The Ruddock Committee reported to government in May 2018. Parts of our report were leaked selectively during the Wentworth by-election in October 2018. There was a passionate and divisive debate in the Parliament in December 2018 when the Labor Party unsuccessfully introduced a Bill seeking protection for LGBTQI students in religious schools. Both sides of politics pledged their commitment to resolving the issue before the 2019 election. They did not. Last week, three years on, our politicians reactivated the debate and once again failed to resolve the matter. Once again we will go to the polls with the matter unresolved.
Back in 2009, I had the privilege of chairing the National Human Rights Consultation for the Rudd Government. I was chosen as the chair because I had written an academic article declaring myself to be a fence-sitter on the issue of a national human rights act. Previously I had published a book expressing opposition to a US style constitutional bill of rights. During that consultation, I came down off the fence, and supported a recommendation for a statutory human rights act. My main reason was a little esoteric in the eyes of non-lawyers. I was aware that in the past the Australian High Court often looked to the decisions of other ultimate courts of appeal, especially in countries such as the UK, New Zealand and Canada. But all those other countries now have some form of national human rights act. Whenever the courts are needing to consider novel legislation dealing with emerging problems such as border security and terrorism, the courts of those other countries scrutinise the new laws in light of their human rights act.
I thought that the Australian High Court risked becoming jurisprudentially isolated from other ultimate courts of appeal. Ironically, by not legislating for a national human rights act, our politicians are leaving it up to the judges to invent for themselves the criteria for assessing these contested new laws. I say ‘ironically’, because the politicians most opposed to a human rights act say they want to ensure that the judges are not given too much power. It’s only a human rights act which will provide the bright line solutions set down by elected politicians for unelected judges to follow.
'At the national level we have never enacted a law prohibiting discrimination on the ground of religion. With the multiplication of discrimination laws, it would make sense to harmonise those laws. But that is easier said than done.'
In the absence of a human rights act, we Australians have prided ourselves on being good international citizens having signed up to all the key international human rights instruments and taking them seriously. This means enacting domestic legislation reflecting the key provisions of these international covenants and providing detailed reports to UN committees overseeing the implementation of these instruments. We have tended to do this by enacting laws which prohibit discrimination, whether on the grounds of race, sex, age, or disability. But at the national level we have never enacted a law prohibiting discrimination on the ground of religion. With the multiplication of discrimination laws, it would make sense to harmonise those laws. But that is easier said than done.
The Ruddock panel members, like the Australian community, had varying views on the desirability of a national human rights act. At the time, no major political party supported a national human rights act. That’s still the case. A human rights act was not an option for our panel to propose. Many religious groups who appeared before the Ruddock panel agitated for a Religious Freedom Act which would guarantee religious groups a panoply of positive rights. But in the absence of a human rights act, we could not see how we could privilege the right to religious freedom over other rights. The best we could do was to recommend a national Religious Discrimination Act which ensured that individuals and groups would not be discriminated against on the basis of their religion and that individuals and groups could be discriminating in preferring the appointment or employment of individuals who supported the religious mission of a religious organisation, in much the same way that a political party or politician could preference the employment of staffers who support their political agenda.
In recent days, if you were to listen to the media reports, you could be forgiven for thinking that religious educators want to retain a right to exclude children or teachers from their schools on the basis of their gender or sexual orientation. Nothing could be further from the truth. Or nothing should be further from the truth. Three years ago, Archbishop Mark Coleridge, the President of the Australian Catholic Bishops Conference, told the Parliament: ‘Catholic schools do not use the exemptions in the Sex Discrimination Act to expel or otherwise discriminate against students on the grounds of sexual orientation, gender identity or intersex status.’ Ms Ann Maree Rebgetz, Board Director of Secondary Principals Australia told the parliamentary committee: ‘Catholic secondary principals have a strong moral compass in relation to the treatment of secondary students in our schools. They believe that inclusivity, as a gospel value, must reign supreme in the treatment of their clientele. This translates into the safeguarding of all students, and particularly those students who are in a minority and may feel marginalised. Religious schools should not be able to discriminate against students on the basis of their sexual orientation and identity.’
Undoubtedly there are many sensitive and novel issues to consider when looking to the best interests of transgender children and their classmates, especially in single sex schools. These are challenges for all schools, and not just religious ones. All school systems need to train teachers and administrators to deal with these issues compassionately and competently. The guidelines of the Melbourne archdiocese for ‘Pastoral care for students experiencing gender dysphoria’ are an indicator that the Catholic school system is responding appropriately from the top. The challenge is to ensure that teachers in the classroom have a clear understanding of the Church position and community expectations, as well as the training to assist children in these circumstances.
When marking the 50th anniversary of the UN Declaration of Human Rights, Pope John Paul II called for a collective examination of conscience. He spoke of ‘the tendency of some to choose one or another right at their convenience, while ignoring those which are contrary to their current interests occurs too frequently. Others do not hesitate to isolate particular rights from their context in order to act as they please, often confusing freedom with licence, or to provide themselves with advantages which take little account of human solidarity.’
Whatever happens with the religious discrimination debate before and after the next election, we need to ensure that we are not trumpeting one right over another. Religious schools should retain the freedom to teach their religious doctrine and to choose staff sympathetic to the school’s religious ethos. We all have the freedom to manifest our religion or beliefs subject to whatever lawful limitations are needed to protect the fundamental rights and freedoms of others. And we all have the right to equality before the law being entitled without any discrimination to the equal protection of the law.
After the next election, it would be desirable for our Parliament to legislate a lean and clean Religious Discrimination Act. The Religious Discrimination Act and the Sex Discrimination Actshould be harmonised to ensure that no school can discriminate against any child on the basis of their gender or sexual orientation; and that ‘nothing in the Sex Discrimination Act renders it unlawful to engage in teaching activity if that activity is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings’.
This is an edited version of an address delivered by Fr Frank Brennan SJ AO to the Cardinal Newman Dinner. Read the full text of the address here.