Ruddock religious freedom review: what is it and what do we know so far?
The Coalition has been forced to clarify its position on hiring and firing gay teachers and expelling gay students after leaks from the Ruddock religious freedom review.
But what is the review and what do we know so far about its recommendations?
What is the Ruddock religious freedom review?
In November 2017, in the midst of parliamentary debate about how to legislate marriage equality after the historic yes vote, the Turnbull government asked former attorney general Philip Ruddock to lead a panel to review the issue of religious freedom.
The panel consisted of Ruddock; the president of the Australian Human Rights Commission, Rosalind Croucher; barrister and former judge Annabelle Bennett; Father Frank Brennan and academic Nicholas Aroney.
The panel received more than 15,500 submissions.
Submissions from marriage equality groups and unions called for an end to exemptions in discrimination law that allow religious organisations to discriminate on the basis of sexuality.
Religious organisations including the Catholic church, the Anglican archdiocese of Sydney, Christian Schools Australia and the Freedom for Faith group, called for a religious freedom act to give religious institutions a positive right to uphold their values in employment practices.
The panel reported to the Turnbull government in May.
What does the review recommend? The full report from the Ruddock review has not been made public yet. Scott Morrison has said he intends to release it by the end of 2018, along with the government response.
Guardian Australia has confirmed the review recommended the commonwealth amend the federal Sex Discrimination Act to provide “that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status.”
In order to gain the right to discriminate, schools would need to provide a public policy statement declaring their position and give notice to parents, students and prospective students. Further safeguards require that the school must have “regard to the best interests of the child as the primary consideration in its conduct” and discrimination must be “founded in the precepts of the religion”.
A further leak from the Ruddock review – seen by Guardian Australia – revealed the panel said there was “no need” to introduce provisions into state law allowing religious schools to discriminate on the basis of sexuality in jurisdictions which already hadgreater protection for LGBTI staff and students.
In relation to other matters – the panel said there was “no justification” for schools to discriminate on the basis of race, disability, pregnancy or intersex status. It recommended to be abolished these exceptions to anti-discrimination law that allow religious schools to discriminate on those grounds.
The review is also expected to call for changes to make it unlawful to discriminate against someone on the basis of their religious belief or lack thereof, which LGBTI advocates, including the Equality Campaign, accepted in their submissions.
What is the existing law around firing gay teachers and expelling gay students?
The existing law varies from state to state. In New South Wales and the Australian Capital Territory, private educational institutions can discriminate against both teachers and students based on sexuality.
In Tasmania, both teachers and students are protected from discrimination. In Queensland teachers can be discriminated against but students cannot.
The situation is more complicated in Victoria, Western Australia and South Australia, where religious exemptions to discrimination law apply but in different terms.
Although the federal Sex Discrimination Act contains an exemption for religious schools allowing them to discriminate on sexuality, the status quo is that this is merely an exemption to federal law and does not override state-based laws.
It is still unclear if the effect of the Ruddock review recommendation – which appears to licence discrimination by religious schools – would override state laws.
Ruddock has told Radio National that states set their law “as they see fit”. He denied that the panel had recommended the commonwealth should override state law, saying it was “better and more preferable” to work with the states to address issues.
Ruddock said the commonwealth overriding state laws is a “last resort” but did not rule it out.
What is the Morrison government’s position?
The Morrison government has said the Ruddock review is a report to government, and no measures have passed cabinet or become Coalition policy.
The attorney general, Christian Porter, has said there is “no proposal for any new exemption” because federal law already allows religious schools to reject teachers and students based on sexuality, but has not clarified whether the existing federal law could be applied to the states.
Scott Morrison has said the Ruddock review found the right to discriminate should be “fine-tuned” and there is “no evidence” schools are currently expelling or banning students.
Asked if it is a good law that allows discrimination against children based on sexuality, Morrison told 3AW “I don’t think so – I have that view”. He noted the recommendation adds safeguards for the best interests of children.
But Morrison added that “religious schools should be able to run their schools based on their religious principles”.
Morrison said that “in the same way” as discrimination based on gender or race is prohibited, the “same sort of protections” should apply to discrimination based on religion.
Will parliament pass any of these changes?
The proposal to extend religious schools’ rights to fire staff and expel students based on sexuality has caused strong pushback from Labor, the Greens and the crossbench that indicates it is unlikely to pass.
Senator Derryn Hinch and the Centre Alliance’s Rex Patrick told Guardian Australia any such changes would be “retrograde” and “inappropriate”.
The Greens have opposed new laws to allow discrimination against LGBTI people, and have also supported a push to rollback existing exemptions for religious organisations.
The shadow attorney general, Mark Dreyfus, has said: “Labor has been clear – we will not support any weakening of existing anti-discrimination law.
“We will not support any new laws which make it easier to turn kids away from a school because of who they are.”
Labor has said it has “no plans” to change existing religious exemptions in discrimination law that allow religious schools to fire teachers based on their sexuality.
Changes to create a Religious Discrimination Act to protect religious people from discrimination are more likely to be successful. Dreyfus has said Labor needs to see the full report to understand the reasons why that law is proposed and the evidence that it is necessary, but has not ruled out supporting it.