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Religious Freedom Review and Federal Gov­ern­ment Response

16 December 2018

The Executive Council of Aus­trali­an Jewry, the peak rep­res­ent­at­ive body of the Aus­trali­an Jewish community, has cau­tiously welcomed the release of the Religious Freedom Review handed down by the Expert Panel chaired by the Hon Philip Ruddock, and the Aus­trali­an government’s response to it.

“Although we believe that religious freedom in Australia is not, and has never been, under serious threat, as both an ethnic and a faith community we support the government’s announced intention ‘to further protect, and better promote and balance, the right to freedom of religion under Aus­trali­an law and in the public sphere’”, said ECAJ co-CEO, Peter Wertheim. “Much will depend on the gov­ern­ments of the States and Ter­rit­or­ies acting in co-operation with the Federal gov­ern­ment to achieve that goal”.

“There should be little con­tro­versy about 15 of the Expert Panel’s 20 recom­mend­a­tions which the gov­ern­ment has accepted either directly or in principle. These would ensure, for example, that charities do not lose their status simply for advoc­at­ing a tra­di­tion­al view of marriage; that the gov­ern­ment collects, analyses and publishes data about various forms of infringe­ment on religious freedom; and that public education programs are developed about human rights and religion in Australia,” Wertheim said.

According to Wertheim, the proposed intro­duc­tion of a new Religious Dis­crim­in­a­tion Act will be more con­ten­tious. “It’s rel­at­ively easy to state the broad prin­ciples” he said. “On the one hand the legis­la­tion will prohibit dis­crim­in­a­tion on the basis of a person’s religious belief or activity, including on the basis that a person does not hold a religious belief or par­ti­cip­ate in a religious activity. On the other hand there will be similar exemp­tions to those in other anti-dis­crim­in­a­tion legis­la­tion, which enable religious insti­tu­tions to function in accord­ance with their religious beliefs and prin­ciples. In practice, however, some difficult situ­ations may arise in which one or the other principle will have to give way, and where no broad social consensus exists as to which principle ought to prevail. The devil will be in the detail and I expect that many parts of the Bill when it is intro­duced will attract pas­sion­ate debate”.

Wertheim said that if the legis­la­tion is passed, there is “good sense” to the government’s proposal for a stand-alone Religious Freedom Com­mis­sion­er in the Aus­trali­an Human Rights Com­mis­sion to oversee religious freedom in Australia and handle religious dis­crim­in­a­tion com­plaints.

Wertheim said it was under­stand­able that the Panel’s recom­mend­a­tions for amending the current exemp­tions to the Sex Dis­crim­in­a­tion Act might be referred to the Law Reform Com­mis­sion. “Legis­lat­ive changes have often had unin­ten­ded con­sequences, and it is prudent to try to minimise the scope for these to occur through the well-estab­lished processes of the Com­mis­sion. This is another area where state­ments of abstract principle can seem more clear-cut than the way they would be applied in real life situ­ations”.

The gov­ern­ment has also referred to the Law Reform Com­mis­sion the Panel’s recom­mend­a­tions that religious schools no longer have the right to dis­crim­in­ate against students or employees on the basis of their race, dis­ab­il­ity, pregnancy or intersex status. “It’s hard to see how dis­crim­in­a­tion on these other grounds can have anything to do with religious freedom”, Wertheim said. “I would have expected the gov­ern­ment to accept the Panel’s two recom­mend­a­tions about these matters”.

Contact
Peter Wertheim AM | co-CEO
ph: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au