Fr Frank Brennan: religious freedom requires better protection at a Commonwealth level

Since the same sex marriage plebiscite the challenge has been balancing the right to freedom of religion for religious educators with the right to non-discrimination for teachers and students. Fr Frank Brennan, a member of the Religious Freedom Review chaired by Philip Ruddock, offers a pragmatic solution below.

Seven months on, the Morrison government has published the Religious Freedom Review — a report of an expert panel chaired by Philip Ruddock. It has also published its response. The review was instituted by Malcolm Turnbull during the plebiscite on same sex marriage. Many 'yes' voters in the plebiscite were convinced that a change to the law of marriage would not make one iota of difference to freedom of religion in Australia.

Many 'no' voters were worried that the changes could be frightful. The debate which then erupted about religious freedom when Parliament was legislating to recognise same sex marriage highlighted that Australian legislation at the Commonwealth and state level for the protection of all human rights, including freedom of religion, was at best patchy.

The expert panel included a variety of viewpoints on how best to protect human rights. Having chaired the Rudd government's National Human Rights Consultation in 2009, I favour a national human rights act. Fellow panel member Professor Nicholas Aroney has written passionately and elegantly against a proposed human rights act in Queensland. So the panel did not go looking for the magic panacea of human rights protection.

Having heard from thousands of citizens about the deficiencies in the patchwork of legislation which usually focuses on discrimination, we agreed unanimously on proposed incremental solutions. We thought religious freedom needed better legislative protection at a Commonwealth level. We thought students and staff should be better protected in religious schools when it came to discrimination on the basis of sexual orientation or practice at variance with religious teachings. We did not think the sky was falling in after the plebiscite; nor did we think the patchwork deficiencies in human rights protections should be simply left alone.

In the absence of a constitutional bill of rights or a national human rights act, both sides of politics have responded pragmatically and sensibly each time we have signed up to an international treaty enhancing our commitment to human rights. Over time, we have legislated against racial discrimination, sex discrimination, age discrimination and disability discrimination in the wake of specific treaty obligations not to discriminate against persons on the grounds of a particular attribute. The Ruddock Committee thought the time had come for similar legislation prohibiting adverse discrimination on the basis of a person's religion.

We thought that was now all the more pressing, not because of the debate about same sex marriage, but because in an increasingly secularist Australia, religious folk, particularly more conservative religious folk, were worried that their most basic rights were not being adequately protected. Some even had a sense that their religious beliefs and practices were being needlessly parodied and demeaned in the public square. We thought that religious institutions, like other groups including political parties, should be free to employ or include members who subscribe to the group's ethos, practices and teachings.

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) which recognises the right to freedom of thought, conscience and religion, including the freedom 'either individually or in community with others and in public or private, to manifest one's religion or belief in worship, observance, practice and teaching'. There have been numerous Australian inquiries by parliamentary committees, the Australian Law Reform Commission and the Australian Human Rights Commission which have highlighted the need for some further legislative protection of this right at a Commonwealth level.

Like all competing or conflicting rights, the right to religious freedom is limited in its scope. There is often a need to balance conflicting rights. For example, Article 26 of the ICCPR recognises the right of all persons to equality. The most recent report of the Special Rapporteur on freedom of religion and belief to the UN Human Rights Council notes that 'it is not permissible for individuals or groups to invoke "religious liberty" to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere'.

In the wake of the same sex marriage plebiscite, the Australian challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students. If we had an Equality Act, we might consider the need for a Religious Freedom Act. As we have a Sex Discrimination Act which deals with discrimination on the basis of various criteria including sexual orientation, the Ruddock panel thought it desirable that we at least have a Religious Discrimination Act. The government agrees, and hopefully so too will the Opposition and cross benchers. We thought the protection of religious freedom should be put up in lights as part of the day job of the Australian Human Rights Commission. The government agrees and has gone one step further, proposing a Freedom of Religion Commissioner.

Both sides of politics are agreed that it is time to repeal section 38(3) of the Sex Discrimination Act which allows a religious educational institution to discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy provided they discriminate 'in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'. I welcome this bipartisan commitment of the parliament. As an expert panel, we did not see our way clear to recommend complete repeal of this provision which had been introduced by Labor as recently as 2013. As a panel of experts rather than policy advocates, we had recommended significant hurdles which would have made such discrimination all but impossible.

Both sides of politics are agreed that the repeal of this provision should not be permitted to work any interference with the right of religious institutions to teach their doctrine in good faith. The Labor Party has agreed to specify that 'nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity: (a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and (b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.'

The Government is prepared to put such a statement in legislation. Let's hope all members of parliament after Christmas can agree to the insertion of such a clause in the legislation providing assurance to religious educators that they can continue to teach their doctrine in good faith while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators. Even with an election in the wings, it should not be too much to expect that our elected leaders commit to a Religious Discrimination Act, enhance the role of the Australian Human Rights Commission, and get some uniformity in the states and territories when it comes to selection criteria for students and staff in religious schools.

 Fr Frank Brennan SJ was a member of the Religious Freedom Review chaired by Philip Ruddock. This article first appeared in the Weekend Australian 15-16 December 2018.

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