As a developed Western nation which is a party to many international treaties recognizing freedom of thought, conscience and religion, the lack of any real national protections of religious freedom in Australia is surprising.[1] For those unfamiliar with the jurisdiction, Australia is a Federation consisting of six states and two mainland territories. Whilst the Australian Constitution does contain one provision relating to religious freedom which ensures that the nation will not have a State religion and that religious tests will not be imposed for employment by the State, that provision has never successfully been used to prevent the Commonwealth from passing legislation which impacts on freedom of religion.[2] What makes this situation even more peculiar is the fact that the Commonwealth government has enacted broad anti-discrimination legislation to proscribe discrimination on the basis of a wide range of other attributes including age, race, disability, sex, sexual orientation, gender identity, marital status, pregnancy, intersex status and relationship status. [3] In the absence of Federal legislation some territories and some states but not New South Wales (which has the largest population) and South Australia have included proscriptions on discrimination on the basis of a person’s religious beliefs or activities in their own anti-discrimination laws. All of these laws are different and the proscriptions from discrimination and the protections they provide for religious freedom vary. This situation has persisted despite many inquiries recommending change.[4]  This article considers the latest inquiry into religious freedom in Australia: the Ruddock Review and concludes that change in this area is likely to remain a chimera for some time to come.

Religious Belief in Australia: A Background

The reasons for the introduction of national anti-discrimination laws protecting many attributes but not religion are a little hard to identify. Like other Western democracies Australia has been experiencing an increase in those identifying as having no religion. This category grew between the census of 2006 and the census of 2016 by 87% (to 7 million from 3.7 million).[5] Nevertheless Australia remains a nation in which the majority of the population identify with a religion. The number of Christians remained at about 12 million over the same 10 year period and the number of adherents of other faiths grew in that period by more than 83% to more than 2 million.[6]  This does not suggest that religious belief is likely to disappear in Australia in the immediate future. If anything the increasing diversity of belief within the Australian population suggests a greater need for legislative protections of religious freedom. This is particularly so given the fact that a significant proportion of the Australian population hold negative attitudes towards people of faith.  Between 2010 and 2018 the Scanlon Foundation has conducted 8 interviewer administered surveys on attitudes towards Christians, Buddhists and Muslims. These found negative attitudes towards Christians and Buddhists consistently in the range of 4-5% and  negative attitudes towards Muslims to be in the range of 22 to 25% with 11 to 14 % having very negative attitudes towards Muslims.[7] In surveys which were self-administered in 2017 and 2018 a smaller proportion expressed negative attitudes to Buddhists (3-4%) but negative attitudes towards Christians were higher (12%) and significantly higher in relation to Islam (39-41%).[8] Whether respondents are more honest in answering questions put by an interviewer or when answering questions privately, these statistics are concerning. They help to explain why Australia’s Muslim population continues to experience vilification, discrimination, harassment, intimidation and abuse.^[9]

Is Religious Freedom Legislation a Chimera in Australia?

It is hard to be optimistic that the latest examination of religious freedom in Australia will result in change. It did not occur because of any newfound recognition of the need to protect this fundamental human right. Instead it was a political response made in the context of the redefinition of marriage in Australia to remove sex as a qualifying criteria for a couple to marry in a manner recognised by the State. The process by which marriage was redefined in this way in Australia was itself the consequence of politics. After many unsuccessful attempts to amend the meaning of marriage over many years failed to pass in the Commonwealth parliament, the Commonwealth government chose to conduct a poll of the Australian people to seek their support for that change.  During the subsequent plebiscite, opponents of change raised concerns about religious freedom and parental rights in relation to the education of children. In doing so they pointed primarily to discrimination cases which had occurred overseas and to the asserted adverse consequences for religious freedom rights in those jurisdictions. In order to defuse those concerns this latest review of religious freedom in Australia – the Ruddock Review – was proposed by the Commonwealth government.  As a creature of politics it has been dogged by politics from the beginning.

