By Stephen O'DohertyWednesday 28 Nov 2018Open House InterviewsFaithReading Time: 8 minutes
Listen: Stephen O’Doherty in conversation with Mark Snedden, Executive Director, Institute for Civil Society.
The right of faith-based schools to teach and uphold their ethos is, for the first time I can recall, in serious jeopardy. Nothing short of principled leadership can now end the debacle that has become the debate over religious freedom rights in Australia.
How did we get here?
The failure of the Turnbull and Morison Governments to release the Ruddock Review, coupled with a confused and deliberately misconstrued attack on Christian schools during the Wentworth by-election, has placed in doubt one of our most important national values: the right to freely hold and act in accordance with our faith.
Labor has given notice that it will immediately seek to remove key parts of the Sex Discrimination Act (Commonwealth) relating to faith-based educational institutions.
While Shadow Attorney General Mark Dreyfus has said the immediate purpose of the amendment would be to remove the right of schools to “discriminate against LGBTI students” his announcement also confirms that Labor “remains committed to the removal of exemptions relevant to LGBTI staff in religious schools”.
Labor’s move follows the majority recommendations of the Senate’s Legal and Constitutional Affairs Committee’s (the Senate Committee) Inquiry into Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff. It was a short, sharp inquiry motivated by the head of steam built up on this issue during the Wentworth by-election, itself a consequence of the lack of a broad and informed public debate.
“We recognise – as did the committee – that this is a more complex proposition which requires consequential amendments to other legislation such as the Fair Work Act. Labor pledges to progress this issue,” Mr Dreyfus said in the statement.
That by-election saw the selective leaking of some of the Ruddock Review’s recommendations. The Senate Committee’s report states that this caused “great concern in much of the community, not least because it appears many Australians were unaware of the broad exemptions to discrimination laws provided to faith-based educational institutions”.
It also ensured that any hope of having a sensible discussion about the balance between the right to teach and uphold the ethos of religion in faith-based schools with other rights under the often confusing and certainly imperfect framework of Australian Human Rights law.
The question is, if the Parliament agrees and the current exemptions are removed, what will protect the ability of faith-based schools (and other means of teaching faith), to teach the tenets of their faith on issues including such as marriage and sexuality, or indeed any moral issue?
Two years of uncertainty
It was in the wake of the 2017 changes to the law to recognise same sex marriage that the Government established an eminent committee, led by former Attorney-General Phillip Ruddock, to take an in depth look at whether there were sufficient protections in Australian law for faith-based organisations, and people of faith.
Nearly two years after that debate began and despite assurances from the yes case that there would be no bad outcomes the potential knock-on effects of that debate are serious indeed.
By failing to release and respond to Ruddock the Turnbull and Morrison Governments have left the crucial issue of religious freedom to the winds of political chance. Faith communities will not thank them if the outcome is adverse.
By failing to release and respond to Ruddock the Turnbull and Morrison Governments have left the crucial issue of religious freedom to the winds of political chance. Faith communities will not thank them if the outcome is adverse.
What religious freedom is, and is not.
Freedom to hold and express religious views is a fundamental, inalienable, human right, recognised recognised in The International Covenant on Civil and Political Rights.
Religious freedom is not the right to express hatred towards or discriminate against people with different views.
Religious freedom needs to be held in balance with other rights, such as the right to be free from discrimination. What is usually missing from the debate is the principle of proportionality. Balancing human rights is not a zero-sum game – meaning if your right and mine overlap the best solution might not be one where I win everything and you lose everything.
Take employment. If churches, synagogues and mosques were not able to positively discriminate in employing people of the faith to lead and teach adherents their essential religious character would be lost. The effect on adherents of the faith would be severe, and proportionately greater than the effect of people not of the faith who are not eligible for employment in those places. They are free to find appropriate works elsewhere: a relatively small deficit. However if the church was not able to choose religious staff the believers’ rights to worship and learn together would be extinguished: a serious impact indeed.
If churches and religious schools are not able to choose religious staff the believers’ rights to worship and learn together will be extinguished: a serious impact indeed.
The same argument applies to faith-based schools. Unless they can reasonably teach and uphold the tenets of their religion those who seek a religious education (another fundamental human right) will not have that opportunity.
