With the Coalition’s ‘miracle election’ and Israel Folau’s wrongful dismissal claim, religious freedom is back in the news. But resolution between progressives and conservatives on the matter remains unlikely. By Martin McKenzie-Murray.
Divisions over religious freedom
What a difference a few months make. In December, then opposition leader Bill Shorten addressed the media after the Morrison government had finally released the report of its expert panel’s review of religious freedom. “I’m worried if there is any plan by the conservative right of the Liberal Party to make religion an election issue,” Shorten said. “I think Australians don’t want to see religion as an election issue.”
Then, the “miracle election”. With Labor’s humiliation came painful, public reassessments of itself. Its treatment of faith, not merely as a legislative question but as a broader one of its relationship to religious Australians, suddenly became central to the reckoning. “I have noticed as I have been around during the election campaign, and even in the days since … how often it has been raised with me that people of faith no longer feel that progressive politics cares about them,” Labor frontbencher Chris Bowen said last month, after withdrawing his bid to become party leader. “These are people with a social conscience, who want to be included in the progressive movement. We need to tackle this urgently. I think this is an issue from the federal election that we haven’t yet focused on.”
He wasn’t alone. Kevin Rudd said the Labor Party was automatically giving the Coalition the votes of religious Australians and urged a reconnection. Labor’s new deputy leader in the senate and shadow Home Affairs minister, Kristina Keneally, has been busy commending the same. “I am a person of faith,” she said this week. “Every job I have ever had before I entered politics in my adult life was in the Catholic Church … There would have been a time when Labor would have been seen as a natural home for people like me. I think that perhaps in the embrace of a broader agenda – that I think is right about inclusion and equality – we haven’t always taken people of faith with us.”
If Shorten once believed the public didn’t want to talk about religion, his party certainly now does. Western Sydney electorates – including those that cast some of the most significant percentage of “No” votes in the same-sex postal vote – were considered crucial to Labor’s “path” to government, but most swung against the opposition. It would be impossible to calculate definitively how large or influential religious irritation was to Labor’s loss. An election loss – or victory – is a mosaic of factors. But, says one Labor campaigner: “I think there were attritional casualties to our ambition, to the size of the progressive agenda. To be honest, I don’t blame religious Aussies if they thought it excluded them or was indifferent to them. But some of these things are hard to square up.”
In November 2017, after the public had endorsed same-sex marriage and parliament sat to debate its legislative form, Prime Minister Malcolm Turnbull convened a panel to review religious freedom. It was a hopeful act to pacify the social conservatives of his party. Led by the former attorney-general Philip Ruddock, the expert panel included the president of the Australian Human Rights Commission, Rosalind Croucher; legal professor Nicholas Aroney; former Federal Court judge Annabelle Bennett; and the chief executive of Catholic Social Services Australia, Father Frank Brennan.
The panel examined more than 15,000 submissions. LGBTQIA groups argued for the removal of certain exemptions to anti-discrimination law that were granted to religious institutions; churches argued that their freedoms were too frequently defined negatively – that is, in the form of exceptions – and argued for the establishment of a religious discrimination act, just as there existed for sexual or racial discrimination. A religious school’s right to employ those who share its values should be unambiguously enshrined, submissions argued.
But the panel’s work was bedevilled by politics. As Father Brennan tells me, the Turnbull moderates were in favour of tweaking the religious exemptions but opposed to creating some form of a religious discrimination act. Social conservatives wanted the opposite. As it was, the Ruddock review recommended both. It argued that, in a pluralistic society, schools had the right to employ people who were consistent with their beliefs – “just as the Greens might reject political membership to a coal merchant”, Brennan explains. However, the review recommended prohibiting discrimination against students on the basis of their sexuality.
“There’s a clear principle – in a pluralist society, should religious communities be at liberty to create an educational institution with a distinctive religious ethos?” Brennan says. “Then when you look at how that ethos is created, well, some communities would say that we can best create that ethos if we can ensure that the school principal and religious co-ordinator are dyed-in-the-wool Catholics, then we would be satisfied with that. The employment of the maths teacher, or secretary, we appoint on merit – we’re not so concerned. That’s one end of the scale.
“The other end is – and we heard this a lot on the panel – smaller evangelical groups who say, ‘We want to run these schools, we want them to be evangelical honey pots. The evangelical gardener is just as treasured as the principal.’ The question for the pluralist democracy is whether it’s legitimate. I would say that it is, unless you have one of the rare instances where that school is the only provider in the area. But if there’s a plurality of choice, I think that can be done.”
