Australia’s religious freedom review

A cautious Ruddock Report and Government response provide some limited, but positive steps to better protect religious freedom, Alex Deagon writes.

After a delay of more than six months, on 13 December 2018 Prime Minister Scott Morrison finally released the Report from the Ruddock Religious Freedom Review along with his Government’s response. The impression from the Report is the Panel wanted to do their job carefully and rely on concrete, real-world experiences and whether current legal protection is sufficient, rather than engage with more abstract legal hypotheticals.

The Panel clearly did not want to make any large or controversial changes such as recommending a Religious Freedom Act or even a Bill of Rights containing protections for religious freedom. This cautious approach is reflected in the Panel’s rejection of a right for religious vendors to discriminate in the provision of goods and services.

In the Panel’s view, allowing this would ‘unnecessarily encroach on other human rights’, and ‘may cause significant harm to vulnerable groups in the community’.

I have argued extensively in my published work that in some circumstances a religious vendor is not simply discriminating against a person by, for example, not providing them with a wedding cake because they are gay. That situation is objectionable and should not be protected.

Rather, many religious vendors have principled religious objections to same-sex marriage and have a conviction that by creating a unique product such as a cake for a same-sex couple they are tacitly endorsing the marriage. As such, they are not refusing to provide the service based on the sexual orientation of the consumer, but are refusing to express support for an idea which they conscientiously object to.

More on this: The Brief: Freedom of religion, or freedom to discriminate?

The Panel acknowledged this distinction but did not give it sufficient weight, particularly bearing in mind the litigation of this issue in other jurisdictions and the devastating effect litigation can have on the religious vendor.

Somewhat oddly, the Panel did recommend that religious schools should not be required to provide facilities or services for a marriage where they have a religious objection (this recommendation was accepted by the Government).

If religious schools offering a public service can ‘discriminate’ in this sense, then there is no reason why a religious vendor offering a public service cannot also ‘discriminate’ in this sense, as long as the vendor is relying on a principled and well-established religious objection rather than mere prejudice.

The most discussed of the Panel recommendations is the now infamous confirmation of the ability for faith-based schools to have the freedom to select staff and regulate students consistent with their religious ethos.

In fact, the Panel recommendation actually narrows the ability of faith-based schools to do this. Under exemptions to the Sex Discrimination Act, educational institutions established for religious purposes can discriminate against staff and students if they do so in good faith and in accordance with their religion to avoid injury to the religious susceptibilities of adherents to that religion.

The Panel recommends that this should be retained but the school must have a publicly available policy on the matter. After this and other recommendations were leaked months ago, much of the debate has been centred around this issue. Advocates have claimed that the exemptions are unduly discriminatory, damaging, and should be removed.

However, this is to dismiss and undermine an important principle of religious freedom: that as a function of promoting a truly democratic and diverse society, religious associations should be provided with the legal protection necessary for them to maintain a distinct religious ethos while providing a service to the community.

Ensuring a religious school can select staff and regulate students consistent with upholding this ethos is an essential aspect of that protection. This is recognised as part of the human right to religious freedom as protected by international law, and may also have constitutional protection as Section 116 indicates a preference for religious liberty over anti-discrimination. The Government response, recognising the ‘complexity’ of the issues, will refer the issue to the Australian Law Reform Commission.

More on this: Diversity or discrimination?

Another interesting recommendation from the Panel is the creation of a Commonwealth Religious Discrimination Act. This would ‘render it unlawful to discriminate on the basis of a person’s religious belief or activity’, including non-belief, with appropriate exemptions for religious bodies.

The Panel correctly recognised that religion is not adequately protected by law at the Commonwealth level, and this is a sensible proposal which would bring Commonwealth protection for religion in line with protection for race (Racial Discrimination Act) and sex (Sex Discrimination Act).

However, the Panel felt the appointment of a specific Religious Freedom Commissioner to sit within the Human Rights Commission was not necessary, as this could be covered by the remits of existing commissioners.

The Government response accepted this recommendation in principle but went further in some respects. First, the Government explicitly stated the Religious Discrimination Act would not contain any equivalent to section 18C of the Racial Discrimination Act, as this would, in effect, establish a blasphemy law, contrary to the tenor and recommendations of the Panel Report that blasphemy laws should be repealed to protect and promote freedom of speech and religion.

Second, the Government stated the specific statutory role of ‘Freedom of Religion Commissioner’ would be established ‘to strengthen the protection of freedom of religion in Australia’.

Both these proposals are beneficial, and the appointment of the Commissioner will be particularly significant. Qualifications, expertise, and political and religious inclinations of the appointed person are important factors and could have considerable impact on the extent to which the Commissioner protects religious freedom.

Finally, the Panel made a number of recommendations to the effect that the Commonwealth and the Human Rights Commission should support religious engagement, education, understanding and dialogue. The Government accepted these recommendations and indicated that this would be led by the new Freedom of Religion Commissioner.

Despite the relative lack of publicity this has received, it could be one of the most important outcomes of the Ruddock Review. One reason for growing polarisation and controversy in our diverse democracy is an increase in secularisation and a lack of religious literacy in the nation. Legal protections are important, but they only take us so far, and address symptoms rather than the cause. Education, engagement and dialogue accompanied with a desire for goodwill between people can defuse much of the tension which produces legal disputes. Mutual understanding, learning from one another, and accommodating our religious and other differences, can all help us to flourish as a democratic community with freedom for all.