Labor and the Coalition – Responses on Religious Freedom

Freedom for Faith

May 7, 2019

Executive Summary

Freedom for Faith asked both the major parties seven key questions on religious freedom. It also sought the views of minor parties, but they chose not to respond.

1. Are there any recommendations of the Ruddock report that your Party will not bring forward to Parliament, or otherwise support in Parliament after this election?

The Coalition has accepted 10 of the 20 Recommendations of the Ruddock Review, accepted a further 5 in principle and referred another 5 for further consultation and legal advice.

Labor has not committed to implement any of the recommendations of the Ruddock Panel. It has not specifically rejected any of those recommendations, other than in relation to school students.

2. Does your Party support the appointment of a Religious Freedom Commissioner?

The Coalition supports the appointment but has yet to do anything to implement it.

Labor will not oppose a Religious Freedom Commissioner, but nor will it appoint one.

3. Does your Party affirm the right of faith-based educational institutions to teach students and to set codes of conduct for the students during school activities in accordance with the institution’s values and beliefs?

The Coalition’s policy is to remove provisions that allow for discrimination against students. It supports the right of religious educational institutions to teach and maintain rules consistent with their faith.

4. Does your Party support the right of religious organisations, including faith-based schools, to employ staff who adhere to the beliefs of the religious organisation and/or commit to abide by a code of conduct required by the organisation as a condition of their employment?

The Coalition largely avoided the question and has referred the issues off to the Australian Law Reform Commission. It did not specifically endorse the right of faith-based organisations to select staff, or prefer to choose staff, who share the religious faith that motivates the organisation.

Labor did not respond to the first part of this question. Labor does support the right of schools to insist that their staff do not deliberately and wilfully behave contrary to the values of the school. Labor also believes teachers and other staff of religious schools should be protected from discrimination on the basis of gender, sexuality and other attributes covered by the Sex Discrimination Act.

5. Does your Party support the enactment of a federal Religious Freedom Act (or similar) that will give effect to Australia’s obligations under Article 18 of the International Covenant of Civil and Political Rights and override state and territory laws to the extent of any inconsistency with those obligations?

Neither party answered this question properly and instead referenced a commitment to protect against discrimination. Article 18 of the International Covenant on Civil and Political Rights requires governments to provide positive protections for freedom of belief and conscience, subject to limitations. This is much broader than simply providing protection from discrimination.

6. Does your Party propose or support any changes to the charitable or taxation status of religious organisations or ministers of religion? If so, what changes does the Party propose?

Both major parties support the retention of the current laws on charitable and taxation status.

7. Does your Party support the enactment of provisions protecting freedom of conscience for all health professionals in relation to such matters as abortion, euthanasia and infertility treatment?

The Coalition did not respond specifically to this question, saying it was a matter for the states and territories.

To see the Liberal Party’s full response to Freedom for Faith’s quesions click here

To see the Labor Party’s full response to Freedom for Faith’s quesions click here

Labor and the Coalition – responses on religious freedom: a commentary

Introduction

This is an important election. In the last five years or so, there has been a significant public focus on issues concerning freedom of religion in Australia. From one viewpoint, the issues are almost all about discrimination – religious organisations should not be able to discriminate against same-sex attracted people or those experiencing gender identity issues.

On the other side are those who express concern that they are losing their rights to freedom of speech, religion and conscience when it comes to matters concerning sex, marriage and family life. They want to be free still to hold onto their religious values on such issues as same-sex marriage and to teach those values to their children, at least in the context of faith communities and faith-based schools.

The Ruddock Review is the latest inquiry to consider these issues. Its recommendations were, for the most part, very modest, tweaking the law at the margins and recommending no significant new ways of addressing issues of how to balance freedom of religion with other rights. Neither major political party accepted the Panel’s recommendations when it came to the application of the Sex Discrimination Act 1984 to religious schools. Nor could they agree on how to change the law. The debate on this is discussed here.

