Law Reform Commission report recommends removal of religious exemptions

Exemptions in the Sex Discrimination Act (SDA) that allow religious schools to discriminate against LGBTQIA persons should be removed, according to a report by the Australian Law Reform Commission. The report was tabled in the Federal Parliament today, and media reports suggest the Albanese government is unlikely to legislate on its draft Religious Freedom Bill or amendments to the SDA.

Recommendation 1 of the report would ” to narrow the circumstances in which it would be lawful to discriminate against students or staff at religious educational institutions on the basis of attributes protected under the Sex Discrimination Act.”

Repealing the exemptions aims to meet the ARLC terms of reference that a “religious educational institution.”
• “must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;” and
• “must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy”

Some “narrower” exemptions would be maintained around
• single‐sex schools
• boarding school accommodation
• the education of particular religious leaders.

Students in a religious school would be allowed to form an LGBTIQIA club. “it would be unlawful to refuse, in a directly discriminatory way, a student request to form an LGBTQ+ student club. Any religious requirement, condition, or practice of the institution regarding student clubs that is likely to have a disadvantaging effect on grounds covered under s 21 of the Sex Discrimination Act would need to be reasonable in the circumstances, to avoid breaching the prohibition on indirect discrimination.”
Schools could not refuse leadership positions to LGBTQIA students.

It is clear that the ALRC’s reforms will affect religious freedom, in some cases restricting people’s exercise of their religion. “The ALRC has concluded that the recommended reforms may limit, for some people, the freedom to manifest religion or belief in community with others and the parental liberty to ‘ensure the religious and moral education of their children in conformity with their own convictions.’

But argues that other freedoms are enhanced. “Implementing Recommendation 1 would be to enhance the realisation of several other human rights, including the right to equality and non‐discrimination, children’s rights, the right to education, the rights to health and life, the right to privacy, the right to work, and freedom of expression. The freedom to manifest religion or belief, and the parental liberty to ‘ensure the religious and moral education of their children in conformity with their own convictions’,  would also be promoted for some people.”

The ALRC’s recommendation 7 is intended to allow schools to retain a religious character in the section of staff. This is achieved by amending the Fair Work Act (FWA) so that “In relation to the selection of staff for employment at a religious educational institution, it is not contrary to [sections of the FWA] to give preference, in good faith, to a person of the same religion, where the giving of such preference
• is reasonably necessary to build or maintain a community of faith
• is proportionate to the aim of building or maintaining a community of faith, including in light of any disadvantage or harm that may be caused to any person or persons not preferred; and
• does not amount to conduct that is unlawful under the Sex Discrimination Act 1984 (Cth).”

Commenting on that last point, the ALRC report says, “However, the effect of this recommendation would be that any religious requirements that have a disadvantaging effect on staff based on attributes protected under s 14 of the Sex Discrimination Act would be unlawful.”

That would seem to limit the ability of religious schools to build a community of faith if that faith has a conservative view of LGBTQIA matters.

If the ALRC recommendations are followed, existing FWA exemptions will be narrowed. For example, the preference rules will apply only to staff’s initial appointments, not promotions.

On the other hand, schools could require teachers to teach according to their doctrinal stance. “

“Under Recommendation 1, it would not be unlawful for an institution to take action against a staff member for failing to:
• perform the requirements of their role (which might include, for example, teaching the school’s religious beliefs); or}• adhere to reasonable codes of conduct or directions (which may include the extent to which staff may be permitted to discuss their private life with students);
unless the staff member was directly or indirectly discriminated against on grounds prohibited under the Sex Discrimination Act.”

Response from conservative Christians

Australian Christian Lobby’s (ACL) CEO, Michelle Pearse, said, “The government has had this report for months but have kept it under wraps, refusing to discuss its contents with major stakeholders including faith-based schools, faith leaders and the Opposition. This may be because the recommendations of the ALRC Report sound the death knell to Christian and faith-based schools and institutions in Australia. 

“The Attorney-General’s speech in Parliament, when tabling the report, makes it clear that the Labor Government will seek to attack the aspirations of millions of Australians of faith and no faith who pay for their kids to be educated in faith-based schools. Rather than supporting these working Australians and their kids, the Labor Government is intent on driving a dagger into the heart of faith-based schooling. Labor’s un-Australian attack on working Australians of faith must be rejected.”  

UPDATE: The Australian reports, “Christian Schools Australia, the Australian Association of Christian Schools and Associated Christian Schools said if the ALRC’s recommendations were adopted, ‘Christian education as we know it will cease to exist.’

“’If these ALRC recommendations are adopted, it means the government can tell Christian schools who we can employ, what we can believe and teach,’ AACS executive officer Vanessa Cheng said.”

  

However, the Sydney Morning Herald’s David Crowe earlier suggested, “The government has two draft bills, one to amend the Sex Discrimination Act and one to set up a new Religious Discrimination Act, but the documents may never see the light of day. While the Australian Law Reform Commission had worthy recommendations in a report issued on Thursday, there is not enough political goodwill to turn these ideas into law.” But the report also says “Religious educational institutions would need to consider how best to maximise the realisation of rights in this context and ensure that a code of conduct that has a disadvantaging effect is reasonable in the circumstances.”

Theological Education and church committees

Theological educational institutions appear to be insulated from some of the ARLC changes that apply to schools. This is addressed in their recommendation 2.

“Organised religions would remain exempt from the prohibition on discrimination on all grounds contained in the Sex Discrimination Act when choosing and training ministers and other religious leaders (such as bishops, elders, imams, pastors, priests, preachers, and rabbis) in accordance with the requirements and standards of the relevant religion.” The ALRC rejected the suggestion that this exemption be extended to volunteer positions. This implies that church committees and parachurch bodies would have to be open to people with protected attributes under a revised SDA.

Image: ALRC report cover image