The results of the plebiscite, which favoured the redefinition of marriage in Australia, were announced on 15 November 2017. Legislation to effect that change was passed by the Commonwealth parliament on 9 December 2017 and the Terms of Reference for the Ruddock Review were released on 14 December 2017.  The Ruddock Review initially sought submissions from the public by 31 January 2017. This tight timeframe of 6 weeks is much shorter in reality when considered in an Australian context.  As Christmas falls in summer in Australia, many Australians  enjoy their holidays in the period between Christmas and Australia Day on 26 January. This is the period least conducive to the preparation of detailed written submissions. The deadline was subsequently extended to 14 February 2018, which is nearly 3 months after the marriage reforms were passed.  Despite the timing, the Ruddock Review received nearly 16,000 individual submissions and conducted 90 meetings with 152 organisations and 32 individuals.[10] Many of the submissions were lengthy and complex with extensive detailed arguments.[11] Within 3 months of the extended date for submissions, the Ruddock Review was provided to the government on 18 May, 2018.  Given the breadth of the inquiry and the volume of submissions the preparation of the Ruddock Review within that time frame is an extraordinary achievement.

Politics and the Delayed Release of the Ruddock Review

Despite the urgency with which the Ruddock Review was convened and the urgency within which submissions were required and the report prepared and provided to the government, it was not made available to the public until just before Christmas 2018. This was more than 7 months after the Ruddock Review was provided to the government. Evidently the government wished to carefully formulate its response to the Ruddock Review and release its response at a politically opportune time which proved increasingly elusive. In the interim Malcolm Turnbull was replaced by Scott Morrison as Prime Minister and resigned as a member of parliament. This necessitated a by-election in his electoral seat of Wentworth. During the by-election the recommendations of the Ruddock Review were selectively leaked to the press in October 2018. This was done for political reasons to damage the prospects of the Liberal Party candidate in that by-election. The tactic proved successful as an independent was elected for the first time in this previously safe Liberal Party electorate. Essential background to the leak is the fact that the electorate of Wentworth was an electorate which was likely to be more concerned by issues relating to sexual minorities than most other electorates. It returned a yes vote of 81% in the plebiscite on the definition of marriage. This was well above the national average of 62%.[12]

Leaked Recommendations and Rushed Responses

During the by-election, two recommendations of the Ruddock Review were mischievously leaked to the press. They were published by the Sydney Morning Herald on 9 October 2018 in an article headed “Religious freedom review enshrines right of schools to turn away gay children and teachers.”[13] As only those recommendations were published the background, context and explanation for the recommendations in the Ruddock Review were not available. This leak caused great consternation and anxiety for students, parents and teachers from sexual minorities as the media fanned the perception that the Ruddock Review had recommended the grant of new rights to religious schools to enable them to discriminate against students and teachers. In fact the Ruddock Review recommended restricting the existing exemptions in the Sex Discrimination Act 1984 (Cth) for religious schools and specifically prohibiting them from terminating the employment of existing staff who marry a person of the same sex. It also recommended the removal of exceptions to anti-discrimination laws on the basis of race, disability, pregnancy or intersex status.

Section 38 of the Sex Discrimination Act 1984 (Cth) provides exclusions from the operation of that Act to religious schools in relation to employees and students on the basis of their sex, sexual orientation, gender identity, marital or relationship status or pregnancy. Religious schools may engage in practices which would otherwise be unlawful discrimination in relation to people with those characteristics if that discrimination is in good faith to avoid injury to the religious susceptibilities of followers of the relevant religion. The Ruddock Review recommended that those exemptions be amended such that only schools with publicly available policies provided to students and staff could rely on them. It also recommended requiring proof that any such discrimination was “founded in the precepts of the religion” and that when applied to a student the school had “regard to the best interests of the child as the primary consideration in its conduct.”[14] The fury which these leaked Ruddock Review recommendations attracted demonstrated that these provisions had been little used in practice and were not generally known to exist by the general public. In the midst of the contentious by-election both major political parties immediately rejected the two leaked recommendations of the Ruddock Review. Instead they indicated an intention to completely withdraw the exemptions for religious schools at least as far as they applied to students.[15]