What then are their positions going into this election? Freedom for Faith asked both the major parties for their views. It also sought the views of minor parties, but they chose not to respond.

On the Ruddock recommendations

We asked what recommendations each Party did not accept. The Coalition, unsurprisingly, referred to its official response to the Ruddock recommendations, released on December 13 2018. It decided to refer the contentious issues concerning faith-based schools to yet another inquiry, this time by the Australian Law Reform Commission, which will have a year to report. It has asked the Attorney-General’s Department to develop legislation to implement the remaining recommendations of the Ruddock Review (insofar as the Commonwealth can legislate in these areas).

Labor prefaced its response by saying that it is open to a conversation about whether religious freedom can be strengthened in Australia, and accepts the need for constant vigilance to ensure that the protection of difference in respect of belief or faith is maintained. As far as the actual recommendations were concerned, Labor did not commit to implementing any of them. It did commit to further consultation if it chose to legislate with respect to any of those recommendations.

A Religious Freedom Commissioner

Freedom for Faith made a detailed proposal for the establishment of the office of Religious Freedom Commissioner. The Coalition accepted this recommendation but has yet to do anything to implement it. Labor said in its response that it has no objection to such an appointment, but Mark Dreyfus, the Shadow Attorney-General, has indicated he will not appoint one. Labor is committed to having a new commissioner on LBGT issues.

Students in faith-based schools

We asked whether each Party affirms the right of faith-based institutions to teach students and to set codes of conduct in accordance with its values and beliefs.

Labor indicated that students should be protected from discrimination on the basis of gender, sexuality and other attributes. On the other hand, it has no plans to change the law that allows educational institutions to impose reasonable conditions, requirements or practices in accordance with religious doctrines or beliefs. What that means is that it might be up to the courts to determine what is reasonable in any given instance. However, it is not clear that its proposals in this respect will provide sufficient protection for religious schools to maintain their right to teach students in accordance with their beliefs.

The Coalition’s policy is that provisions that allow for discrimination against students should be removed while protecting the right of religious educational institutions to teach and maintain rules consistent with their faith. In its response to Freedom for Faith, the Coalition has been more explicit about the need to legislate in a way that reaffirms the right of schools to teach and maintain rules consistent with their faith.

Employees in faith-based schools and other religious organisations

We asked whether each Party affirms the right of faith-based institutions, including schools, to employ staff who adhere to the beliefs of the organisation and/or commit to abide by a code of conduct required by it.

The Coalition largely avoided the question. It believes that religious organisations should be able to conduct themselves in a manner consistent with their ethos while also believing that discrimination based upon a person’s identity should be limited or removed. It sees a tension between these two objectives, and has referred the issues off to the Australian Law Reform Commission.

Labor did not respond to the first part of this question. It is not clear therefore, whether it supports the right of a Christian school, for example, to select staff on the basis not only of their competence in teaching maths or science, but also taking into account whether they are committed Christians. Many faith-based schools have a strong preference for all staff to be committed believers, so that the school is not merely a place of learning but a faith community in which staff set an example by the way they live out their faith.

On the issue of conduct, Labor does support the right of religious organisations to require staff to abide by its values. It quotes Deputy Leader Tanya Plibersek to the effect that schools should be able to insist that their staff do not deliberately and wilfully behave contrary to the values of the school.

A Religious Freedom Act

The Commonwealth has a responsibility to ensure that its international commitments to freedom of religion are maintained not only by the Commonwealth Parliament but also by the States and Territories. We asked whether each Party would support legislation giving effect to Australia’s obligations under Article 18 of the International Covenant on Civil and Political Rights.

Labor did not respond specifically to this, other than to say in very general terms that it would consult further on providing protections against discrimination while respecting people’s beliefs.

The Coalition referred only to its intention to introduce a Religious Discrimination Bill. While this is welcome, it is quite different. In most States and Territories, it is already unlawful to discriminate on the basis of religious belief. It is also unlawful under the Commonwealth’s Fair Work Act. Article 18 of the International Covenant on Civil and Political Rights requires governments to provide positive protections for freedom of belief and conscience, subject to limitations. This is much broader than simply providing protection from discrimination.

