2024 SHARWOOD LECTURE
TIBBEY, Barrister-at-Law
Introduction
1. I would like to acknowledge the traditional owners of the land on which I speak, and pay my respects to their elders, past, present and emerging.
2. Thanks to Trinity College, Dean Fr Bob Derenbacker and Mr Chris Roper AM, Executive Officer of the Sharwood Bequest, for their invitation to deliver the Sharwood lecturer for this year.
3. The views I express here are my own, not those of any other body or organisation within the Anglican Church to which I belong.
An overview of anti-discrimination law in Australia with particular reference to sex, gender and sexuality
4. As Chris Ronalds and Elizabeth Raper state in their most recent edition of their learned textbook Discrimination Law and Practice, 1 complaints about breaches of discrimination law “are not a complete of accurate measure of the beneficial impact discrimination law has had or continues to have on Australian society.” The fundamental principles embodied in such laws have effects on society at many levels, in the consideration of decisions in organisations large and small, in government, corporate and not-for-profit entities. Many complaints are resolved through confidential complaint processes as well as judicial decision-making.
5. In general, anti-discrimination law in Australia deals with discrimination across various areas of public life, including work (employment and other work relationships), goods, services, facilities and premises, education, access to premises, places and vehicles, accommodation, advertising, clubs, associations and voluntary bodies, consumer reports, government functions, industrial agreements, insurance, superannuation and credit, land dealings local government and requests for information.
6. In both federal and state legislation there are a number of exceptions, exemptions and defences that limit the application of anti-discrimination law.
7. Our anti-discrimination laws have been very lenient with faith communities to date, probably because if they have not been, the faith communities would have mustered campaigns to defeat the proposed legislation. Sadly, many churches have not been in the forefront of struggles to affirm the giftedness of women, the giftedness of people of all races, the giftedness of gay, lesbian, bi-sexual or transgender people.
8. Nevertheless, our country has had robust anti-discrimination laws, both state and federal, that have helped our communities to treat persons with a variety of characteristics and identities with respect. Our laws have given legislative encouragement to us not to treat people less favourably on the basis of certain aspects of their identity such as sex, sexuality, race, carer’s responsibilities, homosexuality. In Victoria this has extended to proscribing discrimination on the basis of religion, in NSW on the basis of “ethno-religious” identity.
1 The Federation Press, Fifth Edition 2019 at v.
9. Australia has made international commitments to implement anti-discrimination law in Australia. For example, the International Covenant on Civil and Political Rights (‘ICCPR’) was ratified by Australia on 13 August 1980. It appears as Schedule 2 to the Australian Human Rights Commission Act, 1986 (Cth) and provides that all parties to the Covenant will guarantee all persons equal rights to the enjoyment of all civil and political rights set out in the ICCPR and effective protections against discrimination, or what are called “distinctions of any kind” “such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. States parties also commit, in Article 2, to ensuring that any person whose rights or freedoms recognised in the ICCPR are violated shall have an effective remedy.
10. One of the objects of the Sex Discrimination Act, 1984, as set out in s3(a), is to give effect to “certain provisions” on the Convention on the Elimination of All Forms of Discrimination Against Women, a Convention under the United Nations Charter, which Australia has ratified.2
11. The Sex Discrimination Act sets out objects in Section 3, stating that the objects of this Act are:
(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and
(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and
(ba) to eliminate, so far as possible, discrimination on the ground of family responsibilities in the area of work; and
(c) to eliminate, so far as is possible, discrimination involving sexual harassment, and discrimination involving harassment on the ground of sex, in the workplace, in educational institutions and in other areas of public activity; and
(ca) to eliminate, so far as is possible, discrimination involving subjecting persons to workplace environments that are hostile on the ground of sex; and
(d) to promote recognition and acceptance within the community of the principle of the equality of men and women; and
(e) to achieve, so far as practicable, substantive equality between men and women.
12. Giving domestic effect to such general international commitments is inevitably piecemeal and partial but is hopefully a process where advances are made as our society is ready for them and wants them.
2 The Convention on the Elimination of All Forms of Discrimination Against Women, New York 18 December 1979 ([1983] ATS 9, as set out in the Schedule to the Sex Discrimination Act 1984 (Cth).
13. Within Australia, there are some concepts that have been utilised in both federal and state anti-discrimination legislation. One of these, classically, is the concept of ‘direct’ and ‘indirect’ discrimination 3
14. A common way of considering whether there has been direct discrimination is to ask the questions:
a) Was a person treated less favourably than others in a similar or same position and b) Was the person treated that way on the ground of/because of his/her race/sex/sexuality etc.4
15. Indirect discrimination occurs where a test or requirement is put in place that on its face appears to be neutral but impacts adversely on a greater proportion of persons in one group than another. If the reason it so impacts is a characteristic such as race/sex/ sexuality, then it may constitute indirect discrimination; for example height requirements in the police force may impact adversely on persons of particular races who are shorter, a requirement to terminate people from employment on a “last on first off” basis would impact to a greater extent on women in a workplace where for long periods only men had been employed and women employed relatively more recently.5
16. If there is a greater impact on one group, then the question of whether the requirement was “reasonable in the circumstances”6 and “proportionate” arises.
17. It is usually not easy to prove indirect discrimination because it is necessary to prove that a substantially higher proportion of the people without the characteristic that causes greater adverse impact upon a group are able to comply with the requirement or condition imposed.
18. There are federal anti-discrimination acts, such as the Sex Discrimination Act, 1984 (Cth), which prohibits discrimination on the basis of sex, pregnancy, marital status and family responsibilities and prohibits sexual harassment. These prohibitions apply across various areas of our public life.
19. Each of the states also has an anti-discrimination Act or Acts, which are applicable so long as they are not in conflict with the provisions of a Commonwealth Act. In NSW, the AntiDiscrimination Act, 1977 is in force.
