Religious Freedom After Ruddock

With the federal election campaign just around the corner, it would be understandable if people of faith were confused about the stance the major political parties take on religious issues, particularly given the differing responses of these parties to the Ruddock Report on religious freedom, which was completed in May 2018.

The expulsion “emergency”

In October 2018, many weeks before the Government finally released the Ruddock Report, Fairfax Media published leaked recommendations from the Report that made it sound as if the expert panel was recommending that religious schools should have the right to expel gay and lesbian students. When it turned out that this was already the law, the Greens and Labor rushed to have Bills drafted that would remove such a legal right.

Both Bill Shorten and Senator Penny Wong made it sound as if it was such a dire emergency that legislation just had to be enacted before Christmas. Only if Labor came to the rescue immediately would thousands of same-sex attracted students be protected from imminent expulsion by Christian, Jewish or Muslim schools. Labor leaders vented their indignation that such a law could exist in our time. No one on the Labor-side of politics seemed prepared to acknowledge that the so-called “right to expel gay students” was in fact introduced by the last Labor Government in 2013.

No one, furthermore, cited any examples in the last two decades of same-sex attracted students who had been expelled from faith-based schools on the basis of their sexual orientation. Christian school principals, distressed by these attacks, endeavoured to explain to their school communities that they had never sought the right to expel such students and would never do so. Christian schools typically provide exemplary pastoral care to all students. The schools just wanted the right to preserve their ethos and values, particularly in terms of employment of staff.

The expulsion “emergency” had all the marks of a beat-up of one part of the Australian community in order to win the votes of another part.

What was the Coalition’s position on all this? The Government announced, before either releasing or responding to the Ruddock Report, that it would remove the possibility that LGBTQ students could be expelled; but it did not say at that time whether it would do anything positive in terms of protecting religious freedom in response to the recommendations contained in the Ruddock Report. It continued to keep the report from the public for another couple of months, despite the expert panel’s recommendations being widely discussed in the media.

The Opposition and the Greens seized the initiative by introducing Bills into Parliament to amend the Sex Discrimination Act 1984 to protect LGBTQ students (and teachers, in the Greens Bill). The Government moved sensible and moderate amendments to Labor’s Bill after consultation with the Christian schools sector. The Opposition flatly rejected these, citing Mark Gibian SC’s extraordinary interpretation of a couple of proposed amendments that was clearly contrary to the intentions of Parliament as expressed on all sides:

The outcome was stalemate in the Parliament. Even Father Frank Brennan was unable to mediate between the warring parties, both of which agreed on the same policy (even though it was not recommended by Ruddock). The Prime Minister announced in December that he would refer the issue to the Australian Law Reform Commission, in consultation with other parties and the States and Territories, but that reference has yet to occur. With the end of this Parliament imminent, it is unclear whether the Government still intends to do so.

So for now, Labor’s 2013 law that allows faith-based schools to discriminate against same-sex attracted students remains. Neither Government nor Opposition sought to revisit the issue when Parliament returned in the new year. The emergency of ensuring that faith-based schools did not expel LGBTQ students proved to be just as serious a problem as the caravans of migrants threatening to overwhelm the southern borders of Trump’s America.

By their fruits …

Both major parties are keen to say they support religious freedom, but it is less than clear what they mean by that. On the one hand, Labor’s only response to the Ruddock Report seems to have been to grandstand over the purported plight of same-sex attracted students on the verge of expulsion from their faith-based schools; on the other hand, senior Coalition figures, including the Prime Minister, have repeatedly declared their strong commitment to shoring up religious freedom, and the right of faith-based organisations to retain their religious identity and ethos  ― but the Coalition has done nothing about it in six years of government. By their fruits, ye shall know them?

Governments seeking re-election usually run on their record. Concerns about religious freedom have been widely discussed by the Government, within the Parliament and in the wider community since at least the beginning of the plebiscite campaign on same-sex marriage. The then Prime Minister Malcolm Turnbull sought to defuse those concerns by establishing the Ruddock inquiry; but when it finally reported on 18 May 2018 the Government sat on it until the end of the year, leaving no parliamentary time to do anything. Was this to try to make it an election issue? Or was it simply owing to the fact that it could not achieve internal consensus within the Cabinet or partyroom?

Between good and evil?

