IN THE MATTER OF

THE SCRUTINY OF ACTS AND REGULATIONS COMMITTEE INQUIRY INTO THE EXCEPTIONS AND EXEMPTIONS IN THE EQUAL OPPORTUNITY ACT 1995 (VIC)

SUBMISSION ON BEHALF OF THE CATHOLIC CHURCH OF BY THE MOST REVEREND DENIS J HART DD, ARCHBISHOP OF MELBOURNE, MOST REVEREND PETER CONNORS DD, BISHOP OF BALLARAT, MOST REVEREND JOSEPH GRECH DD, BISHOP OF SANDHURST AND MOST REVEREND CHRISTOPHER PROWSE DD, BISHOP OF SALE

1. Introduction

This response to the invitation for comment on the Exceptions and Exemptions to the Equal Opportunity Act 1995, Options Paper of May 2009 is made on behalf of the Catholic Church in Victoria by the Most Reverend Denis J Hart DD, Archbishop of the Catholic Archdiocese of Melbourne and the Metropolitan of the Province of Melbourne (the State of Victoria), and the Most Reverend Peter Connors, Bishop of the Diocese of Ballarat, the Most Reverend Joseph Grech DD, Bishop of the Diocese of Sandhurst and the Most Reverend Christopher Prowse DD, Bishop of the Diocese of Sale.

We understand that a number of Catholic Church agencies will also be making their own submissions to address the particular issues which affect them. The diversity of submissions from Church agencies will illustrate both the range of activities in which the Catholic Church operates and the contribution it makes to the Victorian community.

2. Executive summary The Gospel message of Jesus Christ to love God and love one’s neighbour informs the conventions and laws of the Catholic Church. Consequently our beliefs require that the Church and its congregations establish and be active in a wide and varied range of educative, health, welfare, social and worship activities, all of which are exposed to legislative enactments. It is the Archbishop’s and Bishops’ obligation on behalf of the Church to represent the Church and their respective Archdiocese and Dioceses in relation to proposed legislative changes that would appear to undermine peaceful religious belief and practice including the essential role of witness to the faith of Catholic service agencies and the people who work within them in a paid or unpaid capacity.

The Church welcomes and appreciates the opportunity to comment on the Options Paper issued by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament in May 2009 as part of its Inquiry into the Exceptions and Exemptions to the Equal Opportunity Act 1995. In this submission, attention will be confined to the exceptions and exemptions in respect of the practice of religion and the conduct of religious bodies. As it stands at present the Act includes: (a) exemptions in relation to religious bodies (s.75); (b) exemptions in relation to religious schools (s.76); and (c) exemptions for discrimination which is necessary to comply with a person’s genuine religious beliefs or principles (s.77).

The Church submits that the exemptions it and its adherents enjoy under Sections 75, 76 and 77 ought not be viewed as a licence for one group in the community to discriminate where others cannot, but as a guarantee of religious freedom available to both individuals and to likeminded people acting in concert. A weakening of the effect of these exemptions is a weakening of religious freedom.

The Church submits that some amendments to the Equal Opportunity Act 1995 are needed to better recognize the right of institutions to operate in a manner that observes the religious

1 doctrines, beliefs and principles that govern those institutions. This will clarify the operation of the law not only in circumstances where discrimination is lawful, but also in circumstances where a Church entity is in a position that another person may discriminate against it. The Church further submits that these amendments be made to reflect in principle the intention behind section 38(4) of the Charter of Human Rights and Responsibilities Act 2006, which recognizes the inherent right of a religious body to act in conformity with the religious doctrines, beliefs and principles in accordance with which the religious body operates.

However the Church is opposed to the proposals canvassed in the Options Paper to weaken the effect of sections 75(2), 75(3) and 76 and to remove section 77. We submit that the case for winding back the exemptions has not been made. Neither the Options Paper nor the publicly available submissions to the Departmental Review present any compelling evidence in support of change.

In particular the Church rejects the distinction made in the Options Paper between so-called “core activities” and “non-core activities” which serves to remove the effect of the religious exemptions in relation to the delivery of services in health, welfare, aged care and education on the basis that such service deliveries are not core activities of the Church and its members. The proposals would limit the protection provided by the exemptions to the so- called core activities of prayer and worship.

The exemptions have particular application for Church service agencies and for people who access the services that they provide in that they protect the particular priorities that the Church gives to the importance of marriage and sexual ethics in establishing the security of families as the basic unit of society and respect for human life from conception to natural death. It is important that religious people are able to uphold a theological understanding of gender and of sexual ethics and life matters and that they not be prevented from giving witness to those authentic values that are so essential to community life.

We acknowledge however that the current exemptions may go much further than protection of the Church’s need to give witness to its beliefs and practices in relation to life, gender and matters relating to marriage and sexual ethics. The Church’s concern is with the conduct of a person working in a capacity covered by the Act that conflicts with the public witness that the Church agency is required to give to the doctrines, beliefs and practices of the Church. The Church does not see a need for the exemptions to apply to all attributes or to any of the contraventions. The Church seeks exemption only in relation seven attributes – religious belief or activity, sex, sexual orientation, gender identity, lawful sexual activity, marital status or parental status or status as a carer. The Church is a leader in protecting the rights of people who are disadvantaged or marginalised.

Those areas aside, however, we ask that the protections that were wisely developed in the original legislation to protect religious beliefs and practices be not only maintained, but also made consistent with the Charter of Rights and Responsibilities. We would like to see an alignment of the Act with the Charter. In particular:

• Section 14 of the Charter upholds a person’s freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private, and insists that a person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching. The Equal Opportunity Act needs to be strengthened to recognise that a person has this right not only individually but also as part of a community. The latter is particularly relevant to service delivery. In that respect there is a discrepancy between the Equal Opportunity Act and the Charter that needs to be remedied.

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• The usage of “Religious Institutions”, Religious Bodies” and “Religious Doctrines” in the Act needs to be aligned with the usage in the Charter.

