Modern Australian Magazine

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.

Read more: Christians in Australia are not persecuted, and it is insulting to argue they are

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.

Read more: The 'gay wedding cake' dilemma: when religious freedom and LGBTI rights intersect

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:

  1. The school must have a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced

  2. 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

  3. 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.

Read more: Why Australia does not need a Religious Discrimination Act

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

Read more http://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-exemptions-96347

Australia Today

7 Tips for Preparing To Drive Across The Nullarbor

News Company

With its wide, treeless horizons, tranquil scenery and quiet, open roads, the Nullarbor Plain offers an incredible experience and true escape from the hustle and bustle of the city. The Nullarbor drive is a 2000 km journey over an arid limestone landscape between Norseman, Western Australia and Ce...

who the suspects are, what they're charged with, and what happens next

Amy Maguire, Associate Professor, University of Newcastle

Four men – three Russians and one Ukrainian – will be charged in relation to the shooting down of the Malaysia Airlines flight MH17, which killed all 298 passengers and crew on board. Dutch prosecutors will launch a criminal trial in The Hague on March 9, 2020. But the accused are beyond...

a river does need all its water

Paul Humphries, Senior lecturer in Ecology, Charles Sturt University

Given her new role as federal environment minister, one of Sussan Ley’s comments in an interview with Nine Newspapers was eyebrow-raising, to put it mildly. She said:Sometimes the environment doesn’t need all its water but farmers desperately do need water.This is inaccurate and concerni...

There are 70 million refugees in the world. Here are 5 solutions to the problem

Gerhard Hoffstaedter, Senior lecturer in Anthropology, The University of Queensland

Little has been done to help the millions of refugees from Myanmar, Venezuela, Syria and other troubled countries find permanent resettlement options.Nyein Chan Naing/EPAThis week, the UN High Commissioner for Refugees, Filippo Grandi, labelled the world’s refugee problem a crisis that is prim...

Australians' trust in news media is falling as concern over 'fake news' grows

Andrea Carson, Associate Professor at La Trobe University. Department of Politics, Media and Philosophy, La Trobe University

The report found that Australian news consumers access news less often and have lower interest in it compared to citizens in many other countries.ShutterstockOn today’s episode, we hear from Caroline Fisher, an assistant professor of journalism at the University of Canberra and lead author of ...

Holidays & Travel

What to Do When Traveling From Australia to USA

Planning a trip to USA with your friends for the first time? Well, then you have miraculously landed at the right page. We have done all the homework to prepare...

5 Top Offbeat Things to do in Hong Kong

Hong Kong sure has some quirky attractions hidden up its sleeve. And if you are looking for some unusual sights and unique fun activities to experience, you won’t be disappointed...

Exploring Whakatane NZ

One of the most exciting road trips travelers can embark on is a motorhome hire new zealand journey. This unique and exciting country has it all when it comes to...

Important Considerations When Choosing Broome Accommodation

Broome is a fantastic place for visitors of all ages. Whether you want to lounge on the golden sands of Cable beach or take the kids to learn something new...

A tour guide to Melbourne

Welcome to the second most populous city in Australia with its beautiful sites and amazing scenery. Melbourne has been identified in so many spheres as one of the most livable...

Top 5 Places to Visit in Australia

The sheer, breathtaking expanse of the Australian continent is a thing of beauty. The vast landmass is actually packed with awe-inspiring landmarks to see and countless blood-pumping activities to partake...

Adhari Park: Why is it one of the must-visit sites in Bahrain?

Despite its small area that does not exceed the 1,000 square kilometers mark, the Kingdom of Bahrain is known for being rich of touristic sites and attractions. Bahrain comprises destinations...

Exciting Off Road Adventures In Western Australia

Western Australia has long been a top destination for off roading enthusiasts from all across the world. One look at some of the top off road destinations on offer in...

Things to Do and See in Ballina, Australia

The intricate coastline of New South Wales is renowned for its sumptuous, decadent beaches, hidden resorts and secret camping spots. A long and slow ride down the winding highway that...

Fashion & Beauty

Should you get a hair transplant in Turkey if your hair is grey?

The color of hair is a result of the pigment melanin which is made by special cells called melanocytes. The production of the pigment is largely genetically determined so you...

Marvelous Makeover - 5 Tips to Revitalize Your Look This Summer

The winter months can wreak havoc on your health and wellbeing. Your skin can dry out, your hair darkens and can go oily, and even your body changes as you...

The Gentleman’s Guide to Wearing Custom Ties

Ties are the finishing touch to your outfit and set you apart from the cloud. But with so many designs, patterns, and options to choose from, getting one that matches the...

5 unique ways to extract toxins from your body

City living can be great apart from all the environmental stresses that your skin is exposed to. Pollution, dirt’s and oils are constantly present no matter where we go so...

Modern Snapback Hats trending in Australia

Modern snapback hats are already the latest craze in the world of fashion, once again. They had ruled the roost way back in the 90s by becoming an indispensable part...

5 Tips Designed to Help Accentuate Your Hourglass Figure

Loving your body can be a difficult task at the age of social media. From the moment we wake up till we go to sleep, we’re constantly bombarded with photos...

Popular articles from Modern Australian

How Weight Loss Could Affect the Results of Your Breast Enhancement Procedure5 Outdoor Design Ideas that Marry Form and FunctionFinal Frontier - 5 Ways the Digital Landscape Has Changed Business for GoodCosmetic Physician, Dr. Phoebe Jones shares her expert tips on how to treat the most asked about skincare problemsYvonne Allen: How to improve your sex life in your relationshipThe Rug Lady Announces The Launch Of The Latest Saffia Rug Range7 Tips To Get Your Home Ready For WinterFuture-proofing your career prospectsYour Winter Hot Water System Guide for 2019Circulatory System Diseases and Risk FactorsEXYRA eyewearShould you get a hair transplant in Turkey if your hair is grey?Do You Need a Tummy Tuck or Just Liposuction?Best 4 Sassicaia Wine with Soothing Taste and AromaMarvelous Makeover - 5 Tips to Revitalize Your Look This Summer