Religious review focus on restricting schools to reject gay students, teachers

Contrary to reports elsewhere, a focus of the Ruddock review is to formalise restricting the rejection by schools of gay staff, students.

Former Liberal Attorney-General Philip Ruddock led the religious freedoms review.

The Ruddock religious freedom review has proposed changes that would restrict the ability of religious schools to use existing laws to discriminate against teachers and students based on their sexual orientation or gender identity.

Fairfax Media has reported today that religious schools would be given new powers to turn away gay students and teachers under proposals contained in the review — led by former Liberal Attorney-General Philip Ruddock — as part of a “secret plan”.

The Australian — which has obtained sections of the Ruddock review — has confirmed this is incorrect and that, in fact, one of the focuses of the review was on trying to formalise and restrict the ability of religious schools to reject gay staff or students.

The Ruddock review states: “To the extent that some jurisdictions do not currently allow religious schools to discriminate against students on the basis of sexual orientation, gender identity and gender characteristics, the panel sees no need to introduce such provisions”.

“Very few religious schools or organisations submitted that this was necessary.

“To the extent however that certain jurisdictions including the commonwealth do allow this type of discrimination, the panel believes the exceptions should be limited by the requirement that the discrimination be in accordance with a published policy which is grounded in the religious doctrines of the school”.

Under section 38 of the Sex Discrimination Act, there are already exemptions that apply to “educational institutions established for religious purposes”.

These exemptions allow religious schools to discriminate against students under section 38(3) of the Sex Discrimination Act and teachers under section 38(1) of the Sex Discrimination Act in accordance with their religious doctrines. Similar exemptions exist in ACT, NSW and WA law.

However, the Ruddock review sought to trim back these exemptions. For example, it recommends that “pregnancy” be removed as an exemption. The review would also require religious schools to justify their decision to refuse gay students or teachers by requiring them to issue a public justification by reference to a formal published policy.

In recommendation 7, the review proposes that schools which use existing laws to discriminate against students develop a: “publicly available policy outlining its position in relation to the matter”.

The school would also need to “provide a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated”.

Recommendation 8 also calls on governments to “abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools with respect to students on the basis of race, disability, pregnancy or intersex status”.

Attorney-General Christian Porter told The Australian the exemptions allowing religious schools to refuse gay students and teachers were expanded by Labor under Julia Gillard in 2013 and were not recommendations stemming from the Ruddock review.

“Bill Shorten coming out today and saying that he opposes the ability of religious schools to make decisions about employment and student admissions consistent with the tenets of their religion ignores the fact that those exemptions were introduced by Labor in 2013,” Mr Porter said.

“And Bill Shorten is either shockingly ignorant of laws that he created or terribly hypocritical in his desperation to score a political point”.

The Australian has also confirmed that the Ruddock review removes anachronistic exemptions for religious organisations included in sections 153, 195, 351, 772 of the Fair Work Act.

The misinterpretation of the review’s findings in Fairfax today has greatly angered senior government ministers as well as panel members on the Ruddock review, with some saying it represents a deliberate attempt to “spike” the review before its release.

The substantive recommendation of the review is its push for a new Religious Discrimination Act. This would recreate the same protective structures found in the Sex Discrimination Act, the Age Discrimination Act, the Racial Discrimination Act and the Disability Discrimination Act for religious freedoms.

Protections for religious freedoms are currently enshrined only by way of exemptions to these anti-discrimination laws.

Religious freedom expert, Partner at Prolegis Lawyers and Adjunct Associate Professor at Notre Dame Law School, Mark Fowler, told The Australian that “protection against discrimination on the basis of religious belief is the missing piece in the constellation of Australian equality legislation”.

“Of the five main equality rights recognised in the international law to which Australia is a signatory, being race, age, disability, sex (including sexual orientation) and religion, only religion fails to receive protection in Commonwealth law”.

“Last year in its sixth periodic review of Australia, the United Nations Human Rights Committee called upon Australia to fill this gap in its protection to equality. The Committee noted its concerns about the ‘lack of direct protection against discrimination on the basis of religion at the federal level’”.