Politics with Michelle Grattan: Father Frank Brennan on Israel Folau and religious freedom

Frank Brennan, Jesuit priest and member of the expert panel on Religious Freedom set up by Malcolm Turnbull, says the Israel Folau matter is a “simple freedom of contract case regardless of Mr. Folau’s religious views”.

“I think the question is, did he voluntarily, and for a very large sum of money, agree with his employer to follow a work code which included an undertaking not to make statements on social media about various things which may or may not have a religious component?”

Responding to Senator Concetta Fierravanti-Wells’ renewed call this week for a Religious Freedom Act - as distinct from narrower legislation favoured by the Morrison government - Brennan told The Conversation: “I continue to have my reservations about that, mainly on the basis that I don’t think religious freedom is an enormous problem in Australia”.

He sees the way forward as a Religious Discrimination Act, recommended by the review, in line with other existing anti-discrimination laws on race and gender.

As for issues to do with religious schools, “Penny Wong’s bill was correct,” he said - referring to the Senator’s Amendment to the Sex Discrimination Act late last year which sought to remove the capacity of religious schools to directly discriminate against students on the basis of their sexual orientation, gender identity or intersex status.

The only addition needed to this, he said, would be a clear commitment that “religious schools are free to teach their doctrine”.

Transcript (edited for clarity)

Michelle Grattan: Religious freedom has become a big issue in federal politics with the government planning to have legislation to protect against religious discrimination in the parliament later this year. Scott Morrison told Coalition MPs this week that meetings will be held to brief them and talk through the complexities of the issue. He wants the issue dealt with in a bipartisan and non-confrontational way. But the case of Israel Folau, sacked by Rugby Australia over a homophobic posting based on the Bible, has inflamed an already difficult issue that involves conflicting rights. The right to freedom of speech in religious matters versus the right of employers to set conditions in contracts. Folau has taken Rugby Australia to court. Father Frank Brennan, a Jesuit priest was a member of the committee that Malcolm Turnbull set up out of the debate about same sex marriage to make recommendations to protect religious freedom. He joins us today.

Michelle Grattan: Why has religious freedom become such an issue? Is this just because of the same sex marriage debate, or are there wider causes? People weren’t talking about this 20 or 30 years ago.

Frank Brennan: I think there are a number of factors - one is that of course religious affiliation in the community generally has declined. And I think there is a perception among some religious people that what you might call the intellectual elite is much less interested in religion. In fact, has even got to the stage regarding religion being a bit wacky. I think also there’s been the Royal Commission into Institutional Responses to Child Sexual Abuse and quite rightly there was a strong spotlight on major religious institutions which were found to have fallen short but at the same time I think there’s a sense that during the same-sex marriage debate that the concerns of religious folk were not being taken sufficiently seriously. So a combination of those factors, I think, has resulted in the fact that as the vote was very strongly for yes 62% or whatever that I think some of religious people have felt that there is a need for a rearguard action.

Michelle Grattan: Do you think we actually have a problem that needs to be addressed in terms of legislation? The Constitution, after all, contains some protection on religion, doesn’t it? So is that not enough?

Frank Brennan: It’s not enough in the sense that what’s in the Constitution was actually put there - even non-lawyers will appreciate - that it’s in a chapter of the Constitution entitled The States. So if you actually look at the history of those provisions, they’re pretty restricted, and they were put there so as to ensure that questions of religion were dealt with by the states and not by the Commonwealth. Which then brings us to the next point about Australia’s legal or constitutional machinery. We don’t have a constitutional bill of rights but neither do we have any form of a statutory Human Rights Act. This now makes us pretty unique in the western world and, that being the case, it’s been admitted by a number of inquiries - even by the Australian Law Reform Commission, so outfits which do pretty analytical reports - they have said and pointed out that the protection of religious freedom is definitely one of the lacuna in the statutory framework that we have in Australia. Because given that we do not have a National Human Rights Act, we Australians have done what we do well which is pragmatically we’ve said over the years that we want to be a good international citizen. We’ve signed up to all of the key international human rights instruments and then we’ve attempted to legislate those in domestic legislation. Now the usual way we’ve done that is with discrimination laws. So for example we have a Sex Discrimination Act or an Age Discrimination Act or a Racial Discrimination Act. But at the moment we do not have a Religious Discrimination Act.

