I am pleased to provide today a second response to the Ruddock Report, by way of a “guest” spot from my friend and colleague Dr Alex Deagon, FHEA, Senior Lecturer, Faculty of Law, Queensland University of Technology.
After a delay of more than six months, on 13thDecember 2018 the Prime Minister finally releasedthe Report from the Ruddock Religious Freedom Review Panel along with his Government’s Response to the Review. This post will briefly analyse each recommendation of the Report in conjunction with the Government Response, indicating whether the recommendations and responses are supported or rejected. The post will conclude by discussing two issues the Panel considered which did not result in a recommendation.
Recommendation 1: 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.
This recommendation is cautiously supported, though it will be conditional on the nature of any review. The Panel stated that ‘it could see no justification for these exceptions’, which seems to problematically pre-empt the outcome of any review. Most religious bodies would not wish to discriminate on the basis of any of these attributes, but there are potential situations where they might. For example, a Jewish school may wish to employ only Jewish people, given the important connection between religion and ethnicity in Judaism. Or, a religious school may wish to impose penalties on a student who has had sexual intercourse and become pregnant, contrary to the religious ethos of the school which reserves sexual relations for marriage between a man and a woman. Any review will need to carefully consider how the ability of a faith-based school to uphold a religious ethos will be supported by any changes, as a function of upholding religious freedom. ‘Having regard to community expectations’ is also a vexing qualifier, given community expectations may well be out of step with established religious beliefs and practice. Reasonable accommodation of the religious ethos in a diverse society is a better measure.
The Government Response has undertaken to refer Recommendation 1 to the Australian Law Reform Commission as part of a proposed national review of anti-discrimination exemptions.
Recommendation 2: 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 Rights when drafting laws that would limit the right to freedom of religion.
This recommendation is supported and has been accepted by the Government. The Siracusa Principles are part of an international law framework which specifies how established international human rights are able to be limited by domestic government. In the case of religious freedom, under Article 18of the International Covenant on Civil and Political Rightsreligious individuals and groups have the right to manifest a religion in public or private in worship, observance, practice and teaching. This right can be limited only by ‘such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others’. The Siracusa principles specify that a ‘necessary’ limitation must be based on one of the above grounds, and responds to a pressing public or social need, pursues a legitimate aim, and is proportionate to that aim. Any assessment must be made on objective considerations and a state must not use a more restrictive means than is required for achieving the purpose of the limitation. In short, this sets a high threshold and is a significant burden for any state to meet. Religious freedom cannot be restricted lightly or haphazardly, but can be if necessary. This is a sensible recommendation.
Recommendation 3: 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.
This recommendation is supported and has been accepted by the Government. This is an important recognition because the prevailing view seems to be that the right to religious freedom should always yield to the right to equality. However, there is no hierarchy of human rights. Religious freedom and equality are equal rights in the eyes of international law and when they conflict an appropriate balancing mechanism (such as the Siracusa principles) must be undertaken. This will be a question of fact in many circumstances. An objects clause would clarify that religious freedom should not necessarily be trumped by equality.
Recommendation 4: The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.
This recommendation is supported and has been accepted by the Government. The Panel considered this in the context of charitieslosing their charitable status overseas due to their religious beliefs in, for example, traditional marriage. The Panel was not particularly concerned that this would happen in Australia but did not consider the clarification to be of any harm. The Panel’s lack of concern is arguably unfounded as there seems to be no principled reason why it could not happen here, but this change will assist in ensuring it does not.
Recommendations 5: The Commonwealth should amend the Sex Discrimination Act 1984 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.
