The leaked recommendations give us a clear snapshot into what the review means for religious freedom and LGBT+ rights in Australia.
Contrary to much of the commentary, the recommendations are more likely to limit federal religious exemptions for LGBT+ protections than to expand them.
The background
After the same-sex Marriage postal survey was released, the government announced an expert panel to examine whether Australian laws adequately protect freedom of religion.
The panel , chaired by former parliamentarian Philip Ruddock, was asked to examine intersections between enjoyment of freedom of religion and human rights. The panel received a response of over 16000 submissions.
Religious discrimination is prohibited
The Ruddock report’s central recommendation, as now leaked, is to introduce a federal ban on discrimination based on religion.
It would then be illegal to fire someone for being Muslim or to force a Christian student who observes the sabbath to attend class on Sunday. This protection also extends to the absence of belief. A person cannot be discriminated against because they are an atheist or an agnostic.
Federal laws currently prohibit discrimination based on race, age and sex, but not on religion. Although most states have laws protecting religious beliefs, the federal protection will provide coverage for all of Australia and close any gaps.
Read more: The ‘gay wedding cake’ dilemma: when religious freedom and LGBTI rights intersect
Freedom to religiously discriminate
The report’s bulk is devoted to the other side, which relates to religious groups and individuals having the right to discriminate. This includes LGBT+ people.
In Australia, discrimination against someone based on their sexual orientation or gender is illegal. Religious bodies and sometimes religious individuals have some exemptions which allow them to discriminate.
The Ruddock Report focuses on religious schools, although there are a number of different types.
The report recommends that schools with religious beliefs have the right not to accept LGBT+ students or teachers. Many of the initial reactions to the leaks claimed incorrectly that these recommendations would grant this right for the very first time.
Section 38 allows religious schools to discriminate on the basis of sexual orientation or gender identity if it is in accordance with “the doctrines” of a specific religion. Religious schools are already allowed to refuse to hire transgender teachers or to accept gay teachers.
The Ruddock Report instead seeks to restrict this existing right of discrimination by adding three limitations.
- The school should have a publicly available policy outlining its position on the issue and explaining how it will enforce the policy.
- The school is required to provide a written copy of its policy to all employees and potential employees, current students and their parents, as well as all students and prospective students.
- The school’s conduct must be based on the student’s best interests.
Although not confirmed for the moment, it seems that the Ruddock Report may recommend that the exception only applies to new student enrolment or teacher hiring and not to existing teachers or students.
The report suggests that state laws be removed which allow teachers to lose their jobs if they marry someone of the same gender.
What about gay wedding cakes?
The “gay marriage cake” scenario was the main focus of last year’s debate on same-sex weddings. In this case, a religious service provider refuses to provide service to a gay couple.
The gay wedding cake has been the subject of much debate in relation to religious freedom. Shutterstock
Aside from Victorian law, business owners and everyday individuals are not allowed to discriminate against LGBT+ on the basis of their religion. In submissions to the Ruddock Panel, many religious groups urged for this right.
The Ruddock Report rejects this idea, saying that businesses refusing service to LGBT+ customers would “unnecessarily infringe on another human right” and “may harm vulnerable groups.”
According to the report, people who are registered as civil celebrants can’t opt out from solemnizing a wedding of same-sex couples.
The findings of this study are significant because they confirm the indivisibility of human rights. Religious freedom should not be viewed as being superior to equality or freedom from discrimination.
What about the States and Territories?
The Ruddock recommendations mainly relate to federal law on discrimination.
It is explicitly parallel to and alongside and not part of the federal system.
Some may argue that state protections are still valid. However, new federal laws will not override the existing state protections.
If a student who is gay wants to file a discrimination claim against a school that has refused him entry, then they have two options: either go through federal law or the state system.
In almost all states and territories, there are exemptions for religious schools. These are similar to federal law. Four jurisdictions have significant differences.
In Queensland and the Northern Territory, this exemption is only for teachers. South Australia is no different, but schools must create and distribute a policy that outlines their approach. This may have been the reason for the Ruddock Review’s recommendation.
