Despite being tasked with ensuring that its recommendations are compliant with Australia's international obligations, the recent report released by the Australian Law Reform Commission (ALRC) into faith-based institutions and anti-discrimination laws appears to disregard fundamental rights including the right to freedom of religion, association and expression contained in the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory.

The final report, Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, was released on Wednesday 21 March 2024, and recommends the removal of current exemptions contained in the Commonwealth Sex Discrimination Act 1984 that allow religious schools to select staff in accordance with the doctrines, tenets and beliefs of the school.

As senior commentator Paul Kelly has said:

The report’s purpose is to ensure that under this act differential treatment of people on the basis of religion should no longer be permitted. It argues this means that Australia wins because the outcome is to “maximise the realisation of human rights overall”.

But the reports admits while some rights are being maximised, others are being restricted. So what are the rights being limited? The report describes them as “the freedom to manifest religion or belief in community with others and the associated parental liberty to choose an education for one’s child in conformity with one’s own religious or moral convictions”.

The final report has been heavily criticised by religious leaders, as well as peak bodies representing Catholic and Christian schools.

Catholic Archbishop of Sydney, Anthony Fisher warned that “the ability of Australians to gather, speak freely, pray together and undertake works of service for others” is being reduced “slice by slice”. He said:

It is deeply troubling that the Commission would ignore this long-cherished tradition in Australia, our duties under international law and its own terms of reference that required it to make recommendations that would ensure  faith-based schools could continue to be a particular community of faith.

Highlighting the immense benefit provided by faith-based schooling to millions of Australian families, the Archbishop is critical of the debate surrounding this issue:

It is a depressing feature of this nation’s recurrent discussion of religious freedom that they are framed as one group fighting for ‘the right to discriminate’ and the other group fighting for equality. It’s as if religious providers are only in the education game in order to promote hate.

In a letter to the Prime Minister and the Attorney-General, a coalition of 24 Christian, Islamic and Jewish leaders has said the recommendations would:

...prevent the overwhelming majority of faith-based schools from preferring persons who share and authentically live out their faith.

It will therefore extinguish their distinct and authentic character. The purpose of religious schools is not only to impart intellectual knowledge, but also to ­instil religious values.

Jacinta Collins, Executive Director of the National Catholic Education Commission has rejected assertions by pro-LGBTQ+ groups that faith based schools were seeking to discriminate against staff or students. Instead, Ms Collins says that they are “maintaining their religious identity and mission”:

If individuals do not support our ethos, they are able to choose another school for enrolment or employment. This is what a free, pluralistic society is about.

The ALRC report, like many recent amendments to anti-discrimination laws around states and territories in Australia, favours non-discrimination rights at the expense of fundamental rights of religious liberty and associated freedoms of conscience, speech and association. This represents a worrying trend regarding the dismantling of religious freedom and parental rights in Australia.

As Neil Foster has explained:

Far from “maximising” human rights, the report (as expected by those who spoke to some of its researchers) would have the effect, if adopted, of seriously impairing the operation of faith-based schools around Australia. In brief, it recommends removal of all of [the] “balancing clauses” in the federal Sex Discrimination Act 1984 which currently recognise the need to balance the religious freedom of faith-based schools with rights of teachers and students not to be detrimentally treated on the basis of sexual activity or “gender identity”. In particular, this would remove (among other provisions) section 38 of that Act, which allows faith schools to operate in accordance with their religious ethos when making staffing and educational decisions.

The report was released in the wake of national polling which shows that nearly 80 per cent of Australians support the “right of a religious school to employ teachers and staff who support the clearly stated values and beliefs of the school”. And among parents with children at faith based schools, 91 per cent support the school’s right to sack staff on religious grounds.

It is clear that Australians, and Australian parents in particular, support religious freedom and the rights of parents to educate their children in accordance with their faith and beliefs. 

The government has yet to respond to the report. However, it is clear that if the recommendations are adopted, the ability of faith-based schools to operate in Australia will be severely compromised.

As a religious freedom law firm, HRLA assists Christian schools who want to protect their freedoms and nurture communities of faith.