3 For an excellent overview and detailed, learned commentary on anti-discrimination law in Australia, see Australian Anti-Discrimination and Equal Opportunity Law, Neil Rees, Simon Rice and Dominique Allen, The Federation Press, 3rd (and most recent) edition, 2018.
4 Dutt v Central Coast Area Health Service [2002] NSWADT 133, referred to as a ‘less favourable treatment test’ and ’a causation test’.
5 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165.
6 See Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92-889, later overturned by the Full Court of the Federal Court in the Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78.
20. In NSW, under the Anti-Discrimination Act, 1977, discrimination is not permitted on the grounds of race (which includes colour, nationality, descent, ethnic, ethno-religious or national origin), on the ground of sex, pregnancy, breastfeeding, transgender status, marital or domestic status (including whether one is single, married, separated, divorced, widowed or in a de facto relationship), disability, carer’s responsibilities, homosexuality or age.
21. Those proscriptions apply variously depending on the ground of the discrimination, but generally include prohibition on people being discriminated against on the above grounds in the areas of accommodation, work, education, the provision of goods and services, at registered clubs, sometimes in sport and in state programs.
22. In Victoria, the Equal Opportunity Act, 2010 prohibits discrimination on the basis of age, breastfeeding, employment activity, gender identity, disability, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, profession, trade or occupation, race, religious belief or activity, sex, sexual characteristics, sexual orientation, an expunged homosexual conviction, a spent conviction and personal association (whether as a relative or otherwise) with a person who is identified by reference to any of those attributes.7
23. The State of Victoria has introduced a statutory duty to take “reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimisation as far as possible” and steps to eliminate discrimination, set out in the Equal Opportunity Act, s15.The Act also sets out factors to be considered in determining whether a measure is reasonable and proportionate, namely the size, nature and circumstances of the person’s business or operations, the person’s business and operational priorities and the practicality and cost of the measures.8 The duty applies to all people who have obligations under the Act not to engage in unlawful discrimination and is an additional obligation to the other obligations set out in the Act. There is a limited enforcement process.9
24. Sexual harassment has also been found to be a type of sex discrimination because it is unfavourable treatment on the basis of an attribute.10 It is defined in NSW as follows:
22A Meaning of “sexual harassment”
For the purposes of this Part, a person sexually harasses another person if (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or
7 Section 6.
8 Section 15(6).
9 Rees et al at 56 and 183 – 184. See also Racial and Religious Tolerance Act, 2001, (Vic) and Charter of Human Rights and Responsibilities Act, 2006 (Vic).
10 O’Callaghan v Loder [1983] 3 NSWLR 89; Hall v A&A Shieban Pty Ltd [1989] FCA72; 20 FCR 217 per French J (as he then was) at 274 – 277; Elliott v Nanda (2001) 111 FCR 240, 277 – 282.
(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.
25. In Victoria, ‘sexual harassment’ has been defined in the Equal Opportunity Act, 2010 (Vic) as occurring when a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in relation to the other person in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. sexually harasses another person.11 ‘Conduct of a sexual nature’ is defined to include subjecting a person to any act of physical intimacy, making orally, in writing, by any remark or statement with sexual connotations to a person or about a person in his or her presence or making any gesture, action or comment of a sexual nature in a person's presence.12 It is similarly defined in the Anti-Discrimination Act, 1977 (NSW)
Coverage, exceptions, exemptions and possible reform
26. In the recent Inquiry of the Australian Law Reform Commission into Religious Educational Institutions and Anti-Discrimination Laws, a number of recommendations to the federal government were made by the Commission.13 The first of the seven key recommendations was to narrow the circumstances in which it would be lawful for religious organisations to discriminate against students or staff at religious educational institutions.
27. There is presently quite a generous exemption from the effect of some provisions of the Sex Discrimination Act in relation to educational institutions established for religious purposes. The Australian Law Reform Commission has recommended abolition of s38 of the Sex Discrimination Act and amending s37 to narrow that exemption. Nevertheless, there remains a significant exemption for “religious bodies” a term which is not defined in the Act, as follows:
S37. Religious bodies
(1) Nothing in Division 1 or 2 affects:
(a) the ordination or appointment of priests, ministers of religion or members of any religious order;
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or
(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
11 Equal Opportunity Act, 2010 (Vic) s92(1) (a) and (b).
12 Equal Opportunity Act, 2010 (Vic) s92(2).
13 Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Law ALRC Report 142, December 2023.
(2) 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 the provision, by the body, of Commonwealth - funded aged care; and
(b) the act or practice is not connected with the employment of persons to provide that aged care.
28. Presently, Section 38 of the Sex Discrimination Act, 1984 states as follows:
Educational institutions established for religious purposes
(1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first - mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(2) Nothing in paragraph 16(b) renders it unlawful for a person to discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with a position as a contract worker that involves the doing of work in an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the firstmentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person's sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first - mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
29. The Australian Law Reform Commission’s recommendations seek to ensure that religious educational institutions do not discriminate against students or staff members on the basis of sexual orientation, gender, identity, marital or relationship status or pregnancy. They therefore suggest abolishing s38 and amending two other sections, s37, to specify that s37(1)(d) does not apply to an act or practice in relation to an educational institution and s23(3)(b) so that it does not apply to accommodation provided by an educational institution. They seek, in recommendation 3, to widen the protection against discrimination beyond employees and ‘contract workers’ working at religious education institutions, to all persons employed, engaged or otherwise involved in a religious education institution who fall within the definition of ‘worker’ as provided by s4 of the Sex Discrimination Act, 1984.
