There is huge concern within the LGBTI community about the treatment of gay students and teachers. This report is long overdue, calls for the federal Sex Discrimination Act to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status – something some but not all states already allow.
“Schools must retain the ability to hire and fire teachers and other staff based on their beliefs and adherence to religious codes”, Christian Schools Australia has said.
It also called for “the right to select students”, including to eject them from a school community, in a joint submission with Adventist Schools Australia to the Ruddock religious freedom review.
Submissions from LGBTI organisations and Amnesty International called for a repeal or narrowing of religious exemptions to discrimination law, which the Rationalist Society called an example of “religious privilege”.
Prime Minister Scott Morrison has backed the right of religious schools to discriminate against gay students in a political row over a confidential government report into religious freedom.Mr Morrison said the key finding was “not a change” because the discrimination was allowed in existing law.
Mr Morrison played down the storm over the report by pointing to existing law that allows religious schools to discriminate against some staff and students.
The Prime Minister stood by this power in the face of a fierce debate over whether church groups and religious schools should continue to hold exemptions from discrimination law on the grounds of personal conscience.
Opposition Leader Bill Shorten said there “should be no extension of discriminatory rights” in any response to the review, adding that the report should be released so voters could see the advice to the government.
News sources reported that during the marriage law postal survey campaign the Catholic church threatened to sack gay teachers, nurses and other staff if they engaged in civil same-sex weddings in breach of church doctrine. Christian Schools Australia warned that “removing the ability of Christian schools to employ staff who share the school’s values and beliefs would undermine the essential nature of the school”.
“If freedom of religion is to remain a legitimate hallmark of Australian education then the rights of school communities to operate in accordance with religious beliefs must be upheld.
“This must include the right to choose all staff based on their belief in, and adherence to, the beliefs, tenets and doctrines of the religion concerned.”
What is a Religious Discrimination Act?
A number of federal laws prohibit different types of discrimination: the Racial Discrimination Act, the Sex Discrimination Act (which covers sex, gender identity, marital status, sexuality and family responsibilities), the Age Discrimination Act and the Disability Discrimination Act. The idea is to add a Religious Discrimination Act to this collection of laws.
The basic function of these laws is to prohibit discrimination on the basis of a protected attribute in various contexts such as employment and the provision of goods and services.
A Religious Discrimination Act following the same basic model would prohibit things like refusing to hire a person because she is a Catholic and sacking a person because he is an atheist. It would also prohibit a café refusing to sell coffee to a customer because she is a Muslim and a bakery refusing to make a cake for a customer because he is an Anglican.
The relationship between religion and the LGBT community has varied greatly across time and place, within and between different religions and empires, and regarding different forms of homosexuality and bisexuality.
Among those denominations that generally are negative towards these orientations, there are many different types of actions they may take: this can range from quietly discouraging homosexual activity, explicitly forbidding same-sex sexual practices among adherents and actively opposing social acceptance of homosexuality, to execution. Religious fundamentalism has been found to correlate positively with anti-homosexual bias.
Many Christian organisations can take steps to strengthen their ability to exercise their religious beliefs lawfully while advancing their missions. Laws protecting religious freedom apply more clearly to a ministry which self-identifies as a “religious” organisation and which identifies its religious beliefs and associated practices in its corporate documents, staff and volunteer policies, program activities, facility usage, and related ministries.
To the extent that an organisation can show that it has clear and sincerely held religious beliefs, particularly regarding Biblical sexuality and marriage, it may be exempt from rapidly evolving legal requirements.
Prime minister Scott Morrison has dismissed claims he is delaying the release of the Ruddock religious freedom review and anticipated reforms to discrimination laws until after the October by-election in the seat of Wentworth.
The government’s main challenger in the traditionally safe Liberal seat, independent Kerryn Phelps, said the report was being “concealed from the public using cabinet privilege as an excuse”.
Mr Morrison responded on Wednesday morning, saying the claims were “rubbish” and the by-election was “not the reason” the report had still not been released, despite being handed to his predecessor Malcolm Turnbull in May.
Social affairs minister Dan Tehan sparked the debate with a speech on 22 June, which was also published in the Australian newspaper on Saturday, in which he said discrimination on the basis of religion should be prohibited.
The minister also said state-based sex discrimination acts that limit religious freedom should be “no more restrictive than required,” raising concern among marriage equality advocates about any moves to erode anti-discrimination protections for LGBT people.
Tehan’s call for religious people to be protected from discrimination replicates changes proposed by the Labor government in 2012, which already exist in many state laws, and were supported by the Equality Campaign and the Human Rights Law Centre during the Ruddock review.
Wilson, the former Australian Human Rights Commission freedom commissioner and one of the Liberal MPs who co-signed the successful Dean Smith marriage equality bill, told Guardian Australia the lack of a Religious Discrimination Act is “the obvious gap in our anti-discrimination architecture but should be legislated carefully”.
All Australians are free to choose their religion, and are entitled to express and practise their religion and their beliefs without intimidation and without interference, as long as those practices are within the framework of Australian law.
That said, when it comes to religious freedom in Australia there are two broad points to make. First, legal protection of religious freedom in Australia is limited.
As Liberal senator David Fawcett noted in his capacity as chairman of the parliamentary inquiry into the status of the human right to freedom of religion or belief: “While a culture of religious freedom has thrived, and the common law has respected religious freedom to a large extent, the legislative framework to ensure this continues is vulnerable.”
Second, Australia is a federation where the states and the commonwealth treat religious freedom differently.