More Politics and the Ruddock Review Finally Released

On 12 October, 2018, all twenty recommendations of the Ruddock Review were leaked and reported by the press but still the Ruddock Review was not released. Following the Wentworth by-election attempts were made to amend the Sex Discrimination Act 1984 (Cth) in the Commonwealth Parliament to remove the much criticised exceptions for religious schools. Still the Ruddock Report explaining why the changes it recommended were proposed was not released. The attempts to amend the law ultimately failed. Just before Christmas 2018 the government finally released the full Ruddock Report together with its response to it.[16]  Politics remains at the forefront of this brief response with several of its 21 pages devoted to attempts to assign political blame. The response makes clear that it was the Labor Government in 2013 that had expanded the exemptions provided to religious schools when it increased the characteristics protected by the Sex Discrimination Act 1984 (Cth) by passing the Sex Discrimination Amendment (Sexual Orientation, Gender Identify and Intersex Status) Act 2013 (Cth). It also takes several pages to endeavor to place blame on the Labor Party and the Leader of the Opposition for the parliament’s failure to amend the Sex Discrimination Act 1984 (Cth) in December 2018. It is difficult to have any confidence that the political wrangling will abate sufficiently when parliament resumes later this year for any real progress to be made in creating a more appropriate framework for protecting religious freedom in Australia.

So What Does the Ruddock Review Say?

The Ruddock Review is 108 pages long (excluding appendices). In that short compass the Review seeks to explain:

• international law on religious freedom, parental rights, equality and other internationally recognised human rights;
• current legal protections for religious freedom in Australian including: s116 of the Australian  Constitution and the position at Commonwealth law, which is primarily one of limited exemptions from other Commonwealth anti-discrimination laws and the variegated anti-discrimination laws of the States and Territories;
• the manifestation of religious belief in the provision of goods and services, charities and other faith-based organisations, religious schools, parental rights, marriage, places of worship and indigenous beliefs and spirituality;
• vilification, blasphemy and social hostility;
• discrimination; and
• data, dialogues, education and the question of a Religious Freedom Commissioner.

In this short article it is not possible to review and critique each of the recommendations made by the Ruddock Review. The focus here is on: the methodology, the “evidence based” approach, the challenge of the view of the members of the Ruddock Review in the context of the multiplicity of religious views warranting protection and the use of discrimination language.

Methodology of the Ruddock Review

 In covering all of these matters in such a short space, particularly given the volume of written submissions and hearings that took place, inevitably the Ruddock Review could not carefully examine every argument put to it nor canvass every issue no matter how important it might be. It does not even attempt this task. Whilst the Ruddock Review does include some references none are to submissions which were made to it and none are to any of the written submissions quoted.  This makes it very difficult for a reader to assess the quality of the evidence relied upon.

An Evidence Based Approach?

At several junctions, the Ruddock Review claims to focus on evidence. The introduction states that:

[T]he Panel was circumspect in recommending changes to Australia’s existing laws. It was reluctant to upset these laws unless there was clear evidence that they are inadequate in protecting the right to freedom of thought, conscience and religion or that they unjustifiable burden other rights. [17]