30. In recommendations 5-7, the Australian Law Reform Commission (ALRC) recommends that the Fair Work Act 2009 (Cth) be amended similarly to protect against such discrimination, but leaving in place the ability of such institutions to give preference, in good faith, to a person of the same religion, where this is “reasonably necessary to build or maintain a community of faith” “is proportionate to the aim of building or maintaining a community of faith, including in light of any disadvantage or harm that may be caused to
any person or persons not preferred and which does not amount to conduct that is unlawful under the Sex Discrimination Act 1984 (Cth)” . 14
31. The ALRC proposes that s37 (1)(d) will not apply to an act or practice in relation to an educational institution. Thus, the exemption for religious institutions would be tightened to some extent, however there is still quite a generous exemption contained in the balance of s37.
32. It is commonly, though not universally accepted that members of clergy are not employees, except for the purposes of workers compensation legislation in various states, where they are held to be “deemed employees”.
33. Thus, the provisions of the Sex Discrimination Act in relation to employers not discriminating against employees on the ground of sex do not apply to members of clergy, as, to date, they have not been held to be “employees”.
34. There could be some challenge to this in the future though.
35. Chris Uhlmann, writing in the Weekend Australian15 fulminated against possible federal changes to religious exemptions from anti-discrimination law as being an attack on faith communities, referring also referred to similar proposals in Queensland. In my view this is misguided, because it is only an attack on faith communities being able to discriminate against job applicants, employees and students because of their sexuality or sexual identity, not an attack on faith communities as such. Not all faith communities want to discriminate in that way
36. The present, very wide exemption for religious bodies contained in s37 effectively lets religious bodies “off the hook” in having to refrain from discrimination against women and all other persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of accommodation, work, education, disposal of land, provision of goods and services and the activities of registered clubs.
37. Perhaps the exemption is too wide. It exempts religious bodies in relation to:
“any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.”
38. It is unclear whether that means that if one adherent to the religion has particular religious susceptibilities, that is enough to exempt the body from compliance with the requirements of the Sex Discrimination Act that would otherwise apply, or whether there need to be a certain percentage of people of that religion who would be otherwise be offended before it
14 Summary Report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws ALRC Report No 142, December 2023, p38.
15 “Progressive crusade to bend arc of history” The Australian, Saturday May 11, 2024, p15.
could be said that an act or practice is “necessary to avoid injury to the religious susceptibilities of adherents of that religion.” What if most of the adherents of that religion take a certain view and a minority disagree?
39. The question of whether an act or practice conforms to the doctrines, tenets or beliefs of that religion for the purposes of s37 of the Sex Discrimination Act may be a real one where there are differences within a denomination as to what constitutes the “doctrines, tenets or beliefs of that religion ”
40. In 2018, the Doctrine Commission of the Anglican Church of Australia examined the question of whether same sex unions could be blessed by the church and the question of what was doctrine and what was a “matter of faith”. In dialogue with the Church Law Commission, the question whether there were teachings of the church on matters that are not questions of faith emerged, as set out in the attachments to the report of the Doctrine Commission to General Synod in 2022.
41. Some Anglicans may take the view that not blessing same sex unions is an act or practice that is “necessary to avoid injury to the religious susceptibilities of adherents of that religion.” Others may take the view that the blessing of same sex unions is “an act or practice that conforms to the doctrines, tenets or beliefs of that religion” for the purposes of s37. That issue was determined by the Appellate Tribunal of the Anglican Church of Australia in favour of it being acceptable to bless same sex unions, however the issue remains a live one with a great deal of heat in the debate.
42. The question of whether an act or practice is “necessary” to avoid injury to religious susceptibilities is a live one, where there is much debate and there are different views within a church such as the Anglican Church of Australia as to what is “necessary” to avoid injury to the religious susceptibilities of “adherents to that religion”.
43. The breadth of the present exception or exemption in s37 may be an advantage to religious communities to the extent that it is so vague that it has been virtually untested to date. On the other hand, it may be said to deprive adherents of a religion of remedies available to others in the community.
44. The question whether discrimination is “reasonable and proportionate” AND is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religious body's religion” raises the question of how many people’s sensitivities need to be offended and what if the sensitivities of others are affected in the opposite way.
45. In Victoria, an issue arose in Christian Youth Camps Ltd v Cobaw Community Health Services. 16 Christian Youth Camps, an organisation that was established by the trustees of the Christian Brethren Trust, connected with the Christian Brethren Church, refused to provide accommodation to a group seeking to help prevent suicide among same-sex attracted youth because it believed that homosexuality is against God’s will. The Victorian Court of Appeal found that the Christian Brethren Trust could not show that it was a body established for
16 [2014] VSCA 75; (2014) 50 VR 256.
religious purposes as it operated as a commercial accommodation provider and therefore the exemption did not apply. It was therefore found to have discriminated by refusing accommodation.
46. This case indicates the minefield of navigating exemptions and the breadth of them. There are not many cases related to churches, which makes it difficult to anticipate area of difficulty
47. In both Victoria and NSW, anti-discrimination legislation provides a broad legislative exemption from anti-discrimination law in relation to the ordination of priests, ministers of religion, members of religious orders, training or education of those seeking ordination, appointment of “any other person in any capacity by a body established to propagate religion” 17 or “any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents to that religion.”18
48. In NSW the cases known as “OW and OV” produced considerable litigation over the breadth of the exemption for bodies “established to propagate religion”. In 2002, a same sex couple contacted Wesley Dalmar Child and Family Care (‘Wesley Dalmar’), a part of Wesley Mission, to enquire about becoming foster carers of children. Wesley Dalmar told them that they could not do so through Wesley Dalmar due to their homosexual relationship. They brought an action alleging discrimination on the grounds of their homosexuality, where it was decided at first instance that the exception in 56(d) did not permit Welsey Dalmar to discriminate against them in that way. The Appeal Panel set aside the decision, the Court of Appeal considered the matter and it was remitted to the Tribunal where, finally, it was determined, in 2010, that the exception in s56(d) did apply.