This is the reason that state and federal laws currently exempt religious schools from the anti-discrimination act, although the exemptions vary from jurisdiction to jurisdiction. Those protections are generally held in the form of exemptions to Discrimination laws, along the lines of (my paraphrase) it is discrimination to require a person be of a particular religion when employing them. Faith-based schools are exempt from this provision.
Parents send their children to faith-based schools knowing, and in most cases depending, that the school will teach the values and beliefs of their faith. The choice of those parents will however be completely undermined if a school is powerless to discipline a teacher who deliberately presents a contradictory doctrine to their students.
Sexuality and marriage
The reason sexuality and marital status are a particular issue when it comes to employment is this: most faith-based schools hold to a traditional view of sexuality and marriage based on religious conviction. Christian schools (including Catholic schools) and Islamic schools are particularly concerned that they should not be forced to accept as staff those who would undermine that position. Without the ability to employ staff who are genuine adherents to the religion, schools argue that they will have little protection to maintain their ethos.
The issue of students
Christian school groups have repeatedly said they do not discriminate against students merely on the basis of their sexuality. Mark Spencer of Christian Schools Australia explained recently on Open House the heart of Christians schools is to nurture, care for and support students. He said that while students sometimes claim they have been disciplined, or asked to leave, because of their sexuality, the real issue had been the behaviour of the student concerned, including directly challenging or disrupting the school’s ethos and mission.
While the current system of exemptions makes it possible to expel students for reason of their sexuality alone, it is not a provision schools use in that way. They are however rightly concerned that should the current broad-based exemptions be removed they won’t have the legal tools to maintain the ethos of the school, including, if necessary, in requiring and maintaining standards of conduct among staff and students.
Is there another way?
Schools and others have rightly described the current system as a backwards protection. I’ve described it sometimes as a begrudging tip of the hat to religion; a second-best acknowledgement of what should be a first-principle human right.
Anything that replaces it needs to have even greater certainty of being a genuine protection than at present.
Helpfully the Senate Committee report states that “[h]owever, it is important that faith-based educational institutions be able to uphold their ethos in a reasonable way. Australia’s religious communities should feel that their religious freedoms are respected and protected. The committee considers that, within appropriate bounds, there is scope to affirm positively and protect religious freedoms in Australia”. This gives rise to a recommendation
that consideration be given to inserting in law a positive affirmation and protection of religious freedom in Australia that is appropriately balanced with other rights.
Labor has announced it will support that recommendation. The matter could be debated before the end of the year.
But would that work any better than the present arrangements?
Many groups who made submission to the Ruddock Review and the Senate Committee argued for a front foot provision along these lines.
In the podcast associated with the present post Mark Snedden of the Institute for Civil Society outlines his submission, and I spell out the Human Rights Commission’s recommendation along similar lines.
I’m as cranky as a cut snake that it has come to this. What we have needed all along, and certainly need now, is sensible, principled leadership.
A fine mess
As I admit in the podcast I’m as cranky as a cut snake that it has come to this. What we have needed all along, and certainly need now, is sensible, principled leadership.
The Ruddock Review took 16,500 submissions and its eminent panel weighed them in the balance. Could they shed some light on the proposals now being force-fed to the Parliament with, one would think, more than a wink and nod to the politics of a minority Government? And what of the strong view of some, including Review Panel member Frank Brennan, that we need a Humans Rights or Religious Freedom Act, an argument he advanced on Open House.
What we have needed all along, and certainly need now, is sensible, principled leadership.
Until the Ruddock Review Report is released, and we are allowed a decent time to discuss it, we’ll be left with an imperfect, forced change the consequences of which no-one can really say.
Will the next government, whoever that is, allow a better process? No guarantee of that either.
In the meantime then we must pray that the current leadership of both major parties act in a way that does not diminish one of our greatest and most important rights.
The best way to do that, in the short term, would be to leave the current provisions in place, acknowledging their imperfections, until there’s a proper ventilation of the challenges and opportunities of this fraught area of law.
To listen to this podcast click the arrow under the picture at the top of this page. Our podcasts are also available on iTunes.
Note this interview went to air before the release of the Senate Committee’s report.