Removing fences: the ALRC Consultation Paper on Religious Educational Institutions and Discrimination Laws

The Australian Law Reform Commission has now released a Consultation Paper for its current reference on “Religious Educational Institutions and Anti-Discrimination Laws”. The paper, while formally acknowledging the importance of religious freedom and parental rights, will be a serious disappointment to those involved in religious schools and colleges. It effectively recommends the removal of protections enjoyed by religious educational institutions which have been designed to safeguard the ability of these organisations to operate in accordance with their religious beliefs. The “fences” protecting these bodies from being forced to conform to majority views on sexual behaviour and identity (and hence losing their distinctiveness as religious bodies) are to be knocked down, the ALRC says. But the paper offers no convincing reasons for this wholesale demolition of a structure which has served the diversity and plurality of the Australian community for many years. Rather than supporting “Diversity, Equity and Inclusion”, the paper’s recommendations would require a compulsory uniformity which would undermine the reasons for the existence of faith-based educational institutions.

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ALRC inquiry into Religious Educational Institutions and Anti-Discrimination Laws

The Commonwealth Attorney-General has announced that the Australian Law Reform Commission will be conducting an inquiry into the general area of “Religious Educational Institutions and Anti-Discrimination Laws”. Detailed information about the inquiry can be seen at their home page.

Readers may recall that the ALRC had previously been given a wider inquiry by the former government: the web-page notes that

The Terms of Reference replace a previous Inquiry into religious exemptions in anti-discrimination legislation that has been on hold since March 2020.

This new inquiry, while narrower in terms of being limited to religious educational institutions, comes with a number of assumptions that some may find problematic:

The Terms of Reference describe the Government’s commitments as ensuring ‘that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

  • must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
  • must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
  • can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’.

The Commission has indicated that it will have regard to submissions made to the previous inquiry, but that it also “will undertake further consultations”. Organisations and individuals who are interested in making submissions to the inquiry (when public submissions are called for) can “subscribe” to email updates from the ALRC here. Given that the inquiry has quite a tight timeline (it is due to report on 21 April 2023) I suspect that submissions may need to be put together fairly quickly over the Christmas/New Year period.

Update

The ALRC has now released a consultation timetable (which can be seen here) which indicates that they will be releasing a discussion paper for general comments on 27 January 2023, to which responses need to be provided by 24 February 2023.

ACT Discrimination Law “Reforms” Narrow Religious Freedom

The Australian Capital Territory government has released an Exposure Draft of a Bill to amend that jurisdiction’s Discrimination Act 1991 (“DA”). They have invited public comment by 1 July 2022. As key protections for religious freedom in Australia are often found in “balancing clauses” in discrimination legislation, it is always worth keeping an eye on reforms to these laws. Sadly, these proposed reforms will significantly narrow religious freedom protections in the ACT.

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Religious Freedom Challenges for Theological Colleges in Australia

I am presenting a paper to a seminar for senior leaders in Australian theological colleges, dealing with religious freedom challenges. I comment briefly on some of the current protections provided, but also how those protection have been eroded recently, especially in Victoria (where amendments to the Equal Opportunity Act 2010 (Vic) which I previously commented on have now commenced.) A copy of the paper can be downloaded here:

Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.

Government amendments to Religious Discrimination bills

Debate in the House of Representatives in the Federal Parliament resumed today on the package of bills dealing with religious discrimination. (For general background, see my initial post on the bills here, and recent update on committee reports, here.) The second reading debate continues on Wednesday, I think, but the government has now released two sets of amendments it will be making to the bills. The most controversial will be the amendment to s 38 of the Sex Discrimination Act 1984; the other amendments to the main Religious Discrimination Bill will mostly be uncontroversial and reflect the recommendations of the two Parliamentary committees which recently reported. While the need for the s 38 amendment will continue to be debated, in my view it is targeted at the specific problem previously identified, and will if read in that context not unduly interfere with the operations of religious schools.

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Religious school tells parents it will apply its religious beliefs

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.

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Expelling students from religious schools based on sexual orientation?

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.