49. In that case, there was a real question as to whether views about homosexuality were a doctrine and whether it was sufficient for the susceptibilities of those at Wesley Mission or those of the whole Uniting Church in Australia had to be considered in looking at whose “religious susceptibilities” may be “injured” if the couple were permitted to foster children.
50. The Victorian Act permits educational authorities to discriminate on the bases of race and religious belief if the school operates wholly or mainly for students of a particular race or religious belief.19
51. The breadth of these exemptions is readily apparent. For the purposes of the Anglican Church of Australia, I am not sure that we need such broad exemptions or that, ultimately and in the long run, they are desirable.
17 Anti-Discrimination Act, 1977 (NSW) s56(a) – (c); Equal Opportunity Act, Victoria 2010, ss81 and 82.
18 Anti-Discrimination Act, 1977 (NSW) s56(a) – ( c ); Equal Opportunity Act, Victoria 2010 ss81, 82.
19 Equal Opportunity Act, Victoria 2010, s39(a).
52. In terms of the general law, churches have conventionally been described as “voluntary associations”.20 However that does not mean that they will be held to be “voluntary bodies” within the meaning of state and Federal anti-discrimination law. Church organisations may also be constituted as corporate entities.
53. The activities of “voluntary bodies” are exempted from coverage under the Sex Discrimination Act and the Anti-Discrimination Act. A voluntary body is broadly defined in s4 of the Sex Discrimination Act as follows:
"voluntarybody"means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include:
(a) a club;
(b) a registered organisation;
(c) a body established by a law of the Commonwealth, of a State or of a Territory; or
(d) an association that provides grants, loans, credit or finance to its members
54. The church could probably establish that its activities are engaged in “not for the purpose of making a profit” however other parts of the definition may cause more difficulty.
55. There are no Commonwealth Acts of Parliament that could be said to ‘establish’ the Anglican Church of Australia, but in the states there are Acts that could be said to do so, going back to pre-Federation colonial times.
56. In NSW these include the Church of England Trust Property Incorporation Act 1881, the Sydney Bishopric and Church Property Act 1887, the Church of England Property Act 1889, the Church Repealing Act, 1897, the Anglican Church of Australia Constitutions Act 1902, Anglican Church of Australia Trust Property Act 1917, Anglican Church of Australia Constitution Act, 1961, Anglican Church of Australia Act, 1976. This would be similar in Victoria.
57. An argument that the Anglican Church of Australia was not “established by a law…of a State” for the purposes of s4 of the Sex Discrimination Act may not succeed, given the multiplicity of these Acts of parliament in various states, which deal not only with property but also governance, although it could be argued that these merely ‘recognised’ and regulated the conduct of the church rather than ‘established’ the Anglican Church of Australia.
58. If the Anglican Church of Australia were held, for the purposes of the Sex Discrimination Act, to be “a body established by a law of a state” then the provisions of the Sex Discrimination
20 Fielding v Houison (1908) 7 CLR 393; Wylde v Attorney-General of NSW (ex rel Ashelford) (1948) 78 CLR 393; Scandrett v Dowling (1992) 27 NSWLR 483 at 491 per Mahoney J.
Act would apply, except to the extent that the church was excluded by other exemptions and exceptions.
59. If held to be a voluntary body, s39 of the Sex Discrimination Act provides an exemption from the Act to a limited extent, as follows:
Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the body.
60. The limits of that exemption mean that, for example, in dealing with people who are not members, discrimination that otherwise fell within the terms of the Sex Discrimination Act would be unlawful under the Sex Discrimination Act, unless conduct fell within another exemption or exception.
The structure of the Anglican Church of Australia and decision-making within the church
61. There was a presence of the Anglican Church on the First Fleet and in the early colony and the Anglican church developed in Australia from there.
62. Today, in the Anglican Church of Australia, there are 23 dioceses, all governed by the Constitution of the Anglican Church of Australia. This Constitution was developed over a period of time, in the context of significant differences in views and came into force in 1962. The Constitution is the governing document of the Anglican Church of Australia as an organisation, attempting to live and exist in the world in a ‘Godly way’. The Appellate Tribunal of the Anglican Church of Australia interprets the Constitution when required to do so.
63. The Constitution provides national, provincial, diocesan and local levels of decision-making. The General Synod, which is like the national parliament of the church, passes canons and rules for the good order and governance of the Anglican Church of Australia. Canons and rules affecting the order and good governance of a diocese must be adopted by a diocese to become effective in that diocese. Not every diocese has adopted every canon of General Synod. Sometimes they are varied by the diocese, meeting in its diocesan synod. Each diocese must follow the Constitution of the Anglican Church of Australia but has considerable freedom to pass its own ordinances.
64. There are also provinces in every state. The Metropolitan (most senior cleric) in every province has particular responsibilities.
65. In every parish, there is an Annual General Meeting, which must be duly advertised, and at that meeting representatives are elected by the parishioners to the Diocesan synod. In Sydney Diocese, where I live, there are two lay persons from each parish in the Diocese,
who are elected for a three year period and who, with the rector, are the representatives of the parish to the diocesan synod.
66. At the Diocesan Synod, members from that synod who will represent the diocese at the General Synod are elected for a term.
Where have some discrimination issues emerged within the Anglican Church of Australia and how have they been dealt with?
67. Within the Anglican Church of Australia there are profound difference in view as to a number of matters including whether:
• women are equal partners with men or should live in subjection to men, in obedience to men and therefore should not preach in church, be ‘in charge’ or be ordained and exercise ministry as deacons, priests/pastors or bishops.
