The impending release of the Ruddock Report on religious freedom (and the leaking of its recommendations), has triggered flurries of speculation in the mainstream media and blogosphere. In the interests of promoting informed discussion we have republished (and simplified, see the original here), some preliminary observations by Neil James Foster, Associate Professor in Law at the University of Newcastle.
A media outlet here in Australia has released what it says are the 20 recommendations made by the Expert Panel on Religious Freedom chaired by the Hon Philip Ruddock. The Report itself was delivered to the Government in May 2018, but has not officially been released. Apparently the Government is planning to release the Report at the same time as announcing its official response.
The main issue which has generated controversy during the last week, in which there was a selective leaking of some of the recommendations, were proposals dealing with the rights of religious schools to take into account the sexual orientation of students in certain areas. The changes proposed were not radical changes to the existing law, but were presented as such when first publicised. In this post I want to briefly set these recommendations in context and offer my preliminary response.
The changes proposed were not radical changes to the existing law, but were presented as such when first publicised.
Background – religious schools and discrimination
Commonwealth law prohibits discrimination in certain specific areas of activity on the grounds of race, disability, age, sex, marital status, pregnancy, sexual orientation and gender identity.
Because a total ban on differential treatment would have a drastic effect on religious groups, the 1984 Sex Discrimination Act (“SDA”) Act included provisions allowing what would otherwise be discriminatory behavior on behalf of religious organisations. The Act allowed religious groups to continue with their traditional practices in the area of ordination of male clergy, for example.
Religious schools were afforded similar protections. A conservative Christian school which taught that marriage was only between a man and a woman, and that all sexual activity should be reserved for marriage would not be required to employ a religious studies teacher who was living in a de facto relationship. Religious parents and schools could require staff to not only teach, but to be able to model, behaviour that supported the religious mission of the school.
Current law – discrimination and students
In addition to the provisions just mentioned, the SDA also contained an explicit provision allowing religious schools to require students at the school to comply with school values in this area of sexual behaviour “to avoid injury to the religious susceptibilities of adherents of that religion or creed.” In 2013 this exemption was extended to sexual orientation and gender identity.
There was no particular campaign from religious schools prior to introduction of this law to allow them to exclude, or expel, same sex attracted students. Indeed, so far as I am aware, no religious school has a blanket policy that excludes or penalises gay students.
There was no particular “campaign” from religious schools prior to introduction of this law to allow them to exclude, or expel, same sex attracted students. Indeed, so far as I am aware, no religious school has a blanket policy that excludes or penalises gay students. But the provision may be of assistance in circumstances where a student who is gay wants to make that a public matter for discussion and activism in the school. This provision allows a school which wants to maintain the general biblical standard of sexual morality among the student body, for example, to calmly discuss with the student and his or her parents whether that school is the right place for them, or whether they would be more comfortable at a place which affirms their choice to agitate about this issue.
The Ruddock recommendation
Recommendation 7 of the Ruddock Report, at least as circulated so far, reads as follows:
Recommendation 7 The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that:
- The discrimination is founded in the precepts of the religion.
- The school has a publicly available policy outlining its position in relation to the matter.
- The school provides 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.
- The school has regard to the best interests of the child as the primary consideration in its conduct.
Given the background mentioned above, the first thing to be said is that this recommendation is unfortunately worded. At first glance, and looked at in isolation, it seems to contain a positive recommendation to “provide that religious schools may discriminate”. This sounds like a massive change to the law. But in fact, in the context, it is clearly intended to be a recommendation that narrows the scope of the current law, rather than expands it. I think the sense of the recommendation would have been better captured if it had said “may only discriminate” under the listed conditions.
The additional conditions which the Panel would impose are that the policy …
- be “founded on the precepts of the religion”,
- be made publicly available to existing and prospective students and parents,
- and that action only be taken with the “best interests of the child” as the guiding principle.
While the publicity recommendations are very sound (to reduce the chance of parents and students not being aware of this issue), the other two recommendations are not so clearly right, in my view.
The first, that discrimination here is only justified where “founded in the precepts of the religion” sounds fine but is unclear. It would not be a good idea if its effect was to hand over to the secular court or tribunal the task of determining what the precepts of a religion “actually” require. That is not an authority that courts and tribunals actually want, and on many occasions it has been recognised that a secular court should not be making binding decisions on religious doctrine.
It would not be a good idea to hand over to the secular court or tribunal the task of determining what the precepts of a religion “actually” require. A secular court should not be making binding decisions on religious doctrine.
On the other hand, the proposal would be fine if it simply meant that the decision must be a good faith attempt to apply the religion as interpreted by the school, and not a “sham” to allow dismissal or discipline for ulterior motives. It may be best to wait until the full report is available to properly evaluate this suggestion.
The final suggested criterion also sounds fine, until the same question is asked: who determines what is in a child’s “best interests”? It is not adequate to say that this is a “neutral” issue that can be determined by child counsellors or psychologists. The Christian school may say: in our view it would not be in the interests of the child to support their preference for homosexual activity, as that is contrary to the Bible’s teaching. Often a secular counsellor would strongly disagree. On balance I would oppose including this final criterion, simply because the process for determining the answer to the question is so unclear.
Conclusion (for now)
There are 19 other recommendations which I have not touched on here, and as the Report is issued the meaning of some of them will become clearer. Some of them are very good.
But recommendation 7 raises serious issues for religious schools. One of the primary reasons that these schools are established, is so that a religious world-view can be presented to students. Parents send children to a Christian school, for example, assuming that the school will be both teaching and modelling Christian virtues, which include those such as self-control and abstaining from sexual sin.
Christian and other schools do not have a track record in Australia of refusing enrolment to gay students, or harshly expelling them when their sexual orientation becomes apparent. But there are difficult conversations to be had when a student decides to announce their sexuality and to actively support a non-biblical view of sexual behaviour among their peers. Rather than laying down detailed rules on how to resolve this issue, the current provisions of the SDA give the school the flexibility to look for solutions. They were sensibly introduced by the Labor government in 2013 to implement Australia’s obligations to protect freedom of religion and belief.
While supporting the proposed publicity provisions as a sensible incremental improvement, it seems to me that the other proposed conditions run the risk of taking the conversation away from those entrusted by parents with guarding the religious ethos of the school, and would not be a good idea.
At the time of publication, this is still a developing story please see Neil Foster’s subsequent observations, published in the light of the Prime Ministers comment that the government would seek to remove the right of schools to expel students on the basis of sexual orientation.