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 submission of Freedom for Faith to the Parliamentary Joint Committee on Human Rights inquiry into the Religious Discrimination Bill is now available for download here. I prepared the submission with input from other board members. Submissions to this committee can be made at their website here, but only until 5 pm Tuesday 21 December. There is also a short survey that the Committee have released which it would be good for anyone concerned with religious freedom in Australia to fill in before that same deadline.
Current press reports suggest that the Federal Government is contemplating a change to the provisions of the Sex Discrimination Act 1984 which allow religious schools to operate in accordance with their religious commitments, in the area of decisions about students. This is being proposed to allay fears that the recently introduced Religious Discrimination Bill will impact on LGBT students. (See here for my overview of the Bill.) Just to be clear, I think this is a terrible idea- the Australian Law Reform Commission already has a reference on this issue and they should be allowed to complete their work by taking into account all the issues. But I make a few comments on the proposal anyway.
The provision in question is s 38(3) of the SDA, which allows religious schools to make decisions in relation to students in accordance with their religious commitments, and for that not to amount to “sexual orientation” discrimination. Actually religious schools very rarely rely on this provision to expel or discipline students- but there are cases where a religious school may lay down a “code of conduct” or the like which may be seen by some as discriminatory on this basis.
If s 38(3) of the SDA is to be amended so that religious schools may no longer make decisions based on “sexual orientation”, then there still needs to be an explicit protection allowing such schools to require students to conduct themselves in accordance with the religious ethos of the school. It is generally accepted that schools are entitled to set up “reasonable standards of dress, appearance and behaviour for students”. A provision to this effect is already contained, for example, in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.
The last time this came up, in 2018, I suggested a possible redraft of s 38(3) which would achieve this outcome: https://lawandreligionaustralia.blog/…/ruddock-report…/. Perhaps it could be called s 38A, and I suggest this is what it might look like:
Possible s 38A 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.
This would make it clear that decision would not be made on the basis of internal self-identification as “gay”, but on the basis of actual behaviour. A school set up to teach and model the principles of Christianity may want to say, for example, that they do not want to act on student’s internal feelings or temptations, but they cannot support public advocacy and activity which is contrary to the teachings of the Bible.
After a long wait, the Federal government has released the text of the Religious Discrimination Bill 2021 which is about to be introduced into the Parliament. There has been no general Federal law dealing with detrimental treatment of Australians on the basis of their religious faith and activities, and this is a welcome development, implementing a recommendation of the Ruddock Review which reported in 2018.
The government previously released two “Exposure Drafts” of the Bill (see some comments on those in previous posts, here, and here.) Having promised prior to the last election that he would advance this law, Prime Minister Morrison will now introduce it into the House of Representatives. If passed by the House, the Bill will then need to approved by the Senate, where it seems likely to be referred to (yet another) committee before being voted on there, probably sometime in the New Year.
In this post I will aim to provide an overview of the Bill, and also to indicate briefly where it differs from previous drafts.
As previously foreshadowed (see my analysis of the proposals when first announced here) the Victorian government has introduced a Bill into the Parliament of that State seriously limiting the religious freedom of religious bodies and individual Victorian citizens. The Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) was introduced into the Legislative Assembly on October 27 and the second reading was moved on October 28. The Bill is a serious attack on the religious freedom of Victorians, especially to send their children to faith-based schools reflecting a religious world-view.
The Victorian government has recently announced proposals to further limit important protections for religious freedom currently applicable to religious persons, bodies and schools in that State. The recent proposals have been put forward as dealing with the problem of religious schools sacking gay teachers, or expelling gay students: see this comment from The Age: “Religious schools in Victoria to lose the right to sack LGBTQ staff” (Sept 16, 2021). However, the details of the proposals hinted at in the recent “Fact Sheet” provided by the government go much further than this. In short, if the government pursues these proposals, they will
- remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
- impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
- remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.
I described these as “further” limits on religious freedom because the Victorian Parliament has recently enacted provisions concerned “conversion practices” which will substantially interfere with the rights of religious persons to teach the doctrines of their faith. (These provisions are due to commence in February 2022). Victoria, despite being one of only a few jurisdictions in Australia to have enacted apparently broad protections for religious freedom in its Charter of Human Rights and Responsibilities Act 2006, s 14, continues to treat this right as one which can be downplayed and minimised.
Can a Roman Catholic agency involved in placing foster children with carers, decline to place children with same-sex couples because of its religious commitment to the value of traditional marriage? The US Supreme Court recently handed down a significant religious freedom decision in Fulton v City of Philadelphia, Pennsylvania (593 US ____ (2021); No 19-123; 17 June 2021) which ruled 9-0 in favour of the Catholic agency. This is an important decision, although it did not quite go far enough in clarifying the interpretation of the US First Amendment. As decisions in the US often resonate in other parts of the world, I thought it would be helpful to set out the reasons of the court, and to briefly discuss another case which has already been decided based on its reasoning. (That case involves some Amish people and their plumbing arrangements!)
The recently released NSW Parliamentary Report of the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (handed down on 31 March 2021) has recommended that the NSW government introduce amendments to make it unlawful in NSW to discriminate on irrelevant grounds relating to religious belief or activity. The proposals supported by the Committee are a good idea and I think their recommendations (with a couple of minor reservations noted below) should be implemented.
The Victorian Change or Suppression (Conversion) Practices Prohibition Bill 2020 (Vic) (which I will call the “CSP” law for short) passed the Upper House on 4 Feb, 2021. As I write it seems not to have yet received the Royal Assent and become an “Act” but that will no doubt happen soon. The government has signalled that the legislation will not come into operation for another 12 months (see the final sentence in this article.)
My previous posts (see here for the most recent) have expressed grave concerns about the effect of the law on religious freedom and specifically on the freedom of parents and others to encourage children to live in accordance with Biblical standards of sexual behaviour. It is astonishing that the Bill was rushed through Parliament in the face of concerns also being expressed by the Law Institute of Victoria, the Australian Medical Association (AMA) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP). (See this excellent post from Murray Campbell noting these issues.)
There are, it seems, very few legal avenues available to challenge the many problems created by this law. But in this post I want to suggest one which may be available- where the CSP Law purports to take away rights of religious freedom granted by the Commonwealth Parliament.
The approach of the official end of the judicial term in the US Supreme Court has seen a number of important law and religion-related decisions handed down in the last week. We have seen decisions relating to access to abortion; to whether the US government can require religious bodies to fund abortion and contraception; to the provision of state funds for religious schools; and to the question of whether discrimination law can be applied to teachers of religion at religious schools. (And all of those are in addition to the other recent major decision in Bostock on sexual orientation and gender identity discrimination, which I have noted previously.)
Each of the four cases here would warrant (and no doubt will produce) detailed academic commentary. But here I will simply flag the case and the general outlines of the reasoning for those who want to read more.