• homosexuality is a sin
• same sex unions can be blessed in a church setting
• a member of clergy can marry, in a civil union, a person of the same sex and continue validity in ministry within the Anglican Church
• whether such matters are settled for all time by what the bible says or whether some or all are left open in the bible, or subject to differing but valid interpretations or whether the context of our times requires a re-reading of the bible in relation to issues of gender and human sexuality, in light of our times and modern scientific knowledge and human experience.
68. The views one takes regarding these matters have profound implications for the views one takes of the place and roles of women in creation and society, homosexuality in society and transgender issues.
69. Over the years there have been sharp differences that have led to struggles, expressed at the local, provincial and national levels about many matters, including whether women can and should be ordained deacon, priest and/or bishop and whether same-sex unions should be able to be blessed by the church. Some matters have been brought before the Appellate Tribunal of the Anglican Church of Australia, like the ‘High Court’ of the church, for guidance.
70. In addition to the possibility of references being made to the Appellate Tribunal for determination, there are also other instruments of dialogue within the Anglican Church, including the General Synod meetings, diocesan and provincial synod meetings, episcopal meetings and meetings of committees, commissions and working groups established as part of the Anglican Church of Australia from time to time.
71. The cases before the Appellate Tribunal of the Anglican Church of Australia in relation to the ordination of women as deacons 21, later as priests22 and later still, as bishops,23 were argued on the basis of whether or not the Constitution of the Anglican Church of Australia and any relevant diocesan legislation permitted ordination. They were not argued in terms of anti-discrimination law, although anti-discrimination principles may have played a part in the thinking that led to decisions to admit women to those roles and for women to want to take on those roles.
Affirming Women’s gifts - Ordination
72. All but three of the dioceses of the Anglican Church of Australia now ordain women as priests. The three that have not yet agreed to this are Sydney, Armidale and North-West Australia.
73. Women in the Anglican Church of Australia being accepted into the ordained ministry of deacons, priests and bishops has happened slowly. Women were first ordained as deacons around Australia, later as priests and later still as bishops, as individual dioceses decided in their diocesan synods that they wanted to adopt the enabling legislation, or pass their own legislation to that effect, first in Perth, then in other parts of Australia.
74. Each of these steps of ordination of women as deacons, priests and bishops involved a diocese seeking to take that step, a challenge being brought to the Appellate Tribunal and the Tribunal ruling on the challenge. The Appellate Tribunal ruled first that women could be deacons, then later that women could be ordained as priests, then that women could be ordained as bishops.
75. Reaching the view that it was appropriate to ordain women as deacons, priests and then bishops, was a dialogue, a conversation within the church as to whether the bible permitted this step, considering church tradition, modern understandings and learning as to women’s gifts and abilities. It would also have involved a conversation with the rest of our society, which would form part of the consideration of ‘reason’ and learning within the church, as it considered ‘Scripture, reason and tradition’ to use Hooker’s formulation
76. When these cases regarding women’s ordination were determined by the Appellate Tribunal, anti-discrimination law did not play a part in determining whether or not it was appropriate to move from a male only clerical structure to embracing women in the ordained ministry.
21 Report of the Appellate Tribunal of the Church of England in Australia to the Most Reverend Marcus Loane, K.B.E M.A D.D Primate of the Church of England in Australia 8 April 1981.
22 See for example Appellate Tribunal Report on the eleven questions appertaining to the ordination of a woman to the order of priests or the consecration of a woman to the order of bishops referred by the Primate on 31 August 1990. There were also earlier Opinions in 1985 and 1987. See also Scandrett and Ors v Dowling and Ors (1992) 27 NSWLR 483.
23 Appellate Tribunal Report to Primate Reference on Women Bishops 26 September 2007, each accessible on the website of the Anglican Church of Australia under ‘Tribunals’ and ‘Appellate Tribunal’.
This is summed up by Mr David Bleby in his Reasons in the Appellate Tribunal Report to the Primate: Reference on Women Bishops, 26 September 2007, at paragraph [42] as follows:
“This reference does not raise a theological issue. That has already been determined in previous references concerning the ordination of women. Nor is this reference about whether it is desirable that women should be admitted to episcopal office in this Church. The reference raises a purely legal question involving the interpretation of the Constitution. It must be decided on the application of the legal principles only, whatever views there may be about the desirability of women bishops…:
77. Thus, in terms of the Appellate Tribunal determining such issues, the issues are purely legal ones, once theological objections are contended for. However, at the level of conversation within the church, the principles of anti-discrimination law may be helpful.
78. The Rev’d Valerie Tibbey, my mother, was ordained as one of the first group of women ordained as priests in Newcastle Diocese in 1992. From there, she served in the Diocese of Newcastle as an associate priest in several parishes until her retirement When she was first ordained, there were some people who were resistant to her ministry, but when they got to know her, with good leadership from the Diocese in terms of strong affirmation that women ought to be welcomed as priests, that dissipated. She had good support and great friendships with other clergy, both male and female. Now in retirement, in Sydney and recognised as a deacon for the purposes of Sydney Diocese, I am sure she would say that she has had, and still has, a fulfilling ministry. Many people have told me that they have appreciated her presence and work.
79. If one experiences the ministry of women, one is better able to enjoy and accept the gifts and abilities that each of them brings to her ministry. I hope that we will see each of our Dioceses ordaining women as deacons, priests and bishops.
