Elspeth Kernebone
28 March 2024
Christian schools fear their existence would be threatened if the federal government adopts recommendations in a recent Australian Law Reform Commission report into religious educational institutions’ right to discriminate.
Tabled in Parliament on Thursday, the report recommends the removal of sections of the Sex Discrimination Act 1984 and the Fair Work Act 2009 that allow religious schools to discriminate in employment in accordance with the doctrines of their religion.
Representative bodies say if adopted, the commission’s recommendations would prevent Christian schools hiring staff that shared their belief, diluting schools’ religious ethos.
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Australian Association of Christian Schools executive officer Vanessa Cheng said the association was disappointed by the ALRC recommendations, as they removed protections for Christian schools allowing them to employ staff that shared their values and beliefs.
Mrs Cheng said the removal of section 38 of the Sex Discrimination Act – as recommended – without any additions or balancing clauses would remove protection for religious schools against claims of discrimination.
She said the removal of the right to discriminate threatened the existence of Christian schools, as it removed the point of difference for parents choosing these schools, which was staff’s modelling of Christian values and beliefs.
Mrs Cheng said Christian schools did not want to expel students based on their sexuality, but did want to teach their beliefs and maintain their culture and ethos.
The Australian Law Reform Commission Report recommended the removal of section 38 of the Sex Discrimination Act 1984 and the exclusion of religious educational institutions from certain exceptions contained in the Fair Work Act 2009.
Section 38 of the Sex Discrimination Act 1984 provides for educational institutions to discriminate in connection with employment of a member of staff, or in the provision of education, in accordance with the doctrines or teachings of a particular religion, in good faith, to avoid injury to the religious susceptibilities of adherents of that religion.
The sections of the Fair Work Act 2009 named contain exclusions for educational institutions to take certain actions in accordance with their doctrines, in good faith, and to avoid injury to the religious susceptibilities of adherents.
Ridley College deputy principal the Reverend Dr Michael Bird said if adopted, the recommendations would dilute school’s religious ethos, as they might be required to employ people who did not adhere to their faith, values and religious tenets.
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Dr Bird said the Law Reform Commissions seemed to be assuming a hierarchy of rights which put religious freedom at the bottom. But he said the erosion of one right could have a knock-on effect of weakening the overall structure of human rights protections.
He said the Law Reform Commission also appeared to treat the International Covenant of Human Rights statements’ on religious freedom as something that needed to be sidetracked, bypassed or minimised in their legal application in Australia.
He said it would be fair to allow schools to insist on a religious requirement for teaching faculty, and to require schools not to treat students with prejudice or punitive action because they identified as LGBTIQ+.
“There is a kind of assumption here that religion is like a toxic substance that needs to be managed, quarantined or neutralised,” Dr Bird said.
“I do find that there is an assumption that basically all people of faith have an inherent prejudice against all LGBTIQ+ people, and are simply incapable of living in difference.”
The ALRC report comes after Anthony Albanese promised before the 2022 federal election that a Labor government would protect teachers from discrimination at work, while maintaining the right of religious schools to preference people of their faith in the selection of staff.
Mr Albanese also promised to prevent discrimination against people of faith, and act to protect all students from discrimination on any grounds.
In a statement, Attorney General Mark Dreyfus said the government would continue to consider the advice to the government provided by the ALRC report.
Mr Dreyfus said no one should be discriminated against because of their faith.
He said no student or member of staff should be discriminated against because of who they were. And, he said, at the same time religious schools must continue to be able to build and maintain communities of faith.
Mr Dreyfus said the government would seek to enhance protections in anti-discrimination law in a way that brought people together.
In a press release, LGBTIQ+ advocacy group Equality Australia chief executive Anna Brown said Australians believed they should all have an equal right to be free from discrimination.
“These schools rely on millions of dollars of public funding and yet they are legally allowed to fire a gay teacher or deny them a promotion while students can be expelled, told they are going to hell or held back from leadership roles,” she said.
The National Catholic Education Commission warned that the ALRC’s recommendations to remove exemptions for religious educational institutions would severely limit faith-based schools’ ability to operate and teach according to their ethos.
Executive director Jacinta Collins said religious freedom was a fundamental human right, and Parliament had a responsibility to make sure parents could continue to choose a school in line with their values and beliefs.
Ms Collins said Catholic education remained committed to advocating for legislative frameworks that respected the religious identity and mission of Catholic schools, while ensuring a fair balance with other protected rights.
Equality Australia and the Australian Law Reform Commission were approached for comment.
The Office of the Attorney General declined to comment further.
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