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Religious discrimination laws coming to the boil

  • 17 November 2021
It’s four years since the Australian Parliament amended the Marriage Act 1961 to provide that marriage means ‘the union of two people to the exclusion of all others’. The legislation followed the plebiscite on same sex marriage. To address the concerns of some religious groups, Prime Minister Malcolm Turnbull set up an expert panel chaired by long time Liberal Party minister Philip Ruddock to report on whether Australian law adequately protected the human right to freedom of religion. Having served on that committee, I made some public observations two years ago about our recommendations:

‘The Ruddock committee conceded that in theory there is a major lacuna in the array of anti-discrimination legislation. If you legislate to prohibit discrimination on the basis of gender, sexual orientation, age, race, or disability, why not on the basis of religion? …We recommended both a tweaked tightening of the exemptions for religious bodies in the Sex Discrimination Act and the introduction of a Religious Discrimination Act. The delay in release of the report and the shambolic handling of its publication highlighted the political problem with our recommendations. The Turnbull wing of the Liberal Party favoured the tweaked tightening of the Sex Discrimination Act provisions but not the introduction of a Religious Discrimination Act. The Morrison wing of the Liberal Party were troubled by the former but attracted to the latter.’

The issue is now back on the boil both in Canberra and in Melbourne. The tweaking of exemptions for religious bodies is not just a Commonwealth concern.  It is also a state issue. This week the Victorian Parliament is considering the Equal Opportunity (Religious Exceptions) Amendment Bill 2021. And the Morrison Government is secretly cobbling together a Religious Discrimination Bill.

The tweaking exercise relates to the discretion afforded to religious groups when it comes to the employment of staff in religious institutions. During our public consultations, the Ruddock panel ‘heard from a number of religious schools that argued that spiritual education is not just about teaching content in classes, but also the formation of a community or environment that supports the teachings of their faith. A key theme in these discussions was the need for staff to model the religious and moral convictions of the community and to uphold, or at least not to undermine, the religious ethos of the school. The Panel heard repeatedly that faith is “caught not taught”.’ I vividly recall one administrator from a very