80. As far as I am aware, there have been 10 women consecrated and installed as bishops in the Anglican Church of Australia: Archbishop Kay Goldsworthy, Bishops Barbara Darling, Genieve Blackwell, Alison Taylor, Sarah MacNeil, Kate Wilmot, Sonia Roulston, Kate Prowd, Denise Ferguson, Carol Wagner.24
81. In the coming months, the Rev Canon Sarah Plowman, bishop elect, will be consecrated as Assistant Bishop in the Diocese of Brisbane on 21 June 2024; the Venerable Vanessa Bennett will be consecrated as Assistant Bishop in the Diocese of Canberra and Goulburn and the Venerable Sophie Relf-Christopher will be consecrated as Assistant Bishop in the Diocese of Adelaide on 15 August 2024.25
82. The tea-towel slogan popularised by the Movement for the Ordination of Women, “a woman’s place is in the House of Bishops,” has come true. Women are making their
24 Wikipedia ‘List of Women Bishops in the Anglican Church of Australia” from the Anglican Church of Australia Directory 2021.
25 Dr Elaine Lindsay, National Convenor, Movement for the Ordination of Women, email to MOW members, 13 May 2024.
contributions in many ways throughout the Anglican Church of Australia, not least in the House of Bishops.
83. Because the employment of church workers has not been subject to anti-discrimination legislation in the past, within the church, ideas about gender equity in terms of opportunities for development, attending courses, opportunities to take up roles in more coveted or prestigious parishes or positions have not been much considered.
84. The most enlightened parts of our church already consider women appropriately for opportunities, but there is still much work to be done for “equality of opportunity” to be achieved within the life of our church.
85. The ideas about gender equity that underlie anti-discrimination law present a useful prism for the church to consider when opportunities arise. This is particularly important against the backdrop that there are many negative gender stereotypes in our society. Often women are judged by others (both male and female) more negatively than are men, because men are dominant in our society in terms of power, influence and opportunity.
86. Let us celebrate and support the ministry of women in our church!
Acceptance
of gay and lesbian people.
87. The question of whether openly gay, lesbian or transgender persons can be ordained, if otherwise suitable, is a live one within the Anglican Church of Australia and the Anglican Communion, as is the question of whether a service of blessing can be held in an Anglican church for those of the same sex who have married in accordance with the Marriage Act (as amended after the national plebiscite of 2017).
88. On 11 November 2020, the Appellate Tribunal of the Anglican Church of Australia ruled on two references: The Primate’s Reference re Wangaratta Blessing Service and The Primate’s Reference re Newcastle Discipline Ordinance.
89. In the “Wangaratta decision”, the Appellate Tribunal’s Determination and Opinion, as expressed by the majority, was that:
“Wangaratta’ Diocese’s proposed service for the blessing of persons married in accordance with the Marriage Act does not entail the solemnisation of marriage; is authorised by the Canon Concerning Services 1992 and is not inconsistent with the Fundamental Declarations and Ruling Principles of the Constitution of the Church.”26
There was a majority of five, with one dissenting Opinion.
90. In the “Newcastle decision” the Appellate Tribunal’s Determination and Opinion, as expressed by the majority, was that:
“The Synod of the Diocese of Newcastle has authority to amend its own diocesan clergy regime in relation to clergy who bless or are party to a same-sex marriage. They also found that this
26 Summary provided by the Appellate Tribunal.
would not affect the constitutional jurisdiction of diocesan tribunals to determine charges for offences created by the Constitution of the Anglican Church of Australia or by any Canon of the General Synod that is in force in that Diocese.”27
Again, there was a majority of five, with one dissenting Opinion.
91. One can readily see that, on one view, questions of discrimination against same-sex couples are being addressed within our church in favour of inclusion and acceptance, as the Determinations of the Appellate Tribunal in each of those cases show.
92. Those Determinations were met with delight in some quarters and horror in others. The implications for comity within the church and the accommodation of differing views are still being worked through. The establishment of the so-called ‘Diocese of the Southern Cross,’ as a breakaway group from the Anglican Church of Australia, was one outcome of those decisions. Conversations are continuing.
93. In my humble view, it is time for the whole church to celebrate and affirm the loving, faithful, enduring and life-giving relationships of lesbian and gay people, including lesbian and gay Christians.
Views can change: considering the examples of slavery and Mabo (No 2).
94. We may think that there is only one interpretation of Scripture. This is often not the case. The bible is a rich tapestry of history, poetry, injunction, instruction, community building, reproof and adoration. In the history of the Anglican Church of Australia, at different times, differing interpretations of scripture have commended themselves. This is also so, historically, throughout the world and throughout history.
95. For example, some emphatically state that “the bible says” that a person should have only one husband or wife, but in the Old Testament, the Israelites practised polygamy in their history and in parts of Christianised Africa today, that is still the case.
96. Once upon a time, it was accepted that slavery was permitted by the bible. Over time, this began to be questioned and some of the strongest opponents of slavery in Britain particularly, but also in the United States, were devoted Christians, who believed that their faith required them to accept that God created all people equal and equally beloved by God and that therefore, slavery was an anathema. They worked hard to abolish slavery: William Wilberforce and the Clapham sect in England, a group of evangelical reformers being commonly cited. Many others, including African American slaves, were also convinced that slavery was wrong and risked their lives to free other slaves and to live in freedom themselves. Some of them in turn formed so called “black churches” which affirmed the humanity and giftedness of African-American people. They became strong leaders in the US 27 Summary provided by the Appellate Tribunal.
Civil Rights movement, with many minster-activists playing key leadership roles in that movement.28
97. The struggle against slavery in various forms continued and continues Some churches such as the Dutch Reformed Church in South Africa were slow to embrace the view that we are all created equal in God’s image. But, on the other hand, the examples of Anglicans such as Archbishop Desmond Tutu, in standing up against apartheid, were remarkable and made us proud.
98. Over time, the view that slavery is wrong and against the precepts of the Christan Gospel has, thankfully, prevailed and the true power of that inclusiveness has become better appreciated and understood. For most Christians now, to suggest otherwise would be shocking.