This is the first of the so-called provisions ‘to discriminate against gay staff and students’, which has been the subject of intense controversy since the premature leak of the Ruddock Report by the media. Currently, under exemptions to the Sex Discrimination Act, educational institutions established for religious purposes can discriminate against staff 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. Apparently, some people were not aware these exemptions even existed, because the outrage is despite the fact that the Panel recommendation actually narrows the scope of the exemptions. The Panel correctly recognised that the community values choice in education, and it is a fundamental principle of religious freedom that faith-based schools be able to maintain their distinctive religious ethos while providing the public service of education through selecting appropriate staff. This right is recognised in international law and may also have constitutional protection as section 116 indicates a preference for religious liberty over anti-discrimination. The Panel recommends the exemptions be narrowed by requiring that the discrimination be founded in the precepts of the religion, and that a school must have a publicly available policy on the matter which is provided in writing to current and prospective staff. There is a question over how ‘founded in the precepts of the religion’ will be interpreted, and whether this will give secular courts the scope to make theological determinations (to decide whether any discrimination is indeed founded in the precepts of the religion). It may be best to remove that requirement or clarify it to ensure the discrimination is founded in the precepts of the religion as determined in good faith by the school. Nevertheless, the principle of this recommendation is cautiously supported in the optimistic sense that it maintains the fundamental religious freedom right while hopefully defusing tension or surprise from staff being unaware of the school’s policy.
The Government Response was to include this recommendation as part of its reference to the Australian Law Reform Commission.
Recommendation 6: 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.
This recommendation is a more specific and implemented version of Recommendation 1, and similar concerns to the ones stated there apply. One difference is the inclusion of the notion that discrimination solely on the basis of entering a marriage is not allowed. The discussion in the Report specifies that this is in the particular instance of an existing employee marrying someone of the same sex. The Panel indicated that in its view, there is no distinction between a same-sex partnership and a same-sex marriage, nor is there any distinction between a different-sex partnership and a different-sex marriage. With respect, the Panel’s reasoning here is confusing. First, if a religious school has the position that an employee of the school would undermine the religious ethos of the school by entering into a same-sex marriage, there are all kinds of potential reasons why a religious school may want to take action on this basis. The employee may have been quietly single and then decide to enter into a same-sex marriage. The employee may have been in a long-term same-sex partnership without making it obviously public, but the very nature of a marriage ceremony is public celebration of a union. Second, the example of a different-sex marriage seems misplaced. Religious schools who disagree with same-sex relations and same-sex marriage may consistently have a different attitude to different-sex relations because according to some religious precepts the relations are categorically different. Accordingly, this recommendation as it stands is rejected because it may unduly infringe on the religious freedom of schools to employ staff who will uphold the religious ethos of the school by their conduct.
The Government Response was to include this recommendation as part of its reference to the Australian Law Reform Commission.
Recommendation 7: 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.
This recommendation is similar to Recommendation 5 and the same analysis applies, with the obvious caveat that the issue here will be upholding the religious ethos of the school through regulation of the student body. This was the most controversial of the recommendations, with advocatesclaiming that the current exemptions and this recommendation are unduly discriminatory, damaging, and should be removed. Religious schools, while making it clearthat they did not ‘expel students for being gay’, desired equivalent protection to ensure students could not undermine the ethos of the school. For example, a school may need to take action against a student who brings a same-sex partner to a school event contrary to the school policy. Given both religious schools and LGBT advocates seem reluctant to maintain these exemptions in their current form, one other option is to remove the exemptions completely and in their place pass a positive right for religious educational institutions to enforce generally applicable procedures and rules with regard to student advocacy, behaviour, conduct, dress etc., in good faith, as considered to be in the best interest of students according to the religious educational institution (or the exemptions could be amended to this effect). As just alluded to, the other main difference is that the school must have regard to the best interests of the child as its primary consideration. While this is commendable and schools already do this, as with Recommendation 5 it may be a problem if a secular court is given the scope to determine the ‘best interests of the child’, especially if the particular school conduct in question is inconsistent with community values. A better approach would be to clarify that the school determines the best interests of the child in good faith according to its understanding of the relevant religious doctrine.
There are too many potential issues for this recommendation to be supported in its current form.
The Government response, after a well-documented furorein Parliament and unsuccessful wrangling over potential amendments, has included this recommendation as part of its reference to the Australian Law Reform Commission.
Recommendation 8: 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.
The analysis from Recommendations 1 and 5-7 also applies here. The principles undergirding this recommendation are cautiously supported if there are equivalent protections made available for schools.
The Government Response was to include this recommendation as part of its reference to the Australian Law Reform Commission.
Recommendation 9: 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.