The exemptions in respect of religious bodies, schools, beliefs or principles were considered by the Parliament in 1995. In his Second Reading speech, the then Attorney-General (Mr Haddon Storey) said in respect of the exemption for discrimination which is necessary to comply with a person’s religious beliefs or principles:

“It aims to strike a balance between two very important and sometimes conflicting rights – the right of freedom of religion and the right to be free from discrimination

Equal opportunity legislation may sometimes compel individuals to change their conduct and practices in order to ensure that discrimination which may be harmful to others does not occur. However, the government recognises that it is not acceptable to compel a person to act in such a way as would compromise his or her genuinely held religious beliefs. It should be emphasised that religious beliefs must be absolutely genuine in order to qualify for the exemption ...”

More recently, in enacting the Charter, the Parliament has similarly emphasised the significance of freedom of thought, conscience, religion and belief; see s.14.

Section 38 of the Charter subjects the conduct of public authorities to the norms prescribed elsewhere in the Charter. In particular, the section makes it unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

The Church is particularly concerned that the proposals in the Options Paper to remove protection of service delivery would in effect force the secularisation of service delivery by religious agencies. The likely effect of that secularisation would be profound because it would go to the heart of the religious motivation that leads people to be involved in service delivery in ownership, governance and employment, as well as through volunteerism. Past experience of secularisation of service delivery here and overseas indicates that the result of forced secularisation is that some religious agencies withdraw from that work because it has lost part of its vocational meaning for them and secularisation also results in a loss of volunteerism. If people can no longer identify with the religious meaning of the activity, then they are likely to withdraw.

In those respects it is important to note the important role that religion plays in motivating service delivery in and the huge potential loss were that religious significance to be removed as proposed by the Options Paper. The proposals argued for in the Options Paper would generate alarm in the Victorian community and they would have obvious social and economic impact. We ask that the Committee reject such proposals and that the Parliament ensures that religious belief and practice, particularly its essential expression in love of neighbour through service delivery, continues to be protected.

3. The Identity of Catholic Services: “Love Your Neighbour” Mk 12:30-31

3.1 Service Delivery is Essential to the Practice of the Catholic Faith

Catholicism is a public religion in its very essence. Indeed the word “Catholic” means “universal”. Reaching out to serve the wider community is central to its ordinary daily practice of its faith.

Since the earliest times of Christianity the followers of Jesus of Nazareth have always seen this service of others as the critical test of their faith. Hence James the Apostle put it bluntly,

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"faith without works is dead" (i.e. not real faith at all - James 2:26). The works of the Catholic Church are the way it lives its faith.

That is why the Catholic Church in Victoria has been serving and educating the people of Victoria especially the poorest and most marginalised, in society since its foundation in 1839.

Its Catholic , Catholic aged care facilities, Catholic schools and universities, Catholic foster care programs, Catholic AIDS residences, Catholic refugee and immigration outreach centres, Catholic shelters for the homeless and Catholic drug treatment programs – all exist as constitutive elements of this Catholic practice of faith.

In this endeavour of service we work with our fellow Victorians joined by our common humanity. We are mindful of the exhortation of the Prophet Micah to act justly, to love tenderly and to walk humbly with your God (Micah 6: 8).

In Australia, the formal delivery of religious services in education, health and welfare had its origins in the activities of religious institutes. The origins now remain more in ownership, governance and pastoral care involvements than in actual numbers of religious contemporarily engaged directly in service delivery as teachers, nurses and welfare workers. However, the identity of the services remains religious and is formally expressed in terms of the mission, philosophy and codes of ethics of the services.

The theological basis of service by Catholic agencies is to witness to the founding inspiration expressed in Christ’s injunction to love your neighbour and in imitation of the healing ministry of Christ. That inspiration is for Catholics to provide genuine service to the community, but most particularly those who are in need.

When he met with disadvantaged youth in Darlinghurst on July 19th last year last year, Pope Benedict XVI summed up the centrality of Christian teaching on loving one’s neighbour when he said:

“I mentioned earlier that when we love we are fulfilling our deepest need and becoming most fully ourselves, most fully human. Loving is what we are programmed to do, what we were designed for by our Creator. Naturally, I am not talking about fleeting, shallow relationships, I am talking about real love, the very heart of Jesus’ moral teaching: “You must love the Lord your God with all your heart, with all your soul, with all your mind, and with all your strength” and “You must love your neighbour as yourself” (cf. Mk 12:30-31). This, if you like, is the program that is hard- wired into every human person, if only we had the wisdom and generosity to live by it, if only we were ready to sacrifice our own preferences so as to be of service to others, to give our lives for the good of others, and above all for Jesus, who loved us and gave his life for us. That is what human beings are called to do, that is what it means to be truly alive.”

The assumption underlying that witness is benefit to the community. It is a community responsibility to provide essential services, that resources are shared equitably and together. It has been the experience of the Church that working together in this way is a means of creating community. The sense of solidarity engendered underscores the value and meaning of the service.

The delivery of services in education, health, aged cared and welfare by religious agencies in Victoria has been and remains particularly important for migrants. Church agencies provide a context of shared belief and culture where new arrivals could find a familiar source of welcome. That welcome also extends beyond shared belief and culture. Often the Church agencies were almost the only agencies available. They were certainly a safety net for those that did not receive Government assistance. Historically Italian and Greek migrants

4 depended heavily on religious agencies, as did the South East Asian migrants. More to the point, religious agencies continue to be an important source of welcome for each wave of new migrants, especially those who have come seeking asylum. Religious agencies are heavily involved, for instance, assisting new arrivals from strife-torn areas of Africa and the Middle East.

A major question for religious engagement in service delivery is just how the charism of love for neighbour is expressed. The notion of benefit is understood not just in material terms but in terms of the engagement of the whole person.

We acknowledge the vital role that Catholic lay people play in the Victorian community in the delivery of services, not only in agencies conducted by the Church or religious institutes, but also in the delivery by lay organisations that identify with and are motivated by the Catholic faith. As the proportion of Catholics in the priesthood and religious life have decreased, the delivery of services by Catholic agencies has not. We have witnessed instead a growth in religious service delivery conducted by lay people who are not in professed roles. That growth is not restricted to the Catholic Church but it is, as the Australian Bureau of Statistics indicates, generally a phenomenon of people who are religious attendees that they are more likely to be involved in service delivery.