99. That is an example of how an understanding of what the Gospel requires can challenge and change stereotypes that really come from our culture, rather than the Gospel. Historically, sometimes a re-reading of the Bible opens our eyes to what we may not have clearly seen before. We all have cultural prejudices and assumptions. These need to be critiqued in light of the Gospel.
100. This is analogous to the process that often goes on in the common law, where there are sometimes different sources, precedents and policy choices that have been made in previous eras and which, over time, are reconsidered. In Australia, it was accepted law that First Nations peoples did not have rights to land that were in the nature of proprietary interests 29 until Mabo (No 2), 30 which was a watershed. It became clear that there needed to be a reconsideration of the authorities.
101. In undertaking that reconsideration in Mabo, the High Court drew on some different learning, notably some US sources. It also privileged some concepts that had not been brought to the fore before in the context of indigenous rights, such as the fact that if persons were subjects of the Crown, then they also had rights as subjects of the Crown and could not be easily divested of those rights. That concept was always available, but had not been seriously articulated and judicially considered in Australian jurisprudence in relation to the rights of First Nations people before Mabo. It emerged brightly as a way to reconsider vital matters.
102. In the same or a similar way, we have choices in examining our sacred texts and understanding them. We can accept conclusions that embrace love and transformation, including all people as beloved and gifted by God or we could embrace interpretations that
28 For example, Martin Luther King Jr., Ralph David Abernathy, Bernard Lee, Fred Shuttlesworth, Wyatt Tee Walker and C. T. Vivian.
29 As stated by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 264 – 273.
30 Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992)
limit us, exclude others, limit our churches and bind us when there is no need to be so limited. Sometimes, to coin the JB Phillips’ phrase, “our God is too small.”
103. At times we brush over biblical verses which we clearly regard as non-binding on us, such as the prohibition on eating shellfish or pork in the Old Testament, the idea that women should wear head coverings in church, the idea of wifely obedience and the idea that Christians should not marry outside the faith.31 Most dioceses will re-marry divorcees within the church
104. Yet some of us cling to the few biblical verses proscribing homosexuality. This needs to be re-examined. Are negative views of gay and lesbian relationships in fact cultural prejudice cloaked in religious garb? This needs to be seriously reviewed.
Principles within the Christian tradition that assist in navigating possible collisions between church law and practice and anti-discrimination law
105. A fundamental Christian belief is that God is love. Another is that we human beings are made in the image of God. If so, then an aspect of that ‘imageo Dei’ is probably our capacity to love and be loved. Love may take different forms: filial love, erotic love, agape self-giving love.
106. On one view, the Bible is the story of God’s love of the world, bringing it into being, creation of people, equal and gifted, male and female, neither to lord it over the other and certainly not lording it anyone else. On the contrary, we are required to ‘love our neighbours as ourselves.’
107. And if we look at creation, animals, plants and humans, we notice that God seems to have made us in diversity! What do we make of that? It could be “Tower of Babel” or prefiguring the Kingdom of God, eternal bliss with the divine, depending on what we do with that diversity, how we deal with it. The multiplicity of forms of life and ways in which they interact with each other may show us something of the nature of God and God’s creation that gives us a clue to the need to embrace diversity. Could this concept be helpful in looking anew at our lives in the world and how to live them?
108. When we read the Bible, let us look for the interpretations that embrace the whole of God’s creation and all of God’s people, accept that we are all on a journey and walk that journey together, accepting the two Great Commandments as the framework of what God requires of us: to love God with all our heart, soul and strength and our neighbours as ourselves.
109. Loving God and loving our neighbours as ourselves includes putting aside negative stereotyping and pre-judgements and not being judgmentally prescriptive about the relationships that people have
31 Deut 7:3-4 and 2 Cor 6:14.
110. It requires accepting that women, as well as men, gay and lesbian as well as straight people, queer, transgender and people of all races, abilities and differing marital status are all children of God, gifted and able to play a part in salvation history, in church and society.
111. If we accept such a framework, then there is little or no collision between church law and the requirements of anti-discrimination law. We would not want to discriminate against gay or lesbian, transgender or any other people. We would not want to shame, humiliate, isolate, denigrate, exclude, terminate from employment or expel those who are different from us. We would want each person’s giftedness to be affirmed and recognised.
112. The Diocese of Perth has an important statement of its webpage:
We believe God’s love transforms…The seven values that underpin our belief that God’s love transforms are:
1. We seek to be known by our love.
2. We invest in being a people of prayer.
3. We commit to being trustworthy.
4. We long to be humble.
5. We attend to listen.
6. We practice being as inclusive as Jesus.
7. We love to serve.
113. Each one of those statements is unpacked and accompanied by a Scriptural passage. The statement of values is inspiring.
114. The graciousness of Archbishop Kay Goldsworthy, Archbishop of Perth, when one meets her, makes one proud to be Anglican and for me, proud to be female. Thank goodness a person with her kindness, humility, warmth and passion for the Gospel is able to be Archbishop of Perth and that she and her Diocese have such an embracing view of what it means to be Christian.
Emerging issues: acceptance of transgender people
115. One emerging issue is the need for a better understanding of the situation of transgender people. On 15 May 2024 in the ABC News feed there appeared an article about a letter that the Roman Catholic Archbishop of Hobart, Archbishop Julian Porteus wrote to students and parents at Catholic schools there.32 In it he refers to “radicalised transgender lobby” groups, among other things. Yet it is hardly surprising that transgender people would want to advocate for transgender people. Where are we in those discussions? Are we standing with the marginalised and ensuring that their dignity is upheld?
32 “Catholic archbishop’s denouncement of ‘transgender lobby’, legal abortion, euthanasia, same-sex marriage, heavily criticised”.
116. There have been suggestions, including in our church, that somehow being a transgender person or acting to get treatment and even reassignment surgery is not ‘the Christian way”. In my view, this thinking is misguided.
