Wed Oct 10

Ruddock report constrains, not expands, federal religious exemptions

Written by Liam Elphick, Lecturer, Law School, University of Western Australia

Media outlets today reported on leaked extracts of the much-awaited religious freedom inquiry report, which has yet to be released by the federal government.

The leaked recommendations give us a clear snapshot into what the review means for religious freedom and LGBT+ rights in Australia.

Despite much commentary to the contrary, the recommendations actually constrain rather than expand federal religious exemptions to LGBT+ protections.

The background

In the wake of the same-sex marriage postal survey, the government announced that an expert panel would examine whether Australian law adequately protects freedom of religion.

Chaired by retired parliamentarian Philip Ruddock, the panel was required to consider the intersections between the enjoyment of the freedom of religion and other human rights. It received an extraordinary response of over 16,000 submissions.

Freedom from religious discrimination

The central recommendation of the now-leaked sections of the Ruddock report is the introduction of a federal prohibition on religious discrimination.

This would mean that, for instance, it would be unlawful to fire someone because they are Muslim, or require a sabbath-observant Christian student to attend classes on a Sunday. The protection extends to absence of belief, so that a person should not be discriminated on the basis that they are atheist or agnostic.

Currently, federal laws prohibit discrimination on the basis of race, age, sex and other attributes, but not religion. Though most states protect religious belief, this federal protection would add appropriate coverage across Australia and fill any existing gaps.

Freedom to religiously discriminate

The other side of the coin, and the bulk of the report, relates to the right of religious bodies and individuals to discriminate against others - in particular, LGBT+ people.

Across Australia, it is unlawful to discriminate against a person because of their sexual orientation or gender identity. However, religious bodies, and at times religious individuals, have certain exemptions that allow them to discriminate against LGBT+ people.

There are several different types of religious exemptions, but the focus in the Ruddock report is on religious schools.

The report recommends that religious schools have the right to turn away LGBT+ students and teachers on the basis of the school’s religious beliefs. Much of the immediate reaction to the leaks incorrectly claimed that the recommendations would grant such a right for the first time.

Under section 38 of the federal Sex Discrimination Act, religious schools are already permitted to discriminate against teachers and students on the grounds of sexual orientation and gender identity if this is “in accordance with the doctrines…of a particular religion”. Religious schools can already refuse to hire gay teachers or accept transgender students.

The Ruddock report instead seeks to constrain this existing right to discriminate, by adding three limitations:

The school must have a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced
The school must provide a copy of the policy in writing to all employees, prospective employees, students, prospective students, and the parents of all current and prospective students
In relation to students, the school must have regard to the best interests of the child as the primary consideration in its conduct.

Though unconfirmed for now, it appears that the Ruddock report may further recommend that the exemption only apply in relation to new student enrolments or the hiring of teachers, rather than to existing students or teachers.

The report also suggests removing any state laws that allow teachers to be sacked if they enter into a same-sex marriage.

What about gay wedding cakes?

Much of the focus during last year’s same-sex marriage debate was on the “gay wedding cake” scenario, whereby a religious service provider wants to refuse service to a same-sex couple.

Ruddock report constrains, not expands, federal religious exemptions

Much debate on religious freedom has so far focused on the Shutterstock

Currently, everyday business owners and individuals cannot discriminate against LGBT+ people on the basis of their religious faith, except under Victorian law. Many religious groups called for this right to be introduced in submissions to the Ruddock panel.

However, the Ruddock report rejects this idea, stating that allowing businesses to refuse service to LGBT+ people would “unnecessarily encroach on other human rights” and “may cause significant harm to vulnerable groups”.

The report also states that people who register as civil celebrants cannot opt out of solemnising a same-sex wedding.

These findings are important, as they affirm the indivisibility of human rights - religious freedom is not to be legally entrenched as superior to rights to equality and freedom from discrimination.

What about the states and territories?

It is important to note that the Ruddock recommendations mostly relate to federal discrimination law.

The states and territories each have their own discrimination laws that explicitly sit parallel and alongside, not under, the federal system.

Though some may argue otherwise, it is unlikely that any new federal laws would overrule existing state protections - unless the government goes beyond the Ruddock report and makes further changes.

As such, if a gay student wanted to bring a discrimination law claim against a religious school that refused them entry, they have two choices: go through the federal system, or go through the relevant state system.

Exemptions for religious schools exist in almost all states and territories, and are largely similar to the existing federal law. There are three jurisdictions where there are key differences.

In the Northern Territory and Queensland, the exemption only applies to teachers - not to students. The Tasmanian Anti-Discrimination Act is distinctive, because it does not permit religious schools to discriminate against either students or teachers on the basis of their LGBT+ status.

While it would be open to the Morrison government to selectively adopt the Ruddock recommendations and seek to broaden religious exemptions, a leaked portion of the Ruddock report noted that:

to the extent that some jurisdictions do not currently allow religious schools to discriminate against students on the basis of sexual orientation, gender identity and gender characteristics, the panel sees no need to introduce such provisions.

Weighing rights in the balance

One of the key challenges for human rights and discrimination law is to balance competing or conflicting rights claims. This is a task for parliament, should it seek to amend existing legislation or pass new laws in response to the Ruddock review’s recommendations.

In this context, an important question is whether the best interests of a child could ever be said to be advanced by a policy that would exclude them from an educational institution on the basis of their sexual orientation or gender identity.

Another question that many in the Australian community may raise is whether religious schools ought to be supported by public funding if they choose to discriminate against LGBT+ teachers or students.

We now wait to see how the government, and the parliament, respond to these questions.

Authors: Liam Elphick, Lecturer, Law School, University of Western Australia