The charitable and taxation status of religious organisations and ministers of religion

Neither Labor nor the Coalition proposes any changes to the charitable status or taxation of religious organisations. The Coalition, in its response to the Ruddock Panel recommendations, accepts that there should be changes to the Charities Act to make clear that religious organisations who adhere to the traditional view of marriage will not lose their charitable status. Since Labor has not accepted any recommendations of the Ruddock Panel, its position on this is unclear.

Freedom of conscience for health professionals

We asked whether the Party would support the enactment of provisions protecting freedom of conscience for all health professionals in relation to abortion, euthanasia and infertility treatment.

The Coalition did not respond specifically to this question, saying it was a matter for the states and territories.

Labor indicated that it supports freedom of conscience in relation to abortion and euthanasia, provided that the health professional refers the patient to someone who will provide that service. Labor did not respond to the question of whether fertility specialists should have the same right to an ethical objection in relation to the provision of IVF and similar services as doctors do for other health services. That is a surprising omission. If it is accepted that health professionals should be able to refuse to perform some services on ethical or religious grounds, why not also fertility treatment?

Conclusion

Readers can and should determine for themselves which major Party has given the more satisfactory responses to our questionnaire. In reading the responses of the major parties, it is important to pay particular attention to the questions they do not answer. It is also important to consider how they respond to other organisations with different perspectives.

On the positive side, both major parties support the retention of the current laws on charitable and taxation status. The Coalition proposes a Religious Freedom Commissioner and Labor does not object to this.

Both parties are opposed to discrimination, and so it is likely that both will want to amend the law to remove exemptions that allow for discrimination in some circumstances where currently freedom of belief is protected in relation to those matters. Both express some support for allowing faith-based organisations, such as religious schools, to preserve their ethos, but it is not all that clear how in practice, each Party would wish to legislate to do so. The debates towards the end of 2018 on amendments to the Sex Discrimination Act 1984 are the best indication of the current thinking of the major parties on these issues. The Coalition was much more responsive to the concerns of faith-based schools in this respect. However, in its response to Freedom for Faith it did not specifically endorse the right of faith-based organisations to select staff, or prefer to choose staff, who share the religious faith that motivates the organisation. Nor did Labor.

Neither side of politics seems prepared to enact legislation to give effect to Australia’s commitments under Article 18 of the International Covenant on Civil and Political Rights even to override State and Territory Parliaments that have enacted legislation that is inconsistent with those rights.

Labor has affirmed specifically its support for freedom of conscience for health professionals in relation to abortion and euthanasia, but was silent in its response about fertility treatment. The Coalition did not express a view on these matters, seeing it as a question for the States and Territories. That is disappointing. It must be remembered that the Commonwealth has considerable powers in relation to health services because it funds so much of the health sector. It could insist on certain policies concerning freedom of conscience for health professionals as a condition of funding the States and Territories in this area.

Perhaps the most significant difference between the parties is that Labor has not committed to implement any of the recommendations of the Ruddock Panel. It has not specifically rejected any of those recommendations, other than in relation to school students; but it does not appear to be taking any policies to this election that buttress or support freedom for faith. It has indicated support for freedom of religion in general terms and expresses openness to a conversation about how the law could be strengthened to support religious freedom. The Coalition has made a few small commitments based upon the Ruddock recommendations, but referred the most difficult issues to the Australian Law Reform Commission.

The failure of the minor parties to respond to this survey is surprising, for many religious voters are likely to be looking closely at the views of prospective senators on these issues. The Senate fulfils an important role in blocking legislation that does not adequately reflect the range of community values in a multicultural society. Choice of senators is therefore of particular importance.

Freedom for Faith, May 2019

Authorised by Prof. Patrick Parkinson AM, Chairperson.