Michelle Grattan: You mentioned a Bill of Rights and it does seem to me odd that the people who are pressing hard for action on religious freedom are often the same people who are very much opponents of a bill of rights because they don’t want to put too much power into the hands of activist judges.

Frank Brennan: It’s a profound irony for me, Michelle, because you’ll recall that I chaired the National Human Rights Inquiry for the Rudd government and yes some of the most eloquent opponents of a Human Rights Act in those days were the religious leaders. I think it’s nicely summed up by an anecdote which Bob Carr was fond of reporting at the time that we conducted that inquiry. Bob, he told me privately but then, publicly at an event organised I think by the Australian Christian Lobby. He recalled how when he was premier of New South Wales and they were drawing up discrimination legislation and they had to look at exemptions. He said that the Anglican Archbishop of Sydney and the Catholic Archbishop of Sydney came to meet with him in his office. They were able to reach agreement and shake hands and fix it all up. As he joked, he said he felt he was fixing up the reformation and he joked also that if you had a Human Rights Act you couldn’t do that sort of thing come to a gentlemen’s agreement. Well from my perspective, I say 20 or 30 years, on I think the days of those sorts of gentlemen’s agreements behind closed doors have gone and that’s why it’s now somewhat ironic that some of the religious leaders who were most concerned in 2009 about giving too much power to unelected judges are now saying, “well yes what we need is a comprehensive law that deals with religious freedom” which guess what puts it in the power of the judges.

Michelle Grattan: Now, you will remember the inquiry into this issue chaired by former Liberal minister Philip Ruddock. Can you just summarise for us just very briefly and broadly the main recommendations out of that inquiry? I know it was detailed but also the main ones.

Frank Brennan: Sure. The main ones were born of the insight that we came to with the consultations which were that religious freedom is not really a big burning issue in Australia. But I suppose that was before the Folau crisis, which I presume we’ll come to, but we admitted - as did every previous inquiry of parliamentary inquiry - that if you just lined up the legislation we have in Australia then the major lacuna, or lack, in terms of discrimination legislation was in relation to the attribute of religion. So our major recommendations followed this course. It’ll come as no surprise, given that it was chaired by Philip Ruddock, a lot of emphasis on federalism. Namely, that it’s best that the states decide these things for themselves. Now there’s a whole plethora of state legislation dealing with religious discrimination. We found for example that New South Wales and South Australia are deficient in their legislation in outlawing religious discrimination whereas other states do it pretty well. And so we recommended that New South Wales and South Australia address that. We also found that when it comes to employment the Fair Work Act of the Commonwealth parliament simply builds upon what’s there in state legislation. So it says you can’t deal adversely with someone in their employment if what is being done is unlawful in the state legislation. Now, obviously with New South Wales and South Australia you’d need to top that up. When it came to the overall assessment as to what was needed. We really had two distinct sets of recommendations. The first was because Australia never had a Religious Freedom Act or Religious Discrimination Act then the usual way in which the issues which caused controversy were dealt with were by way of exceptions or exemptions in the Sex Discrimination Act which said, for example, that you can’t discriminate on the basis of gender or whatever sexual orientation but there were exemptions put in there for religious bodies wanting to run their institutions according to their ethos. Now we saw that those exemptions were overbroad but more to the point just making them exemptions in the Sex Discrimination Act was philosophically incoherent. But we basically said if you’re going to maintain that approach there was a need for some tweaking of those provisions so as to ensure that you didn’t have unwarranted discrimination against gay students or gay teachers or whatever. The second major raft of recommendations related to the overarching legislation at the Commonwealth level where we admitted that the key conservative religious groups would have liked a Religious Freedom Act which basically enacted all the provisions of what we call Article 18 of the International Covenant on Civil and Political Rights. We thought that was unwarranted in that given that we don’t have a National Human Rights Act, we thought that in the name of treating rights equally, given that we’ve just got a series of discrimination acts then what’s necessary is some form of Religious Discrimination Act. So they were the two main sets of recommendations that we made. The final one was basically to say that we thought religious freedom had come to be treated by the Human Rights Commission as a bit of a second order issue and that should be part of their day job. But your listeners will be aware the Morrison government before the election announced they wanted to go one step further and appoint a full time human rights commissioner for religious freedom. I continue to have my reservations about that mainly on the basis that I don’t think religious freedom is an enormous problem in Australia and I think they have a full time commissioner doing it risks creating a vacuum that has to be filled by someone having to find problems which might not exist.

