The Senate Legal and Constitutional Affairs Committee has now (Feb 14, 2019) tabled its Report on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, a Private Senator’s Bill introduced last year by Senator Wong with the support of the ALP. (The background to the Bill can be found in previous posts on this blog, starting here, the most recent of which was here.) The recommendation of the majority is that the Bill not be approved, and instead that the Bill and related issues “be referred to the Australian Law Reform Commission for full and proper consideration” (para 3.86).
The Bill as it stands would have made some far-reaching amendments to the law in Australia governing religious freedom of faith-based schools, and my view is that the majority recommendation is correct. However, in the current Parliamentary situation in Australia at the moment (with the Government having this week been defeated on a vote in the House of Representatives by a combination of the ALP and smaller parties, though not on a confidence motion), it is worth noting the dissenting ALP senators’ report. While (as expected) the dissenters argue that the Bill should be passed, they do at least acknowledge that the current wording of the amendment to s 37 would go beyond the intention of dealing simply with schools, rather than more broadly with all “religious bodies” such as churches, mosques and synagogues. They would accept, they say, “an appropriate amendment to clarify the definition of an educational institution” (see paras 1.45-1.47).
While this is a sensible concession (I urged a similar change in my submission to the Committee, which can be found here, at p 5), it would not solve the other problems of the Bill. Some of these, as noted in my submission, are:
- First, the Bill, by deleting s 38(3) of the SDA, removes any opportunity for faith-based institutions to directly apply their religious beliefs in making discipline and conduct decisions about students. The ALP argues that “conduct” rules will still be possible and can be defended as “reasonable” under indirect discrimination provisions. But, as I said in my submission, this is not enough to preserve religious freedom:
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. Consider 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.
- Such a rule is arguably “direct” discrimination, and would not be protected by the indirect discrimination defence. This is especially so, given the history of courts refusing to distinguish between decisions based on “orientation” and those based on “behaviour connected with the orientation”.
- Second, 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”). Bible and theological colleges may also be required to act in a way contrary to their religious beliefs, by affirming student actions which are seen to be wrong based on their faith commitments. Whatever one’s view on the treatment of children, it seems a serious blow to religious tertiary institutions to interfere with their running in this way.
In short, there are still a number of difficult issues which have not been fully resolved, even if the unfortunately wide working of the proposed amendments to s 37 are suitably restricted. It would be best if the Parliament were not to approve this Bill now, but instead to agree to allow the Government to refer it for further detailed consideration by the ALRC.