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Established ahead of last year’s marriage-equality vote to quell conservative fears, Philip Ruddock’s long-awaited report has called for religious exemptions from discrimination laws to be scrapped. By Karen Middleton.

Ruddock religious freedom report backfires

A push by conservative Coalition MPs to entrench churches’ rights to discriminate on sexuality grounds appears to have backfired, with a long-awaited national religious freedom review recommending exemptions for religious organisations from other discrimination laws be wound back or scrapped.

In response, Prime Minister Scott Morrison has promised what the review expressly recommends against – a new religious freedom commissioner within the Human Rights Commission.

Morrison will also create a new federal religious discrimination act, in line with the review’s recommendations, to elevate religious discrimination to the same status as other forms of discrimination – protecting the right to adhere to a faith, or to have no faith at all.

“Why, in this country, should it be … illegal for someone to turn someone away because of a disability or their gender or their sexual identity, but it’s okay to turn someone away because of their religion?” Morrison asked this week.

“I mean, how can we allow that to stand in Australia? That shouldn’t be happening here.”

The full findings of retired former federal minister Philip Ruddock’s review were finally released on Thursday, seven months after they were presented to the government and more than a year after former prime minister Malcolm Turnbull agreed to establish the review in an attempt to stop conservative Coalition MPs derailing marriage-equality legislation.

Originally, the review was the suggestion of Home Affairs Minister Peter Dutton, nine months before he unsuccessfully challenged Turnbull for the Liberal leadership.

Although the review panel supported strengthening protections against religious discrimination, it questioned the extent to which religious rights were overriding other human rights across Australia.

“[The panel] could see no justification for exceptions in existing law relating to race, disability, pregnancy or intersex status,” the report says of the current religious anti-discrimination exemptions at the federal, state and territory level that differ across jurisdictions.

“The panel is of the view that those jurisdictions retaining exceptions should review them having regard to community expectations.”

Morrison unveiled his response to the religious freedom review on Thursday morning, providing copies of the 140-page report to journalists at the end of his news conference.

In a move that appeared designed to overshadow the politically sensitive review’s long-awaited release, the prime minister and Attorney-General Christian Porter also revealed unrelated plans for a new national integrity commission, which the Coalition has long resisted but Morrison insisted this week has been in the planning since January.

It is highly unusual to bundle two such major policy announcements together.

Morrison said he did not want any new federal integrity commission to become a “kangaroo court” to further vested interests or serve political agendas.

“We’re about having a robust, resourced, real system to protect the integrity of Commonwealth public administration,” he said.

The Coalition’s proposed Commonwealth integrity commission would be designed to investigate allegations of public sector misdeeds and gather evidence to provide to prosecutors.

The commission would be divided into two parts, one covering law enforcement officers, which would hold public hearings, and a second set to examine the actions of public servants, politicians and their staff, which could only prepare a brief for the DPP and its hearings would be private.

Morrison’s proposed integrity commission would also not be able to examine anything that occurred before the legislation was passed, protecting politicians’ past behaviour from scrutiny.

Opposition Leader Bill Shorten said his consultations with legal experts had convinced him public hearings were essential.

“There has to be some element of public engagement, otherwise it won’t have the educative effect,” Shorten said, labelling it “not fair dinkum”.

“You can see the fingernail marks on the marble of parliament where he’s been dragged kicking and screaming,” Shorten said.

Victorian independent MP Cathy McGowan welcomed the government’s change of heart on an anti-corruption commission.

McGowan said she would examine the government’s model alongside the proposal she and other crossbenchers put forward in their own legislation during the last fortnight of parliament for the year.

“Any national integrity body needs to be robust and transparent to ensure it enhances public trust in the parliament and public sector,” McGowan said.

But it is the response to the religious freedom review that is likely to put politicians under greater pressure in the short-term. Some conservative religious communities from a range of faiths remain unhappy about last year’s legalisation of marriage equality and are threatening to punish its proponents across the political spectrum in marginal seats at next year’s election.

Equally, there is political pressure from supporters of the change to ensure the religious freedom review is not used to introduce further discrimination against LGBTQI people in religious institutions, especially school students.