Michelle Grattan: When part of the report was leaked last year, the debate turned to protection of gay students so that they couldn’t be expelled and then people were starting to talk about the rights of teachers in religious institutions versus the rights of the institutions. Now I don’t think there’s any real debate about protection of gay students. Not that there seem to be a great deal of a problem. But in terms of the employees of religious schools do you think there are real problems there? Or do you think even though the legislative framework might be messy that really the present situation is okay?

Frank Brennan: Let me first address gay kids because I mean no. Yes I think we’re agreed, there is no problem. But let’s face it, this parliament - both the 44th parliament and presumably this parliament - has not yet found a way in order in a bipartisan fashion to simply clean that up. Now part of the problem was that the amendments to the Sex Discrimination Act with the exceptions and exemptions for that were introduced by Labor in 2013. Mark Dreyfus was the Attorney-General at the time. Now that being the case we as the Ruddock committee didn’t recommend just wholesale abolition of those exemptions but we said if any school was going to try to do that then they should only do it in relation to future students not existing students and it should be in the result of a published policy which is out there for all parents and students to be able to see. But given that there is now agreement that those provisions should not be there at all, I think what’s important if you go back to the debate that occurred at the end of the last parliament just before Christmas, Penny Wong introduced a bill in the Senate, you might recall, that dealt with this. Now where there was a failure to reach agreement, I would hope the 46th parliament could see that Penny Wong’s bill was correct, except I think it needs one addition. It needs to be made very clear that religious schools are free to teach their doctrine and that that is not a detriment to students. As I often say, it’s a bit like asking, well, if you’re teaching rich kids can you teach the bit of the scriptures that says, well, it’s more difficult for a wealthy person to get into heaven than a camel to get through the eye of a needle. Now people might find that upsetting but it is part of the teaching. So I think that sort of thing needs to be dealt with. Penny Wong’s bill plus a guarantee of being able to teach a doctrine. That then brings us to the more thorny issue about the employment of staff. Now I think what is important as an ideal is the idea that a very evangelical or very religious school be able to employ teachers who get with the message, get with the ethos of the institution. I remember during the Ruddock inquiry we had some of the more conservative religious folk saying to us well we know that some say that it should just be the principal or the religious education teacher. But they said but look what we’d like to be able to do is to employ an evangelical gardener because the kid can speak to the gardener and really get the ethos of the institution. Now, I am one who is prepared to concede that. I think it’s a bit like, you know, the Greens run an office. Are they entitled when employing the receptionist to make sure it’s someone who’s opposed to Adani rather than a strong supporter of Adani? Now that sort of provision I think is well enough dealt with under the Fair Work Act. But if there is a need for an added provision then that’s what you’d expect to find in the Religious Discrimination Act. But I think to enhance it further with a Religious Freedom Act would be going one step too far.

Michelle Grattan: A lot of the crusaders on this issue at the moment are worried about attacks on Christianity, but in your inquiry did you find strong concerns from other religious communities - the Jewish community the Muslim community for example. Are they worried?

Frank Brennan: Definitely. Well they’re worried about the endemic discrimination which is often suffered by them as groups. I’d say that particularly the Jewish community were pretty nuanced with us in terms of saying, look, we’re pretty used to navigating this space and the last thing we want to do is to draw attention to ourselves. I would say that some from the Muslim community were expressing concerns to us that often even in the media there can be just too general an assessment made which has the public thinking that well all Muslims must be terrorists. And so that there is a need for greater sensitivity on those issues. So we did get submissions from those two groups but I have to say I was a bit surprised. I thought there would be a greater number of submissions from those groups than we did receive which highlighted to my mind once again - and I can’t speak for all members of the Ruddock committee - but that the thought that legislation was the way in which to deal with this social problem, I don’t think that wins universal support.

Michelle Grattan: It does seem that in recent times with the Folau case this has morphed into a what the political scientists would call a “wicked problem” - one that involves conflicting rights it’s hard to see any way through. We’ve come to have the rights to express one’s religious views versus the right of an employer to control in certain circumstances the behaviour of their employees. Do you see it as having become suddenly a lot more complex? And what is your opinion on the Folau situation?

