The above heading doesn’t sound very exciting, does it? Isn’t that what one would expect, that a school set up to educate students in a particular religious view would apply those beliefs in its practices? But the press in Australia sees it differently, apparently. “School rules: Brisbane college expects students to denounce homosexuality” is the way that the Sydney Morning Herald puts it (Jan 31). Citipointe Christian College has sent a letter to parents spelling out its views on a number of issues, letting them know that the College expects students and parents to be aware of these views if students are to be sent there. Here I will comment on whether the College is legally justified in so doing.

The most controversial parts of the letter sent to parents are statements about the Bible’s teaching on sexual activity, and a statement about “gender identity”. From what has been made available in various sources, it seems that what has been said includes these things:

There is also a press release now on the school’s website which makes similar points. That release says:

We believe that each individual is created in the image of God, and that we are all equal and should be afforded compassion, love, kindness, respect and dignity. Our Church also believes in the teachings of the Bible that hold that marriage was instituted by God as between a man and a woman and which do not distinguish between gender and biological sex.

Principal, Pastor Brian Mulheran said, “We have always held these Christian beliefs and we have tried to be fair and transparent to everyone in our community by making them clear in the enrolment contract.

“We are seeking to maintain our Christian ethos and to give parents and students the right to make an informed choice about whether they can support and embrace our approach to Christian education.

“Citipointe does not judge students on their sexuality or gender identity and we would not make a decision about their enrolment in the College simply on that basis.”

Under Queensland law, the Anti-Discrimination Act 1991 (Qld) says that detrimental treatment of people on various grounds is unlawful, including the grounds of “sexuality” and “gender identity” (see s 7). One area in which such discrimination is forbidden is “education” (see sections 38 and 39). However, there is an important question as to whether setting out moral principles which a school believes, while saying that enrolment decisions will not be made on the basis of the specific questions of sexuality or gender identity, amounts to a breach of the Act. Still, an argument could be made that a student would in effect be denied enrolment if they knew the school disagreed with their life decisions in these areas.

In some other Australian jurisdictions a faith-based school would be able to rely on a “balancing clause” in discrimination legislation, balancing the right to religious freedom with non-discrimination rights, and allowing the school to apply its fundamental religious principles to these sort of decisions. But in Queensland law there is no such clause covering this particular area. Under that law a religious school can exclude persons not of its own religion, under s 41. But the general provision allowing religious bodies to make decisions in accordance with their doctrines, is explicitly said not to apply in the area of education- see s 109(2).

This may explain the comments from various officials in Queensland that the College should be referred for investigation for discrimination. But as I have noted on other occasions, there is a live question as to whether the provisions of State laws such as the Queensland Act are valid when seen next to the law of the Commonwealth. Under the Sex Discrimination Act 1984 (Cth), s 38, a religious school does not act unlawfully when it makes decisions based on sexual orientation or gender identity if it does so “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.

There seems to me a good argument that this provision, which relates to discrimination actions based on precisely the criteria used by the State law, creates a right for faith-based schools to operate in accordance with their religious ethos. And under s 109 of the Constitution, a State cannot by its law take away a right given to citizens by Commonwealth law.

It may be convenient here to provide an extra from a former post on a similar issue arising under Victorian law, adapted for the current context.

In Dickson v The Queen [2010] HCA 30 Commonwealth law made a conspiracy to steal Commonwealth property a crime in certain circumstances, but Victorian law imposed criminal liability in a broader set of circumstances. The High Court ruled that the Victorian provision was inoperative. At paras [13], [15] they summed up previous authority on the matter in this way:

[13] The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth was taken up in the joint reasons of the whole Court in Telstra Corporation Ltd v Worthing as follows:

“In Victoria v The Commonwealth, Dixon J stated two propositions which are presently material. The first was:

‘When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.’ …

[15] The passage in Telstra which is set out above was introduced by a discussion of earlier authorities which included the following:

“Further, there will be what Barwick CJ identified as ‘direct collision’ where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided. Thus, in Australian Mutual Provident Society v Goulden, in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question ‘would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1945 (Cth)’. A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question. But that is not this case.” (emphasis added)

Dickson v The Queen [2010] HCA 30, [13]-[15] (footnotes omitted)

The Court stressed, at [19], that this operation of s 109 was important: not only for the adjustment of the relations between the legislatures of the Commonwealth and States, but also for the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies. They concluded that the State law was inoperative in the following passage:

[22] The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code. In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law. The State legislation, in its application to the presentment upon which the appellant was convicted, would undermine and, to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law. No room is left for the State law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury. To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law. (emphasis added)

Dickson v The Queen [2010] HCA [22]

These remarks are directly applicable the situation created by the “overlapping prohibitions” which would be set up if the Queensland law were allowed full operation. The Commonwealth SDA s 38 would allow a religious school to adopt a policy that would involve asking students to support Biblical views on sexual behaviour, because to do otherwise would not be in conformity with the “religious susceptibilities of adherents” of the religion.

However, such a school, if the proposed Queensland law were operative, would be acting unlawfully. It seems fairly clear that this would be a “direct impairment” by a State law of a right given by a Commonwealth law. To adapt the language of the Dickson judgment, the Queensland law would “alter, impair or detract from the operation of the federal law by proscribing conduct of the [school] which is left untouched by the federal law”, and “the State law, if allowed to operate, would impose upon the [school] obligations greater than those provided by the federal law”.

As a result, it seems likely that these provisions of the Queensland law would be “inoperative” in this sort of case by virtue of s 109 of the Constitution.

In a multi-cultural, diverse, society we will not all agree on even fundamental moral issues. Those who want to pay for their children to be educated in accordance with a religious world-view should surely be allowed to do so.

It is perhaps worth adding: none of these issues are affected by the Religious Discrimination Bill being considered by Federal Parliament at the moment. That Bill deals with issues of religious discrimination, not sexual orientation or transgender discrimination. An inquiry by the Australian Law Reform Commission is due to deal with these issues after the RDB has been passed.