Statistically, altruistic service to others has been shown to be an identifying feature of being religious. In a study undertaken by the Australian Bureau of Statistics, of the 23% of Australian adults who had participated in church or religious activities within the three months prior to interview in 2002, just over a half (52%) had also done unpaid voluntary work for an organisation within the previous 12 months. In comparison, less than a third (29%) of adults who had not participated in church or religious activities had done such voluntary work. There was a clear difference in the likelihood of having done unpaid voluntary work for a religious organisation between adults who had participated in church or religious activities and those who had not. Of those who had participated in church or religious activities, 30% had also done some unpaid voluntary work for a religious organisation within the 12 months prior to interview, compared with just 1% of those who had not participated in church or religious activities.

We ask that legislation respect our right to religious freedom and the deepest motivations of our faith as we join with our fellow Victorians in building up the common good and common wealth of Australia.

3.2 Witness to faith in Education

In education, the religious identity of Catholic schools has a particularly formative role given that the formation of students is the purpose of the activity. Parents choose a religious education for their children in the expectation that the institution will educate their children according to the teachings and traditions of that religion.

Religious schools therefore require those who are in a position to influence students to give witness to those teachings. That does have lifestyle implications. To preserve that role of witness, educational institutions need to be able to make witness to the religious teachings an employment criterion. The Options Paper is quite mistaken when it gives as an example the unacceptability for a church to refuse to employ a receptionist on the basis that he or she is in a de facto relationship. A receptionist in a religious school is in a position to influence the formation of students and if he or she were to make known to the students a lifestyle matter such as that, which clearly contradicted the teaching of the Church, then the religious identity of the school may be compromised if the situation were to continue. These matters require prudential judgement about the circumstances, but if religious schools are to be maintained then they do need to retain the capacity to make employment decisions in relation to known lifestyle. The Options Paper offers no evidence that the current exemptions

5 have been misused or that Catholic schools have acted unjustly or insensitively in these matters.

3.3 Witness to the Faith in Health and Aged Care

The issue of sexual ethics in health and aged care is not so critical, as the function is not formative of a vulnerable population, in the sense that a religious school is. The client expectation of a religious health or aged care facility is that it will be conducted according to the teaching of the religion. For staff members that means a requirement that they abide by the mission, philosophy and code of ethical standards (which cover the Church’s teachings on life matters) while working within the institution. Nevertheless, employees in health and aged care also require particular skills, knowledge and sensitivity towards those whose spiritual needs may be more sharply focussed as they enter the last chapter of their life.1

Catholic Health Australia (CHA) has published a Code of Ethical Standards which sets down the standards that patients and aged care residents can expect of staff in Catholic health and aged care facilities. CHA also publishes update documents from time to time on specific issues as they arise. The latter include documents on future care planning, artificial nutrition and hydration and specific issues to do with care of those with dementia.

The Code of Ethical Standards is not just a catalogue of ethical guidelines on specific issues. Significantly it defines what constitutes the identity of Catholic within the mission of the Church in giving expression to the healing ministry of Christ in accordance with love and respect for the inherent dignity of every person. The Code also establishes the goals of Catholic health care, the right to receive health and aged care services and a particularly religious view of the human body, of solidarity with one’s neighbour, and the mystery of suffering and death.

The Code is part of the employment conditions of the staff of Catholic hospitals. They are asked to not only adhere to the ethical standards of their respective professions, but also to be willing to abide by the standards of Catholic health care. That requirement is necessary if Catholic health care institutions are to meet the expectations of the community that they will offer services in accordance with the teaching of the Church.2

Of course, Catholic health care is not confined to those who accept Catholic beliefs. The Code requires that Catholic institutions respect the different cultures and religious traditions of all whom they serve, and those who work within the institutions, and value that diversity3. The Church understands that many in the community who are not Catholics choose to be cared for in Catholic hospitals and homes because of the values and conduct of the institution.

In the history of Catholic , the income for these services was generated by payment for service by those who could pay and through donations from a supportive community. There was at that time no revenue from either private health funds or from Government.

Today, the funding environment is different and far more complex. However, where health and aged care facilities actively foster community benefit beyond what they are funded to do by Government and other contracting arrangements, the founding vision is still alive and well.

1 MacKinlay, E. (2006). Spiritual growth and care in the fourth age of life. London and Philadelphia: Jessica Kingsley Publishers 2 Catholic Health Australia Code of Ethical Standards for Catholic Health and Aged Care Services in Australia CHA June 2001, n. 7.2 3 Op. Cit. n. 7.3

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The basis of community benefit is spelt out in the social teaching of the Church. The Church has always participated in civil society and the health and aged care sector has contributed from a practical knowledge base forming an important part of the church’s work. The Catholic health and aged care sector has not ever been a remote theological commentator sitting on the sidelines providing a critique. Catholic health care providers have attempted to be the embodiment of the action reflection model; understanding by doing. Being engaged in service delivery is central to the mission of the Church. Prayer and worship are important, but they would lose their sense of identity and their theological meaning if they did not motivate the love of neighbour and the practical expression of that love in service delivery.

3.4 Witness to the Faith in Welfare

In welfare service delivery, the issue is similar to the issue in health and aged care. In order that the activity continues to meet the expectations of clients, a religious welfare service requires that its staff conduct the service in a way that is in accordance with the teaching of the religion.

In the delivery of Catholic social services, it is important to acknowledge that the desire to be of service is not expressed as a desire to proselytise but to serve4. The spirit of service and respect for the dignity of the clients of religious service delivery was expressed by the Australian Catholic Bishops Conference when the Bishops issued guidelines for one of the more sensitive areas of welfare work, the area of pregnancy counselling. The Bishops’ guidelines provide an important guide to maintaining a Catholic identity while ensuring the integrity of professional counselling, especially in relation to respecting the client’s beliefs and their need for counselling to be non-directive.

