Australia’s Federal Sex Discrimination Act 1984 (Cth) and Fair Work Act 2009 (Cth), prohibit discrimination in a wide range of settings against people on grounds including sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. These laws provide exceptions for religious educational institutions, including schools, ensuring that discrimination on certain grounds by religious educational institutions is not unlawful under Federal law where it is ‘in good faith’ and ‘in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’. The exceptions recognise the impacts that anti-discrimination law, which protects fundamental rights to non-discrimination and equality, may have on the exercise of the fundamental right to freedom of thought, conscience, and religion. In March 2020, an Australian Law Reform Commission (ALRC) Inquiry into Religious Exemptions in Anti-Discrimination Legislation was put on hold pending potential Religious Discrimination legislation that subsequently failed to pass in February 2022.
On the 4th November 2022 , the ALRC received Terms of Reference (ToR) from Attorney General Mark Dreyfus to consider reforms to the way Federal anti-discrimination laws apply to religious educational institutions. This was in the context of the planned Religious Discrimination Bill. The ToR required the ALRC to develop proposals for protections against discrimination of students and staff while ensuring that religious educational institutions ‘can continue to build a community of faith’. The Government asked the ALRC to consider what changes should be made to Federal anti-discrimination laws to ensure that these laws reflect the Government’s commitments in a manner consistent with Australia’s international human rights obligations. These obligations are to respect and protect human rights including rights to non-discrimination and equality, freedom of thought, conscience and religion, life, privacy, freedom of expression, freedom of association, work, education, cultural rights, and children’s rights. In undertaking this inquiry, the ALRC was told to consider the frameworks that international human rights law provide for managing the intersections of these rights, and the experiences of other jurisdictions, to propose reforms consistent with Australia’s international obligations.
The Government appointed NSW Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a Part-Time Commissioner for the Inquiry.
The ALRC was instructed to have regard to extensive consultations previously undertaken on these issues by federal, state, and territory inquiries. In welcoming the new inquiry, ALRC President, Justice SC Derrington, said, “We will work closely with stakeholders to understand the key issues in managing the intersections of the important rights and freedoms raised by the Inquiry. In this, we are fortunate to be able to build upon a number of recent inquiries that have examined these issues at the Commonwealth, state, and territory level”.
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.
On 27th January 2023, the ALRC released its Consultation Paper. The recommendations are deeply disappointing and provide no practical basis for the operation of authentic Christian Schooling. The proposals are the most restrictive in the country and have national implications. Schools and educational institutions in states and territories with broader existing protections for religious freedom would be constrained by Commonwealth law. If enacted, the ALRC’s recommendations substitute their beliefs on gender and sexuality for those of a Christian institution.
National Catholic Education Executive Director, Jacinta Collins, said, “The proposed reforms fail to provide real protections for religious schools to effectively operate and teach according to their religious beliefs and ethos… the review has been limited to exemptions in the Sex Discrimination, Fair Work and other Acts and does not address the need for protections for religious rights in Australia. Changes to anti-discrimination laws must go hand-in-hand with proactive legislation to protect religious freedom. International law recognises protections to establish religious educational institutions and the right of parents to choose a school for their children that is in line with their religious values and beliefs”.
Submissions have been invited with a closing date of 24 February 2023.
The ALRC is required to report back to the Attorney-General by 21 April 2023.