise that this new fundamentalism is highly ideological but it's not supported by International Human Rights Law. What the international human rights treaties around discrimination say, or what for example the [? Iowa Convention of 1958 {30 min}] says is that you shouldn't discriminate on the basis of certain protected attributes, some of which are inherent: race, gender, disabilities can be acquired of course but can also be from birth. And then it would go on to say political opinion and other things. So it's not as if .... human rights laws are a prohibition on all choice, where a certain characteristic is preferred. It’s simply that we accept the dignity of all human beings, and recognise that whatever our race, whatever our gender, whatever our age, whatever abilities or disabilities we may have, we are all human beings and equal in the sight of God.

Who was the leader of that movement in the last fifty years? Dr. Martin Luther King. Religious fellow, I believe. Christians were in the vanguard of that just as they were in the vanguard of [inaudible 00:30:54]. So we need to challenge this ideology that thou shalt not discriminate beyond some of these protected attributes which are attributes of historical disadvantage for the most part. So the freedom to select is an existential issue for us. The freedom to maintain the Christian ethos even on an industrial scale with Christian organizations, certainly things like Christian schools and multiple small scale organizations, we need to make clear that positive selection is not discrimination. No one's rejected because they are disabled or because they're female, because they're whatever. It's about choosing somebody who does meet the criteria for the job as the school or the organization defines it, which is in part being part of a Christian, or Jewish, or Muslim community of faith, who are fulfilling their mission in this way.

And there's plenty of examples of exactly [inaudible 00:31:59]. In NSW for example, did you know that it's okay for a Chinese restaurant to advertise for and prefer Chinese staff? Why? Because in the Anti-Discrimination Act, it says that if you are running a service that provides drinks and food, and you need to select based on race for the ethos or the atmosphere of the restaurant, you can do so. So if a Chinese restaurant advertises for Chinese staff, it's not discrimination against [inaudible 00:32:35]. It's not that somebody has an attribute which you are rejecting. It's simply that's it's somebody else's attribute that you want. It's not rocket science but it is an argument which we need to emphasize. Or take Victorian law. In Victoria, it's been a big battle over these issues with attempts, successful for a year or so, to change the law to make it very very difficult for religious organizations to prefer or select on the basis of religious attributes. But if you look at the Equal Opportunity Act of 2010 of Victoria, you'll discover that political parties are completely exempt from all of that, thank you very much, they can select whoever they want.

So it's not as if there's not already other dimensions of political commercial life that accept that there should be freedom of association, that religious organizations and political organizations, even restaurants should be able to select or prefer those who will maintain the ethos of the organization itself. Which leads me finally to the argument about public funds - because what you hear constantly and what you will keep hearing in the next few years is that taxpayer funds should not be given to organizations that discriminate. And here again we need to maintain or put forward out position, that it's not about discrimination, it's about selection. Freedom to select based on characteristic X, it's not to discriminate against anybody who doesn't have that characteristic. That's fundamental.

But it may well be more of an issue with industrial scale Christian organizations. First of all, if government delegates to a non-government organization, it cannot discriminate in the delivery of those services in terms of who it serves.

Now, there may be issues if the only hospital in an area is a Catholic hospital and they don't want to perform abortion services and that’s absolutely, vitally an issue of freedom of conscience, then it's the government's job to fund a service which will provide that. If they choose to not build a state hospital, then they need to live with the fact that they need to provide another service. But by and large, in a situation where a non-government organization, a Christian organization takes on the contract to deliver services to the whole community, it must deliver services to the whole community. It might be selective on issues like which services, which is the Catholic hospital example, but it must deliver to the whole community. And this is deeply rooted in Christian values. St John Chrysostom many centuries ago, used the example of the harbour. The harbourmaster should welcome all ships which are in difficulty into its harbour. That is deeply ingrained in the Christian faith.

What about staff? I think these industrial-scale organizations do, and this is already the case, need to be non-discriminatory in terms of staff, and they are. They don't discriminate based on gender, age, disability, sexual orientation, that’s seen as irrelevant to their organization. Where we need to argue for and need to protect, is their right, at least at the top levels of the organisation, to have a positive right to select on the basis on those who will continue the historic mission of the organization and maintain the Christian ethos and values. It's not a right to discriminate, it's a right to select.

When we come to the idea of Christian schools, there may be other examples, but the whole point is to maintain diversity. As John Anderson said, diversity these days seems to mean that everybody should be the same. But that is the opposite of what we need in multicultural society. The opposite of what it means to live and let live, it’s the opposite of respecting people's values and faith. And all sides of politics surely ought to understand this and accept it and the reason being that all sides of politics are speaking to a multicultural society. Those who strongly favour an increase in our refugee intake, those who would like all boats to be processed on the shore.

Those who would welcome refugees are reflecting a part of the Christian tradition of welcoming aliens and strangers. But if we welcome them, we welcome them with their faith. We welcome them with their family values. We welcome them with their views on sexuality. We welcome them with views which are the polar opposite of many of our inner-city urban professionals who are campaigning to raise the numbers. You see, everybody has an interest in maintaining a diverse, multicultural society.

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