Although the full Ruddock report is yet to be released, some of its recommendations are already out of date — particularly on maintaining the exemption approach to preserving religious freedom. That is no longer tenable.
Earlier this month we saw the odd situation of the heads of some Anglican schools in Sydney arguing for the preservation of exemptions in antidiscrimination laws for religious schools and then shortly after calling for their removal.
The confused uproar that had occurred in between these two moments is evidence that the clumsy mechanism of exemptions have no future in preserving religious freedom in this nation. In an article seeking to clarify the situation the Archbishop of Sydney even went so far as to suggest that the churches hadn’t wanted such exemptions in the first place.
The whole issue arises because the freedom to select is an existential issue for religious communities. If a religious school or other institution cannot choose or preference staff who adhere to the beliefs and practices of that religion, then it will soon lose its religious character and reason to be. At present this freedom to select is preserved by various exemptions from discrimination laws like the 1984 Sex Discrimination Act.
But there are at least two major problems in such an approach.
First, the idea of an exemption from a law easily gives the impression that religious bodies are able to do what otherwise would be objectionable — that they have a special freedom to discriminate. Part of the reaction by the leaking of the recommendations of the Ruddock review was provoked by the discovery of the existence of freedoms to discriminate in the first place.
Second, in a time of increasing lack of trust in religious institutions, the broad nature of such exemptions given to such bodies means there is little confidence they will not be misused for bigotry and hatred.
As outlined in my paper A Test of Maturity: the liberal case for action on religious freedom, we need to take a mature approach to these issues.
The way forward is to remove the exemptions to discrimination law altogether; and replace them with a positive right for religious organisations to maintain their identity and ethos within a diverse Australian society.
22 December 2018
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