Religious Freedom and the Ruddock Review

By Eric Martin, 18 July 2019
Image: Pixabay.


The long awaited Religious Freedom Review, chaired by Philip Ruddock, was released at the close of last year and its findings and recommendations are being welcomed by the majority of Australian religious leaders and communities, including the Catholic Church.

“The major political parties have expressed their support for freedom of religion to be adequately addressed in Australian law, and we look forward to them making good on their commitments,” said Archbishop Comensoli, the Australian Catholic Bishops Conference spokesman on religious freedom.

“We look forward to engaging with each of the parties to discuss the report’s recommendations and come to an acceptable way forward.”

Twenty recommendations were submitted to the Australian Government for examination based on the findings of the Religious Freedom Review.

The Review Panel found that Australians enjoy a high degree of religious freedom and that basic protections are in place in Australian law, found in the Australian Constitution and in Commonwealth, State and Territory laws.

In the absence of any specific law dealing with freedom of religion, the review noted the key role of legal ‘exceptions’ to discrimination laws in the protection of religious freedom.

It also found that the right to freedom of religion or belief is mutually supportive of a range of other rights, which collectively are essential to the proper functioning of Australia’s democracy.

The Review considered opportunities to improve protection of religious freedom through reforms such as legislating a Commonwealth Human Rights Act; developing a Religious Freedom Act; and replacing the current framework of exceptions to anti-discrimination law with a general limitations clause.

A total of 15,620 submissions were received which included approximately 2,500 substantially similar proposals.

These were usually provided by individuals, drawing on text provided by an advocacy group, and ranged from being completely identical to subtle variations on a template document.

Of these, 198 submissions were from organisations and a further 57 submissions from academics and individuals with a public professional profile.

Many included extensive detail supporting their arguments and came from a broad mix of stakeholders, including religious organisations, legal and academic institutions, secular and humanist groups and a wide range of advocacy and interest groups, including a number of LGBTI groups.

In total, the Review Panel held 90 meetings, with 152 organisations and 32 individuals.

The range of groups consulted included:

  • Human rights institutions
  • 74 religious groups
  • 7 secular and humanist groups
  • 24 LGBTI groups
  • 13 education providers
  • 21 academics.

The Australian Catholic Bishops Conference (ACBC) presented a submission to the review panel on behalf of the Catholic Church in February 2018, calling for religious freedom to be enshrined in Australian law and recognised as a right, rather than an exception or an exemption.

Then Broken Bay Bishop, Peter Comensoli, joined by a group of lay Catholic leaders with expertise in health, education and law, represented the ACBC.

Their submission also called for allowing Churches to determine the use of their premises for purposes that are not contrary to Catholic beliefs, the expression of religious choice in one’s professional life and the protection for persons not to perform a duty at work to which they conscientiously object.

The first tasks facing the Review Panel was to review the international legal framework of treaties and covenants that Australia is committed to upholding – the human right to freedom of thought, conscience, and religion is a right recognised in international human rights law.

International law has been influential in shaping broader understandings of, and approaches to, freedom of religion or belief.

International human rights law derives mostly from multilateral human rights treaties, which are legally binding on the states that are party to them and determining questions of international human rights law involves the interpretation and application of those treaties.

For example, Australia is a party to the International Covenant on Civil and Political Rights (the ICCPR or Covenant), which recognises the right to freedom of thought, conscience and religion in article 18.

Accordingly, as a party to the ICCPR, Australia has an obligation to ‘respect’ the rights secured by the Covenant and to ‘ensure’ those rights to individuals within Australia’s territory and to do so in a non-discriminatory manner.

Australia is also a party to the Convention on the Rights of the Child (CROC) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), both of which also recognises the right to freedom of thought, conscience and religion and obliges parties (including Australia) to guarantee the right of everyone to equality before the law.

The second factor for consideration by the Review Panel was to produce an accurate, holistic definition of religion or belief that best suits the Australian context.

For example, The Human Rights Committee says that article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.

The Religious Freedom Review then focused on the adequacy of Australian laws in protecting:

  • Freedom of thought, conscience or religion, including freedom from coercion
  • The freedom to manifest religion or belief
  • The liberty of parents and legal guardians to ensure the moral and religious education of their children
  • Freedom from discrimination in the enjoyment of the right, and
  • The obligation to prohibit religious vilification.

Australian courts have taken an inclusive approach to defining religion.

In general, Australian courts hold that, religion has two aspects – first, belief in a supernatural Being, Thing or Principle, and second, canons or rules of conduct that support and demonstrate belief.