Given that religious freedom is an internationally recognised human right and that the Ruddock Review agreed that the enactment of a Religious Freedom Act “would send a positive message to all Australians as to the importance of the human right to freedom of thought, conscience and religion”[18] the Ruddock Review’s need for evidence of transgressions of religious freedom as a precondition to making recommendations is not self-evident.[19] This is particularly so given that the catalyst for the Ruddock Review was the redefinition of marriage and that reform occurred only 2 months before the final date for submissions to be made to the Ruddock Review. For a submission to refer to an adverse consequence of the redefinition of marriage for freedom of religion in Australia this would have required an event to occur in that brief window and for details of it to come to the attention of someone making a submission in time for it to be included. Given the lengthier experience of other jurisdictions of the intersection of religious freedom with anti-discrimination laws following State recognition of marriages between any two persons regardless of their sex, the Ruddock Review’s caution in drawing conclusions from this experience is significant.[20] This is particularly so given the verifiable nature of the international experience which has resulted, for example, in decided cases. Similarly the absence of any comparative law analysis of religious freedom protections in other comparable jurisdictions is unfortunate. Given the reticence to rely on international experience and the focus on local cases, one might have thought that the Ruddock Review would place significant weight on high profile local cases but it treats those with the same caution as international cases.[21]

The Ruddock Review’s purported focus on local evidence is made even more questionable given its frank admission that it had been unable to check the veracity of the “evidence” provided to it. As it observes:

The Panel has taken an evidence-based approach in executing its brief and has sought to identify real-world examples of infringement of people’s right to freedom of religion. However, it should be noted that the Panel is unable, within the scope of this review, to verify and comprehensively fact-check the examples given in submissions and during consultations. [22]

Australia’s Indigenous peoples have had the most experience of living in a culture which was indifferent or hostile to their own cultural, religious and spiritual traditions. If the Ruddock Review wished to focus on “real life” examples, then the experiences of these peoples ought to have provided ample evidence.  However, whilst the panel recognised the importance of Indigenous belief and spirituality, it did not consider that it had the appropriate membership or expertise to explore the issue and this important area is absent from any of its formal recommendations.[23] This is a most unfortunate omission given the learnings that might be gained by examining the extent to which the failure to afford and protect freedom of religion, belief and conscience to Australia’s Indigenous peoples and to the practice of their traditions, such as traditional customary marriage,^[24]  has been causative of their continued disadvantage in Australia.^[25]

The Ruddock Review View and the Multiplicity of Religious Views

Australia is a religiously diverse country.[26] It is also unique in the extent to which its education system is religiously affiliated. About 30 per cent of Australian schools are religious. [27] They not only represent many faith traditions including Christianity, Islam and Judaism but many different forms of those traditions. No Panel can represent the views of all Australians of faith let alone all Australians. Inevitably the views of the members of the Ruddock Review impact on their recommendations. For example the Ruddock Review states that:

In the Panel’s view, existing employees who marry someone of the same sex should not have adverse action taken against them for the sole reason that a person has entered into a same-sex marriage. The Panel can see no reason for any distinction being made between a staff member who is in a same-sex partnership, and one who is married.[28]

Whilst the Panel may see no difference in these situations, this statement belies the fact that a postal poll was held to enable marriage between any two people and that some 38% of the population voted against that change. As the Ruddock Review itself observes “[f]or people of faith, the rites and ceremonies associated with marriage are one of the most significant ways in which they manifest that faith.”[29] For some faith-based schools, the public demonstration of the clear and continuing rejection by a staff member of a fundamental tenant of that faith in relation to the meaning of marriage, demonstrated by publicly participating in a marriage ceremony, may be considered quite differently to a discrete same sex relationship. Some Catholic schools for example may consider such as act to be a scandal betraying “an attitude or behavior which leads another to evil.”[30]  This is a particularly grave matter when a teacher is involved.[31]