Frank Brennan: Well, I think the legal issue is still pretty simple and I keep coming back to saying that I think a Religious Discrimination Act which basically mirrors your Racial Discrimination Act and a Penny Wong bill plus the right to teach your doctrine. I think those two legislative provisions would basically solve most of the problems but it has become more of a political and social “wicked problem” which I don’t think is susceptible to that sort of legislative change. If I might put it this way with Mr Folau’s case. Mr Folau’s case presumably arises under the Fair Work Act as it applies in applying the New South Wales discrimination legislation. Now, you’ll recall I pointed out that the Ruddock committee found that the New South Wales and South Australian legislation was deficient. It might be interesting to know whether if Rugby Australia had its headquarters in the capital city which administers the Australian Football League namely Melbourne with their legislation whether or not the matter would be dealt with in the same way. But basically the Folau case I have always seen as a simple freedom of contract case regardless of Mr Folau’s religious views. I think the question is: did he voluntarily and for a very large sum of money agree with his employer to follow a work code which included an undertaking not to make statements on social media about various things which may or may not have a religious component? Now I think that’s just a straight question of freedom of contract. What we do know is that his lawyers and the Rugby Australia lawyers were behind closed doors for three days and couldn’t find an answer. So we do know that the contract is not clear. The Folau issue I think is an employment contract issue but yes it has been a lightning rod for these concerns about religious freedom. Now, why? I think, in part because of the mishandling after the same-sex marriage debate, after the mishandling of the release of the Ruddock report, after the clear divisions within the Liberal Party and about wondering within the Liberal Party whether even a government led by a religious person like Morrison would deliver on what’s needed. So for example here around the parliament last night you had Senator Concetta Fierravante-Wells in the adjournment debate launching a petition for a Religious Freedom Act saying a Religious Discrimination Act is not sufficient. Well, that’s the sort of issue that now has to be resolved once and for all by the Morrison government.

Michelle Grattan: Do you think that that sort of petition could start to get a lot of support? You obviously are saying that you think a Religious Freedom Act would go too far but this could take off couldn’t it.

Frank Brennan: It could take off and I think what is the critical thing here is for the Morrison government to show the leadership in terms of asking right, what do we think might have a chance of getting through the Senate? Now, I think the absolute best outcome would be a Religious Discrimination Act plus the Penny Wong bill with the freedom of teaching your doctrine. If that could be agreed to by Liberal and Labor. I think that would be absolutely the best possible solution. If that is not to occur then the Morrison government will need to deal with the crossbench but we already know from the way they address the Penny Wong bill that the Centre Alliance senators are much closer to Labor than to the government on this. So the government I think has to be careful in not overreaching in terms of what might be achievable.

Michelle Grattan: Of course the problem for Scott Morrison is that he will have albeit a minority but some in his own ranks who will want to follow the Religious Freedom line that the senator has already…

Frank Brennan: He will. But he’ll be able to eyeball them and say there’s no way I can get a Religious Freedom Act through the Senate as it is constituted. This is an issue which has gone on for too long. We’ve done and dusted same sex marriage. Everyone, including John Howard, said we should address the issues of religious rights as promptly as we can. Isn’t it better to have a Religious Discrimination Act which shows in the absence of an overall Human Rights Act that we treat religion as seriously as we do every other attribute and anything that needs to be improved upon with that we’ve got the issue which was referred to the Law Reform Commission where they’re to report back next year. We can look at that in time when we get a reasoned report from the Law Reform Commission.

Michelle Grattan: I want to just return to the issues underlying the Folau case. Whatever the ins and outs of the contract and whether he breached it and the rights of Rugby Australia under present law, this does go to the fundamental issue of whether one’s right to express one’s religious views should be overridden by the rights of an employer to lay down a certain contract.

Frank Brennan: Yes.

Michelle Grattan: And where do you think the rights and wrongs of that are?

Frank Brennan: Well, I’m sufficient a believer in the market to say that that’s up to the parties to decide. Yes, I am a Catholic priest but I am free to enter into a contract with someone who wants to employ me where I undertake not to publicly express a view about a particular issue even though my own religious faith may inform me on that issue. And let’s remember with Mr. Folau the particular views that he wishes to express are, to say the least, very distinctive and one of the reasons I would like to see a resolution of this is that I think too many of us as religious people are being painted with the same brush - as if being religious we must be anti-gay or whatever. Let’s remember Mr. Folau has lots of people in the gun, I gather even fulminates against those who are said to be idolaters. Now, those of his religious persuasion probably would include me as a Catholic and a Jesuit priest as an idolater. So the issues about what he wants to express I think can be traded away under contract. And the question is whether or not he’s done so. But yes being a sporting hero we can expect that the public will pay much more attention to any sermon he will ever give than one that I would ever give.

