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Religious freedom in secular Australia



Seven months on, the Morrison government has published the Religious Freedom Review — a report of an expert panel chaired by Philip Ruddock. It has also published its response. The review was instituted by Malcolm Turnbull during the plebiscite on same sex marriage. Many 'yes' voters in the plebiscite were convinced that a change to the law of marriage would not make one iota of difference to freedom of religion in Australia.

Frank Brennan (second from left) with (from left) with the Hon. Michael Kirby AC CMG; Claire Mallinson, National Director, Amnesty International Australia; Thomas Albrecht, UNHCR Regional Rep; and broadcaster Genevieve Jacobs following a forum at the National Library celebrating the 70th anniversary of the UN Declaration of Human Rights.Many 'no' voters were worried that the changes could be frightful. The debate which then erupted about religious freedom when Parliament was legislating to recognise same sex marriage highlighted that Australian legislation at the Commonwealth and state level for the protection of all human rights, including freedom of religion, was at best patchy.

The expert panel included a variety of viewpoints on how best to protect human rights. Having chaired the Rudd government's National Human Rights Consultation in 2009, I favour a national human rights act. Fellow panel member Professor Nicholas Aroney has written passionately and elegantly against a proposed human rights act in Queensland. So the panel did not go looking for the magic panacea of human rights protection.

Having heard from thousands of citizens about the deficiencies in the patchwork of legislation which usually focuses on discrimination, we agreed unanimously on proposed incremental solutions. We thought religious freedom needed better legislative protection at a Commonwealth level. We thought students and staff should be better protected in religious schools when it came to discrimination on the basis of sexual orientation or practice at variance with religious teachings. We did not think the sky was falling in after the plebiscite; nor did we think the patchwork deficiencies in human rights protections should be simply left alone.

In the absence of a constitutional bill of rights or a national human rights act, both sides of politics have responded pragmatically and sensibly each time we have signed up to an international treaty enhancing our commitment to human rights. Over time, we have legislated against racial discrimination, sex discrimination, age discrimination and disability discrimination in the wake of specific treaty obligations not to discriminate against persons on the grounds of a particular attribute. The Ruddock Committee thought the time had come for similar legislation prohibiting adverse discrimination on the basis of a person's religion.

We thought that was now all the more pressing, not because of the debate about same sex marriage, but because in an increasingly secularist Australia, religious folk, particularly more conservative religious folk, were worried that their most basic rights were not being adequately protected. Some even had a sense that their religious beliefs and practices were being needlessly parodied and demeaned in the public square. We thought that religious institutions, like other groups including political parties, should be free to employ or include members who subscribe to the group's ethos, practices and teachings.

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) which recognises the right to freedom of thought, conscience and religion, including the freedom 'either individually or in community with others and in public or private, to manifest one's religion or belief in worship, observance, practice and teaching'. There have been numerous Australian inquiries by parliamentary committees, the Australian Law Reform Commission and the Australian Human Rights Commission which have highlighted the need for some further legislative protection of this right at a Commonwealth level.


"In the wake of the same sex marriage plebiscite, the challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students."


Like all competing or conflicting rights, the right to religious freedom is limited in its scope. There is often a need to balance conflicting rights. For example, Article 26 of the ICCPR recognises the right of all persons to equality. The most recent report of the Special Rapporteur on freedom of religion and belief to the UN Human Rights Council notes that 'it is not permissible for individuals or groups to invoke "religious liberty" to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere'.

In the wake of the same sex marriage plebiscite, the Australian challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students. If we had an Equality Act, we might consider the need for a Religious Freedom Act. As we have a Sex Discrimination Act which deals with discrimination on the basis of various criteria including sexual orientation, the Ruddock panel thought it desirable that we at least have a Religious Discrimination Act. The government agrees, and hopefully so too will the Opposition and cross benchers. We thought the protection of religious freedom should be put up in lights as part of the day job of the Australian Human Rights Commission. The government agrees and has gone one step further, proposing a Freedom of Religion Commissioner.

Both sides of politics are agreed that it is time to repeal section 38(3) of the Sex Discrimination Act which allows a religious educational institution to discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy provided they discriminate 'in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'. I welcome this bipartisan commitment of the parliament. As an expert panel, we did not see our way clear to recommend complete repeal of this provision which had been introduced by Labor as recently as 2013. As a panel of experts rather than policy advocates, we had recommended significant hurdles which would have made such discrimination all but impossible.