The Use of Discrimination Language

Although the Ruddock Review agreed that the enactment of a Religious Freedom Act would telegraph the significance of religious freedom[32] it did not recommend such an enactment. Instead, it recommended the amendment of the Racial Discrimination Act 1975 (Cth) or the enactment of a Religious Discrimination Act to make discrimination on the basis of ‘religious belief or activity’ unlawful.[33] Given the Ruddock Review’s recognition of the powerful message that legislation gives to a society the mere suggestion that protection of religion be tacked on to the Racial Discrimination Act 1975 (Cth) rather enacted in a standalone act is peculiar. As previously discussed, the Ruddock Review also recommended amendments to present exemptions contained in the Sex Discrimination Act 1984 (Cth) to reduce their scope and accessibility.[34]  The language of exemptions is a historical consequence of the piecemeal approach to the protection of human rights adopted in Australia that places religion at a disadvantage. Rather than portraying religions freedom as a valuable human right worthy of protection, it creates the false impression that religious freedom is an unusual permission to engage in unlawful behavior. It is unfortunate that the Ruddock Review did not instead adopt positive language recognising a religious school’s right to select students and staff who are mission fit.[35]

The Chimera of Religious Freedom Legistlation

It is not possible to provide a detailed critique of each of the twenty recommendations of the Ruddock Review in this short article. The authors of the Ruddock Review warrant praise for the dedication to the task that they were asked to do but the limited time frame has lead – probably unavoidably – to a deficient document. Particularly given the Ruddock Review’s reticence to engage with international examples or to place significant weight on high profile Australian examples of offenses to religious freedom it is not surprising that the Ruddock Review “did not accept that the protection of religious freedom is in imminent peril” in Australia.[36]  Given the politics that have become enmeshed in this issue, it is hard to avoid Monica Doumit’s conclusion that:

[T]he Panel’s report seemed to give parliamentarians a license for inaction when it comes to religious freedom. The Panel did not accept that there was any imminent threat to religious freedom and so “remained unconvinced of the urgent need” for changes to current laws.  In the face of such indifference from the Panel, it is hard to see how parliamentarians will find any resolves to legislate for religious freedoms.[37]

In short, as ever in Australia, comprehensive, national religious freedom legislation seems at least several further reports and inquiries away.

Notes

[1] For example, Australia is a party to the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the International Convention on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

[2] Section 116.

[3] Sex Discriminations Act 1984 (Cth), Age Discrimination Act 2004 (Cth), Racial Discrimination Act 1975 (Cth) and Disability Discrimination Act 1992 (Cth)..

[4] Including the Australian Law Reform Commission, Report 129 Traditional Rights And Freedoms – Encroachments by Commonwealth Laws (2015), Joint Standing Committee on Foreign Affairs, Defence and Trade,  Interim Report, Legal Foundations of Religious Freedom in Australia (2017), Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief (1998), New South Wales Law Reform Commission, Report 92 Review of the Anti-Discrimination Act 1977 (NSW) (1999), Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, Report on the Commonwealth Government’s Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill (February 2017)

[5] Andrew Markus, “Mapping Social Cohesion The Scanlon Foundation Surveys 2018” 17. https://www.monash.edu/__data/assets/pdf_file/0009/1585269/mapping-social-cohesion-national-report-2018.pdf

[6] Ibid 18.

[7] Ibid 62.

[8] Ibid 62.

^[9] Adam Possamai, Kevin Dunn, Peter Hopkins, Faroque Amin, Lisa Worthington and Jan Ali, “Muslim Students’ Religious and Cultural Experiences in the Micro-publics of University Campuses in NSW, Australia” (2016) 47 Australian Geographer 3, 311, 319- 321; Justine Kearney and Mohamed Taha, ”Sydney Muslims experience discrimination at three times the rate of other Australians: study” (30 November 2015) ABC News accessible at http://www.abc.net.au/news/2015-11-30/muslims-discrimination-three-times-more-than-other-australians/6985138; International Centre for Muslim and non-Muslim Understanding, ‘Islamophobia, social distance and fear of terrorism in Australia – A Preliminary report’ (Report, International Centre for Muslim and non-Muslim Understanding, 2015); Abdullah Saeed, Islam in Australia (Allen & Unwin, 2003) 6-7, 209-212; Deepti Goel, “Perceptions of Immigrants in Australia after 9/11” (2010) 86 The Economic Record 275, 596-597, 600-601, 605-608;  Human Rights and Equal Opportunity Commission, “Combating the Defamation of Religions” (Human Rights and Equal Opportunity Commission, 4 July 2008) accessible at http://www.humanrights.gov.au/our-work/race-discrimination/projects/combating-defamation-religions-2008;Australian, Gary Bouma, Desmond Cahill, Hall Dellal and Athalia Zwartz,“2011 Freedom of religion and belief in 21^st century Australia” (Human Rights Commission, 2011) accessible at https://www.humanrights.gov.au/publications/2011-freedom-religion-and-belief-21st-century-australia;  Thornton and Lusker, above n58, 75-84; Bouma,  Cahill, Dellal and  Zwartz, above n [ ] 27-28, 44-45,65-69,72,81