Michelle Grattan: But of course if we take away the high profile people in this debate you could have ordinary people who have no great power against employers but nevertheless have strong views and feel the need to express them especially as we’re seeing more and more fundamentalists emerging, it seems. How do you deal with their situation? And does this also cover what they say in church? Should there be a distinction between what you post on social media (or allowed to post by your employer) and what you say in church which is after all a public place and anyone can go in and listen to you?

Frank Brennan: Well, your first part of the question, I think comes back to the whole issue of freedom of expression and I’m one who strongly advocates freedom of expression and the capacity of employers to interfere with that freedom of expression I think as a society a lot of us say no we don’t think you should be able to do that. But equally with freedom of contract those who want to trade it away, so be it. In terms of what you might be able to preach in church. Yes I think what can be preached in church should be sacred in the sense that the state should keep out of it in that anyone who is attending church who doesn’t like what the preacher is saying is free to leave. But I think within the environs provided there is no preaching of violence or of preaching of criminal offences to be committed against other citizens then I think it’s got to be a space where there can be that freedom of expression.

Michelle Grattan: Potentially this can be an increasing problem though can’t it because a number of companies and public institutions groups and so on these days are becoming much more socially aware. They express views. We saw this in the same-sex marriage debate so they can become more sensitive to what their workers might say and do even in their private life.

Frank Brennan: They can and I’m one who isn’t all that fortified by seeing corporate heads taking these sorts of social positions.

Michelle Grattan: You think they shouldn’t?

Frank Brennan: I’m one who doesn’t like to see them do it but I think in a democracy you let a thousand flowers bloom.

Michelle Grattan: Why don’t you like to see them do it? Because often their views that you probably as a priest would agree on.

Frank Brennan: Well they are. I know during the National Human Rights Consultation one of the first submissions we received was from Telstra saying that they were in favour of a Human Rights Act. But the democratic question that I have to myself is well why should people just because they have a lot of money or just because they’re sitting at a corporate board be in a better position than their fellow citizens to be able to agitate their social views? I think there’s got to be a limit to that.

Michelle Grattan: You sound on the same line here as Peter Dutton who was quite critical of this.

Frank Brennan: There you go. We’re both originally Queenslanders.

Michelle Grattan: Now, just to finish up. Scott Morrison has been emphasising that he doesn’t want this to be a divisive issue. But isn’t it inevitable that it is becoming a very divisive issue and potentially will become more so?

Frank Brennan: It could - my one light of hope at the moment is that I think some of the senior people in the Labor Party including Anthony Albanese have said that we know that one of the take home messages of the federal election result is that we the Labor Party need to be more sympathetic or understanding of the viewpoint of religious people. So I think that’s a positive sign. On the government’s side, I think a positive sign is that yes, Malcolm Turnbull is no longer there. Tony Abbott is no longer there. So two of the chief proponents at either end of the debate in the Liberal Party have gone. Morrison’s there with his legitimacy. He is a religious person.

Michelle Grattan: The most religious of the more - well maybe Tony Abbott would give him a run for its money.

Frank Brennan: Well I, being a priest, I’m not one for making public judgments as to who’s the most religious. But yes he’s a self-confessed oddly religious but also clearly a very pragmatic politician. Now a very pragmatic politician who’s got a fresh mandate who’s got a lot of things on his agenda. The question will be how much political capital does he want to waste in order to attempt legislation which has no chance of getting through the Senate? So given the concession that it’s a “wicked problem” but given that there might be some prospect of putting this aside or putting it to bed by enacting promptly a Religious Discrimination Act with bipartisan support and enacting Penny Wong’s bill with the added provision that schools are able to teach their doctrine - if I were Morrison I’d grab it with both hands.

Michelle Grattan: Frank Brennan, thank you very much for talking with us today on an issue that’s only going to grow I think in coming months. That’s all for today’s podcast. Thank you to my producer Rashna Farrukh and we’ll be back with another interview very soon. But goodbye for now.

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