Spending part of my 2017/2018 summer break assisting in the drafting and reviewing of submissions, preparing for the public hearings in February, and waiting expectantly for its release of its report since it was handed to the government in May 2018, it seemed like I had waited all year on the Ruddock Review.
Talk about anti-climaxes.
With such a time lapse between the leaking of its recommendations and the report’s full release, it was only the super-interested that were going to read the Expert Panel’s rationale for making the recommendations they had.
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But reading it was important, because the Panel’s report seemed to give parliamentarians a license for inaction when it comes to religious freedom.
The Panel did not accept that there was any imminent threat to religious freedom, and so “remained unconvinced of the urgent need” for changes to current laws. In the face of such indifference from the Panel, it is hard to see how parliamentarians will find any resolve to legislate for religious freedoms.
In order to come to the conclusion that there was no imminent threat to religious freedom in Australia, the Panel not only had to ignore what is happening in similar jurisdictions overseas, but also “high profile” cases occurring domestically.
The report reads: “The Panel was cautious about drawing conclusions from overseas examples, or from the few high-profile examples in Australian law.”
While I don’t agree with ignoring overseas cases, particularly from places like New Zealand, the United Kingdom and Canada that have similar legal systems to our own, I can at least understand the rationale behind it. What I cannot accept, however, is the Panel turning a blind eye to high-profile Australian cases (like Archbishop Julian Porteous’ anti-discrimination case.)
It seemed that the Panel would only have its mind changed on religious freedom if it heard of low-profile cases of the impact of same-sex marriage on religious freedom that occurred sometime in the three-month window between the marriage law passing and submissions to the review being due.
It’s hard to see how anyone could have met that standard.
Just one example of the Panel’s “show us evidence before we act” approach highlights the potential danger for faith-based organisations.
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The Panel reported concerns of faith-based social welfare agencies that their government funding for services like education or healthcare could, in the future, be tied to their willingness to reject their own ethos when it comes to hiring or healthcare practices.
The concern was not misplaced, because the Panel also reported that it had heard from “other stakeholders that religious bodies should not receive public funding if they had acted in a way that was discriminatory towards some members of the community, particularly LGBTI people.” It even heard from those “who argued that religious bodies should not receive any public funding and should not be eligible to provide government-funded services – regardless of whether or not they discriminate.”
While government funding is not the most important aspect of religious freedom, it indicates clearly that there are indeed people in Australia who are trying to ensure that faith-based organisations are pushed further out of Australian public life.
Despite this, the Panel decided to take a light-touch approach to recommending protections for faith-based organisations receiving government funding.
Using the fact that faith-based organisations are a significant provider of welfare services and that governments would “struggle to find other providers to deliver many such essential services if they chose to discriminate against faith-based organisations,” the Panel decided that religious freedom protections were not required. After all, the government is hardly going to risk having to provide those essential services itself, right?
But there are a few problems with this approach.
First, it links the right to the protection of religious freedom to the utility of faith-based organisations. “As long as they keep providing indispensable assistance to the community, they’ll be fine” the Panel seemed to say. But once a government decides that it can find alternate ways to provide welfare, then the freedoms suddenly become contingent.
Secondly, it is a two-edged sword, because freedom also becomes contingent when the government has no alternatives. The report goes on to say that the situation of public funding was different where there was only one service provider or employer in the community. “In such cases,” the Panel said, “it should be open to governments to insist that the sole provider not discriminate against any part of the population.”
In a way, the Panel recommended that faith-based welfare organisations are punished for establishing themselves in regional and remote communities where government assistance is not available. “You can go and serve the people the government doesn’t, just as long as you do it on the government’s terms,” the Panel seemed to say.
And finally, it misunderstands the nature of religious freedom altogether. Because part of the manifestation of religious faith that is supposed to be protected is our charitable outreach.
The government funding aspect is just one area of religious freedom that is fraught with danger. And it has always been thus. The conditions placed on government funding can often mean betraying your faith. Just ask Judas.