The NSW Law Reform Commission has been working away to review and report on the Anti-Discrimination Act 1977 (NSW). They attracted a bevy of submissions from the usual suspects, but worth a read. The Other Cheek is wading through them for you.
The question of students and staff at schools – as in the Federal Australian Law Reform Commission (ALRC) work is central, so issues canvassed in Sydney will resonate in Canberra.
A submission from Freedom for Faith is “on behalf of, and co-signed by:
- Australian Baptist Ministries
- Australian Christian Churches
- Anglican Church Diocese of Sydney
- Seventh-day Adventist Church”
and is endorsed in a Presbyterian Church of NSW’s submission.
They suggest the NSW Law Reform Commission has a complex task. “The Law Reform Commission will need to grapple with the paradox of people of faith needing both protection from discrimination, as well as freedom to practice their religion in ways which might otherwise be prohibited by anti-discrimination laws.
“This is typically achieved in two ways in drafting legislation. The first is in limiting the scope of application of anti-discrimination laws to appropriate fields, which are seen as sufficiently public and open to all that the law should limit freedom of association or freedom of religious activity.
“The second is by providing ‘exceptions’ or ‘exemptions’ for religious activity that would bedeemed unlawful discrimination but for the exception provided. The term ‘exception’ isunfortunate, as it fails to signify that it is in fact protecting a legitimate religious right that can be exercised by default and that has been qualified by the anti-discrimination prohibition.”
The theological conservative Christians who took part in the joint submission tackle head on what they see as the most critical issue: the staffing of religious organisations. “The most important issue for Christians, and, we understand, for most other faith groups, is not the right to discriminate, but the freedom to select on the basis of religious belief and practice, and freedom to take adverse action against an employee if necessary, where issues of personal conduct are incompatible with the values of the employing organisation. That freedom to select should be expressed as a right, not an exception.”
They strongly criticise the parallel work in the federal sphere. “The ideas advanced by the Australian Law Reform Commission in its recent Consultation Paper on religious exemptions for faith-based schools have also aroused enormous opposition across a broad cross-section of religious organisations and faith-based school groups. Indeed, it is difficult to think of any ALRC Consultation Paper which has been so poorly received by the stakeholders who were most affected by the proposed changes to the law. The thrust of the ALRC’s paper seemed to be that it was the purpose of Christian schools to provide employment opportunities for non-Christian teachers, subject only to narrow exemptions. The authors of that paper did not seem to understand the reasons why so many parents who do not have an active religious faith choose Christian schools for their children, nor the importance to faith communities of the schools, through which they seek to educate their children in a context of Christian living and practice.”
However, some “stakeholders” in Christian schools beg to differ. Equality Australia draws on their submissions to federal inquiries. “Over the last few years, Equality Australia has supported many people who have experienced discrimination based on their sexual orientation or gender identity or because they have affirming religious beliefs concerning sexuality or gender. Among these people are teachers who have lost their jobs, students who have been denied leadership opportunities or who have been forced to move schools, and parents who have been unhappy about religious schools requiring them or prospective staff to affirm discriminatory views about LGBTIQ+ people as conditions of employment or enrolment. These stories must inform not only the narrowing of religious exemptions in the current NSW Act but must also shape the contours of any religious exemptions in a future law that protects against discrimination based on religious beliefs or activities. We know from the experiences of people who have contacted our office that LGBTIQ+ discrimination is sometimes framed as discrimination based on sexual orientation or gender identity – or, more commonly now, discrimination against people who believe that LGBTIQ+ people are whole and valid just as they are.
“Based on our experience of recent cases of discrimination against LGBTIQ+ people and the people who support us, in our view:
- There should be no religious exemptions applying to the attributes of sexual orientation, gender identity and sex characteristics in employment, education or the provision of goods, services, facilities or accommodation to the public;
- In respect of any future protected attribute of religious belief or activity, there should be a limited exemption applying to religious bodies only in circumstances where religion is relevant to a role or the service in question, and the discrimination would be reasonable and proportionate in all the circumstances of the case;
- There can be targeted religious exemptions for religious leaders, the education of religious leaders, and for the purposes of participation in religious practice or observances (similar to those in most federal, state and territory laws), consistent with international human rights law.”
The reference to “the education of religious leaders” forming part of an exception is significant. One of the stories highlighted by Equality Australia in their federal submission, which was linked in the passage I quoted above, concerned a lecturer at a theological college.
However, if implemented, the wording of Equality Australia’s recommendation about education would impact denominational theological institutions and Bible Colleges, devastating conservative ones. It may simply be poorly drafted, but it reads, “All exemptions only available to private educational authorities should be removed from the Act and not included in any future NSW anti-discrimination law.”