The Bishops insisted that decision-making counselling ought not to attempt to direct the patient in relation to her pregnancy or toward any particular decision. The client is most likely to make a good choice if the counsellor serves to reduce the sense of panic and urgency and instead assist the client to regain control of her own circumstances. The aim is to give her greater confidence in being able to cope with pregnancy and to assist her to make a reasonable decision for herself. This provides the best chance of a life-affirming choice.

4. History of Catholic Service Contribution to the Victorian Community

4.1 Education

In 1839, Catholic education in Victoria had its beginnings in a tiny catechism school. Since then the Catholic school system in Victoria has grown to provide over 500 Catholic schools for more than 185,000 students.

The Church is also active in the tertiary sector in Victoria with Australian Catholic University with 5663 students located at its campuses in East Melbourne and Ballarat, Catholic Theological College and Yarra Theological Union, (both recognised teaching institutions of the Melbourne College of Divinity), Jesuit Theological College (one of the three constituent colleges of the United Faculty of Theology) and the John Paul II Institute for Marriage and the Family.

Relevant to the present enquiry was the attempt in 1872 to secularise education with the Education Act 1872 (Vic.), the stated aim of which was to “make education secular, free and compulsory”. The passing of the Act had a dramatic effect on the number of denominational

4 Note that evangelization is different from proselytizing. Proselytizing intrudes into the person’s spiritual life and pushes him to convert. Christian teaching, based on free will, firmly rejects such activities. Evangelizing is a witness to the faith to which others are welcome. Jesus of Nazareth spoke to the people wherever they gathered to hear Him. Each individual was free to stay or go, believe or not, and be responsible to God alone for his decision. Jesus told us, “As the Father has sent Me, even so I send you.” (John 20:21)

7 schools in Victoria. In 1862 there were 367 known denominational schools belonging to Anglican, Presbyterian and Wesleyan Churches. This had declined to 270 by 1873. Within two years of the passing of the Act in 1872, the number had dropped to six. The number of Catholic schools fells from 118 in 1872 to 85 in 1874. Archbishop Goold decided that the survival of Catholic schools depended on the capacity of the local community to sustain them. The tenacity of Archbishop Goold and his fellow bishops, the self-sacrifice of priests and their parish communities, the selfless dedication of numerous religious congregations, the determination of Catholic parents to give their children a Catholic education and the generosity of lay teachers have enabled hundreds of thousands of students to receive a Catholic education since that first catechism school 170 years ago. A major factor in the survival of the Catholic schools was the establishment of Catholic teaching orders in Victoria which saw a gradual change from lay to religious staffing. State aid for Catholic schools disappeared for ninety years.5

The issue of government funding re-emerged in 1962 in the City of Goulburn when a government department ordered the upgrading of toilet facilities in one Catholic parish school. Faced with a shortage of funds, the local Archbishop closed Catholic schools in the city and endorsed a decision by a public meeting that recommended that parents of students in Catholic schools enrol in the State schools. The Menzies Government of the time granted State aid to Catholic schools in the form of funds for capital works and it became a major election issue in the 1963 Federal election as the Australian Labor Party strongly opposed the move. That policy was later reversed by Prime Minister Gough Whitlam whose Labor government established some Commonwealth funding of operating costs at various levels in 1973.6

Though the action of closing Catholic schools for a week saw the return of limited Commonwealth Government funding of Catholic schools, there was little success in Victoria at the State level in that respect until the 1967-68 budget.7

The proposal to secularise Catholic education in the Options Paper is reminiscent of the 1872 effort and redolent of the 1962 arguments and the subsequent unsuccessful High Court challenge to funding of Catholic schools in 1978, the so-called “DOGS case”.

In 2008, 185,799 students, (22% of all Victorian students), were being educated in Victorian Catholic schools8, supported by 12,658.9 FTE teachers and 3,889.4 non-teaching staff. Other independent schools (mostly religious) accounted for 9.9% primary school enrolments and 18.9% secondary school enrolments9.

Catholic schools also provide education for a proportion of those who are not Catholic or belonging to one of the Orthodox traditions. Currently, approximately 19% of students in Catholic schools are non-Catholics.

It is important that pluralism in education is respected rather than trying to enforce a uniform secular standard. The right to educate one’s children in one’s own faith is a fundamental human right and important to family life. It is also important to the community that children grow up knowing their own culture and tradition well so that they have a sense of belonging to a community an so that they have a secure basis from which to make informed choices about what to believe in the future.

5 Frank Rogan A Short History of Catholic Education Archdiocese of MelbourneCatholic Education Office of Victoria 2000, p. 95-106 6 Ibid. 7 Ibid. 8 Australian Bureau of Statistics, Schools Australia 2008 - NSSC Table 43: Full-time equivalent (FTE) Students (1993 to 2008) 9 Catholic Education Commission of Victoria, Annual Report 2007, p. 61, Accessed 29th May 2009 from http://web.cecv.Vic.catholic.edu.au/frameset.htm?page=overview

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4.2 Catholic Health and Aged Care

The healing ministry of Christ is an integral part of the Church's mission. In Australia Catholic health care has a rich tradition of more than 160 years of commitment and service provision to the Australian community.

The sector comprises providers of the highest quality care in the network of services ranging from to community based services. These services have been developed throughout the course of Australia's development in response to community needs. The services return the benefits derived from their businesses to their services and to the community; they do not operate for profit; they are church and charitable organisations. The sector plays a significant role in rural and regional Australia, demonstrating its commitment to the delivery of services where they are needed irrespective of whether any or minimal return on investment is derived.

The Catholic health ministry is broad, encompassing many aspects of human services. Services cover aged care, disability services, family services, paediatric, children and youth services, mental health services, , alcohol and drug services, veterans' health, , acute care, non acute care, step down transitional care, rehabilitation, diagnostics, preventative public health, medical and bioethics research institutes.

Services are provided in a number of settings, for example, residential, community care, in the home, the workplace, hospitals, medical , , correctional facilities, as well as for people who are homeless. In addition, services are provided in rural, provincial and metropolitan settings, in private facilities as well as on behalf of the public sector.

The sector plays a significant role in Australia's overall health care industry representing around 13 percent of the market and employing around 35,000 people.

