conrad gershevitch director, education & partnerships australian human rights commission july...

Conrad GershevitchDirector, Education & Partnerships

Australian Human Rights Commission

July 2009

Religion, workand a multi-faith society

Presentation for the Diversity Council of Australia

Religion, work and

a multi-faith society

What I wish to discuss:

• what IS ‘religion’ and spirituality?• why is it important in a liberal secular society

such as Australia (are we such a society?)• are there any laws that protect people on the

grounds of religion and belief?• what are the human rights issues associated

with religion and belief for employers?

Religion, work and a multi-faith society

What IS ‘religion’ & spirituality and

why is it important?

– what it means to be human– humans are curious creatures. We are (generally) highly social

and intelligent; we also function in hierarchies – humans have an innate urge for order, to understand the world

around them; this includes the social world, but also the natural world

– this desire for ordering, finding meaning and controlling have two (fundamental/elemental) effects:

• firstly, it results in the construction of culture/s• secondly, it results in attempts to describe (and therefore

understand) the transcendental.

What comes first or is more important: culture or religion (broadly defined)? This is impossible to say anthropologically or sociologically, and it probably doesn’t matter.

What does matter, is how important both are as defining aspects of humanness. Firstly, lets consider culture.

“perhaps the most famous (definition of culture, is): ‘That complex whole which includes knowledge, belief, art, morals, law, custom and any other capabilities and habits acquired by man (sic) as a member of society’. (and, that culture comprises) ‘systems of shared ideas, systems of concepts and rules and meanings that underlie and are expressed in ways that human beings live.’ (quoted by Helman, C. Culture, Health and Illness)


Culture also needs to be understood as having layers of meaning and significance (Helman argues three levels of culture) as well as being dynamic, relative, contextually based, and as categorising (ie: helps define social & intellectual categories for humans).

Culture, therefore is critically important. It provides glue that holds communities together (inter alia for survival), transfers knowledge, provides social life-meaning, communications and interprets the world in which humans find themselves.


Religion, on the other hand, has different functions and, while it shares qualities with culture, is different.

Disclaimer: my views are secular liberal and anthropological; many, particularly many religious people will contest these (eg: by saying that Truth is only to be found through prophetic revelation.

Religions are attempts to explain the unexplainable. They deal with transcendental knowledge, or those things that are unexplainable, such as what happens after humans die.

Religions are also, however, critical tools for social functioning & the ethical conduct that helps societies to hold together. Religions are, by their nature, institutional. People are categorised within the faith, and faith specialists (usually) have the responsibility for interpreting holy texts, explaining morality and enforcing norms of religious conduct.


A particular benefit of religion is that it makes the moral and intellectual life of individuals and communities easier.

If these did not exist then, to avoid an existence of social and ethical anarchy or purposelessness they would have to be invented (remember Nietzsche’s ‘madman’ searching for God!)

Religions, and religions’ servants make social life far ‘easier’ by laying down the rules (the ‘ethical leadership) of how to live, and how to interpret reality.

This is an important function, however, in the modern world religion may have less critical roles because of the State and its institutions (such as laws or ideology) and science (such as evolutionary theory) and alternative ethics (such as human rights) can be feasible substitutes for the moral frameworks outlined by faith.


Given this last point, is faith still important?

Absolutely! In the context of global security and freedom of speech:

“…it is very apparent, certainly for the several decades ahead, that religion and faith are not going to drift away into a privatised world as many atheists and agnostics had predicted. In fact, one of the major features of twentieth century history was the enduring stability of religion and its institutions..” (Cahill, D. et al Religion, Cultural Diversity and Safeguarding Australia, 2004)

This view was recently restated by Micklethwait & Wooldridge (God is Back, 2009) which explores the global rise in faith and contests the claims of, particularly European, secularists:

“… the American model… is spreading around the world: religion and modernity are going hand in hand, not just in China but throughout much of Asia, African, Arabia and Latin America. It is not just that religion is thriving in

many modernizing countries; it is also that religion is succeeding in harnessing the tools of modernity to propagate its message. The very things that were

supposed to destroy religion – democracy and markets, technology and reason – are combining it make it stronger.”


Section 116 of the Australian Constitution is often cited as the reason why Australia is considered a secular state. It states the Commonwealth cannot pass legislation:

“…establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion and no religious test shall be required as a qualification for any office or public trust...”

