Senator Wong, leader of the Opposition in the Senate, has introduced a Private Senator’s Bill aimed at removing the power of religious schools to discriminate against same sex attracted students. Unfortunately, the amendments do much more than stop schools expelling students on the basis of their internal sexual orientation (a goal all sides of politics agree on.) They will have a serious impact on the ability of such schools, and other religious bodies, to operate in accordance with their religious beliefs. A more nuanced approach is needed.
The background to these proposals can be found in previous blog posts here, here and here. In short, the Sex Discrimination Act 1984 (Cth), s 38(3), currently allows faith-based “educational institutions” to provide education in accordance with their religious framework, by making it not unlawful for them to take into account, in their dealing with students, questions that have always been regarded as an important part of religious belief relating to marital status, pregnancy, sexual orientation and gender identity. This provision is there in the Act to recognise (as the then Labor Attorney-General indicated in 2013 when the Act was being amended) “the right to freedom of thought, conscience, and religion or belief”.
Religious schools, for example, are chosen by parents, at least in part, because they conduct education in accordance with a religious world-view, which includes moral judgments about what is right, and what is wrong. To take the example of a Christian school, the Bible’s teachings that it is wrong to steal, or to not respect one’s parents, or to murder, or to commit adultery, will be taught to students as part of the framework of the school. A core part of the Bible’s teaching is that sexual activity is to be reserved for the context of a marriage between a man and woman. If a student were to conduct a campaign in the school to oppose Biblical teaching on this, or other matters, then the school would need the power to counsel the student not to engage in that activity, and as a last resort a power to discipline or expel if a student persisted.
No Christian schools are looking for the power to simply expel a student on the basis of their internal “sexual orientation”. Christians are well aware of the difference between a temptation to sin and the sinful action itself. That is why Christian schools are not opposed to clarifying the operation of s 38(3) to make it clear that decisions of this sort will not be taken on the basis of “orientation” alone. It is understood that such a proposal will be put forward by the Government soon. But this current proposal has been put forward by the ALP after stating that they could not reach agreement with the Government on the form of proposed amendments.
The ALP Bill
The Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 is fairly brief. The Bill repeals s 38(3) of the SDA, and adds a further paragraph to s 37 of the Act:
(3) 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 education; and (b) the act or practice is not connected with the employment of persons to provide that education.
The purpose of the s 37 amendment seems to be to make it clear that a general balancing clause applying to a “body established for religious purposes” cannot be used as a substitute for the repealed provision of s 38. The amendment follows the pattern of s 37(2), which removes the operation of the general s 37 exemption from decisions in relation to residents accessing Commonwealth-funded aged care (although allowing the exemption to still operate in relation to staff at such aged care institutions). Similarly, the Bill here will not, as it currently stands, impact the provisions of sub-sections 38(1) and (2), which allows religious schools to take into account sexual orientation and other matters in dealings with their staff. (Amendments of that sort have been foreshadowed by the ALP, but are not dealt with in this Bill.)
The Bill will ensure that religious schools cannot choose to expel students on the basis of their internal sexual orientation alone. It is interesting to note that, in the Explanatory Memorandum provided with the Bill, Senator Wong also tries to relieve some concerns of schools by the following comments:
This Bill would not affect the operation of the indirect discrimination provisions in the SDA, which will continue to operate in a manner that allows faith-based education institutions to impose reasonable conditions, requirements or practices on students in accordance with the doctrines, tenets, beliefs or teachings of their particular religion or creedExplanatory Memorandum, p 1.
Further elaboration of this point later in the document adds:
[T]he Bill will not amend section 7B of the SDA and so will not prevent a faith-based education institution from imposing reasonable conditions, requirements or practices on students in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creedExplanatory Memorandum, p 5
Will this Bill impact religious freedom of schools?
Despite the assurances offered in the Explanatory Memorandum, I think there is a real danger that the amendments made by this Bill will seriously impair the religious freedom of faith-based schools, and more legislative clarification is required to avoid this outcome. As noted below, it will also have an impact on other institutions.
To understand why, it is worth noting the difference in discrimination law between “direct” and “indirect” discrimination. In broad terms, a “directly” discriminatory action is one that is clearly based on a “prohibited ground”. Refusing to employ someone from an Asian background, because they were Asian, would be an example. But “indirect” discrimination is where a condition for employment is imposed which does not, on the surface, seem to be based on a prohibited ground, but on further examination invariably impacts people from one group, more than another. Imposing a “height” requirement for a job, for example, may detrimentally impact people from an ethnic group which tends to be shorter.
The SDA forbids both direct and indirect discrimination. In relation to “sexual orientation”, for example, s 5A(1) forbids direct discrimination, and s 5A(2) indirect discrimination.
So, for example, suppose the school has a rule that says, “students shall not establish clubs that advocate for a world-view contrary to that of the Bible”. Here it could be claimed that, even though this policy does not itself target homosexual students, that it might be an act of indirect discrimination under s 5A(2) SDA, as the school “imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person”. Such a policy would have a differential impact on homosexual students, as they are more likely to want to set up a gay support club than heterosexual students.