The Sector Snapshot

• 19,000 residential aged care beds • 6,253 retirement and independent living units and serviced apartments • 8,000 Community Aged Care packages (CACP) • 6,000 Home and Community Care programs (HACC) and Extended Aged Care at Home packages (EACH) • rural and regional aged care facilities and services • 9,500 beds in 75 health care facilities - publicly (21) and privately (54) funded hospitals and • 7 teaching hospitals • 8 dedicated hospices and palliative care services • expanding day centres and respite centres • approximately 35,000 people working in the sector

The list of Victorian Catholic hospitals includes:

• St. Vincent's and Mercy Private , East Melbourne • Werribee Mercy Hospital, Werribee Vic • St Vincent's Health (VIC), Fitzroy Vic • St Vincent’s & Mercy Private Hospital, Fitzroy Vic • Mercy Hospital For Women, Heidelberg Vic • Caritas Christi , Kew Vic

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• O'Connell Family Centre Inc, Canterbury Vic • Cabrini Health, Malvern Vic • Brighton Private Hospital, Malvern Vic • Cabrini Prahran, Malvern Vic • Calvary Health Care Bethlehem, South Caulfield • St John of God Pinelodge , Dandenong Vic • St John of God Nepean Rehabilitation Hospital, Frankston Vic • St John of God Hospital Geelong, Geelong Vic • St John of God Hospital Warrnambool, Warrnambool Vic • St John of God Hospital Ballarat, Ballarat Vic • St John of God Hospital Bendigo, Bendigo Vic • St John of God Hospital Berwick, Berwick Vic

Catholic Aged care services in Victoria include:

• Catholic Homes which in 2007-8 had income of $26.3 million and provided 355 independent living units at 22 locations, 27 resident funded units, 50 community aged care packages, 10 serviced resident funded apartments, and 500 aged care places ranging from low to high level care at eight locations10.

• Southern Cross Care (Vic) which provides 978 aged care packages and provides direct care to more than 1,900 Victorian seniors through residential and community services and, in addition, provides Home Care services to more than 2,500 clients, and 90 external providers11.

• Mercy Health and Aged Care cares for over 300,000 people from across Victoria and into New South Wales. In Victoria its Aged care places include Mercy Place – Albury; Bethlehem Home for the Aged, Bendigo; Mercy Place – Colac, Mercy Place - East Melbourne; Mercy Place - Rice Village; Mercy Place – Montrose; Mercy Place – Parkville; Mercy Place – Fernhill; Mt St Joseph's Nursing Home – Young; Mercy Place – Wyndham; Mercy Place - Shepparton12

• St Vincent de Paul Aged and Community Services • Nazareth House • Good Shepherd Aged Care Services • Corpus Christi Community • Cabrini Health • Little Sisters of the Poor–St Joseph’s Aged Care • Assisi Nursing Home • Mary MacKillop Nursing Home

It is worth noting that there is a strong demand for Catholic aged care. When people are facing the end of life it is not uncommon for them to seek the setting and the practices that reflect their faith and belief in an afterlife, and the comfort of a familiar understanding of the life that is to come, and of ethical practices that reflect a Catholic reverence for life and realism about the human condition. The demand for Catholic end of life care is expressed not only by Catholic but also by many others of different faiths and of no faith.

10 Accessed 12th June 2009 from http://catholic-homes.org.au/ 11 Accessed 12th June 2009 from http://www.southern-cross.org.au/ 12 Accessed 12th June 2009 from http://www.mercy.com.au/html/s01_home/home.asp

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4.3 Welfare

The identity of religious welfare services is expressed in their common desire to serve those who are in need, especially the marginalised and vulnerable. That desire is closely linked to the religious notions of the equality of each person before God and religious notions of human dignity and respect for persons. Respect for the dignity of each member of the human family is an important element of service delivery by religious organisations.

The role of Catholic counsellors has also proved to be very important to many people. There is a desire expressed by many to receive counselling from a person who is known to share a religious understanding and who attaches a religious importance to human relationships.

The St Vincent de Paul Society is a lay Catholic organisation that aspires to live the gospel message by serving Christ in the poor with love, respect, justice, hope and joy, and by working to shape a more just and compassionate society. In 2008, the Society in Australia had revenue of $151 million, around a third of which was from government sources. It spent 87% on client services13.

Centacare Catholic Family Services, the official welfare agency of the Melbourne archdiocese had an income of $11.5 million in 2008 of which 4.7 million was from government sources. It is one of twenty-nine organisations that are members of Catholic Social Services Victoria.14 Catholic Social Services Victoria acts as a peak body for Catholic community service works in Victoria by: • Discerning and promoting within the Church and its agencies and ministries a contemporary vision and focus of the Church’s social mission • Representing its members and the Church in responding to social welfare issues so as to bring about social change in accordance with Catholic Social Teaching • Resourcing the Bishops, Religious Institutes, Church agencies, ministries and other Church-based groups with regard to their social welfare pastoral responsibilities and ministries • Encouraging collaboration in the promotion of opportunities for service delivery and mission development • Giving effective voice to the experiences and struggles of people who are disadvantaged and marginalised through researching, publishing and speaking on issues of justice and equity.

