The long-awaited Religious Freedom Review: Report of the Expert Panel (chaired by the Hon Philip Ruddock) has now been released publicly, along with the formal Government Response. After the prior leaking of its 20 recommendations there were no major surprises as to the final conclusion, but there is much interesting background to the recommendations (and in one or two cases the full Report seems to have a significant impact on how one should read the language of the recommendations.) It is also important to see the announced intentions of the LNP Government as to how they will respond.
In this first post in response to the full Report I will comment mainly on recommendations 1 & 5-8 and recommendation 15, with the other recommendations to be left for part 2 or later.
First, it seems to be sensible (though somewhat out of order) to summarise the Government response as announced today. In broad terms, they have agreed “in principle” to 15 of the 20 recommendations. The other 5 are being referred for further consideration to the Australian Law Reform Commission. To quote from the Government Response at p 5:
The manner in which the Government will implement the recommendations of the Religious Freedom Review falls into three categories:
1. Fourteen recommendations to be implemented as soon as practicable (being recommendations 2 to 4, 9 to 14 and 16 to 20);
2. One recommendation to be implemented following consultation to seek bipartisan support for the Religious Discrimination Bill (being recommendation 15); and
3. Five recommendations which require further consideration (being recommendation 1 and recommendations 5 to 8).
In this post I will analyse recommendations 1 & 5-8 and 15 and provide the Government response and my preferred view on what the response should have been.
Recommendations 1, 5-8: Religious Schools and Sexual Orientation matters
Recommendations 1 and 5-8 are those which have caused an extended political controversy since the leaking of the recommendations just prior to the Wentworth By-election. We can now read the Report and see the context for them.
Broadly, the most contentious issues arise over the way that laws forbidding discrimination on the grounds of sexual orientation, gender identity, marital or relationship status, and pregnancy, interact with the freedom of religious schools to operate in accordance with their religious beliefs (which often teach that the only appropriate context for sexual activity is the marriage of a man and a woman.) Current law, especially s 38 of the Sex Discrimination Act 1984, allows a faith-based educational institution to “discriminate” in these circumstances.
I won’t rehearse in any detail the arguments and political debates that have surrounded these issues in Australia over the last few months. Those who are interested and haven’t done so yet can read about these matters starting here and then moving forward through most of the recent posts on this blog. The starting point was the leaking of the Ruddock recommendations, and in particular Rec. 7, which starts:
The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that…
It is now apparent from the Report, as it had always been to anyone who knew the prior law, that Rec. 7 was never intended to introduce a radical new avenue for discrimination, but was actually intended to limit an existing right of religious schools. In para 1.273, for example, the Panel commented:
the Panel believes the [existing] exceptions should be limited by the requirement that the discrimination be in accordance with a published policy which is grounded in the religious doctrines of the school
Unfortunately, when summarising its comments in a specific recommendation, the nuance that this was a limit on an existing provision was not captured, and the leaking of the recommendation on its own gave a very misleading impression of the discussion in the Report.
There is probably not much point in exploring the details of the recommendation around gay students in religious schools, however, as at this point the Ruddock Report seems to have been overtaken by events to some extent. In its Response, at p 20, the Government notes:
In this process, the Government committed to going further than the terms of recommendation 8 of the Review, and undertook to remove all of the exemptions contained in subsection 38(3) of the Sex Discrimination Act … During this process, the Government sought the Opposition’s agreement to a minor amendment to the existing Sex Discrimination Act section dealing with how decision makers are routinely required to assess the reasonableness of rules of general application (such as workplace rules and rules designed to govern student conduct in educational institutions)
(I think the reference above to Rec 8 is intended to be a reference to Rec 7, which was the one dealing with s 38(3) issues.)
By the end of the Parliamentary year, a Bill introduced into the Senate by Senator Wong had been referred to a Senate committee for further discussion, and a Bill proposed by the Prime Minister (which seems to have reflected Government amendments to Senator Wong’s Bill) had been suggested, but not accepted by the Opposition.
The Government Response indicates that its preference now is to remove this issue of students, along with the recommendations in relation to gay teachers in Rec. 5, and some related amendments, to a separate inquiry to be conducted by the Australian Law Reform Commission. At p 21:
Accordingly, the Government will consult with the States and Territories on the terms of a potential reference to the ALRC to consider recommendations 1 and 5 to 8 of the Review with a view to settling upon a legislative mechanism that would, on a nationally consistent basis, achieve the twin purposes of limiting or removing altogether (if practicable) legislative exemptions to prohibitions on discrimination based on a person’s identity, while also protecting the right of religious institutions to reasonably conduct themselves in a way consistent with their religious ethos.
Whether this proposed response will obviate the need for further debate on Senator Wong’s Bill is unclear. The Government in effect controls neither the Senate nor the House of Representatives at the moment, and Parliament is scheduled to return on 12 February 2019 for a two-week sitting before the Budget is presented and a Federal election is to be held. In those circumstances I, for one, would not like to predict what might happen! But the Senate Inquiry into Senator Wong’s Bill is apparently still going ahead, and is receiving submissions until 21 January 2019. I have previously indicated my concerns about the ALP-sponsored Bill and will be conveying those to the Committee in due course (along with my concerns about the proposed Government amendments.)
