Following my previous post on this issue, press reports indicated that the Prime Minister is proposing that the Parliament urgently amend the provisions of s 38(3) of the Sex Discrimination Act1984 (Cth) which allow religious schools to expel students on the basis of sexual orientation. If this goes ahead, there is still a need to protect the legitimate interests of such schools in not seeing the religious ethos of the school undermined. In this post I want to suggest some ways that could be achieved.
A media outlet here in Australia has released what it says are the 20 recommendations made by the Expert Panel on Religious Freedom chaired by the Hon Philip Ruddock. The Report itself was delivered to the Government in May 2018, but has not officially been released. Apparently the Government is planning to release the Report at the same time as announcing its official response.
The main issue which has generated controversy during the last week, in which there was a selective leaking of some of the recommendations, were proposals dealing with the rights of religious schools to take into account the sexual orientation of students in certain areas. The changes proposed were not radical changes to the existing law, but were presented as such when first publicised. In this post I want to briefly set these recommendations in context and offer my preliminary response.
An extraordinary claim before the Victorian Civil and Administrative Tribunal recently, Secular Party of Australia Inc. v the Department of Education and Training (Human Rights)  VCAT 1321 (27 August 2018), alleged that a child at a public school should be prevented from wearing Islamic religious garb in the child’s own interests! Thankfully the claim failed, but the fact that the case could even be argued illustrates the pressure that some groups on society are placing on parents and children of faith.
Today the Rev the Hon Fred Nile, for the Christian Democrat Party, introduced a Bill to add “religious beliefs or religious activities” into NSW legislation as a prohibited ground of discrimination. The proposed Anti-Discrimination Amendment (Religious Freedoms) Bill 2018 will add new Parts 3B and 5A into the Anti-Discrimination Act 1977 (NSW) (“ADA”), making it unlawful in various areas to discriminate on the grounds of religion, or to subject religious bodies to a detriment. The proposals will also make it unlawful to penalise someone for holding views on marriage as the union of a man or a woman, or for holding the view that there are only two genders.
Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?
These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved.
A recent interesting decision in the State Administrative Tribunal of Western Australia deals with the question whether it is “religious discrimination” for a school to ask students to recite a fortnightly “school creed” containing an optional line mentioning God. The Tribunal decision, Jason Camp on behalf of Charlotte Camp v Director General, Department of Education  WASAT 79 (29 May 2017), sensibly finds that there was no such discrimination.
I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.
Note: this post has been updated in July 2017 to note more recent developments.
Astonishingly, the answer to the question posed here, provided by the Queensland Department of Education and Training was: No! In their latest reviews of material used in Special Religious Instruction (SRI) offered in public schools in that State, they assert as follows:
While not explicitly prohibited by the [relevant legislation], nor referenced in the [Departmental published] RI policy statement, the Department expects schools to take appropriate action if aware that students participating in RI are evangelising to students who do not participate in their RI class, given this could adversely affect the school’s ability to provide a safe, supportive and inclusive environment for all students.
(This statement is found both in the Report on the Review of the GodSpace Religious Instruction Materials, March 2017, at para 3.1.1 on p 5, and in the Report on the Review of the ACCESS ministries’ Religious Instruction Materials, Feb 2017, at para 3.1.1 on p 6. Update: the two reviews are also linked on a page headed “Religious instruction policy statement“, which indicates it was updated on 25 May 2017. There seems no doubt that schools would see this as part of authoritative guidance from the Education Department.)
In this post I want to explain why this over-reaching bureaucratic imposition is not justified by the law governing the Department’s activities, and indeed is probably illegal.
A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law.
The Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 into its Parliament on 30 August 2016. It has passed the Legislative Assembly without amendment, and is presently before the Legislative Council. The Bill proposes the amendment of the Equal Opportunity Act 2010 (Vic) to make it more difficult for a religious body to claim that it is not “discriminating” when it declines to hire, or fires, someone whose behaviour or convictions is contrary to the ethos of the body. The amendments introduce an “inherent requirements” test which must be satisfied in order for such an action to be viewed as falling outside the prohibition in the legislation on detrimental treatment based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (the “Victorian prohibited grounds”).
I have commented in a previous post as to why I think this is poor legislation from a policy perspective. In that previous post I briefly noted that an argument could be made that some of the amendments, at least, would be unconstitutional. Since that previous post I have looked into the area further and am fairly sure that this is the case. Here I want to develop the case a bit further.