This recommendation is cautiously supported. The Panel noted concerns that children in schools may be subject to class content which conflicts with the religious convictions of the parent. International lawprotects the liberty of parents to educate their children in conformity with their religious convictions. However, the Panel also noted that the rights of the child to education generally and about sexual health particularly should be considered in conjunction with an acknowledgement of the child’s developing capacity for independent decision-making. Hence the recommendation encourages education departments to balance these considerations when making clear policies about parent removal of children from particular classes. This recommendation acknowledges the importance of parental authority in the education of children, though in general this recommendation could be seen as according the state too much authority to intervene.
The Government has accepted this recommendation in principle, but is of the view that there should be nationally consistent guidelines for state departments to follow, with the Minister for Education to take the lead.
Recommendation 10: 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.
The Panel indicated there was a lack of clarity and understanding around the different categories of authorised celebrants and the extent of their religious freedom to refuse to solemnise marriages, and this recommendation is designed to resolve that. The recommendation itself is therefore supported, but as I will discuss in more detail below there are problems with the Panel’s dismissal of the religious freedom of civil celebrants.
The Government Response helpfully outlines the different categories of authorised celebrants, and notes that this recommendation has already been implemented through the Attorney-General’s release of Guidelines for marriage celebrants. Thus, obviously, the Government has accepted this recommendation.
Recommendation 11: 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.
This recommendation is supported and has been accepted by the Government. Similar to the above, the Panel noted some concerns that the Code of Practice could be taken to require ministers from smaller or emerging religious bodies to agree to a form of ceremony requested by a couple, even if that does not align with the religious body. This recommendation is sensible to ensure the religious freedom of smaller bodies is not compromised.
Recommendation 12: 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
Is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
This recommendation is supported and has been accepted by the Government. This recommendation makes it clear that the protectionsalready present in the Marriage Actfor religious bodies to refuse to supply facilities and offer services if they have religious objections to same-sex marriage does extend to religious schools as well. The recommendation is therefore a sensible clarification designed to uphold the religious freedom of faith-based schools.
Recommendation 13: Those jurisdictions that have not abolished statutory or common law offences of blasphemy should do so.
This recommendation is supported. As the Panel persuasively articulates, blasphemy laws in general undermine robust and genuine democratic dialogue between different belief systems, and restrict freedom of speech, expression and religion through the threat of legal sanction for speech which is deemed to be offensive. Part of living in a pluralistic democracy with diverse views is accepting that people have different views, and that some views may be incompatible with or even offensive to others. As a society we must adopt principles of civility and respect for different perspectives rather than simply removing them. It is plausible that Australian blasphemy laws in particular may only apply to the Anglican church, and in that sense they are also discriminatory. Therefore they should be abolished.
The Government accepted this recommendation in principle, noting that blasphemy is not an offence under Commonwealth law and it would work with the relevant State and Territory jurisdictions to implement the recommendation.
Recommendation 14: References to blasphemy in the Shipping Registration Regulations 1981, and in state and territory primary and secondary legislation, should be repealed or replaced with terms applicable not only to religion.
See comment on Recommendation 13. The Government also accepts this recommendation as it pertains to the Commonwealth.
Recommendation 15: The Commonwealth should amend the Racial Discrimination Act 1975, 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.
This recommendation is supported. 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). Despite the Panel acknowledging that a more general and comprehensive Religious Freedom Act would ‘send a positive message to all Australians as to the importance of the human right’ to religious freedom, they did not support passing such an Act as this would be ‘out of step with the treatment of other rights’. The Panel did express support for some of the measures that could have been included in the Act, such as protection against discrimination on the basis of religious belief and activity, and regard to the Siracusa principles. This led them to recommending a Religious Discrimination Act in the alternative. This is an adequate and cautious, if not ideal, approach. The Panel also stated that any Religious Freedom Act would need to be ‘carefully crafted’ to ‘reconcile [religious freedom] with the full suite of other human rights’, which seems to make cryptic reference to something like a Bill of Rights. Given the well-established objectionsto an Australian Bill of Rights, perhaps the eventual recommendation is a reasonable compromise.
It is worth mentioning the qualifications in the recommendation. First, protection for religious belief includes non-religious belief. This is a logical outworking of the substantial scholarship in international law and religion studies which indicates non-religious people should be treated the same as religious people in the context of anti-discrimination protection for the attributeof belief. This is different from saying that non-religious belief is equivalent to religious belief, which is much more contested.