Still, it seems worthwhile to record my responses to the recommendations.
Those jurisdictions that retain exceptions or exemptions in their anti-discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations.
My response: Agree generally with the suggestion to remove exemptions re race, disability and intersex. (See below, however, for complexity on the “race” issue for some groups.) But I am not convinced about the “pregnancy” ground being removed. In most cases, a woman does not become pregnant without sexual intercourse. If she is single, that will usually be against Biblical norms. While religious schools will always want to provide support and care in this difficult context, they should be allowed to make such decisions in accordance with their religious ethos. Supported for three grounds, opposed for pregnancy.
The Commonwealth should amend the Sex Discrimination Act1984 to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that:
The discrimination is founded in the precepts of the religion.
The school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced.
The school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors.
My response: It is important to note that the ability to select who will be employed for, or work for, religious schools on the basis of their agreement or otherwise with the religious ethos of the school may involve significant issues to do with sexual behaviour and gender identity. The Cth SDA s 38(1) and s 38(2) already allows such selection on this basis. The proposed change here is to limit this right so that additional conditions apply.
(1) The condition that a decision must be “founded in the precepts of the religion” is different to the current condition, which is that the decision is made “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”. The Report offers no reason for the change of language. The result may be to hand over to a secular court or tribunal the task of determining what the precepts of a religion “actually” require. On the other hand, it would be acceptable if it simply meant that the decision must be a “good faith” attempt to apply the religion as interpreted by the school, and not a “sham” to allow dismissal etc for ulterior motives. It would be better to clarify this by retaining the wording of the current law, noted above.
(2) The school is to publicise its policy on these issues. This is a good idea, so that those working for the school are aware of the school’s policy. No doubt most religious schools already do this. Supported.
(3) The policy to be provided to current and prospective workers. Again, this seems sensible and is supported.
Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of race, disability, pregnancy or intersex status. Further, jurisdictions should ensure that any exceptions for religious schools do not permit discrimination against an existing employee solely on the basis that the employee has entered into a marriage.
(1) On the general question of exemptions related to “race, disability, pregnancy or intersex status”, see my comments above on Rec 1. The issue in relation to race is raised by the example of the UK decision of E, R (on the application of) v Governing Body of JFS & Anor UKSC 15, where an Orthodox Jewish school wanted to apply an admission policy based on its definition of “Jewishness”, which included descent from an Orthodox Jewish mother. The UK Supreme Court held that such a policy was racially discriminatory and unlawful. In general careful thought needs to be given to the application of the law to faiths where physical descent may play a part in faith membership. I also remain concerned that pregnancy not be removed as a criterion in all cases, as noted above.
(2) The second part of this recommendation seems odd. As it stands, it would seem to have the effect of removing the ability of, say, a Roman Catholic school to dismiss an employee who had remarried after a divorce not recognised by the Roman Catholic church. It would also make it unlawful for a Christian school to sanction an employee who, contrary to a clearly publicised prior policy (see above rec 5) now proclaims that they are same sex oriented by entering a same sex marriage. This is opposed if it means that entry into a marriage could never be a legitimate ground for decision-making by a religious school.
It has to be said that the paragraph of the Report explaining this provision is somewhat hard to follow. Para 1.249 reads as follows:
In the Panel’s view, existing employees who marry someone of the same sex should not have adverse action taken against them for the sole reason that a person has entered into a same-sex marriage. The Panel can see no reason for any distinction being made between a staff member who is in a same-sex partnership, and one who is married to a same-sex partner under the Marriage Act. Similarly, the Panel can see no reason for a distinction being made between a heterosexual person who is in a de facto relationship or partnership, and someone who is married
I must confess I find it hard to understand the points being made here. The central issue seems to be that there should be no “distinction being made between a staff member who is in a same-sex partnership, and one who is married to a same-sex partner under the Marriage Act”. So there is a “moral equivalence” between being in a de facto homosexual relationship and being “married” to a same sex partner? The blunt truth is that a faith school with orthodox Christian beliefs, say, about the inappropriate nature of sex outside a man/woman marriage would agree, but would say that both circumstances give rise to a case where a staff member is no longer living in accordance with the faith framework of the school. Is the Panel simply saying that the mere act of going through a wedding ceremony should not be a ground for discipline? On the logic of treating these relationships in the same way, a school may say, it is not the ceremony that is the issue, it is the homosexual relationship which we see as inappropriate.
Nor can I see the validity (from the perspective of a Christian school) of the comment in para 1.249 that there is “no reason for a distinction being made between a heterosexual person who is in a de facto relationship or partnership, and someone who is married.” From the orthodox Christian view, there is a world of difference between those who have sex outside marriage (known as adultery or fornication), and those who do not. Of course in a situation where someone had been living immorally with a person of the opposite sex, and then got married, it is hard to imagine any faith school which would regard that action as a ground for detrimental treatment. Such an action would actually be celebrated!