So what are the debates all about? Often the media presents it as a gargantuan battle between LGBTQ communities and people of faith; or in different terms, a contest between good and evil. The good are those who want to eliminate all discrimination in Australia, and the evil are those who insist upon the “right to discriminate” on religious grounds.

Labor is uncomfortable with the “right to discriminate” but has the embarrassment that it introduced the very provisions that by October 2018 it thought needed to be removed so urgently. The Coalition has sought to straddle the fence by announcing that it supports religious freedom while ensuring all Australians are protected from discrimination.

The Greens are the political party that makes claim to the moral high ground in this telling. It wants “discrimination-free schools.” However, it has a problem in terms of policy coherence. It is also a party that would wish to increase greatly our refugee intake, including accepting all refugees who arrive by boat. A great many of these will be people of devout religious faith and very conservative beliefs when it comes to sexual behaviour and views on marriage. Will these refugees be free to send their children to faith-based schools that teach those beliefs under a legislative regime that Richard Di Natale envisions? Do the Greens welcome refugees only if they leave their beliefs and values about marriage and sexual conduct on the boat?

Exemptions and the “right to discriminate”

The problem about religious freedom arises because Australian law largely protects it by permitting exemptions to otherwise applicable laws that prohibit discrimination. Why is it lawful for some religious groups to insist that their priests, rabbis, imams or other identified faith leaders must be male? Because they can rely on an exemption from laws about gender discrimination. Why is it that the Catholic Church, and certain other religious groups, can insist that priests not be allowed to marry? Because they can rely on an exemption from laws about discrimination based upon marital status.

There is a need for exemptions of this kind if Australia is to give effect to the provisions of international law concerning the right of religious communities to determine their own criteria for religious leadership. However, by and large, faith-based organisations such as Christian schools and welfare organisations providing services to the community do not want or need the right to discriminate against anyone based upon inherent characteristics such as gender, race, age or sexuality. Christians such as Dr Martin Luther King, Jr. were, after all, in the vanguard of the civil rights movement. In Christian belief at least, all humans are equal, and deeply loved by God. Christ did not die only for 98% of the population to be saved.

Some religious schools might have difficulty with an openly gay or lesbian teacher. Others do not. In a multicultural and multi-faith society, we need to accept some diversity in beliefs about sexual matters and respect the right of different religious organisations to hold to their beliefs. However, accepting this does not involve an unresolvable clash between different values. Openly gay or lesbian teachers would no doubt prefer to find work in the great majority of schools that have no problem with their sexual orientation. What matters is that religious organisations make it clear to both existing and prospective employees what they require in terms of conformity with a traditional sexual ethic.

Who can work in a Thai restaurant?

Faith-based organisations such as religious schools and hospitals, for the most part, do not want the retention of the “right to discriminate” against people on the basis of certain characteristics, but rather the right to choose staff who adhere to the faith with which the organisation identifies ― or at least, who will uphold the ethos and values of the organisation. That right has been under threat in states such as Victoria and from activists on the political left claiming to promote “human rights” while forgetting that religious freedom is also a fundamental human right.

The right to select people for a position with a certain characteristic is not the same as the right to discriminate against people who have various other characteristics. For example, in New South Wales it is lawful for restaurants serving a certain country’s cuisine to seek to select staff from that country or culture. If a Thai restaurant advertises for Thai staff, it is not discriminating against Belgians.

What faith-based groups have been arguing for is the continuing right to employ staff who fit with the mission of the organisation and for this right to be enshrined in national legislation. Even the right of religions to determine only to have male priests, rabbis and imams could be expressed as a positive right related to the nature of the role. The same right could be assured for political parties, environmental groups, cultural minorities and other organisations with distinct identities, beliefs or values. The Commonwealth’s Fair Work Act 2009 is the obvious place for this. Making such provision would mean that there would be less need to rely on exemptions in anti-discrimination law as a means of protecting religious freedom and multiculturalism.

The recommendations of the Ruddock expert panel were flawed in that they failed to grapple adequately with the most important religious freedom issue put to the panel: the right of faith-based organisations to maintain their religious identity and values particularly in relation to the selection of staff. The recommendations went part of the way there, but were couched in the language of giving religious organisations a “right to discriminate” if certain conditions were satisfied. That led to the furore about religious schools having the right to expel same-sex attracted students and to dismiss lesbian and gay staff. The myopia of the Ruddock expert panel’s recommendations obscured from view a solution that could have avoided most of these problems. That left the whole nation blind.