The addition of consideration for appropriate exemptions is important. As alluded to above, for example, religious schools may want to ‘discriminate’ in the employment of staff by specifically choosing staff who are able to uphold the religious ethos of the school by having the requisite beliefs. It would be difficult to imagine an atheist being able to consistently and genuinely uphold the ethos of a Christian school.
The Government Response accepted this recommendation, stating it would enact a Religious Discrimination Act. The Response explicitly stated that the Religious Discrimination Act would not contain any equivalent to s 18Cof 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. Again, this is a very good outcome.
Recommendation 16: New South Wales and South Australia should amend their anti-discrimination laws 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 the appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
This recommendation is supported and the analysis of Recommendation 15 also applies here. Protection against religious discrimination would be nationally consistent under these two recommendations. The Government accepted this recommendation in principle, indicating it would work with the state governments to implement it.
Recommendation 17: The Commonwealth should commission the collection and analysis of quantitative and qualitative information on the experience of freedom of religion in Australia at the community level, including:
Incidents of physical violence, including threats of violence, linked to a person’s faith
Harassment, intimidation or verbal abuse directed at those of faith
Forms of discrimination based on religion and suffered by those of faith
Unreasonable restrictions on the ability of people to express, manifest or change their faith
Restrictions on the ability of people to educate their children in a manner consistent with their faith
The experience of freedom of religion impacting on other human rights
The extent to which religious diversity (as distinct from cultural diversity)
is accepted and promoted in Australian society
This recommendation is supported. The Panel insightfully identified a research gap in understanding the extent and type of religious discrimination amongst different faith groups, and the kinds of harms and impact this has. Such research will fill this gap and better inform Government policy on protecting religion.
The Government accepted this recommendation and indicated that it would be undertaken by the newly established Freedom of Religion Commissioner (more on that under Recommendation 19).
Recommendation 18: The Commonwealth should support the development of a religious engagement and public education program about human rights and religion in Australia, the importance of the right to freedom of religion and belief, and the current protections for religious freedom in Australian and international law. As a first step, the panel recommends that the Attorney-General should ask the Parliamentary Joint Committee on Human Rights to inquire into and report on how best to enhance engagement, education and awareness about these issues.
This recommendation is supported. Again, the Panel identified that there is a lack of understanding of religion, religious issues, and relevant legal and human rights amongst the Australian population. Despite the relative lack of publicity this has received, improved education and engagement 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 lackof 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.
The Government accepted this recommendation in principle, and indicated this would be led and developed by the Freedom of Religion Commissioner (see discussion under Recommendation 19).
Recommendation 19: The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.
This recommendation is cautiously supported for the reasons stated above. However, as the recommendation indicates, 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. With respect, this seems incongruent in light of the fact that a Religious Discrimination Act brings protection for religion on the same level as protection for race and sex discrimination, for which specific commissionersexist within the Human Rights Commission. Relatedly, specific commissioners also exist for age and disability discrimination. Given the unique issues raised by religious discrimination, a more consistent approach would be to have a religious freedom commissioner sitting alongside the other commissioners in the Human Rights Commission.
The Government agreed, accepting the Panel recommendation in principle but stating that the specific statutory role of ‘Freedom of Religion Commissioner’ would be established ‘to strengthen the protection of freedom of religion in Australia’. This is positive in principle but the appointment of the Commissioner will be particularly significant. Qualifications, expertise, and political and religious inclinations of the appointed person are critical factors and could have considerable impact on the extent to which the Commissioner protects religious freedom.
Recommendation 20: The Prime Minister and the Commonwealth Attorney-General should take leadership of the issues identified in this report with respect to the Commonwealth, and work with the states and territories to ensure its implementation. While the panel hopes it would not be necessary, consideration should be given to further Commonwealth legislative solutions if required.
This recommendation is supported and accepted by the Government. It has virtually been implemented through the procedures identified in the Government Response.
Further issues considered by the Panel
The religious freedom of vendors to refuse services related to a same-sex marriage
The Panel rejected legal protection 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 extensivelyin 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 objectionsto 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. The Panel acknowledged this distinction but did not give it sufficient weight, particularly bearing in mind the litigationof this issue in other jurisdictions and the devastating effectlitigation can have on the religious vendor. Somewhat oddly, the Panel did recommend (Recommendation 12) that religious schools should not be required to provide facilities or services for a marriage where they have a religious objection. 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.
