SUSAN RYAN. Ruddock and the religious freedom review.

In commercial matters religious freedom needs no further protection. There is no case for extending exemptions from existing anti-discrimination measures to the commercial provision of facilities, catering, furniture or entertainment that may play a part in hospitality following a marriage. Such goods and services are not a legal part of the civil marriage contract and should not attract the religious freedom protections that apply to the conduct of the marriage ceremony. The commercial provision of services is legally separate from the Marriage Act and is covered by the 2013 amendments to the Sex Discrimination Act

We need a Human Rights Act. Professor  Spencer Zifcak drafted a model Act ten years ago.See link below

(This is a shortened version of Susan Ryan’s submission to the Ruddock review) 

This submission reflects my own relevant experiences and considerations. It refers to changes in Commonwealth law since the passage of the Sex Discrimination Act 1984, for which I had principal responsibility in the Hawke government.

The objectives of that Act were to make unlawful discrimination based on gender in the provision of employment, goods and services in all areas covered by Commonwealth powers. This Act recognised religious freedom.  Its provisions included exemptions for the operators of faith-based schools from the anti-discrimination measures in relation to the employment of teachers whose views conflicted with the teachings of that faith. Otherwise all discrimination based on sex, marital status or pregnancy in employment and the provision of goods and services became unlawful.

In 2013, as Age Discrimination Commissioner at the Australian Human Rights Commission, with others, I advocated successfully to have the anti-discrimination provisions of the Sex Discrimination Act extended by amendment to cover LGBTI persons. The existing exemptions for faith-based employers in relation to staff were to apply in relation to the new protections, but there was a significant exception. Faith-based organisations providing Commonwealth funded aged care were not permitted to discriminate in the provision of these services against LGBTI individuals or couples. Apart from this specific measure, discrimination in employment and the provision of goods and services to individuals based on their gender identity was made unlawful.

The protection for religious freedom provided by section 116 of the Commonwealth Constitution has been reflected and amplified since 1901 by a range of policies and practices.

A major contribution to religious freedom is provided by public funding of faith-based schools in Australia. Extensive financial support for parental choice of school results in a faith-based choice as wide as is offered in any other comparable school system throughout the world.

Faith-based providers of health and welfare services have access to core public funding, with few restrictions on how they conduct these services.

Churches have always had, and retain, the opportunity to restrict the provision of their marriage ceremonies to those who meet the specific requirements of their faith. For example, Catholic priests do not marry persons who have been divorced, and this is also the position of some other major religions in Australia. Catholic priests and priests in some other religions will not marry same sex couples and will not be required to under the 2017 Marriage Act amendment. The outcome of these 2017 changes is that same sex couples have the same right as other couples to marry under civil law.

Other existing legislated rights of same sex identity individuals to non-discrimination are unaffected.

It has been argued that the protections of religious freedom in relation to performance of marriage ceremonies should be extended to individuals operating businesses. It is argued that the refusal of goods and services connected in a non-legal way to a same sex marriage should be permitted where the business operator holds religious or other objections to same sex marriage.  The “right” of cake makers to refuse a cake sale on such a basis has been alleged as an example of this desired new right to discriminate.

Such “new rights” should not be given any positive consideration by the Expert Panel. Refusal to supply goods and services to persons because of their gender identity has been unlawful since the 2013 amendments of the Sex Discrimination Act.

In commercial matters religious freedom needs no further protection. There is no case for extending exemptions from existing anti-discrimination measures to the commercial provision of facilities, catering, furniture or entertainment that may play a part in hospitality following a marriage. Such goods and services are not a legal part of the civil marriage contract and should not attract the religious freedom protections that apply to the conduct of the marriage ceremony. The commercial provision of services is legally separate from the Marriage Act and is covered by the 2013 amendments to the Sex Discrimination Act.

Those who advocate new protections for religious freedom point to the quite narrow Constitutional protection under section 116. They also point out that Commonwealth anti-discrimination laws do not directly protect religion, although the Race Discrimination Act 1975 has in practice and by precedent protected individuals experiencing discrimination on the basis of their culture or race which may include their faith. They also note that Australia is a signatory to international conventions protecting religion.

For further protection of religious freedom the obvious and desirable next step is the enactment of an Australian Human Rights Act. Such an act could put into statute all the requirements for rights protections to which Australia has formally agreed in international treaties, but which so far have no basis in Australian law.

In 2010, following the most extensive public consultation to have taken place in Australia, the National Human Rights Consultation, chaired by Father Frank Brennan SJ, concluded that such a human rights act was desirable, possible and could sit successfully with our traditional separation of powers without negatively affecting either the supremacy of parliament or the traditional role of judges. The Brennan Committee recommended to the government of the day, the Rudd government, that amongst other new processes, a statutory human rights act be introduced into the parliament.

The Brennan inquiry had built on a community campaign, the Human Rights Act for Australia campaign, which started in 2005. Along with John Menadue AC, Professor Spencer Zifcak, Professor George Williams and others, I had conducted this campaign to discuss with citizens at grass roots level how Australians understood their human rights and if they saw their rights violated or diminished because of inadequate legal protection. Citizens were gravely troubled that Australia was the only advanced democracy that failed to give these rights statutory protection. This community discussion led to strong support for a statutory human rights act as proposed by the Brennan Inquiry.

Vociferous opponents of statutory protections persuaded the Rudd government that acceptance of the Brennan proposal would lose votes. The Brennan Committee proposal for an Australian Human Rights Act was dropped.  During this discussion, some religious leaders had opposed specific statutory protection for religious freedom, apparently believing that judges, if they were given a role, would weaken or even overrule protections provided by the parliament.

In the new legal and rights landscape created by the same sex amendments to the Marriage Act, some religious spokespeople see the positives that such a new law could offer for their objective that religious freedom be more strongly and explicitly protected in Australia. The Expert Panel should consider the ways in which a Human Rights Act could strengthen religious freedoms as well as other traditional rights.

The model act drafted by Professor Spencer Zifcak over ten years ago (<https://johnmenadue.com/john-menadue-a-human-rights-bill-2009>)  remains relevant. It covers those rights already agreed to by Australia in the international agreements listed in the bill. It sets out a useful and practical way in which judges could exercise a role in determining if a protected right had been injured, while leaving final decisions to the parliament.

Susan Ryan AO was a Minister in the Hawke Cabinet 1983-88, Age Discrimination Commissioner 2012-16 and chaired the community campaign for a human rights act for Australia 2005-10

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2 Responses to SUSAN RYAN. Ruddock and the religious freedom review.

  1. J Deacon says:

    Wonderful submission Susan Ryan. Such a shame Malcolm Turnbull pandering to certain elements in his party, caused this Ruddock committee and required you to make it. But most interesting to have it on the record, and the case for a Human Rights Act

  2. Jim KABLE says:

    What do we want? A Bill of Human Rights! When do we want it? Now!

    Thank you, Susan.

    I don’t trust governments in general – given the rorts and shenanigans over the two decades – the destruction of our public service – and in particular I do not trust our Home Affairs J.Edgar Hoover-in-the-making Peter Bjelke-Dutton.

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