[10] Philip Ruddock (Chair), “Report of the Expert Panel Religious Freedom Review” (18 May 2018) Appendix A: Submissions and consultations 109. 112 https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf (Ruddock Review)

[11] Ibid 111

[12] ABC News. “Results Same Sex Marriage Poll” (15 November 2017 updated 17 November 2017) https://www.abc.net.au/news/2017-11-15/same-sex-marriage-results-ssm/9145636

[13] Jewel Topsfield,  “Religious freedom review enshrines right of schools to turn away gay children and teachers” Sydney Morning Herald 9 October 2018  https://www.smh.com.au/politics/federal/religious-freedom-review-enshrines-right-of-schools-to-turn-away-gay-children-and-teachers-20181009-p508o7.html

[14] Ruddock Review Recommendations 5-8

[15] David Crowe, “Winding back gay discrimination in schools is a pragmatic response from Morrison” Sydney Morning Herald 12 October 2018 https://www.smh.com.au/politics/federal/winding-back-gay-discrimination-in-schools-is-a-pragmatic-response-from-morrison-20181012-p509ct.html

[16] Australian Government, “Australian Government response to the Religious Freedom Reveiw

[17] Ruddock Review [1.11]

[18] Ruddock Review [1.121]

[19] Ruddock Review [1.399]

[20] Ruddock Review [1.398]

[21] Ruddock Review [1.398]

[22] Ruddock review [1.399]

[23] Ruddock Review [1.333]

^[24] State recognition as marriage has never been given in Australia to the traditional or cultural marriages of Australia’s Aboriginal peoples even though they have been celebrated for at least 60,000 years see R v Neddy Monkey (1981) 1 W & W (L) 40, 41, R v Cobby (1883) 4 LR (NSW) 355,356 and R v Byrne (1867) 6 SCR (NSW) 302; see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No.31 (1986) [237].

^[25] Australian Government, Department of Prime Minister and Cabinet, “Closing the Gap Report, 2017” http://closingthegap.pmc.gov.au/

[26]Australian Bureau of Statistics, “Census reveals Australia’s religious diversity on World Religion Day”  18 January 2018http://www.abs.gov.au/AUSSTATS/abs@.nsf/mediareleasesbyReleaseDate/8497F7A8E7DB5BEFCA25821800203DA4?OpenDocument

[27]  Emma Rowe, ”Religion in Australian schools: an historical and contemporary debate,” School News 26 August, 2017 https://www.school-news.com.au/education/religion-in-australian-schools-an-historical-and-contemporary-debate/

[28] Ruddcok Review 62-63 [1.249]

[29] Ruddock Review 76 [1.303]

[30] Catechism of the Catholic Church, (St.Pauls,1994) [2284]

[31] ibid [2285]

[32] Ruddock Review [1.121]

[33] Ruddock Review Recommendation 15

[34] Ruddock Review Recommendations 5 to 8

[35] Patrick Parkinson, “Religious leaders seek right to believe not power to discriminate,” The Australian 26 October, 2018 26

[36] Ruddock Review [1.6]

[37] Monica Doumit, “Licence for decisive inaction,” The Catholic Weekly 5 January 2019 https://www.catholicweekly.com.au/monica-doumit-licence-for-decisive-inaction/

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