Perhaps there is a subtle point here that I am missing. But as it stands I do not support this part of Rec 6.
The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that:
The discrimination is founded in the precepts of the religion.
The school has a publicly available policy outlining its position in relation to the matter.
The school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated.
The school has regard to the best interests of the child as the primary consideration in its conduct.
My response: I have commented on these issues above. This recommendation is the one that generated recent controversy and which in general seems to have been overtaken by events. To be clear, however, I was always concerned about the “founded on the precepts” clause for reasons noted above in my comments on Rec. 5. The publicity provisions seem reasonable. But the final condition is a bit odd.
Of course, any school ought to have the “best interests of the child” as its primary concern. But a Christian school will often take the view that the best interests of the child involve them, for example, not engaging in homosexual activity. Again, the issue arises, who is to determine “best interests”? A concern is that external psychological reports, for example, will be produced to counter the religious commitments of the school. (The Panel mentions this matter in passing in para 1.270, but does not discuss the content of the phrase.) On balance this final criterion is opposed, not in substance but because the process for determining the answer to the question is unclear.
Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools with respect to students on the basis of race, disability, pregnancy or intersex status.
My response: this recommendation raises similar issues to those already discussed above in connection with Recs 1 and 6. It is directed to the States and Territories rather than the Commonwealth. For reasons noted previously I generally support the removal of exemptions based on race (with caveats noted previously), disability and intersex status. But I oppose removing pregnancy as a matter that may be taken into account.
Recommendation 15: Religious Discrimination Act
To conclude this first post on the Report, let me commend the Panel for the sensible recommendation in favour of a law forbidding discrimination on the grounds of religion. The recommendation reads:
The Commonwealth should amend the Racial Discrimination Act1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
My response: I agree, though I think that clearly this should be done as a stand-alone piece of legislation, not as an amendment to the existing law on racial discrimination.
This is a sensible way of recognising the importance of this fundamental human right to religious freedom. It is not the only thing that could be done, but it does represent a good step forward. We do not want people being fired from their jobs, or denied public services, because they hold minority religiously based views or practices which do no harm to others.
Appropriate “exceptions and exemptions, including for religious bodies, religious schools and charities” are supported, but with the caveat that it would be better to refer to these as “balancing provisions”. In the context three types of such provisions are needed:
(a) To balance the right not to be discriminated against on religious grounds, with other fundamental rights such as bodily integrity and free movement. It should not be unlawful, for example, to decline to employ someone who has advocated use of violence against unbelievers, even if their advocacy is religiously based.
(b) To balance out the rights of different religions not to be required to support other religious worldviews. A church should be entitled to not employ someone as a youth worker who comes from a different religious background.
(c) To allow religious groups to control their own internal affairs. Under international law, for example, it is well established that a member of a religious group cannot claim to be discriminated against by another member of the same group, because they differ on doctrine or practice. The remedy for someone who does not like the way their own group is being run, is to leave that group. This view has been taken in Australia, in Iliafi v The Church of Jesus Christ of Latter‐Day Saints Australia  FCAFC 26, in the European decision in Sindicatul “Pastorul Cel Bun” v Romania (2014) 58 EHHR 10, and the recent Canadian Supreme Court decision in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26.
The Government Response to this recommendation has been very positive:
The Government accepts this recommendation.
The Australian Government will introduce a Religious Discrimination Bill into the Parliament which will provide for comprehensive protection against discrimination based on religious belief or activity, as recommended by the Panel.Government Response, p 17
They rightly point out that crafting the law will require some care, and they propose to provide a draft law (apparently in the New Year) and to seek consensus from other parties to provide an agreed approach. They have also commented, however, that they do not propose to restrict speech in this area through introducing anything equivalent to s 18C of the Racial Discrimination Act 1975. In my view that is a good idea- see here for a paper on “religious free speech” pointing out why broadly-defined “religious vilification” laws are not a good idea.
In particular, they have gone even further and resolved to work on the problems that have been seen in some current laws:
[T]he Government will consult with the States and Territories on the terms of a potential reference to the ALRC to give further consideration to how best to amend current Commonwealth anti-discrimination legislation to prohibit the commencement of any legal or administrative action, pursuant to State-based anti-discrimination legislation analogous to section 18C of the Racial Discrimination Act, that seeks to claim offence, insult or humiliation because a person or body expresses a view of marriage as it was defined in the Marriage Act before being amended in 2017Government Response, p 17
It seems clear that in particular this recommendation is designed to respond to the litigation initiated against Archbishop Porteous in Tasmania, previously discussed here. Such a move seems very commendable.
There is a lot in the Report, and this post has only commented on some of the most obvious issues. I hope in a future post (or posts!) to outline the other recommendations and my responses to them.