The rec­om­men­da­tions of the Rud­dock re­view

The Weekend Australian - - THE NATION -

Those ju­ris­dic­tions that

re­tain ex­cep­tions or ex­emp­tions in their an­tidis­crim­i­na­tion laws for re­li­gious bodies with re­spect to race, dis­abil­ity, preg­nancy or in­ter­sex sta­tus should re­view them, hav­ing re­gard to com­mu­nity ex­pec­ta­tions. Com­mon­wealth, state

and ter­ri­tory gov­ern­ments should have re­gard to the Sira­cusa Prin­ci­ples on the Lim­i­ta­tion and Dero­ga­tion Pro­vi­sions in the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights when draft­ing laws that would limit the right to free­dom of re­li­gion. Com­mon­wealth, state

and ter­ri­tory gov­ern­ments should con­sider the use of ob­jects, pur­poses or other in­ter­pre­tive clauses in anti-dis­crim­i­na­tion leg­is­la­tion to re­flect the equal sta­tus in in­ter­na­tional law of all hu­man rights, in­clud­ing free­dom of re­li­gion. The com­mon­wealth

should amend sec­tion 11 of the Char­i­ties Act 2013 to clar­ify that ad­vo­cacy of a “tra­di­tional” view of mar­riage would not, of it­self, amount to a “dis­qual­i­fy­ing pur­pose”. The com­mon­wealth

should amend the Sex Dis­crim­i­na­tion Act 1984 to pro­vide that re­li­gious schools can dis­crim­i­nate in re­la­tion to the em­ploy­ment of staff, and the en­gage­ment of con­trac­tors, on the ba­sis of sex­ual ori­en­ta­tion, gen­der iden­tity or re­la­tion­ship sta­tus pro­vided that: a) The dis­crim­i­na­tion is founded in the pre­cepts of the re­li­gion; b) The school has a pub­licly avail­able pol­icy out­lin­ing its po­si­tion in re­la­tion to the mat­ter and ex­plain­ing how the pol­icy will be en­forced; c) The school pro­vides a copy of the pol­icy in writ­ing to em­ploy­ees and con­trac­tors and prospec­tive em­ploy­ees and con­trac­tors. Ju­ris­dic­tions should

abol­ish any ex­cep­tions to anti-dis­crim­i­na­tion laws that pro­vide for dis­crim­i­na­tion by re­li­gious schools in em­ploy­ment on the ba­sis of race, dis­abil­ity, preg­nancy or in­ter­sex sta­tus. Fur­ther, ju­ris­dic­tions should en­sure that any ex­cep­tions for re­li­gious schools do not per­mit dis­crim­i­na­tion against an ex­ist­ing em­ployee solely on the ba­sis that the em­ployee has en­tered into a mar­riage. The com­mon­wealth

should amend the 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 pro­vided that: a) The dis­crim­i­na­tion is founded in the pre­cepts of the re­li­gion; b) The school has a pub­licly avail­able pol­icy out­lin­ing its po­si­tion in re­la­tion to the mat­ter; c) The school pro­vides a copy of the pol­icy in writ­ing to prospec­tive stu­dents and their par­ents at the time of en­rol­ment and to ex­ist­ing stu­dents and their par­ents at any time the pol­icy is up­dated; d) The school has re­gard to the best in­ter­ests of the child as the pri­mary con­sid­er­a­tion in its con­duct. Ju­ris­dic­tions should

abol­ish any ex­cep­tions to anti-dis­crim­i­na­tion laws that pro­vide for dis­crim­i­na­tion by re­li­gious schools with re­spect to stu­dents on the ba­sis of race, dis­abil­ity, preg­nancy or in­ter­sex sta­tus. State and ter­ri­tory

ed­u­ca­tion de­part­ments should main­tain clear poli­cies as to when and how a par­ent or guardian may re­quest that a child be re­moved from a class that con­tains in­struc­tion on re­li­gious or moral mat­ters and en­sure that these poli­cies are ap­plied con­sis­tently. These poli­cies should: a) In­clude a re­quire­ment to pro­vide suf­fi­cient, rel­e­vant in­for­ma­tion about such classes to en­able par­ents or guardians to con­sider whether their con­tent may be in­con­sis­tent with the par­ents’ or guardians’ re­li­gious be­liefs; b) Give due con­sid­er­a­tion to the rights of the child, in­clud­ing to re­ceive in­for­ma­tion about sex­ual health, and their pro­gres­sive ca­pac­ity to make de­ci­sions for them­selves. The com­mon­wealth

at­tor­ney-gen­eral should con­sider the guid­ance ma­te­rial on the At­tor­ney-Gen­eral’s De­part­ment’s web­site re­lat­ing to au­tho­rised cel­e­brants to en­sure that it uses plain English to ex­plain clearly and pre­cisely the op­er­a­tion of the Mar­riage Act 1961. The up­dated guid­ance should in­clude: a) A clear de­scrip­tion of the re­li­gious pro­tec­tions avail­able to dif­fer­ent classes of au­tho­rised cel­e­brants; b) Ad­vice that the term “min­is­ter of re­li­gion” is used to cover au­tho­rised cel­e­brants from re­li­gious bodies which would not or­di­nar­ily use the term “min­is­ter”, in­clud­ing nonChris­tian re­li­gions. The com­mon­wealth

