The Attorney-General stated
"It is essential that Australia's laws are nationally consistent and effectively protect the rights and freedoms recognised in international agreements, to which Australia is a party. This particularly applies to the right to freedom of religion and the rights of equality and non‑discrimination."
The ALRC review will consider what reforms to Commonwealth, state and territory law, the Fair Work Act 2009 (Cth) and any other Australian laws should be made in order to: limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos, and remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
In undertaking this reference, the ALRC will have regard to existing reports and inquiries including the Report of the Expert Panel on Religious Freedom and the ALRC Report on Traditional Rights and Freedoms – Encroachments by Commonwealth Laws.The Terms of Reference are that having regard to:
- the rights and freedoms recognised in the international agreements to which Australia is a party, in particular: the rights to freedom of speech, association and thought, conscience and religion, including the right to manifest one's religion or belief in worship, observance, practice and teaching (including in community with others) and the liberty of parents and guardians (where applicable) to ensure the religious and moral education of their children in conformity with their own convictions;
- the rights of equality and non-discrimination
- the importance of protecting the rights of all people, and children in particular, to be free from discrimination in education
- the importance of allowing religious institutions both to teach and otherwise conduct themselves in a manner consistent with their religious ethos
The ALRC will engage in a consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
- the interaction between Commonwealth, State and Territory anti-discrimination laws and the desirability of national consistency in religious exceptions in those laws
- limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
- remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth),
The consideration should encompass
- whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.
Religious institutions for the purposes of the review include bodies established for religious purposes (including faith-based institutions) and educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed.
- Commonwealth, State and Territory anti-discrimination and vilification laws and the Fair Work Act.
The Ruddock report had made the following recommendations
Chapter 3 – Domestic legal framework
Recommendation 1 Those jurisdictions that retain exceptions or exemptions in their anti discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations.
Recommendation 2 Commonwealth, State and Territory governments should have regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights when drafting laws that would limit the right to freedom of religion.
Recommendation 3 Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.
Chapter 4 – Manifestation and religious belief
Charities and faith-based organisations
Recommendation 4 The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.
Employment in religious schools
Recommendation 5 The Commonwealth should amend the Sex Discrimination Act 1984 to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that: (a) the discrimination is founded in the precepts of the religion (b) the school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced, and (c) the school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors.
Recommendation 6 Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of race, disability, pregnancy or intersex status. Further, jurisdictions should ensure that any exceptions for religious schools do not permit discrimination against an existing employee solely on the basis that the employee has entered into a marriage.
Enrolment of students in religious schools
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: (a) the discrimination is founded in the precepts of the religion (b) the school has a publicly available policy outlining its position in relation to the matter (c) 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, and (d) the school has regard to the best interests of the child as the primary consideration in its conduct.
Recommendation 8 Jurisdictions should 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.
Religious and moral education
Recommendation 9 State and Territory education departments should maintain clear policies as to when and how a parent or guardian may request that a child be removed from a class that contains instruction on religious or moral matters and ensure that these policies are applied consistently. These policies should: (a) include a requirement to provide sufficient, relevant information about such classes to enable parents or guardians to consider whether their content may be inconsistent with the parents’ or guardians’ religious beliefs, and (b) give due consideration to the rights of the child, including to receive information about sexual health, and their progressive capacity to make decisions for themselves.
Solemnisation of marriages and use of places of worship
Recommendation 10 The Commonwealth Attorney-General should consider the guidance material on the Attorney-General’s Department’s website relating to authorised celebrants to ensure that it uses plain English to explain clearly and precisely the operation of the Marriage Act 1961. The updated guidance should include: (a) a clear description of the religious protections available to different classes of authorised celebrants, and (b) advice that the term ‘minister of religion’ is used to cover authorised celebrants from religious bodies which would not ordinarily use the term ‘minister’, including non-Christian religions.
Recommendation 11 The Commonwealth Attorney General should consider whether the Code of Practice set out in Schedule 2 of the Marriage Regulations 2017 is appropriately adapted to the needs of smaller and emerging religious bodies.
Recommendation 12 The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal: (a) conforms to the doctrines, tenets or beliefs of the religion of the body, or (b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Chapter 5 – Vilification, blasphemy and social hostility
Blasphemy Recommendation 13 Those jurisdictions that have not abolished statutory or common law offences of blasphemy should do so.
Recommendation 14 References to blasphemy in the Shipping Registration Regulations 1981, and in State and Territory primary and secondary legislation, should be repealed or replaced with terms applicable not only to religion.
Chapter 6 – Discrimination
Recommendation 15 The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
Recommendation 16 New South Wales and South Australia should amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’ including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for the appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
Chapter 7 – Data, dialogue and education
The experience of religious freedom
Recommendation 17 The Commonwealth should commission the collection and analysis of quantitative and qualitative information on: (a) the experience of freedom of religion in Australia at the community level, including: (i) incidents of physical violence, including threats of violence, linked to a person’s faith (ii) harassment, intimidation or verbal abuse directed at those of faith (iii) forms of discrimination based on religion and suffered by those of faith (iv) unreasonable restrictions on the ability of people to express, manifest or change their faith (v) restrictions on the ability of people to educate their children in a manner consistent with their faith (b) the experience of freedom of religion impacting on other human rights, and (c) the extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society.
Poor literacy concerning human rights and religion
Recommendation 18 The Commonwealth should support the development of a religious engagement and public education program about human rights and religion in Australia, the importance of the right to freedom of religion and belief, and the current protections for religious freedom in Australian and international law. As a first step, the Panel recommends that the Attorney-General should ask the Parliamentary Joint Committee on Human Rights to inquire into and report on how best to enhance engagement, education and awareness about these issues.
Recommendation 19 The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.
Chapter 8 – Conclusion
Recommendation 20 The Prime Minister and the Commonwealth Attorney-General should take leadership of the issues identified in this report with respect to the Commonwealth, and work with the States and Territories to ensure its implementation. While the Panel hopes it would not be necessary, consideration should be given to further Commonwealth legislative solutions if required.