Rud­dock re­li­gious free­dom re­view: what is it and what do we know so far?

The Guardian Australia - - Politics - Paul Karp

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.

Pho­to­graph: Tracey Nearmy/AAP

Sub­mis­sions to the Rud­dock re­li­gious free­dom re­view from the Catholic church call for a re­li­gious free­dom act to give re­li­gious in­sti­tu­tions apos­i­tive right to up­hold their val­ues in em­ploy­ment prac­tices.

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