This article is more than 2 years old

This article is more than 2 years old

The legislation of marriage equality in Australia may only require “slight tweaking” to protect religious freedom, according to Father Frank Brennan, a member of the Ruddock review panel.

In comments to be delivered on Friday, Brennan issues a blunt assessment that he doubts the Coalition will legislate a religious freedom act, as minister Dan Tehan has suggested, and warning that religious schools should not discriminate against LGBTI staff and students.

The speech, seen by Guardian Australia before its delivery to the Castan Centre human rights conference, is the clearest indication yet that only minimalist changes to expand religious freedom have been canvassed by the Ruddock religious review.

Brennan speaks approvingly of adding religion as a category to be protected from discrimination in federal law, mirroring provisions in most states. He notes that change was supported by pro-marriage equality groups such as the Equality Campaign and the Human Rights Law Centre.

Brennan – who says he is constrained by the fact the government has not yet released the Ruddock review – expresses his personal view that “freedom of religion needs to be more than an exception clause found in various state non-discrimination legislation”.

When speaking about the consequences of changes to the Marriage Act to legalise same-sex marriage, Brennan refers four times to the need to “tweak” laws including the Marriage Act, Sex Discrimination Act and the Fair Work Act to respond.

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For example he questions whether a church boarding school should “be required to provide married quarters for a boarding master in a same-sex marriage”.

In another instance he suggests an expansion of LGBTI rights by questioning why a religious school should be allowed to discriminate against gay staff and students where “it can be demonstrated that the adherents of the particular religion or creed voted overwhelmingly in support of same-sex marriage”.

But he said legislators “might judge that the protections are already adequate” in these areas.

In spheres outside of same-sex marriage, Brennan suggests a more expansive view of religious freedom by saying it needs to protect employees, churches as employers, property holders and educators, and “parents and guardians wanting to teach their children according to their religious faith or … to spare their children teachings inconsistent with their religious faith”.

Brennan says religious groups are “entitled to conduct their institutions consistent with church teaching but not in a manner which discriminates adversely against those of a different sexual orientation”.

LGBTI staff should be treated “in the same manner as those of a heterosexual orientation”, suggesting that if churches “turn a blind eye” to heterosexual teachers not living in a church-authorised marriage they should “surely do the same for those thought to be living in a same-sex relationship”.

Brennan also notes that while most Catholic bishops voted no, the majority of Catholics had voted in favour of marriage equality.

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During the marriage law postal survey, the Catholic church threatened to sack gay teachers, nurses and other staff if they engaged in civil same-sex weddings in breach of church doctrine. After the yes vote won, it warned against a “winner takes all” approach on marriage equality.

In submissions to the Ruddock review the former prime minister John Howard suggested defunding any school that did not allow parents to withdraw children from classes dealing with values-based topics like sexuality and gender. Malcolm Turnbull dismissed the idea on the basis it was already “universal practice” to allow parents that right.

Brennan suggests some limits on the right to express religious and political views, warning that some beliefs “might be so whacky and so insulting to other employees as to make a civilised workplace impossible”.

Brennan describes the absence of a legislative provision to allow people to practice religion is a “major lacuna” in the federal architecture, which Victoria and the Australian Capital Territory have addressed with their human rights charters.

But he says there is “no way” the Turnbull government will legislate a human rights act. “Perhaps they might consider a religious freedom act … but even that I doubt.”

Rodney Croome, a spokesman for LGBTI rights group Just Equal, said that LGBTI people would feel “a little less uneasy” after the speech because of the “strong case for a human rights charter” and because it “makes a compassionate case for an end to discrimination by faith-based schools against LGBTI people”.

“But I am not uncorking the champagne yet,” he said. “I’m concerned about what Father Brennan means when he says the Marriage Act may need to be tweaked to protect freedom of religion in the conduct of marriage ceremonies.

“On top of that, Father Brennan is only one member of the Ruddock panel and the panel’s recommendations will only be one part of the government’s decision-making process.

“All human rights defenders should remain vigilant against any diminution of Australia’s discrimination laws because these laws have done so much to foster a fairer and more inclusive nation.”