Member agencies of Catholic Social Services Victoria provide services to around 500,000 individuals and families each year. Expenditure on these services exceeds $250m a year Catholic Social Services Victoria includes the following member agencies: • Bethlehem Community • Catholic Chaplains Association for Health Care • Catholic Homes • Catholic Solo Parents • Centacare Ballarat • Centacare Catholic Family Services

13 Accessed 1st June 2009 from http://www.svdp- Vic.org.au/content.cfm?table=content_listitems&parentid=0&id=2580 14 Accessed 3rd June 2009 from http://www.centacaremelbourne.org/

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• Centacare Gippsland • CentaCare Sandhurst • Corazon • Corpus Christi Community • Don Bosco Youth Centre and Hostel • Early Education Program for Hearing Impaired Children • Edmund Rice Camps • Frankston Pregnancy Support • Good Shepherd Aged Services • Good Shepherd Youth & Family Services • Jesuit Social Services • John Pierce Centre for Deaf Ministry • Justice and Peace Unit, Archdiocese of Melbourne • Kewn Kreestha - Rest Home for Mothers • Keysborough Learning Centre • Larmenier • MacKillop Family Services • Marillac • McAuley Community Services for Women • Mercy Health and Aged Care • Mother Romana Home • Nazareth House • Project Dreaming Tracks • Sacred Heart Mission • Shekinah Homeless Services • Sisters of Charity Community Care • Society of St Vincent de Paul • Southern Cross Care (Vic) • St Mary's House of Welcome • St Vincent's Health • Villa Maria15

The website of the Catholic overseas aid agency, Caritas Australia, states that it will work towards the creation of a world that God desires to be just and compassionate. Caritas will work for the freedom of those who are oppressed by injustice, bringing ‘sight’ to both those

15 Accessed 3rd June from http:/www.css.org.au/annualreports.html

12 who are powerless and powerful and proclaiming to the poor the good news of their human dignity. This work will be undertaken principally through the life-giving activities of aid and development. As God created humanity to be in right relationship, so Caritas Australia will seek to work through right relationships or partnerships to bring freedom to the world’s poorest communities today. Caritas Australia will work within Australia by inviting people into a just and compassionate partnership with people who are poor. Caritas Australia gives expression to the Gospel imperative to pursue justice and to help those suffering from poverty and disadvantage. Caritas Australia had revenue of $30 million in the year 2007/8 of which 20% was from government sources16.

5. The Options Paper Proposals for Religious Exemptions

In the Options Paper, the proposals argued for in the religious exemptions would remove the protection that now exists for the delivery of services in health, welfare, aged care and education by Catholic agencies. This would have profound effects not only on the Catholic Church in Victoria, but on those who work within and receive services from the Catholic agencies.

The Catholic Church and its members are deeply involved in the Victorian community as providers of services in health, welfare, aged care and education. Catholic people with other religious people are disproportionately represented as volunteers in service delivery and the Catholic Church and its religious institutes provide ownership and governance of many services.

In the second section of this document we spoke of the nature of service delivery and its essential role within a faith that is committed to love of neighbour. In the third section we provided evidence of the nature and extent of Catholic service delivery in this community and demonstrated how much the Victorian community may lose if the law forces the secularisation of Catholic services as is proposed by the Options Paper.

The services provided by the Catholic Church and its agencies are an important part of our pluralist society. As a matter of freedom of religion, all people are entitled to both deliver services and to receive services that are delivered in a way that gives witness to their particular faith.

The Catholic religion alongside other faiths serves to build a sense of familiarity and community. Perhaps more importantly it motivates service to others.

For people in need it provides a source of comfort and support within a meaningful context in which every person is respected without reservation. For many people who are dying it is important that they die in circumstances in which there are the signs and symbols of the Catholic faith and the trust that services will be provided according to a Catholic Code of Ethics.

In Melbourne, the Kennett Government caused the amalgamation of palliative care agencies. One effect of the latter was to force the Sisters of Charity and Order of Malta Home Hospice Service to amalgamate with other non religious providers in the region. The amalgamation happened smoothly and the new organization has functioned well since the restructure, but it has to be noted that the number of volunteers immediately fell away and has not returned to former numbers and the annual appeal through the Catholic parishes simply stopped because the service could no longer be identified as a Catholic service. That happened

16Accessed 1st June 2009 from http://www.caritas.org.au/AM/Template.cfm?Section=About_Us_PDFs&Template=/CM/ContentDisplay.cfm&Cont entID=4566

13 despite the service adopting a code of ethics with which the Church has no quarrel. It was simply that part of the identity and hence part of the meaning had been lost.

For those adding to their families a Catholic context may be important to them as it is in times of illness.

For those who make the difficult choice that they cannot care for a child, a Catholic adoption service may give them the assurance that their child will be well protected.

It is difficult to predict what would happen if the argued proposals in the Options Paper were to be adopted. In June 2008, in the United Kingdom, the Catholic Children's Rescue Service, in the Diocese of Salford, became the first Catholic adoption agency in the country to stop finding new homes for children because of the Government's new equality laws. The agency, in continual operation since 1886, was closely linked with the diocese and supported in its work by funds collected in the local parishes. The Equality Act, which came into effect on New Year's Day, forbids discrimination in the provision of goods and services on the basis of sexual orientation. The law was forced through Parliament last year despite the former Prime Minister, Tony Blair's recommendation that religious adoption agencies be exempted from the rules. The agency closed its doors saying that it was closing the doors rather than abandon the religious principles of the Catholic Church and their own guiding principle of the good of the child.

Migrants from all parts of the world have found in the Catholic Church a familiar source of protection, and faith and practice links to their own culture within what would otherwise be a foreign culture.

As described in section three, historically Catholic has survived several attempts to secularise it. We are very confident that the will remains within the community to make the necessary sacrifices if legal protection were removed for its capacity to give witness to Catholic beliefs.

We appeal to the Committee and the Parliament to reject the proposal contained within the Options Paper to separate Catholic service delivery in health, welfare, aged care and education from its rightful place as an essential expression of and witness to the Catholic faith in service to neighbour.

The biggest defeat in any of the forty four referenda that have been proposed in Australia was a referendum of 1988 which was: “To alter the Constitution to extend the right of trial by jury, to extend the freedom of religion, and to ensure fair terms for person whose property is acquired by any government.”

The Australian Catholic Bishops opposed the proposal on the grounds that:

1. Experience in the United States of America, where there is a constitutionally enshrined prohibition against establishment of any religion, suggests that the proposed alteration to our Constitution may open the way for unnecessary litigation. Some groups or individuals may challenge the constitutional validity of any State law or administrative action that they consider in some way touches on the subject of religion or religious organisations.

2. In particular the now settled question of government funding of non-government schools and other educational institutions may be re-opened since the legal basis of the decision in Attorney-General (Victoria) v. the Commonwealth ( the so-called D.O.G.S. case 1981) may be affected by the removal of the significant words "make any law for establishing".

