Following my previous post giving comments on Recommendations 1, 5-8 and 15 of the Ruddock Report and the Government Response, I will comment here on another set of recommendations (Recs 2-4, 9-12) and the likely outcome. Comments on recommendations 13-14, and 16-20, will (hopefully) be made in Part 3!
Recommendation 2- Syracusa principles
Recommendation 2 is:
Commonwealth, State and Territory governments should have regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rightswhen drafting laws that would limit the right to freedom of religion.
My response: This at first glance looks like a recommendation only a lawyer could love! But it is quite important, because the UN document referred to (available here) makes it clear that limiting religious freedom rights is a serious matter and must not be done lightly. Importantly, art 18 of the ICCPR, which provides a right to religious freedom, says that such right can only be interfered with if it is “necessary” in pursuit of a limited class of purposes (and not just if a politician feels like it on the day). Articles 10 and 11 of the Sirucusa Principles require any limitations to be “proportionate” to the aims being achieved, and that the “least restrictive” means to achieve that aim should be used. These are all good principles which will assist in the inevitable process of Parliamentary decision-making in this area.
The Government response is positive.
The Australian Government will engage with existing processes, including through the Office of Parliamentary Counsel, to ensure that the drafting and scrutiny of federal legislation necessarily has regard to the Siracusa Principles where proposed laws may limit the right to freedom of religion.
The Commonwealth will also encourage State and Territory governments to keep these principles in mind.
Recommendation 3: Equal status of religious freedom
Recommendation 3 is:
Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion
My response: This is a good proposal. The recommendation comes in the context of a helpful discussion by the Panel of the importance of religious freedom as a right under international law. As they say at para 1.37:
Importantly, there is no hierarchy of rights: one right does not take precedence over another. Rights, in this sense, are indivisible (see Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna, UN Doc A/CONF.157/23 (25 June 1993) ). This understanding was absent from some of the submissions and representations the Panel received. Australia does not get to choose, for example, between protecting religious freedom and providing for equality before the law. It must do both under its international obligations. (emphasis added)
The Government response here was:
The Australian Government will introduce a Bill containing amendments to existing Commonwealth anti-discrimination legislation (being the Sex Discrimination Act, Disability Discrimination Act, Age Discrimination Act and Racial Discrimination Act 1975) to ensure each respective piece of anti-discrimination legislation has an objects clause to reflect the equal status in international law of all human rights, including freedom of religion.
An objects clause will also be included in the proposed Religious Discrimination Bill (referred to with respect to recommendation 15 below)
This is a very positive development. The aim is to ensure that the right to religious freedom is not “buried” under other rights, such as “discrimination” rights. Of course more could be done to strengthen the protection of this right. For example, many of us think that a more general implementation of art 18 of the ICCPR in the form of a Religious Freedom Actwould be both possible and desirable. However, the Panel examines other options briefly, and concludes against a general RFA: see their comment at para 1.22-
[T]he Panel did not support enactment of a standalone Commonwealth enactment of this kind at this time. Specifically protecting freedom of religion would be out of step with the treatment of other rights. Moreover, the statutory expression of positive rights would need to be carefully crafted having regard to the need to reconcile them with the full suite of other human rights. As a matter of practicality, this necessitates a framework which provides equal treatment for a wide range of human rights.
But strengthening this through an interpretative provision is a good start.
Recommendation 4: Charitable status
Recommendation 4 deals with a discrete but important area:
The Commonwealth should amend section 11 of the Charities Act2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.
My response: this is a good idea. Section 11 sets out that certain “purposes” will disqualify a body from being regarded as a charity. Para 11(a) says that “the purpose of engaging in, or promoting, activities that are unlawful or contrary to public policy” is such a disqualifying purpose. This recommendation is designed to ensure that advocacy of the traditional religious view that marriage should only take place between a man and a woman, even though it does not represent current Australian law, is not inherently “contrary to public policy”.
That this is necessary is illustrated by the fact that in New Zealand there has been an attempt to remove the charitable status of one group for just this reason: see the recent decision of the High Court of NZ (a single judge) upholding this removal: In the matter of Family First NZ NZHC 2273.
The Government response to this is positive.
For the avoidance of all doubt, the Australian Government will introduce legislative amendments to section 11 of the Charities Act to clarify that engaging in, or promoting, activities that support marriage as previously defined in the Marriage Act 1961 will not, of itself, amount to a ‘disqualifying purpose’ under the Charities Act
While a sound argument can be made that this is the effect of the current law, removing any remaining doubt on the issue is a good idea.
However, in this connection I should mention another issue that was noted by the Panel but not properly resolved. At paras 1.203-1.206 they note:
1.203.. [A] number of submissions expressed concern about the lack of clarity concerning the relationship between recognition as a charity for the purpose of the advancement of religion and the definition of a body established for religious purposes in Commonwealth, State and Territory anti-discrimination laws.