117. The DSM -V – TR33, the commonly accepted manual of mental disorders used by psychiatrists, describes the condition of gender dysphoria. This means that some people feel profound disconnection to the gender of the body with which they are born. They do not think they are in the body of the gender they actually should be. This can be very distressing and lead to profound self-hate, frustration and depression. The condition, which is psychiatrically recognized, can be ameliorated to a considerable extent by medical (hormonal blockers and supplements) treatment, and sometimes surgery to align their physical being with the gender they believe they should have. Those decisions are probably made after long consideration and probably after deep suffering.
118. If a baby is born with a characteristic that is not common condition, such as having 6 fingers, it may be that sixth digit is surgically removed for the comfort and psychological well-being of the child. Treatment may similarly be required in relation to gender dysphoria, to better align the actual gender of the person with the lived experience of that person. There is a real question as to the age at which that should commence, but conceptually, that should not be regarded any differently from heart surgery or administration of medication for other psychological or psychiatric conditions, for the comfort and psychological wellbeing of the person.
119. Such treatment and surgical possibilities did not exist in earlier times, and we can only imagine the self-loathing and suffering that some people faced in that situation. Humiliation, ridicule, isolating, and shaming by non-transgender people probably arise due to fear of the other, the unknown, someone we see as being different from ourselves. But we know that perfect love casts out fear 34 and that we all bleed.
120. Living as Christians in the world, it behoves us to respect the choices people make and to accord each person respect, warmth and kindness, whether or not we agree with their choices, so long as those choices are not exploitative. Sensitivity is also vital.
121. Statistics show that transgender people face rates of suicide, self-harm, serious levels of anxiety, and depression to a greater degree than the general population, probably, at least in part, because of the stigma associated with being a transgender person. We have the ability to reduce that stigma by the loving and respectful way we treat each person and we should do so. How can we claim to love God whom we have not seen if we do not love the person we do see? 35
33 Diagnostic and Statistical Manual of Mental Disorders Fifth Edition Text Revision DSM – 5 – TR, American Psychiatric Association 2022.
34 1 John 4:20
35 1 John 3:17.
122. In the course of my legal practice over many years I have acted as a solicitor and barrister for some transgender people and seen that some of them suffer discrimination at times, which can cause great pain. This is so unnecessary. If we live with respect and acceptance as our framework, rather than judgment, then life would be so much happier for all of us. The two Great Commandments lie at the heart of that: to love God with all one’s heart, soul and might and to love one’s neighbour as oneself.
123. As we read in John 13:34-36: “I give you a new commandment, that you love one another Just as I have loved you, you should also love one another. By this, everyone will know that you are my disciples, if you have love for one another.” 36 Further, we read in Galatians 5: 22-23: “the fruit of the Spirit is love, joy, peace, patience, kindness, generosity, faithfulness, gentleness, and self-control. There is no law against such things.”
124. Many years ago, I acted as a solicitor for a transgender person who had transitioned from male to female. I had become used to addressing her by a female name when we conferred in my office and treated her as being of the gender she had chosen. When it came time for her to appear at Court, she came to court dressed as a female. Unfortunately, at Court, on the Court files, her former male name appeared. I will never forget the extreme distress that she obviously felt on having that male name called out in court and the slight ripple that went through the assembled group of legal practitioners. At that time it may not have been easy to get someone called by the name they chose if they saw themselves as another gender. It would hopefully be much easier now. Surely it is a matter of basic respect and courtesy to call a person by the name they choose.
125. I have, from time to time, been called upon to advise and to make decisions in relation to some legal matters involving transgender people. It has been an awareness-raiser to see how mean and belittling about transgender people some people can be. It is appropriate for our society to have limits on abuse, in the form of anti-vilification provisions, which form part of anti-discrimination law.
Can anti-discrimination law assist in the development and implementation of church law and practice in considering matters involving sex, gender and sexuality?
126. To be treated less favourably than others, because of one’s race, sex, sexuality, marital status, age, disability, transgender status or other such characteristic is a horrible experience. In my legal practice, I have seen that being able to bring a discrimination claim about the conduct that a person has suffered can be very therapeutic for that person. This is because the process of the person being listened to, respected and heard can be, in itself, healing.
127. I am very glad that we have anti-discrimination laws to encourage us towards standards of conduct that are respectful of others and closer to the biblical imperative to treat others as we would like to be treated ourselves.
36 See also John 15: 12 – 14.
128. No matter what someone’s choices, we are called to love others, not to judge them.
129. Anti-discrimination law has much to offer as a framework to assist our church to identify demeaning attitudes and practices which may constitute either direct or indirect discrimination. This in turn can assist us not to discriminate against others, to treat all people with respect and dignity and to offer all people opportunities to develop, share and enhance their gifts, abilities and skills.
Looking forward – what issues face us and what will our choices be?
130. The Commonwealth government is considering a Religious Discrimination Act. Questions of whether we need to wish to or should discriminate against people on the basis of their sex, sexuality, relationships or gender identity similarly arise. What do we want or need in such an Act? Who is the government consulting with? Do those with whom it is consulting represent us? Is there a greater diversity of views within faith communities than is being presented to government on this issue?
131. Will the government of the day say “enough is enough” to those faith communities that are increasingly seen by those not of that faith as bigoted and narrow-minded?
132. We can be faithful to the Gospel and enjoy and appreciate the diversity and giftedness of the whole of God’s creation. There is no need for church law and anti-discrimination law to collide if we have such a framework. We have important and consequential choices to make
Mandy Tibbey Barrister-at-Law
8th Floor Wentworth Chambers
Sharwood Lecture 2024
Melbourne 15 May 2024
Sydney 22 May 2024.