This has been interpreted as meaning the government cannot pass laws:

–that creates a religion –endorses one specific ‘state religion’ –requires particular religious observances, or –prohibits the doing of an act done in the practice of religion.

Moreover, the Australian government cannot require that a prospective holder of a public office be affiliated with any particular religious views.

However, this view of the ‘secular’ nature of the Australian Constitution and the religion/government divide has been contested by religious organisations (eg: Christian Democrats argue that s116 was established for religious, not a secular purpose).


The international treaties and their application in Australia

– International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (ICERD)

– International Covenant on Civil and Political Rights (ICCPR)– Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief (Religion Declaration)

Australia ratified ICERD in 1975, its obligations were met under the Commonwealth Racial Discrimination Act. The central prohibition against racial discrimination is contained in section 9(1) of this Act:

“…any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”


RDA applies to businesses, schools, all tiers of government, agencies and individuals. It makes racial discrimination unlawful in employment, accommodation, education and provision of goods and services, access to facilities meant for use by the public, advertising, and trade union membership. The RDA also prohibits both direct and indirect discrimination

S18D provides exemption for acts done ‘reasonably and in good faith’, eg:

– in the performance, exhibition or distribution of an artistic work– for any statement made for genuine (inter alia) academic, artistic or scientific

purpose in the public interest– making/publishing an accurate report of an event or matter of public interest

Religious discrimination is not unlawful under the RDA although it prohibits discrimination on the grounds of ‘ethnic origin’ (eg: includes religious groups such as Jewish and Sikh people).



Under the HREOC Act (1986) discrimination or vilification of people on the basis of religion may be dealt with in two ways. Under the Act the Commission can inquire into, and attempt to conciliate allegations that an act of the Commonwealth (including things done ‘on behalf of the Commonwealth’) is inconsistent with any human right (meaning the rights and freedoms recognised in the international instruments, in the case of freedom of religion these are ICCPR & Religion Declaration).

The Commission may also investigate/attempt to conciliate complaints of discrimination in employment on a number of specified grounds including religion. This part of the Act is based on the International Labour Organisation Discrimination (Employment and Occupation) Convention (1958) (ILO Convention 111) which defines discrimination to mean any distinction, exclusion or preference made on the basis of (amongst others) religion, that nullifies or impairs equality of opportunity or treatment in employment.

The HREOC Act definition, however, recognises that a distinction, exclusion or preference will not amount to discrimination when it is:

– based on the inherent requirements of a particular job, or– in connection with employment as a member of the staff of an

institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and

– is a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

In addition to these various protections, the Workplace Relations Act (1996) prohibits discrimination in the area of federally regulated workplace agreements and terminations, the Public Service Act (1999) and the Equal Employment Opportunity (Commonwealth Authorities) Act (1987) also impose some obligations on Commonwealth authorities and public service agencies to combat race discrimination.



The freedom to hold religious & other beliefs is guaranteed by article 18 of the ICCPR (and so brings it under the ambit of enquiry of the Australian Human Rights Commission). The Convention also provides that:

– advocacy of religious hatred which amounts to incitement to discrimination, hostility or violence must be prohibited by law (art 20)

– everyone is entitled to equality before the law and equal protection of the law without discrimination on the ground of religion among other grounds (art 26), and

– minority groups are entitled to profess & practice their own religion (art 27)

Note: state/territory governments have their own laws, some cover issues such as religious vilification (eg: in Victoria) so recommend that employers determine their state-law obligations as well.

In this brief presentation have tried to argue why religion matters, and some of the federal laws relating to it.

Fundamentally, the protections (from vilification and discrimination etc) are weak and resistance to strengthening these laws passionate.

Time constraints have prevented me from discussing some of the reasons for these views, eg: public vs private responsibility, exemptions, freedom of speech, defamation of religions etc.


In conclusion:

- religion matters- productive & respectful workplaces understand this and try to

establish environments of mutual respect & accommodation- this may involve thinking outside cultural norms but, for those

with diverse workplace or conduct business that function in plural contexts, staff will respect such accommodation

- the globalised 21st century is one of ever-increasing movements - of ideas, capital, people

- transnational diasporas and workplace diversity is the future- in this context we ignore or avoid the persistence, indeed the

resurgence, of faith and its meaning to people at our peril.


conrad gershevitch director, education & partnerships australian human rights commission july...

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