New Religious Discrimination Laws ‘Unlikely To Pass Before Federal Election’


Student Anti-Discrimination Bill

By Anja Hilkemeijer, University of Tasmania

Prime Minister Scott Morrison and Attorney-General Christian Porter have released both the Ruddock Religious Freedom Review and the government’s response.

Given the panel’s recommendations were leaked to the media some time ago, the full report contains few surprises. But today’s announcement ends months of speculation on how the government intends to move on this issue.

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According to the prime minister, most of what the government proposes is mere administrative “tidy up”. However, closer inspection shows that a number of the proposals are of real substance.

Taking kids out of school

The Ruddock Panel recommended that state and territory education departments develop a policy to allow parents to take children out of classes that address religious or moral subject matter inconsistent with their beliefs. Porter announced that this recommendation will be implemented by the development of Commonwealth model guidelines.

The Ruddock recommendation and the government’s proposal on this issue are controversial and beset with practical difficulties.

What constitutes a “religious or moral matter” may not always be clear: for example, discussions on the environment, the treatment of animals or poverty may be considered by many to be of a fundamentally moral nature.

Moreover, allowing parents the right to take their child out of class could be seen as undermining the message of diversity – as recently decided by a Canadian court.

Another government response concerns a proposal to change the Marriage Act to allow religious schools to refuse to make available premises in relation to same-sex weddings. Given strong public support for marriage equality and last year’s parliamentary debates, adding further exemptions to the Marriage Act could be seen as winding back marriage equality.

Religious schools discriminating against LGBTI teachers and students

There has been fierce and ongoing debate in parliament on removing the right of religious schools to discriminate against teachers and students on the basis of their sexual orientation or gender identity.

On this issue, the government’s response to the Ruddock review is to consult with states and territories regarding the terms of reference for the Australian Law Reform Commission to consider a possible amendment.

This will set alarms bells off in jurisdictions such as Tasmania that currently have no special exemptions for religious bodies, including schools. The response appears to be a push by the government to abolish the stronger protections that currently exist in some states.

Push for a Religious Discrimination Act

A further key response to the Ruddock review is the proposal to enact a Religious Discrimination Act. But any religious freedom bill will necessarily be difficult to draft without an overall framework of a comprehensive Charter of Rights.

The Labor party has already indicated it cannot support this proposal without seeing the details.

Stand-alone religious discrimination laws are rare. Some examples exist in the United States, where they act as vehicles for individuals to exempt themselves from the general law and to justify discrimination against the LGBTI community in the delivery of goods and services.

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The only precedent in Australia is Fred Nile’s private member’s bill currently before the New South Wales parliament, which would allow broad ranging discrimination on the basis of religious belief.

A new religious freedom commissioner

The Ruddock panel concluded that Australia does not need to appoint a religious freedom commissioner. The government disagrees, and has announced its intention to establish such a position in the Australian Human Rights Commission.

Interestingly, the Christian legal think tank, Freedom for Faith, strongly advocated for the appointment of a religious freedom commissioner, and estimated its annual cost would be between A$1.25-1.5 million.

What now?

At a press conference announcing the government’s response, the prime minister said he wanted to introduce legislation to implement these proposals before the next election.

This looks like mission impossible, given the time necessary for a consultation process with the states and territories, and the Australian Law Reform Commission inquiry.

The announcement also does nothing to progress the conflict between those who want a clean removal of the right of religious schools to discriminate and those that want religious schools to retain a special rights to discriminate.

Morrison emphasised that the proposals reflect the importance of people living their lives and raising and educating their children in accordance with their beliefs.

But the unanswered question is whether freedom of belief extends to allowing people to discriminate against LGBTI people.

Any changes in the law need to be carefully considered to ensure they are consistent with Australia’s human rights obligations and protect the equal dignity of all.The Conversation

Anja Hilkemeijer is a lecturer in Law at University of Tasmania. This article is republished from The Conversation under a Creative Commons license. Read the original article.