Explainer: What is the 'religious freedom' debate about, and why are we having it?

During the 2017 debate about same-sex marriage, some religious leaders, politicians, commentators and interest groups raised concerns that allowing same-sex marriage would limit people's ability to practise their religion freely – when same-sex marriage conflicts with their religious beliefs. They asked whether churches would be compelled to lease facilities for same-sex weddings, for instance, or whether schools could still teach the traditional definition of marriage.

Australians emphatically voted to legalise same-sex marriage in 2017. Rather than slow down the legislative process to deal with the concerns about religious freedom, then prime minister Malcolm Turnbull commissioned a review of religious freedom in Australia, to be led by Philip Ruddock, who was a long-serving minister in the Howard government. Turnbull described it as a "timely expert stocktake".

One of the loudest voices calling for better protection of religious freedoms was then treasurer Scott Morrison. The review was completed in May, and it now falls to Morrison and his attorney-general, Christian Porter, to respond to the review's recommendations.

What's in the Ruddock review?

In short, we don't know yet. The government has opted not to release it – they will most likely make it public alongside their response to it. Some reports have suggested the review will urge new federal laws that explicitly protect freedom of religion. Religious institutions are, at present,  granted freedoms largely through exemptions to anti-discrimination laws, rather than through a unique or dedicated Act.

Several public statements have hinted that the review is likely to propose modest changes. When he was first commissioned, Ruddock said the review's purpose was mostly to "put beyond doubt" Australia's commitment to freedom of religion. In July, panel member Frank Brennan, a Jesuit priest, said only "slight tweaking" of current laws was required.

Doesn't the Constitution have it covered?

The Australian Constitution, in section 116, directs the Commonwealth not to impose any sort of state religion. Nor can the Commonwealth make laws "prohibiting the free exercise of any religion". This provides a general principle against which federal laws could be challenged in the High Court. But it does not prevent the states making such laws, which is the main concern of religious freedom advocates.

Nor does Australia have a Bill of Rights to enshrine free exercise of religion or freedom from discrimination.

What sort of 'freedoms' are we talking about?

A major issue is the right for religious schools and hospitals to hire and fire staff based on personal characteristics. For example, a Christian or Islamic school may not wish to employ a person who identifies as gay or is married to someone of the same sex, arguing that staff should embody the teachings of their faith.

Religious organisations are allowed to discriminate in this fashion under current state laws. But some people fear that future state governments could seek to narrow or alter those arrangements, and have called for federal laws that would supersede state laws if such a circumstance were to arise.

Morrison himself alluded to those concerns when he told Fairfax Media this month: "Just because things haven’t been a problem in the past doesn’t mean they won’t be a problem in the future." So far he has spoken about the need for children to continue staging nativity plays and talking about Easter (neither of which are under threat from current laws).

Could 'religious freedom' conflict with existing anti-discrimination laws?

It depends what's being proposed. During last year's debate on same-sex marriage, some observers advocated laws to legally shield people who hold a "relevant belief" about marriage or even homosexuality itself. This could have extended to allowing hoteliers to refuse service to a gay couple, which would breach anti-discrimination law.

By contrast, a law that simply codifies the exemptions already enjoyed by religious institutions – such as the right to hire and fire staff – into a new federal act of Parliament would not materially conflict with existing anti-discrimination laws.

What does this have to do with the 'culture wars'?

Morrison has declared it is not his job to be a "culture warrior". The term, originally an Americanism, refers to ongoing debates about a country's predominant values, ethos, history and cultural norms. For example, this could include battles over political correctness, sex-ed in schools, or what John Howard referred to as a "black armband" view that Australian history has been "little more than a disgraceful story of imperialism". The faultlines of such debates tend to be drawn between conservatives (often labelled "the Right") and progressives ("the Left").

Culture war issues tend to be less material to people's everyday lives than, for example, hip-pocket matters or health and education. But they can inflame passions and appeal to voters emotionally. In some minds, a commitment to strengthening religious freedom is a barometer of one's commitment to furthering conservative causes.

While it is possible to have a legal debate about whether current laws adequately protect religious freedom, it is difficult to divorce this from the broader politics of the issue - or the "culture war".

How does Australia compare to other countries?

A 2018 report by the Pew Research Centre, which measured religious freedom around the world in 2016, rated the level of government restrictions on religion in Australia as "low" (1.2). That was lower than the US (3.2) and the UK (2.3), and the same as Canada.

The report, however, gave Australia a "high" rating (4.2) on its social hostility index, measuring acts of religious hostility involving individuals, groups or organisations. Taken together, these suggest the greater threat to religious freedom in Australia came from actors outside the government.

A 2017 report by the Washington-based Cato Institute scored Australia 9.1 out of 10 for religious freedom,
higher than the US and significantly higher than the UK.

The legal status of the Australian federation differs from the US, where the 14th amendment, through the incorporation doctrine, applies that country's Bill of Rights to the states as well.

What kind of legislation could pass this Parliament?

Coalition MPs' views can differ wildly on this topic, especially between the Liberal Party's moderate and conservative wings. Any proposal backed by cabinet and adopted by the party room would, however, very likely be supported in the House of Representatives.

The government's track record on getting this type of legislation through the Senate is poor. Former prime minister Tony Abbott abandoned plans to dilute section 18c of the Racial Discrimination Act – former prime minister Malcolm Turnbull tried again but was defeated by the Senate.

On the other hand, the Labor opposition may be open to supporting the government's proposal. Bill Shorten has frequently stated his support for religious freedom, and went to the 2016 election promising to keep the church's exemptions to anti-discrimination laws in place. It is unlikely Labor would want to face claims it does not fully support the free practise of religion.