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3. The long tradition of freedom of religion which our country has enjoyed is best protected through the democratic process in the Federal Parliament and each State and Territory Legislature. If the Constitution is altered, then issues are removed to the High Court for decision. The legitimate right of the electorate to "overturn" a High Court decision would then depend on a further referendum or on constitutional amendment.

4. Voters need to be particularly cautious in assessing the proposal to provide a constitutional guarantee of freedom of religion. The proposal is vague, its meaning uncertain and its outcome unpredictable. There is no widespread discontent among ordinary with the present religious freedoms that exist. This proposal, however, raises serious concerns for the future and deserves to be treated warily.

The recent discussion of the freedom of religion in Australia raises very similar concerns about the opportunity that it provides for secularists to override the majority of Australians who profess belief in a religion. The present Options Paper seems to give expression to views that are opposed to the pluralist nature of Australian society and to instead enforce, in all but the most private spheres of activity, a rigid, compulsory secularist uniformity. It is of vital importance for the well being of our community that such a narrow approach not find its way into our laws. In enacting the present Equal Opportunity Act Parliament struck a balance that has served to protect the rich and peaceful diversity of our pluralist society. It is most important for the peace and wellbeing of our community that that balance be maintained and aligned with the new Charter.

6. Suggestions for Amendment of the Equal Opportunity Act 6.1 Review

The Church agrees that legislation as important as the Equal Opportunity Act 1995 (Vic) (Act) needs to be reviewed in the light of the Charter of Human Rights and Responsibilities Act 2006 (Charter).

We understand that the current Inquiry is limited to the Exemptions and Exceptions to the Equal Opportunity Act 1995. The exemption provisions of section 75-7 in the Act are vital to the Church’s extensive activities in the community.

6.1 Aligning the Charter and the Religious Exemptions

The Equal Opportunity Act recognises the right of religious persons to religious freedom but the right may be interpreted narrowly in such a way that it does not offer protection for the activities of religious people acting as a community, as is the case in the deliver of many services by religious agencies.

We ask that the protections that were wisely developed in the original legislation to protect religious beliefs and practices be not only maintained, but also strengthened in accordance with the Charter of Rights and Responsibilities which upholds (section 14) a person’s freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private, and insists that a person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching. The Equal Opportunity Act needs to recognise that a person has this right not only individually but also as part of a community. The latter is particularly relevant to service delivery. In that respect there is a discrepancy between the Equal Opportunity Act and the Charter that needs to be remedied.

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The Bishops of Victoria are of the view that the Equal Opportunity Act should be framed to reflect the new Charter of Rights and Responsibilities which uses the terms more consistently and gives a clearer recognition of the right to religious freedom and the balance that needs to be struck in protecting the right to equal respect for persons in way that recognises the right to religious belief and practice.

6.2 Maintaining Religious Identity

The Church has, since the enactment of the Act, found it increasingly necessary to engage persons from outside the Church in senior management positions. Generally, it is not essential for the holders of those positions to conform to particular religious doctrines, beliefs or principles in order to perform their functions. However, the Church believes that, as in the past, its senior management overall (but not necessarily on an individual basis) ought to retain a close connection with Catholic doctrines, beliefs and principles. For that purpose, it is desirable that the Church be able to take account of the religious standing of potential occupants of these positions.

6.3 Attributes of Persons

The religious exemptions under the Equal Opportunity Act currently apply to all attributes. They were obviously intended to protect religious beliefs and practice and did not seek to be specific as to where such protection may be needed. There would not seem to be a need to except discrimination in relation to attributes such as breastfeeding, status as a carer, age, race, physical features, impairment industrial activity, or personal association with persons having any of the above attributes. The Church is a leader in protecting the rights of people who are disadvantaged or marginalized and is called to act justly. The Church does not see a need for the exemptions to apply to all attributes or to any of the contraventions. The Church seeks exemptions only in relation to seven attributes, religious belief or activity, sex, sexual orientation, gender identity, lawful sexual activity, marital status or parental status or status as a carer.

We acknowledge that there is tension between a growing secular acceptance of beliefs and practices in relation to sexuality and life matters, on the one hand, and, on the other, religious beliefs and practices with respect to the paramount importance of the family as the basic unit of society and consequentially the significance of sexual ethics and respect for life. There is also tension in relation to a Catholic understanding of gender which demands equal respect for persons, each being made in the image and likeness of God, but recognises that there are gender differences and different roles within the Church, particularly in relation to the administration of the sacraments and the role of a priest to act “in the person of Christ”. The Church is concerned about the need for religious belief and practice to be protected in relation to the need to ensure that the conduct of Church employees or volunteers (if the Act is amended as proposed by the Gardner Review) does not conflict with their engagement to give public witness within a Catholic agency to Church teaching and practices in relation to these matters.

6.4 The Options

The Options Paper argues for some particular changes to the religious exemption sections of the Equal Opportunity Act. It mentions other options but provides no argumentation for them. For that reason it is a misnomer to call it an “Options Paper”. It is polemical rather than canvassing options, and presents a narrow secularist view rather than a view that is representative of our pluralist community.

The Options Paper argues that: • 75(1) of the Equal Opportunity Act is to be maintained,

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• 75(2), 75(3) and 76 are to have narrower application, and • 77 is to be repealed.

The key proposals for change to the Act, which will adversely impact the Catholic Church and other religions, are: • Tailoring the exemptions more closely to the religious freedom requirement; • A ‘reasonableness’ test, in terms of the doctrines or religious sensitivities; • Amending Section 75(2), to give a narrower meaning to “conforms with the doctrines”; • Increasing the restrictions on “Public Authorities”; • Distinguishing between different kinds of religious educational institutions.

The arguments in the Options Paper for these changes are based on the claim that there is a tension between the right to freedom of religion and the right to equal entitlement to roles. The Options Paper argues that what is required is a judicious ‘balancing’ of the two considerations, and that both need protecting - that it is wrong and unworkable for either one to dominate the other.