But s 5A(2) is subject to s 7B (see s 5A(3)), and under s 7B the school could argue that the “condition, requirement or practice is reasonable in the circumstances”- s 7B(1). It could be argued that the condition is imposed in good faith as part of the school’s religious framework (ie it is the sort of thing parents who send their kids to the school would expect, and is consistent with classical Christian views). However, a serious problem with this approach is that this will give a secular court the task of determining whether a school policy of a religious nature is “reasonable”.
But there is another problem in relying on the provisions relating to “indirect” discrimination to allow schools to act in accordance with their religious beliefs. Let’s take another example: suppose a school rule says something like “students may not bring same-sex partners to school socials”. Agree with it or not, one can imagine that a religious school based on a Christian moral framework may wish to not encourage the celebration of homosexuality at a major school social event.
While the rule seems not to be explicitly targeted at “sexual orientation”, this might still be a rule which amounts to “direct discrimination” under s 5A. Under s 5A(1)(b) one would have to say that “expressing romantic affection for a same sex partner” is “a characteristic that appertains generally to persons who have the same sexual orientation as the aggrieved person”, and hence this behaviour looks to be directly discriminatory. Hence s 7B’s “reasonableness” analysis is not applicable (as under s 7B(1) it does not apply to a case of direct discrimination under s 5A).
Some might respond- but surely the school social rule is a rule based on “conduct”, the act of expressing one’s sexual orientation, and so any decision based on that would not be a decision based on “orientation”? (This type of argument was put forward in the Senate second reading debate today by Senator Keneally, who suggested that another Senator seemed to “misunderstand the difference between identity and actions”.)
Well, while this distinction may make sense in a religious framework, it has to be said that a number of court decisions in the past have refused to accept a distinction between “orientation” and “conduct” (or between “identity” and “actions”). In a paper I recently presented, linked here, I give some examples at pp 10-12 of court cases where courts have said: if some behaviour is “indissolubly connected” with sexual orientation, then making a decision on the basis of that behaviour, will be seen as making a decision on the basis of sexual orientation.
The bottom line here is that, while the assurances offered in the Explanatory Memorandum noted above sound reassuring, there will still be some doubt as to what would, and would not, amount to direct or indirect discrimination, and what would be “reasonable” conduct rules that schools could enforce. The courts have been very clear that assurances made in ancillary material provided to, or speeches made in, Parliament, do not determine the content of the law- see, for example, the comments of Spigelman CJ in Harrison v Melhem  NSWCA 67 at : “a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute”.
To avoid such doubt, it would be better, rather than completely removing s 38(3), to replace it by a provision that explicitly authorises schools to apply policies as to acceptable conduct which are in accordance with their fundamental faith commitments. I have previously suggested the form of a possible amendment to s 38(3) which would achieve this result:
Possible new SDA 38(3) Nothing in s 21 renders it unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, in connection with the provision of education or training, to set and enforce standards of dress, appearance and behaviour for students, so long as this is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Other problems with the amendments
There are a number of other problems with the amendments as they now stand.
First, the s 38(3) amendment will not simply remove protections from primary and secondary schools, but also from other types of “educational institutions” (defined in s 4 of the SDA as a “school, college, university or other institution at which education or training is provided”). As noted by the Institute for Civil Society in a comment on a previous Greens Bill (worded in the relevant part in a similar way):
Beyond schools, the Bill removes exemptions for education by theological colleges. It also applies to any education provided by a religious institution. For example, the training services provided for youth workers, chaplains, missionaries, or instructors in theological education. The only training left untouched by the Bill is for candidates seeking to become clergy in the faith, such as imams, rabbis, or priests.
The protections would also be removed from other “faith based” colleges and tertiary institutions, as noted in an article in The Australian today: “Colleges fear fallout for Christian views” (29 Nov, 2018).
Secondly, the seemingly innocuous amendment to s 37 may have very wide-reaching consequences. While apparently designed as an “anti-avoidance” provision to prevent religious schools avoiding the impact of the repeal of s 38(3), the drafting opens up a range of very serious outcomes. For one thing, the provisions of s 37 are not limited to “educational institutions”, but apply to every “body established for religious purposes”, which of course will include churches and a whole range of other bodies set up with religious aims. Next, the area in which the s 37(1)(d) protection is removed is simply described as “education”. That word is so broad (going far beyond provision of formal education in schools and colleges) that it might cover, unless somehow other constrained, teaching the Bible in Sunday Schools, in small Bible study groups, and presumably in churches, mosques and synagogues in their public meetings.
If these outcomes are clearly not the intention (and they don’t seem to be), then at the very least the s 37(3)(a) amendment should be amended to make this clear. It could be reframed, for example, in this way:
Revised s 37(3) Paragraph (1)(d) does not apply to an act or practice of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed (being a body established for religious purposes) if:
(a) the act or practice is connected with the provision, by the institution, of education or training; and
(b) the act or practice is not connected with the employment of persons to provide that education or training.
While I have suggested a possible amendment to the proposed s 37(3) if it is to proceed, my preferred option is for these amendments as a whole not to proceed. The sensible reform of removing the right of religious schools to expel same sex attracted students should be dealt with by amending s 38(3) in the way suggested above, not by repealing it. That would be a preferable way to balance the important rights of religious freedom at stake here, with the right not to be discriminated against on the grounds of sexual orientation.
Some of the Senate debates on this Bill are already available in Hansard online, and they provide a good overview of arguments on both sides (see pp 89-103).