1.204 Faith-based organisations were concerned that a Commissioner’s Interpretation Statement issued by the ACNC in 2016, with respect to public benevolent institutions (“PBIs”), may have consequential implications as to whether a body will be recognised as being a body established for ‘religious purposes’.
1.205 The Statement indicated that an organisation established solely for the purposes of the advancement of religion is unlikely to be a PBI. This did not preclude an organisation motivated by faith from being a PBI.
1.206 The concern from faith-based organisations is that a court may rely on the fact that an organisation is not registered as a body for the purpose of advancing religion, as evidence supporting a finding that the body is not a body established ‘for religious purposes’. Consequently, it is argued, the organisation may then be found to be ineligible for the exceptions found in anti-discrimination laws such as section 37 of the Sex Discrimination Act and elsewhere.
The issue here is that the category of “public benevolent institution” is a subset of the broad class of “charities”. PBI’s are charities set up for the relief of poverty or distress. In some circumstances they, unlike purely religious organisations, may qualify as “deductible gift recipients” so that those who donate to them can take advantage of tax relief. But the ACNC guidelines make it clear that groups simply for the “advancement of religion” (which is a valid charitable purpose) are not always PBI’s.
The concern expressed to the Panel was that there may be a danger that a court interpreting exemptions applicable to a “body established for religious purposes” will take the view that these exemptions do not apply if the body is not a “PBI”. It would have been helpful if the Panel had expressed a view on this matter, but so far as I can tell it left the issue unsettled. Its final comment in para 1.207 simply notes that the matter was “linked” to concerns over a court decision, but it seems that the Panel did not return to the issue later.
In my view, while the concerns noted above should have been clarified, they are actually not well-founded. The law on PBI’s makes it clear that they are simply a sub-set of charities. The fact that a religious organisation is not a PBI has no bearing at all on the question whether it satisfies the statutory description under s 37 or similar provisions. The failure of the Panel to come to a conclusion on the matter seems to have been an unintentional omission and should not be taken as indication that they shared the concerns that had been raised.
Recommendation 9: Parents’ input into education
Recommendation 9 deals with the right of parents to have input into what their children are being taught at primary and secondary schools:
State and territory education departments should maintain clear policies as to when and how a parent or guardian may request that a child be removed from a class that contains instruction on religious or moral matters and ensure that these policies are applied consistently. These policies should:
Include a requirement to provide sufficient, relevant information about such classes to enable parents or guardians to consider whether their content may be inconsistent with the parents’ or guardians’ religious beliefs
Give due consideration to the rights of the child, including to receive information about sexual health, and their progressive capacity to make decisions for themselves.
My response: This recommendation is discussed in the Report at paras 1.276-1.302. There are complex issues to do with the rights of parents to have the main voice in their children’s education (expressed in art 18(4) of the ICCPR), and the right of children to be given information that they need to have about topics, especially sexually related issues. On balance I think that the recommendation is helpful in that it at least highlights the different issues, though it does not lead directly to any clear change in the law.
The Government response was positive. While noting that the matters are mostly a matter of State and Territory law:
the Australian Government will take a leadership role by developing model Guidelines that could form the basis of a national framework to ensure that parents’ and guardians’ rights to request the removal of a child from a class that contains instructions on religious or moral matters are consistently applied and understood in all Australian schools regardless of jurisdiction.
This seems sensible.
Recommendations 10, 11: Marriage guidelines
Recommendation 10 is:
The Commonwealth Attorney-General should consider the guidance material on the Attorney-General’s Department’s website relating to authorised celebrants to ensure that it uses plain English to explain clearly and precisely the operation of the Marriage Act 1961. The updated guidance should include:
A clear description of the religious protections available to different classes of authorised celebrants, and
Advice that the term ‘minister of religion’ is used to cover authorised celebrants from religious bodies which would not ordinarily use the term ‘minister’, including non-Christian religions.
Recommendation 11 is:
The Commonwealth Attorney-General should consider whether the Code of Practice set out in Schedule 2 of the Marriage Regulations 2017 is appropriately adapted to the needs of smaller and emerging religious bodies.
My response: The main problem I had with these recommendations when read on their own was understanding what problem was being addressed. The Panel’s discussion is at paras 1.303-1.329. In fact this section provides some interesting statistics about the impacts of the same-sex marriage changes which I may comment on in a future post. But in essence the Panel identified some confusion amongst ministers of religion about who could rely on the provisions allowing ministers to decline to solemnise weddings. They also noted this:
1.322 Section 39G(1)(a) of the Marriage Act provides that category C and category D celebrants must adhere to the Code of Practice prescribed by the regulations. The current Code of Practice is set out in Schedule 2 of the Marriage Regulations 2017. Among other things, the Code of Practice provides that celebrants must give the parties to the marriage ‘information and guidance to enable them to choose or compose a marriage ceremony, including information to assist the parties to decide whether a marriage ceremony rehearsal is needed or appropriate’.