Having delayed the report’s release, under the leadership of both Turnbull and Morrison, the government now faces the likely prospect that discrimination and competing freedoms will be hot-button issues in the lead-up to the federal election.

Shorten said he would consider the detail of Morrison’s proposals but warned against turning religious faith into “a political football”.

“I’m worried if there is any plan by the conservative right of the Liberal Party to make religion an election issue,” he said.

“I think Australians don’t want to see religion as an election issue.”

The Ruddock review received 16,000 submissions and had to double its initial timetable in order to consider all the evidence before producing its 140-page report.

The Morrison government has accepted 14 of the Ruddock review’s 20 recommendations. It will seek bipartisan support for a 15th – the proposed new religious discrimination act.

The panel recommended against going further and introducing a standalone law for religious freedom because “specifically protecting freedom of religion would be out of step with the treatment of other rights”, which are not actively codified in their own federal legislation.

The Ruddock review’s remaining five recommendations will be sent to the Australian Law Reform Commission for further examination, pushing any decision on those out beyond next year’s election.

They include the proposal to scrap or water down existing religious exemptions from other discrimination law, including exemptions that allow discrimination under some circumstances on the grounds of race, gender or disability and, in relation to students and teachers at religious schools, on the basis of sexuality.

Parliament failed to agree to proposed protections for LGBTQI teachers and students last week after Labor and then Morrison personally produced duelling bills, with the prime minister angering both the opposition and his own colleagues by proposing a conscience vote.

Now, clarifying legislation is unlikely until the second half of next year.

Review panellist, Catholic Jesuit priest and human rights lawyer Father Frank Brennan said the political disagreements over how to handle the schools issue demonstrated how difficult it was to try to deal with it solely through the Sex Discrimination Act.

“We were a bit surprised to find that it was as recently as 2013 that attorney-general [Mark] Dreyfus in the Labor Party introduced the amendment that allowed this sort of discrimination in religious schools,” Brennan told Sky News.

“… Some state jurisdictions did allow such discrimination, others did not. So, our approach as an expert committee was to say, ‘Well, hang on, those that don’t allow it, we see no case for it so don’t do it.’ Those that do allow it, we said there should be very strict limitations on it. In fact, we thought the limitations should be so strict that you could hardly meet them.”

Those limitations involved restricting any discrimination to future enrolments – not expelling those students already at a school – and ensuring it was in accordance with the religious tenets of the faith, undertaken through a publicly available policy, clearly advertised in advance, and justifiable as being in the best interests of the child.

But others insist no such discrimination against children is acceptable.

In an attempt to ease concerns in some religious communities and among some MPs that the review could actually erode rather than enhance some religious protections, Morrison has promised to create a new religious discrimination commissioner’s position within the Human Rights Commission.

The Ruddock review panel actively recommended against the creation of this position.

“The Panel is of the view that the appointment of an additional commissioner is not necessary,” its report says.

“The Panel noted that the Human Rights Commissioner already has the capacity to perform many of the functions suggested for a Religious Freedom Commissioner. The Panel observed that one of the themes emerging from its work was the importance of building a common understanding of all human rights and their equal status.”

It said the remit of an existing commissioner should be expanded to include religious freedom instead.

Brennan described Morrison’s decision to create the new role as “a turbocharge that the Morrison government has added”.

Unsurprisingly, Thursday’s religious freedom announcements drew a mixed response. The Australian Christian Lobby welcomed them cautiously, warning it expected the new religious discrimination act to explicitly protect “traditional beliefs” about marriage, gender, sexuality and family.

The Law Council of Australia welcomed the move to clarify discrimination law but said the “delicate balance” between freedom of religion and freedom from discrimination would be better addressed through a comprehensive human rights act.

Progressive political activists GetUp! backed the Law Council’s call and accused Morrison of playing “divide-and-rule politics”.

Explaining his decisions, Morrison said, “What you believe should always be a matter for you … Anti-discrimination is an important principle in a modern democracy and so it is important that that principle of anti-discrimination and the protection of people’s religious liberty are addressed in this country. And there is some unfinished business that we are seeking to address in the announcements that we’re making today.”

The months between now and the next election will determine if voters define unfinished business the same way.

This article was first published in the print edition of The Saturday Paper on Dec 15, 2018 as "Ruddock religious freedom report backfires". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.