The fourth aspect examined by the Review Panel was how religious belief is manifested in actual practice, and how that ‘living out’ of one’s faith may affect other rights, such as anti-discrimination.

For example, a number of stakeholders suggested to the Panel that people of faith should be able to refuse to provide goods and services if doing so would be contrary to their personal religious beliefs.

Some submissions cited high-profile cases in other countries in which service providers have been the subject of legal proceedings as a result of their refusal to provide services for same-sex marriages.

The fourth area of investigation was the vital role that faith-based organisations play in providing social services to the Australian community.

They assist the needy, provide hospitals and aged-care facilities, provide homecare and company to the elderly, run schools and universities and provide humanitarian assistance in times of natural disaster.

Two key issues were the receipt of public funding and an organisation’s ability to maintain their legal charitable status while manifesting their faith.

A number of organisations were concerned that public funding to religious organisations providing services, such as education or healthcare, may be tied to undertaking activities, or giving up exceptions from anti-discrimination law, and this might conflict with their religious views.

The Panel also heard from stakeholders who argued that religious bodies should not receive any public funding and should not be eligible to provide government-funded services, regardless of whether or not they discriminate.

A number of charities expressed concern that they may lose their charitable status should they continue to support a ‘traditional’ view of marriage.

The fifth item of investigation was the right of parents to ensure the moral and religious education of their children – religious schools from different faiths and denominations operate throughout Australia.

Many religious schools strive to create an environment that accords with the values and beliefs of their faith, and that this was critical to the achievement of their religious purpose and was the reason for their existence in the first place.

Religious schools currently benefit from exceptions to discrimination law with respect to the employment of teachers or other staff in throughout Australia, however, there is considerable variation between the states.

It was generally held that schools should be free to select staff that adhere to and model their beliefs – where the position involves religious education or responsibility for the overall culture of the school, such as principals.

According to Commonwealth law, in the Fair Work Act, employers, including religious schools, are prohibited from terminating employees on the basis of a variety of protected attributes.

Religious institutions however, are exempt from this requirement if the action meets the ‘good faith’ and ‘religious susceptibilities’ tests in section 351 of the Act.

Similarly, the Review Panel examined the potential of religious schools to discriminate against students whose lifestyles or sexual orientations may be counter to the school’s ethos.

It was widely accepted that though this may be allowed in some situations, it would be almost impossible to legislate due to its direct conflict with aspects of the various international treaties and covenants to which Australia is party.

Responding to the findings of the Religious Freedom Review, the Australian Government stated that it, “accepts either directly or in principle 15 of the 20 recommendations and, while agreeing with the principles underpinning the remaining five recommendations, is of the view that further consideration is necessary to address the complexities associated with those recommendations.”

Government implementation of the recommendations of the Religious Freedom Review falls into three categories:

  • Fourteen recommendations to be implemented as soon as practicable (being recommendations 2 to 4, 9 to 14 and 16 to 20);
  • One recommendation to be implemented following consultation to seek bipartisan support for the Religious Discrimination Bill (being recommendation 15); and
  • Five recommendations which require further consideration (being recommendation 1 and recommendations 5 to 8) which will be referred to the Law Council of Australia.

In relation to the first and second categories of recommendations set out above, the Australian Government intends to:

  • Develop a General Amendment Bill for introduction to Parliament containing amendments to existing Commonwealth legislation relating to freedom of religion, including amendments to marriage law, charities law and objects clauses in existing anti-discrimination legislation.
  • Develop a Religious Discrimination Bill to provide comprehensive protection against discrimination based on religious belief or activity.
  • Establish the position of Freedom of Religion Commissioner at the Australian Human Rights Commission.

These moves have been welcomed by legal and political commentators but concerns were still expressed around the issue of potential discrimination by religious schools against students whose lifestyles do not conform to the school’s ethos.

“A Religious Discrimination Act presents opportunities to consolidate and perhaps strengthen the protections against discrimination and vilification on the basis of religion at the federal level,” said Law Council of Australia President, Morry Bailes.

Mr Bailes said the Law Council was extremely concerned that the question of whether LGBTI+ students could be discriminated against has been referred for further review.

“Children should not be discriminated against, period,” Mr Bailes said.

“Questions around the employment of teachers are more complex and are more appropriate to be reviewed by the ALRC, but any discrimination against children cannot be countenanced.”

Mr Bailes said the Law Council will need to see the detail before reaching a final position on any draft legislation.

Republished with permission from Issue 19 (June 2019) of The Record Magazine.


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