The Ruddock review accepted that religious freedom in Australia is not immediately imperilled. But Brennan argues this isn’t an argument for not enshrining in legislation protections against religious discrimination. Not when there is a prevailing indifference – or contempt – for religion in the media and academia. “The intellectual elite is increasingly secular,” Brennan says. “When the media elite are largely secular, then there is a need – if you take human rights seriously – that others’ perspective on the world is given due acknowledgment. It’s a balancing act.
“If you look at the experience of the European Court of [Human] Rights, these become very complex issues which develop a body of nuanced jurisprudence – but it takes decades to emerge. The bind for all of us is that freedom of religion isn’t an enormous problem in Australia. But everyone has to acknowledge that the legal machinery for its protection is inadequate. Once you put it in place, the jurisprudence will develop. I would love to see the issue of gay kids in schools quickly fixed up, and then allow for a more nuanced debate about religious rights.”
In May last year, the panel’s report was handed to the government, which declined its release. There were a cluster of byelections set for July and Turnbull didn’t want the distraction. But Turnbull’s conservative colleagues couldn’t be pacified, and he was deposed as leader in August. During the subsequent Wentworth byelection, parts of the review were leaked. “Presumably by someone in government,” Brennan says. “The handling of the report was shambolic. When we put our report in, I kept being assured that it would be out next week, next month. We weren’t at liberty to speak. You’ve seen my prognostication. The Ruddock report did two things. There’s a need to tweak exceptions in the Sex Discrimination Act, and we see the need to have a religious discrimination act. Turnbull wanted the tweaks, not the act. The Morrison wing wanted the act, not the tweaks.”
During the election, it was Scott Morrison who didn’t want the distraction – but in the form of Israel Folau, the issue arose anyway. As Shorten wriggled on the issue of Adani, the devout prime minister himself was gently wedged on Folau – caught between his own evangelical faith and his tactical intolerance of anything that distracted from Shorten.
When the rugby star declared his belief on social media that sinners would go to hell – a list that included “homosexuals” – it triggered a high-profile dispute with Rugby Australia, and the athlete’s contractual termination. The prime minister attempted to juggle the values of civility, religious expression and contract law. “It clearly means a lot to Izzy and good for him for standing up for his faith,” he said in April. Then, during a leaders’ debate: “Freedom of speech is important, but we have to exercise it responsibly and exercise it in a society such as ours with civility and due care and consideration to others … As public figures we have, I think, a higher and more special responsibility in relation to what happens in matters of contracts law and employment law – we’re all subjects to those if we enter into those contracts.”
The political world now looks very different. Scott Morrison remains prime minister, empowered by triumphantly shattered expectations, if not by a significant parliamentary majority. “Now we have a situation where they have been surprisingly returned to government,” says Brennan. “And surprisingly Labor is realising how they played religion badly. Labor’s recalibration has been necessary. It’s also come more quickly than I expected.”
Israel Folau has now launched legal proceedings against Rugby Australia and is reportedly seeking $10 million in damages if the Federal Court rules his employment was terminated unlawfully. What might have been seen as a peripheral issue to the federal campaign is now central to policy debate on religious freedoms and a reconfiguration of the Labor Party.
Last week, former prime minister John Howard entered the Folau debate. Before a gathering of the Order of Malta, he said: “The first, and I think the most unwelcome development, has been the growing disposition of organisations and companies to take positions on social issues … It has manifested itself in relation to the extremely regrettable circumstances surrounding Israel Folau. The reality is that if you apply a balanced commonsense approach to issues like this, the question of the reasonable expression of a religious view should never be part of an employment contract – it’s got nothing to do with it.”
In December, after the government published its response to the Ruddock review, the attorney-general, Christian Porter, said it was intolerable that the state might intervene in private contracts. Frank Brennan takes a similar view, telling me that the Folau situation is “a distraction – it’s a contractual dispute”.
How a future religious discrimination act might preserve the professed sanctity of private contracts remains unanswered. So, too, is how the Federal Court will resolve Folau’s litigation.
It will take a long time for the Labor Party’s humiliation to manifest itself into a coherent reformation. One Labor figure tells me that a religious freedom bill is an early opportunity for Anthony Albanese to make good on his promise of constructive bipartisanship. “But I don’t see how we’re not wedged badly on this.”
What a difference a few months make.
This article was first published in the print edition of The Saturday Paper on June 8, 2019 as "Crossing swords".
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