Religious Freedom of civil celebrants to not solemnise same-sex marriages
The Panel also rejected religious freedom protections for civil celebrants to refuse to solemnise a same-sex marriage. Under the newly amended Marriage Act, authorised celebrants who are ministers of religion, or ‘religious marriage celebrants’ who registered as such under a transitional provision, are able to refuse to solemnise any marriage which they have a religious objection to. However, any ‘civil celebrant’ who does not fall into the above categories does not have that protection available. In the Panel’s view, it is not ‘appropriate that civil celebrants who are not ministers of religion should be entitled to decline to solemnise same-sex marriages if they became celebrants after same-sex marriage was legalised or chose not to avail themselves of the transitional provision’. This is not a requirement to ‘ensure the free and full enjoyment of Australians’ right to freedom of religion under international law’. While the Panel recognised the transitional provision was designed to take into account religious freedom concerns raised during the same-sex marriage debate, the Panel justified their view as follows:
‘However, as civil celebrants are performing a civil, rather than religious, function, the Panel does not consider there to be a sufficient nexus between the solemnisation of marriages by civil celebrants and the right to religious freedom under international law. As a result, the 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 predated the Marriage Amendment Act and they chose to register as a religious marriage celebrant.’
With the greatest of respect to the Panel, this argument is problematic. It hinges upon two related claims. First, civil celebrants are performing a civil, rather than religious, function. Second, and consequently, there is not a sufficient nexus between the solemnisation of marriages by civil celebrants and the right to religious freedom under international law. The Panel acknowledged the submissions from stakeholders that ‘no person, including civil celebrants, should have to solemnise a same-sex marriage if they do not want to, for either religious or personal reasons. A person who has a “traditional” view of marriage, whether based in religion or not, should be free to refuse to marry a same-sex couple.’ The Panel further acknowledged that the ‘transitional provision reflects the fact that those celebrants agreed to solemnise marriages before same-sex marriage was legalised, and may have personal religious beliefs which prevent them from solemnising such marriages.’
Turning to the first claim, it is not obvious that civil celebrants are merely performing a civil function by solemnising a marriage. It is certain that they are performing a civil function, but this does not exclude the possibility that the function is also religious. As the Panel noted, many civil celebrants are religious, have religious beliefs about marriage, and may in fact, in their view, be performing a religious function. This is no different from the religious marriage celebrant or the minister of religion with religious beliefs about marriage performing a function (solemnising a marriage) which, in their view, is simultaneously civil and religious. If the minister of religion and the religious marriage celebrant is entitled to the protection as a matter of principle, why not the civil celebrant? The only difference between them is the legislative category, not the function they are performing. And if the celebrant is not a minister of religion and wishes to register as an authorised celebrant after the expiration of the transitional provision, they have no other option but to register as a civil celebrant. Therefore, as the civil celebrant is in fact performing the same function (civil and religious) as the religious marriage celebrant or the minister of religion, they should be afforded the same religious freedom protections. One obvious option would be to simply make the religious marriage celebrant a permanent category.
Challenging the first claim by the Panel naturally undermines the strength of their second claim, and the argument is similar. The Panel clearly assumes there is a sufficient nexus between the solemnisation of marriages by ministers of religion and the right to religious freedom under international law such that protection for ministers of religion is appropriate. Why not extend this protection to civil celebrants? Ministers of religion are not necessarily any more ‘religious’ than civil celebrants and so it is not as if they are more worthy of protection. It is just a formal title. The international lawdoes not distinguish between ministers of religion and ordinary citizens in these terms. Ministers of religion and civil celebrants are performing the same function. International law protects ‘everyone’s’ freedom to manifest their religion, and if ministers of religion are entitled to protection, so civil celebrants should be given protection which enables them to refuse to solemnise marriages which they have religious objections to.
Despite these objections and the problems identified above, the Ruddock Report was a worthwhile exercise. It is a detailed consideration of important issues and it provides a number of positive steps which can be built upon to better protect freedom of religion in Australia.