at­tor­ney-gen­eral should con­sider whether the Code of Prac­tice set out in sched­ule 2 of the Mar­riage Reg­u­la­tions 2017 is ap­pro­pri­ately adapted to the needs of smaller and emerg­ing re­li­gious bodies. The com­mon­wealth

should progress leg­isla­tive amend­ments to make it clear that re­li­gious schools are not re­quired to make avail­able their fa­cil­i­ties, or to pro­vide goods or ser­vices, for any mar­riage, pro­vided that the re­fusal: a) Con­forms to the doc­trines, tenets or be­liefs of the re­li­gion of the body; b) Is nec­es­sary to avoid in­jury to the re­li­gious sus­cep­ti­bil­i­ties of ad­her­ents of that re­li­gion. Those ju­ris­dic­tions that

have not abol­ished statu­tory or com­mon law of­fences of blas­phemy should do so. Ref­er­ences to blas­phemy

in the Ship­ping Reg­is­tra­tion Reg­u­la­tions 1981, and in state and ter­ri­tory pri­mary and sec­ondary leg­is­la­tion, should be re­pealed or re­placed with terms ap­pli­ca­ble not only to re­li­gion. The com­mon­wealth

should amend the Racial Dis­crim­i­na­tion Act 1975, or en­act a Re­li­gious Dis­crim­i­na­tion Act, to ren­der it un­law­ful to dis­crim­i­nate on the ba­sis of a per­son’s “re­li­gious be­lief or ac­tiv­ity”, in­clud­ing on the ba­sis that a per­son does not hold any re­li­gious be­lief. In do­ing so, con­sid­er­a­tion should be given to pro­vid­ing for ap­pro­pri­ate ex­cep­tions and ex­emp­tions, in­clud­ing for re­li­gious bodies, re­li­gious schools and char­i­ties. NSW and South Aus­tralia should amend their anti-dis­crim­i­na­tion laws to ren­der it un­law­ful to dis­crim­i­nate on the ba­sis of a per­son’s “re­li­gious be­lief or ac­tiv­ity” in­clud­ing on the ba­sis that a per­son does not hold any re­li­gious be­lief. In do­ing so, con­sid­er­a­tion should be given to pro­vid­ing for the ap­pro­pri­ate ex­cep­tions and ex­emp­tions, in­clud­ing for re­li­gious bodies, re­li­gious schools and char­i­ties. The com­mon­wealth should com­mis­sion the col­lec­tion an anal­y­sis of quan­ti­ta­tive and qual­i­ta­tive in­for­ma­tion on the ex­pe­ri­ence of free­dom of re­li­gion in Aus­tralia at the com­mu­nity level, in­clud­ing: a) In­ci­dents of phys­i­cal vi­o­lence, in­clud­ing threats of vi­o­lence, linked to a per­son’s faith; b) Ha­rass­ment, in­tim­i­da­tion or ver­bal abuse di­rected at those of faith; c) Forms of dis­crim­i­na­tion based on re­li­gion and suf­fered by those of faith; d) Un­rea­son­able re­stric­tions on the abil­ity of peo­ple to ex­press, manifest or change their faith; e) Re­stric­tions on the abil­ity of peo­ple to ed­u­cate their chil­dren in a man­ner con­sis­tent with their faith; f) The ex­pe­ri­ence of free­dom of re­li­gion im­pact­ing on other hu­man rights; g) The ex­tent to which re­li­gious diver­sity (as dis­tinct from cul­tural diver­sity) is ac­cepted and pro­moted in Aus­tralian so­ci­ety. The com­mon­wealth

should sup­port the devel­op­ment of a re­li­gious en­gage­ment and pub­lic ed­u­ca­tion pro­gram about hu­man rights and re­li­gion in Aus­tralia, the im­por­tance of the right to free­dom of re­li­gion and be­lief, and the cur­rent pro­tec­tions for re­li­gious free­dom in Aus­tralian and in­ter­na­tional law. As a first step, the panel rec­om­mends that the at­tor­ney-gen­eral should ask the par­lia­men­tary joint com­mit­tee on hu­man rights to in­quire into and re­port on how best to en­hance en­gage­ment, ed­u­ca­tion and aware­ness about these is­sues. The Aus­tralian Hu­man

Rights Com­mis­sion should take a lead­ing role in the pro­tec­tion of free­dom of re­li­gion, in­clud­ing through en­hanc­ing en­gage­ment, un­der­stand­ing and di­a­logue. This should oc­cur within the ex­ist­ing com­mis­sioner model and not nec­es­sar­ily through the cre­ation of a new po­si­tion. The prime min­is­ter and

the com­mon­wealth at­tor­ney-gen­eral should take lead­er­ship of the is­sues iden­ti­fied in this re­port with re­spect to the com­mon­wealth, and work with the states and ter­ri­to­ries to en­sure its im­ple­men­ta­tion. While the panel hopes it would not be nec­es­sary, con­sid­er­a­tion should be given to fur­ther com­mon­wealth leg­isla­tive so­lu­tions if re­quired.

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