Catholic Church calls for overhaul of 'problematic' religious freedom bill

Australia's Catholic Church says the federal government's draft religious discrimination laws are "problematic" and require major changes to avoid unwanted "lawfare" and ensure religious bodies keep their ability to hire and fire at will.

The demands from the country's largest church increase the pressure on Attorney-General Christian Porter to go back to the drawing board on a process that started with 2017's religious freedom review by Philip Ruddock.

Melbourne Archbishop Peter Comensoli said the draft religious freedom laws needed "significant" changes.Credit: AAP

In particular, the Catholic Church wants special rights for religious schools to extend to religious hospitals and aged-care facilities, as well as an explicit override of state anti-discrimination laws.

And despite the special rules for schools, the peak Catholic school body complained the draft law still "does not provide our schools with the flexibility they require" to ensure staff and students adhere to the tenets of their faith.

The head of the National Catholic Education Commission (NCEC), former Labor senator Jacinta Collins, said Australia's 1750 Catholic schools must retain their legal right to hire and fire - and accept students - based on how well a person fit into "the ethos" of the school. That included whether someone was baptised as Catholic, or whether they had undermined the tenets of the faith by publicly entering a same-sex relationship or marriage.

"How that right is exercised is going to be on a case-by-case pastoral approach. Our primary focus is on the unique dignity of an individual," Ms Collins said. "If someone doesn't fit within the ethos of a religious school, they have the opportunity ... to attend a different school. It's that unique Australian pluralist approach to delivering services that has fostered that environment. People have those choices."

The peak Catholic school body is concerned about clause 10 of the bill, which says religious schools do not discriminate if they engage in conduct "that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of [their] religion". Though that appears to give schools broad scope, the bill's explanatory notes say it is intended to apply only to conduct of "intrinsically religious character".

The NCEC said that would be open to interpretation by a "secular authority" such as a court, which could choose to apply a "narrow reading". For example, it could deem a school's refusal to lease out a school hall for a gay wedding as "operational" not "intrinsic".

"Regrettably, the protection of religious freedom in Australia is used unfairly as a political football or an opportunity to make unsubstantiated assertions. The complaints process is also becoming, for a small minority, a tool to wage 'lawfare' against religious individuals and institutions," the NCEC said in its submission.

The Australian Law Reform Commission is also reviewing laws concerning the dismissal of LGBTI students and teachers, but the Catholic schools body said this should be ditched and dealt with in the religious freedom legislation.

Ms Collins said she was not fully happy with the bill "at the moment" and had "overriding concerns that state [laws] can still prevail", but would work with Mr Porter to improve it.

Mr Porter this week moved to assure independent schools their concerns about the bill were based on a "misunderstanding" over the detail. However, Ms Collins said her concerns about those provisions remained.

In a 27-page submission to the government on behalf of the Australian Catholic Bishops Conference, the Archbishop of Melbourne Peter Comensoli said the laws "require some significant amendment" to properly assist people of faith.

He stressed religious hospitals and aged-care facilities "must" be included as religious bodies and enjoy the same hiring and firing rights as religious schools, with the Catholic Church the largest non-government provider of healthcare services in Australia.

"There is no principled justification for their exclusion," the Archbishop said. These freedoms should also extend to religious publishers, "retreat centres" and other commercial facilities, he said.

Mr Porter gave a strong indication those requests might be acted on, saying the draft bill was a "starting position" and he was "acutely aware of the important role that religious hospitals and aged-care providers play".

The church is also concerned the bill overrides only Tasmania's anti-discrimination laws, which it finds particularly egregious, and allows other state laws to stand.

While promising, the legislation requires further work.

Archbishop of Melbourne Peter Comensoli

Archbishop Comensoli said it was "very important the bills not be framed in such a way as to give judges the opportunity to rule on the details of religious belief, as that is an area beyond their competence and which should be outside the law".

"While promising, the legislation requires further work," Archbishop Comensoli wrote.

Other faith groups have complained about the draft laws, including the Sydney Anglican diocese, which said the flaws were "so serious" it could not be supported in its current form.

The government wants to pass the legislation through Parliament by the end of the year, but must first gain the approval of the Coalition party room, and then the support of the Senate. Labor has reserved its position on the bill.