The Greens party has introduced a bill into the Senate dealing with a number of the issues that have been discussed in recent days about the right of religious schools to conduct their education in accordance with their faith commitment. The so-called Discrimination Free Schools Bill 2018 would remove the capacity of religious schools (and, importantly, many other religious organisations) to make staffing decisions in line with their religious beliefs. It is a serious attack on religious freedom, and should be voted down by the Senate when debate resumes.
The Bill picks up a number of issues that have been in discussion since the recent leaking of recommendations from the Ruddock Report on religious freedom (discussed in my earlier post here.) The Government and the Opposition have already agreed that the current provisions of s 38 of the Sex Discrimination Act 1984 (which allows religious schools to act in accordance with their beliefs in areas of employment and dealing with students) should be amended to make it clear that no gay student could be expelled (or denied entry to) a religious school on the basis of their sexual orientation alone. As I noted previously, this change can be done in sensible ways which preserve the religious freedom of schools.
However, the Government has not committed to changing other parts of s 38 (subsections (1) and (2)) which allow sexual orientation of employees and contractors to be taken into account by religious schools. These are reasonable provisions which should not be removed. As I said previously:
Religious schools exist because parents want the option to see their children educated in an institution which supports their religious and moral worldview. Students do not just learn academic truths from their teachers; in many cases they admire them as people, and model themselves on the values their teachers live out. Hence someone who is committed, by their identification and activity, to opposing the moral framework of the school, is not suitable to be working as part of that school community. A fully committed member of the Greens would not be suitable to work in the office of the Conservatives. The same issues arise in relation to religious schools and same sex oriented teachers.
The ALP has expressed its intention to amend the law in relation to staff, though the precise terms of such an amendment are not clear. But the Greens have now “jumped the gun” by introducing a “sledgehammer” amending Bill, which would carve a huge hole into religious protections in Australia.
The Greens Bill
The Bill is straightforward, with the simplicity of a sledgehammer destroying a wall. Schedule 1, Part 1, item 2 in relation to s 38 says: “Repeal the section”. Religious schools will then not be able to take into account “sex, sexual orientation, gender identity, marital or relationship status or pregnancy” in decisions relating to staff or students. However much those who run the school, or the parents who choose to send their students to the school (often at significant cost), would like the choice to have a school which actively supports a religious vision of human sexual behaviour, they will no longer have that choice if this provision were implemented. Arguments will be mounted, no doubt, that for a Christian school to teach the Bible’s view that homosexuality is not in accordance with God’s will for humanity, amounts to “discrimination” against same sex attracted students. It will be said that a teacher who openly shares Facebook posts about his homosexual choices should not be able to be counselled not to do so, or to be asked to leave. Indeed, there would serious questions as to whether there would be any recourse against a teacher who, in the course of the maths class, mentions his same sex partner and attacks the Bible’s view on sex.
Another part of the Bill, Sched 1, Part 1, item 1, amends s 37 of the Act. Here is the section, and highlighted in bold is the provision to be added by the Bill:
37 (1) Nothing in Division 1 or 2 affects:
(a) the ordination or appointment of priests, ministers of religion or members of any religious order;
(b) the training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order;
(c) the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice; or
(d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
(2) Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:
(a) the act or practice is connected with the provision, by the body, of Commonwealth‑funded aged care; and
(b) the act or practice is not connected with the employment of persons to provide that aged care
(3) Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:
(a) the body is an educational institution; or
(b) the act or practice is connected with the provision, by the body, of education or training; or
(c) the act or practice is connected with the employment of persons to provide that education or training.
This provision applies generally to “bodies established for religious purposes”. The proposed amendments do not touch paras (1)(a)-(c), dealing mainly with ordination and training of clergy, and designation of persons to carry out “religious observance or practice”. But para (1)(d) provides a broad protection for religious bodies from being forced, in other areas of their operation, to contradict their fundamental religious beliefs. Sub-section 37(2) carves out a narrow exemption to this in relation to the operation of Commonwealth-funded aged care services, but even there only in relation to who can be accepted into the aged care homes as residents, and not in relation to employment decisions.
The drafters of the Greens Bill were obviously concerned that, even after smashing s 38, religious schools would try to rely on the provisions of s 37(1)(d). So they have added, in their proposed s 37(3), more damage to religious freedom, not only to the schools, but also to other bodies. First, in proposed cl 37(3)(a), if a body is a school, then it cannot rely on its faith for any of its decision-making. The same consequences as noted above will follow- the school’s hands will be tied in many cases in teaching its religious beliefs, and in seeing that staff are living in accordance with the moral framework of the religion.
Then we see these same restrictive rules will apply to any body established for religious purposes if it is “connected with the provision, by the body, of education or training”. There is no definition in the SDA of “education or training”. In the context of an “educational institution” this clearly means that it must be a body whose main purpose is education. But when applied, as proposed cl 37(3)(b) is, to any “body established for religious purposes”, then the words are of quite general import. “Education” would surely be an apt description of what happens in a Sunday morning Sunday School program, or a mid-week children’s club. We might call this the “Sunday School Destruction Clause“. One could even argue that teaching in a small bible study group, or Sunday morning service, is covered by “education” or “training”.
Teaching that presents the Bible’s view on acceptable sexual behaviour might be challenged as “discrimination” against same sex attracted persons, even though it is teaching that is aimed at people in a Christian church who have chosen to join that church and are committed to the Bible’s authority. (If someone thinks that it is too far-fetched to suggest that anyone could argue that religious teaching on sexual behaviour, presented to members of a religious community, could be challenged under discrimination laws… the case of Archbishop Porteous from Tasmania provides a clear example of this.)
Clause 37(3)(c) then would extend these restrictions to decision-making by a religious body of any sort on engaging staff to teach members of the group, on any topic. This would include churches, but also extend to other institutions such as Bible colleges (for many of the students at these colleges are not destined for formal “ordination”, and so the protection of s 37(1)(a) would not apply.) It would arguably extend to any religious body that wants to impart the “teaching” of its religion to its clients and staff. It may cover “ancillary” staff who do not themselves teach, but further the teaching mission of the institution in other ways.
Finally, the Bill also makes amendments to a number of provisions of the Fair Work Act 2009 (Cth) which also currently protect religious freedom to some extent. Four amendments remove protections from religious bodies who are “educational institutions”.
All these amendments should be opposed. The Government has already indicated that it will be presenting a limited and careful amendment to s 38 to deal with the theoretical possibility (it has never been a policy or practice in fact) that a religious school might expel, or deny entry to, a gay student solely on the grounds of their sexual orientation. As I have previously recommended, such an amendment should preserve the right of schools to implement policies dealing with student dress, conduct and behaviour.
But beyond that, the complex issues around whether further changes are needed to the law governing employment of staff should not be rushed through in this hasty way. Time should be taken to actually read and digest the Ruddock Report itself in due course! These Greens proposals will, if passed, smash a huge hole in the religious freedom applying to schools and families in Australian, and should be rejected by the Senate.
(For those interested in easy access to my previous blogs in response to the Ruddock Report recommendations, you can see