Both sides of politics are agreed that the repeal of this provision should not be permitted to work any interference with the right of religious institutions to teach their doctrine in good faith. The Labor Party has agreed to specify that 'nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity: (a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and (b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.'

The government is prepared to put such a statement in legislation. Let's hope all members of parliament after Christmas can agree to the insertion of such a clause in the legislation providing assurance to religious educators that they can continue to teach their doctrine in good faith while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators. Even with an election in the wings, it should not be too much to expect that our elected leaders commit to a Religious Discrimination Act, enhance the role of the Australian Human Rights Commission, and get some uniformity in the states and territories when it comes to selection criteria for students and staff in religious schools.



Frank BrennanFr Frank Brennan SJ was a member of the Religious Freedom Review chaired by Philip Ruddock. This article first appeared in the Weekend Australian 15-16 December 2018.

Main image: Frank Brennan (second from left) with (from left) with the Hon. Michael Kirby AC CMG; Claire Mallinson, National Director, Amnesty International Australia; Thomas Albrecht, UNHCR Regional Rep; and broadcaster Genevieve Jacobs following a forum at the National Library celebrating the 70th anniversary of the UN Declaration of Human Rights.

Topic tags: Frank Brennan, human rights, same sex marriage, Philip Ruddock, religious freedom



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Existing comments

Being parodied and demeaned in the public square can certainly be soul-destroying - for anyone. The church's role as a haven for the bewildered and downtrodden should never be underestimated. And I don't think it is by the majority of non-believing Australians. I also believe that religious folk who interact actively with non-believers will find they learn much. Laws are necessary, however we function best by knowing those laws are in the background of our lives. Thanks for keeping us up-to-date, Frank.

Pam | 17 December 2018  

A well argued piece that goes a considerable way towards clarifying the issues we are dealing with here. A bit unfortunate however that Frank Brennan speaks of 'sitting at the feet of religious educators'. Isn't the adoption of such a one-down position part of the problem?

Lawrence Moloney | 17 December 2018  

Let's hope parliament says no. You're asking for an exemption to anti-discrimination protections for marginalised people. No matter what waffle you put around why you need that for your "faith", it's nonsense. Your "faith" is a privat thing; it is not a thing which should be relied on to permit discrimination that would otherwise be unlawful. Nope. A thousand times nope. Being able to indulge in otherwise unlawful discrimination is not "religious freedom", it's religious PRIVILEGE.

Jeremy | 17 December 2018  

Am I correct in understanding that, on the one hand, the proposed approach will repeal the exemption under section 38(3) of the Sex Discrimination Act allowing religious educational institutions to discriminate on the basis of sexual orientation; but, on the other hand, the proposed approach will introduce new legislation that introduces a “right of religious institutions to teach their doctrine in good faith”? How can such a provision be introduced "while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators"? To my knowledge, no leading Catholic school is seeking such a provision to allow faith-based discriminatory teaching. If the proposal is enacted, LGBTIQ students at a Catholic school could suffer a toxic environment where all students are taught that the sexual orientation of LGBTIQ students is “contrary to the natural law" (Catholic Catechism, n.2357) and ‘objectively disordered’ (n.2358), with grave consequences for their well-being. Could not such a provision also permit the teaching of a range of other doctrines of different religions with grave consequences for society, say women being subservient to men?

Peter Johnstone | 17 December 2018  

Despite all the waffle and claims of persecution, the reality is people are free to celebrate their religion in Australia, except perhaps Muslims who seem to be under constant attack (religious freedom should apply to all religions). People are also free to mock religion. If your faith is strong why do you care? The reality is there is no place for religious teaching in schools. The place for that is the church, mosque or temple. Teach kids good values but don't force feed them religion.

Barnard Murray | 17 December 2018  

Where were the culture warriors now championing laws to protect freedom of religion when our present Federal Government was attacking Islam in general, because of the clearly criminal activity of the few radicalised hotheads who go about giving their faith and their community a bad name? From the far right the Minister for Homeland Security (How American!!) arguing that we should be welcoming more white South Africans and fewer Somali refugees, many of whom are Muslim, to our Prime Minister calling out terrorism as caused by militant Islam, without any sign of recognition that the people most under attack from radical Islam are the moderate majority of Muslims, especially the moderate mullahs and imams. I am concerned that the present move to shore up freedom of religious expression, in practice, is about shoring up freedom of Christian expression only.

Ian Fraser | 17 December 2018  

Jeremy and Peter don`t believe in the universally-accepted Human Right of religious freedom and expression at all, and highlight the problem we have of safeguarding this against the aggressively secular minority in the community. Of course, as Ian Fraser says, this Right needs to apply to main stream Islam and other accepted religions as much as to followers of Jesus Christ.