1.323 This requirement may not be appropriately adapted to the circumstances of a category C or D celebrant who is a minister of religion from a smaller or emerging religious body. In particular, the Panel notes the Code of Practice might be taken to require that a minister of religion from a smaller or emerging religious body must agree to a form of ceremony proposed by the couple to be married that does not align with the particular rites of the religious body.
I had not been aware of this problem, but clearly it was a good idea to clarify this point. Under s 45(1) the form of service to be used by all ministers of religion is whatever is “recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister” (whether or not the minister is from a “recognised denomination”.) But the official Code of Practice contained in Sched 2 to the Marriage Regulations, cl 5(a), may have been taken to suggest otherwise.
The Government response to the confusion about when ministers of religion can choose not to undertake same-sex weddings is that in fact they have already now dealt with the problem!
In July 2018, the Attorney General’s Department published the revised ‘Guidelines on the Marriage Act 1961 for authorised celebrants – July 2018’ based on feedback received and in line with the Panel’s recommendation.
The July 2018 guidelines now have a section (11.8) which clarifies the obligations of ministers in relation to solemnisation. The guidelines are also quite clear that a minister of religion must use their religion’s form of ceremony:
Ministers of religion of recognised denominations and Commonwealth-registered celebrants solemnising religious marriages may use any form of ceremony recognised as sufficient for the purpose by the religious body or organisation of which they are a minister. This means that the content of the ceremony and its form must have the formal approval and recognition of the religious body or organisation (usually through its governing body).
The Government has also committed to amending the Marriage Regulations so that the Code of Practice is less misleading on the “form of service” issue.
It is worth noting one area where the Panel disagreed with changing the laws relating to celebration of same-sex marriages. The situation is that those who are celebrants who are not “ministers of religion”, and who did not move over to the category of “religious marriage celebrant” in the short transition period after the changes commenced, are not able to decline to solemnise same sex marriages without being accused of “sexual orientation discrimination”. (See this post outlining the situation.)
The Panel was asked to consider supporting the religious freedom of so-called “civil” celebrants by allowing those who had religious concerns about solemnising same sex marriage to decline doing so. But at 1.327 they commented:
[T]he Panel does not consider it appropriate that civil celebrants who are not ministers of religion should be entitled to refuse to solemnise same-sex marriages unless their registration as a celebrant pre-dated the Marriage Amendment Act and they chose to register as a religious marriage celebrant.
The main reason offered is that “civil celebrants are performing a civil, rather than religious, function”. With respect, this is not a very persuasive argument- the word “civil” as a description of celebrants is not authorised by the legislation, but has simply been used as a bureaucratic definition. Public servants do not automatically give up their religious freedom, as I have argued in previous comments on these issues. But the Panel seems to disagree.
Recommendation 12: religious schools and same sex weddings
Recommendation 12 is:
The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal:
Conforms to the doctrines, tenets or beliefs of the religion of the body, or
Is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
My response: the recommendation is a sensible one.
This recommendation is designed to complement s 47B of the Marriage Act1961, by applying it to “religious schools” as well as to “bodies established for religious purposes”. Section 47B provides:
Bodies established for religious purposes may refuse to make facilities available or provide goods or services
(1) A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
It would have seemed likely to me that a “religious school” would be a “body established for religious purposes”. As there is some doubt, however, there is no harm in this recommendation.
The Panel identifies a possible ambiguity as to whether religious schools are in a different category under the Sex Discrimination Act 1984 from general religious bodies. (The relevance of the SDA 1984 to the Marriage Act 1961 is that s 47B(4) gives the phrase “body established for religious purposes” the same meaning as it bears in s 37 of the SDA.)
1.325 The term ‘body established for religious purposes’ is not defined in the Sex Discrimination Act. It is arguable that a faith-based school, other than a school established for the purposes of training or educating persons seeking ordination or appointment as religious officers, may not fall within the meaning of a ‘body established for a religious purpose’ for the purposes of section 37. This is because the Sex Discrimination Act treats educational institutions established for a religious purpose, such as an Anglican or Islamic primary school, as a separate category of institutions with its own exemption clause in section 38. Whether a given institution is capable of falling under both section 37 and section 38 is likely to turn on the structure and governance of the institution in question. An educational institution established for religious purposes may therefore not be able to avail itself of the exemption in section 47B of the Marriage Act.
The view that the institutions referred to in sections 37 and 38 of the SDA do not overlap is by no means obvious, it should be said. Indeed, that there may be an overlap is the reason that recent proposals to amend s 38 of the SDA have also included an “anti-avoidance” amendment to s 37.
The reason for inclusion of a separate “schools” provision in s 38 are somewhat obscure, but reference to the debates in Parliament when the SDA was enacted suggest that some were worried that a “traditional” private school which wanted to maintain “Christian values”, but was no longer formally associated with a church, would not be protected under s 37 as a “body established for religious purposes”. In any case, the proposal that religious educational institutions receive separate protection from being required to allow same-sex weddings seems a reasonable one.
Conclusion (for now)
This post has already become a bit long; I aim to come back soon in Part 3 to consider the reminder of the recommendations (Recs 13-14, 16-20).