The Options Paper claims that there is widespread community support for redressing this “imbalance” by reducing the scope of exemptions, and limiting religious freedom so that equality may increase. However it is not apparent that there is widespread support for this view. It is certainly the case that no evidence has been offered that there is community support for extending equality provisions to denying the right of religious people to deliver services in accordance with their own beliefs. To the contrary the popularity of Catholic delivery of services in health, welfare, education and aged care would indicate that there is significant support for preserving the availability of those services delivered in accordance with Catholic beliefs and practices and in a Catholic setting.

Significantly, the Options Paper cites no legal cases and gives no instances of complaints of injustice by religious agencies that would justify law reform. There is nothing in the Options Paper to indicate that any problem has been identified with the operation of the equal opportunity legislation with respect to religious agencies.

According to the Options Paper, achieving the cultural changes needed to reach the end- goal of equality in society is essential. In other words, rather than allowing religions the freedom to determine how they will resolve issues of gender, the idea is that the Victorian Parliament should intervene to impose a political notion of equality onto religious activities, and to override religious beliefs about sexual ethics.

We contend that equal respect for persons is a complex notion that is far wider than the political conception of equality adopted by the Options Paper. Equal respect for persons need not imply identical gender roles, and more importantly equal respect for persons does have grave implications for respect for the bodies of men and women and for their relationships. That notion of respect is central to a Catholic understanding sexuality and the importance of marriage for the security of family life and the nurturing of children.

It is important to Catholic teaching to witness to the centrality of marriage in the formation of families and the security of the family as the essential and primary unit of community life. This premise is ignored by the Options Paper. The Catholic Church regards the issues related to the stability of marriage and its sacredness and therefore the issues of sexual ethics as of primary importance. Respect for religious freedom involves the right of religious people either individually or in their agencies to give witness to the importance of marriage and sexual ethics as foundational for stable and secure families.

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Sexual ethics and the role of gender within religion are part of religious practice and are determined by theological principles based on Scripture and on reasoning that gives priority to love of God and neighbour. We believe that sexuality affects all aspects of the human person in the unity of his or her body and soul. It especially concerns affectivity, the capacity to love and to procreate, and in a more general way the aptitude for forming bonds of communion with others. We teach that everyone, man and woman, should acknowledge and accept his or her sexual identity. Physical, moral, and spiritual difference and complementarity are part of our sexual identity and are oriented toward the goods of marriage and the flourishing of family life. The harmony of the couple and of society depends in part on the way in which the complementarity, needs, and mutual support between the sexes are lived out. We believe that in creating 'male and female,' God gives man and woman an equal personal dignity. Man and woman were created equal, since both were created in the image and likeness of the personal God.17

These beliefs are fundamental to the Catholic Church and inform our practices. The beliefs are based on an understanding of equal respect for persons that goes much more deeply into what it is to be a man and what it is to be a woman than contemporary political theories of equality would allow. We reject the effort by the Options Paper to impose a narrow political conception of equality onto religious belief and practice.

The Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) creates an obligation for the Parliament to consider whether legislation complies with the Charter. Section 14 of the Charter recognizes the right to religious freedom:

14. Freedom of thought, conscience, religion and belief

(1.) Every person has the right to freedom of thought, conscience, religion and belief, including — (a) the freedom to have or to adopt a religion or belief of his or her choice; and

(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2.) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Section seven establishes limitations on rights:

7. Human rights-what they are and when they may be limited

(1.) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

(2.) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

17 Catechism of the Catholic Church n. 2332-4

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(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

(3.) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

The Options Paper claims that the protection afforded by this section is limited to what they have called ‘core’ or ‘internal’ aspects of freedom of religion and the freedom to demonstrate it in observance, practice or teaching individually or in community, in private or public”. According to the Options Paper, core or internal aspects do not include practices such as providing health, aged care, welfare or education services.18

What the Options Paper is in effect saying is that the provision of services to the public is not a ‘demonstration’ of religion in ‘observance’ or ‘practice’. These terms, taken from the Charter, are treated by the Options Paper as only applying to ‘internal’ activities, especially worship.

The Options Paper acknowledges that religious groups have a broader understanding of their religious character:

It is clear that religious organisations have a different view about where the line is to be drawn between ‘religious activities’ and secular activities of a religious organisation, and what makes the organisation or the particular activity religious. It would be desirable for the EO Act to encourage organisations that want to rely on these exceptions in relation to extended activities (i.e. outside the core or internal area) to identify and state what makes the position or activity inherently religious. (p. 116)

The approach taken by the Options paper would force a secular standard of the reasonableness of Church doctrine onto religious belief and practice. Such a standard would grossly infringe the right to religious freedom because religious freedom would mean nothing if the premises that are applied are limited to secular reasoning.

Catholic reasoning takes into account the history of humanity’s encounter with God as it is recorded in the Scriptures and pays particular attention to seeking to foster a relationship to God and being guided by the nature of the relationships between the Persons of the Holy Trinity and between God and men and women. The sacrifice of Christ on the Cross is a guide to how a human being may and ought to develop in the Divine image by giving of themselves as Christ gave.

This is not the reasoning of the secular world and its standards and cannot be the standard by which to judge the reasonableness of religious beliefs. A secular approach lives for life in this world. A religious person lives this life in expectation of the life to come and in giving witness to that life after death.

18 Scrutiny of Acts and Regulations Committee of the Victorian Parliament, Enquiry into Exceptions and Exemptions under the Equal Opportunity Act 1995, Options Paper pp 109-11, 116ff

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7. Public Hearings

We ask that you give full consideration to these matters and that persons we nominate be afforded the opportunity to give further evidence when the Committee holds its public hearings.

Please refer any follow up to this submission to the Business Manager of the Archdiocese of Melbourne, Mr Francis Moore (telephone 9926 5677).

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Most Reverend Denis J Hart DD Most Reverend Joseph Grech DD ARCHBISHOP OF MELBOURNE BISHOP OF THE DIOCESE OF SANDHURST

Most Reverend Peter Connors DD Most Reverend Christopher Prowse DD BISHOP OF THE DIOCESE OF BALLARAT BISHOP OF THE DIOCESE OF SALE

Dated 8 July 2009

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