Labor’s defective legislation

Enacting a positive right to maintain a religious identity and ethos would also largely solve the issue concerning faith-based schools. The so-called “right to expel” LGBTQ students only arose because Labor, when in government in 2013, got a Bill through Parliament that amended legislation concerning sex discrimination to apply also to sexual orientation and gender identity. Sections drafted with one focus in mind took on a rather different meaning when expanded in that way.

Unscrambling Labor’s legislative omelette has proved a little more difficult than perhaps either Bill Shorten or Scott Morrison thought, but there are sensible ways of doing so while protecting the right of faith-based schools to teach a traditional view of sex, marriage and family life.

What both major parties need to do

So where do the major parties stand on this issue now? That is less than clear. Labor has given some indications that it supports legislation to ensure religious organisations preserve the right to employ staff consistently with their beliefs and values. That is to be welcomed. However, Labor’s biggest difficulty in winning over the votes of the faithful is to gain trust. People are concerned about the direction the party has taken in its years in Opposition federally, and while in office in the states ― in particular, the difficulty it seems to have in adopting positions on social issues that differentiate it from the Greens. There are those in the party who seem capable of promoting extreme policy positions, the latest evidence of which is the Labor/Greens Bill in Tasmania concerning transgender rights.

A major political party must have a broad base to maintain electoral attractiveness, but there are fewer and fewer people within Labor’s parliamentary ranks who represent the views of the great many Australians who are serious about their faith. Many of those are in marginal constituencies that Labor must win in order to form government, and must retain if they are to be re-elected three years from now. For that reason, it has a strong incentive to make firm promises about religious liberty and to keep them.

Leaders in the Coalition have also expressed support for the right of faith-based organisations to retain their identity, ethos and values, especially in their staffing policies, but the Government did not commit to this publicly in its response to the Ruddock Report. By deciding to refer the most difficult issues to the Australian Law Reform Commission, there is not a great deal left of substance in the Coalition’s response to the Ruddock Report. It proposes to introduce legislation to prohibit discrimination against people of faith (a growing problem) and to pass amendments to legislation that give effect to some of the less important recommendations of the Ruddock expert panel.

The Government’s proposals fall far short of the reasonable requests that faith leaders have made to ensure that religious organisations can retain their identity and ethos, particularly in relation to their staffing policies.

The most significant proposal that the Government made in response to the Ruddock Report (which it has yet to implement) was its acceptance of Freedom for Faith’s recommendation that Australia have a Religious Freedom Commissioner. This goes beyond the recommendations of the Ruddock expert panel, which proposed only that the Commission engage in an education program on religious liberty issues. Given the enormous community concern about those issues, evidenced by over 15,500 submissions to the review, and the evident growth in antisemitism, hostility to devout Muslims and discrimination against committed Christians, there is plenty of work for a Religious Freedom Commissioner to do. He or she could be a unifying voice in an increasingly divided society. The massacre in Christchurch is a sobering reminder of the dangers of religious hatred.

Assessing the choices

For the reasons given, both major political parties will need to work hard in this election campaign to win the votes of people of faith. The greatest mistake the Coalition could make is to take the support of conservative religious voters for granted. These voters have good reason to be very disappointed by the Government’s record. The most generous evaluation would be to say that the Government’s record is one of procrastination. Other less generous explanations could be offered.

But Labor cannot afford to take its traditional constituencies for granted either in places like Western Sydney and elsewhere. It has traditionally attracted many devoutly religious voters, particularly relatively recent migrants. Faith leaders in these communities have expressed significant concern about the future of religious freedom in this country, and some Labor leaders have been dismissive of those concerns. The greatest worry that people have is about the right to educate their children in a manner which is consistent with their beliefs and values. They want schools, for example, that are safe from what I deem to be the extreme and unscientific ideology of the Safe Schools program and in which teachers are free to hold to traditional teachings about marriage.

The battle to win the votes of the faithful will play out both in the House of Representatives and the Senate. The positions that both major parties take on these issues in the next few weeks could be electorally significant for many years to come.

Originally published by ABC Religion and Ethics

Professor Patrick Parkinson AM is the Academic Dean and Head of School for the TC Beirne School of Law at the University of Queensland. He is a director of Freedom for Faith, and the convenor of a conference that was held at the University of Queensland this weekend on “Religious Freedom After Ruddock.” The views expressed in this article are his own.