Eugene | 17 December 2018  

" . . . don't force-feed them religion" immediately prejudices the issue, Barnard Murray. I'd have thought sharing their faith and its expression is the greatest gift Christian parents can offer their children. And why privatise religion, which inherently has a strongly social dimension?

John | 17 December 2018  

Reading the full report, with its recommendations, will assuage the anxiety which some people obviously still feel about its purpose. The recommendation to remove the exemption for religions from the anti- discrimination acts is an excellent one. However, it would leave religious freedom exposed, since it isn't protected by the Federal Constitution, which only protects it from possible federal legislation. I know Frank has said this many times, but we still have comments suggesting that new Religious Freedom legislation is unnecessary or even malign. Get a grip, people! And Happy Christmas. God bless us, every one.

Joan Seymour | 18 December 2018  

Fr Brennan, amid all the legal and social changes in society over the past decade or two - divorce, contraception, abortion, etc - not to mention unjust warfare and asylum seeker policies, why do LGBTI people pose such a grave threat to religious freedom right now? Isn’t this discrimination itself?

Aurelius | 19 December 2018  

i that as a proper practicing christian of 63 years standing that we should be allowed to practice our religious laws openly and honestly let people know that millions of people worldwide are suffering due to malnutrition and that we should not eat something so that they can have food to eat. as a true believer i have tried to do this and was told in the RSL clubs that we do not do that sort of thing here and therefore it is not allowed ,the person that told me this is also a member of my church. is that religious freedom? i think more like persecution of the highest level.

maryellen flynn | 19 December 2018  

Eugene. I fail to see your distinction between secular and religious society when it comes to the right of so-called christians to define gay people as intrinsically disordered. I’m a gay catholic and I face with my own pure conscience thanks very much without the religion I was basptised into having a right to discriminate.

Aurelius | 19 December 2018  

It’s interesting that most of the religious persecution in history has been perpetrated by dominant faiths through their control, either directly or through the state, of the means of coercion. Moorish Spain was perhaps one of the few exceptions. The Panel was correct in drawing the distinction between ‘religious freedom’ and ‘freedom of religion’. The former, for which there is little opposition, is about freedom FROM deprivation; the latter, which attracts much suspicion, is too often about freedom TO deprive. Frank’s article seeks to portray the Panel’s report as some sort of benign document, a kind of ‘don’t you worry about that’ matter but the Government’s response is not going to be driven by resonable ‘people of faith’, rather it will more likely driven by bigoted hypocrites as was the case in the marriage-equality debate. Aurelius’ question deserves a prompt response from Frank. I hope he gets one.

Ginger Meggs | 19 December 2018  

Frank has used a touchstone that many fundamentalists fail to do ie quoting the sayings of Christ as the key to Christian teaching. Fundamentalists often quote the harsh punishment of stoning to death that was meted out to adulterers, homosexuals and heretics and those not resting on the Sabbath in ancient times found in the Old Testament, the Torah and the Koran. See Deuteronomy 22:22–24 Most civilised people today would reject such a severe and savage punishment. However, the Wahabi Muslim states (eg Saudi Arabia) still use this form of punishment. Frank mentioned that Jesus was very opposed to wealth which is evident from the reading of his utterances. He could also have mentioned the story of the woman who was witnessed being involved in an adulterous relationship. (John 7:53–8:11). This story indicated his non vindictive approach to those who broke the rules of acceptable behaviour and his opposition to capital punishment. Even this touchstone principle can be difficult to follow through, though. It is true that Jesus never criticised homosexuality in his utterances in the New Testament record and many progressive Christians use this as an argument against discriminating against homosexuals. However, there are no records of him condemning bestiality or paedophilia either. My hope is that parliament would not pass any law that allowed any school administration or any other body for that matter to discriminate against LGBTQ students or other minority groups and that it would give stronger support to the Safer Schools program.

Andrew (Andy) Alcock | 16 January 2019  

Freedom of religion is a fundamentally important tenet, whether you agree with the content of a particular religion's beliefs or not. The fact is that for 2000 years Christianity has taught that marriage and family are founded on a heterosexual couple committed for a lifetime. Christian schools should have the right to teach this without being bullied and harrassed. In practice, Catholic schools treat LGBTQI children with respect and tolerance. Just look at states that do/did not tolerate religion eg China, Nazi Germany, Stalinist Russia, as a caution .

JO | 20 January 2019  

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