Release Ruddock report to allow for 'full and patient' debate

Delay in release of report is causing community concern, says Melbourne priest and researcher Gordon Preece

December 6 2018The inordinate delay in releasing the Ruddock Review into Religious Freedom and leaking of some decontextualised parts in October have caused increased community concern about existing exemptions from the Sex Discrimination Act (SDA). This included speculation about their potential to affect sexual minority or LGBTIQ+ students at religious schools.

A bipartisan parliamentary group committed to amend the SDA in order to prevent schools discriminating against such students by not enrolling them or by expelling them (although a rare occurrence, the fear is understandable). Sadly this bipartisanship has broken down and the issue has become a populist political football threatening the interlocking connection of mutual rights, freedoms and responsibilities of individuals and institutions, of religion, civil society and the State. This is particularly vexed when dealing with issues as intimately related to individual and institutional identity as religion and sexuality.

It is also worse in Australia due to our being virtually the only democracy without a charter of human rights and responsibilities. Father Frank Brennan attempted bringing one in on behalf of the Rudd Labor Government but was defeated by fearful Sydney Catholic and Anglican Churches shooting themselves in the foot. Now they seek such protections. This absence of a human rights charter leads to great gaps and inconsistencies between the UN Declaration of Human Rights and its International Covenant on Civil and Political Rights (especially Section 18 on parental rights to educate their children in their faith and values), the minimalist federal constitutional protections, and the varied or vacuous state government freedom of religion provisions.

The ALP’s Penny Wong introduced a Senate Bill, being debated in the final week of Parliament, intended to stop religious schools discriminating against LGBTIQ+ students. If that was all that the Bill did, there would be little debate. The overwhelming majority of religious schools distinguish orientation/being from action/behaviour, and public from private communications and behaviour.

But the Bill’s lack of consultation, hurried drafting and loose wording could well cause disproportionate loss of fundamental freedoms of religion, conscience and voice. Its expansive interpretation of “education” risks restricting the freedom of religious schools, adult colleges and religious bodies to teach, model and practise their values in any way seen by some as discriminatory against people of certain sexual orientation, relationship status or gender identity.

There is also already diversity and choice among different religious schools on these issues across the progressive, conservative, Church Grammar school, Christian Schools spectrum.

Contrary to its claim, this Bill actually reduces and restricts such diversity, particularly of those with more multicultural backgrounds or traditional standards.

What is needed as a balance is a positive proposal recognising the social or institutional rights of groups, leaders, families and employers to embody their faith or values and expect employees, students and teachers, etc, to publicly reflect them in their behaviour, at least on the job or at school. Such rights of association, faith and value affiliation, and public behaviour expectation, are something religious bodies, clubs, unions and business groups share. Labor recognises this but needs to put it into a concrete positive proposal at the same time as it proposes eliminating the negative right to discriminate. It is ironic that its current hurried half-proposal, without a positive proposal protecting such institutional rights, conflicts with its own enacted “right” to expect adherence from all parliamentary members to its pro-gay marriage policy or face disendorsement from 2019. 

Without this positive balance, the Bill’s amendments to the Sex Discrimination Act could severely limit rights and freedoms of religious groups, such as:

  • schools and parents sending their children there to pass on their faith and ethics;
  • adult colleges and training organisations for missionaries, chaplains, lay leaders and ministers; and
  • bodies such as churches, mosques and temples to provide education for members and the public through sermons, religious education for all ages and courses on marriage and family.

If the Bill is passed as is, such teaching and practices could be often subject to costly and lengthy anti-discrimination complaints and lawsuits.

The Coalition’s proposed amendments to the ALP’s Bill reduce the Bill’s restrictions on freedoms but still leave religious schools and colleges vulnerable and, according to Professor Neil Foster, “unable to operate in line with their religious convictions in the whole life of the school community” (see https://lawandreligionaustralia.blog/2018/12/01/government-amendments-to-religious-schools-bill/).

The prudent alternative is to release the Ruddock Panel Report and the government’s proposals this week and have a full and patient public debate over summer, as was promised when the same-sex marriage law was passed late last year. The legal responses could be developed and decided upon at Parliament’s return in 2019, but before the Federal Election, to avoid further partisanship.

The Revd Dr Gordon Preece is chair of the Melbourne Anglican Diocese Social Responsibilities Committee. The opinions expressed in this article are his own but are informed by Mark Sneddon of the Institute for Civil Society, among others.