The right of parents to educate their children in accordance with their religious beliefs in Australia has been dealt a serious blow with the release of the Australian Law Reform Commission’s consultation paper (Religious Educational Institutions and Anti-Discrimination Laws).
The paper recommends the removal of protections for religious schools which currently allow these organisations to operate in accordance with their doctrines, tenets and beliefs. If implemented, these changes would prevent many religious schools from continuing to uphold their distinctive ethos.
The ALRC is seeking feedback from stakeholders about the four general propositions and 14 technical proposals for reform. These are just some of the implications:
- Religious doctrines or beliefs on sex or sexual orientation can only be taught in a specifically regulated way. The paper somewhat negatively positions such teaching in the category of “discrimination against students.” (See Proposition A).
- Staff can no longer be required to demonstrate their sincere commitment to the religious ethos of the school. At most, a school can “preference” staff on a more nominal test of their “religious belief or activity”, rather than the substance of their faith and their ability to model it in the school. If a staff member has a change of heart once recruited, and the basis on which they were preferenced no longer holds, the school may not replace them (See Propositions B and C).
- The scope for preferencing of staff is narrow and the conditions to be met are self-defeating. For preferencing to be allowed, participation of a staff member in the teaching, observance, or practice of the religion must be a genuine requirement of the role. The school’s expectations of them must be “proportionate” to the objective of upholding the religious ethos of the institution. Preferencing must not amount to discrimination on another prohibited ground (e.g. sex, sexual orientation, gender identity, marital or relationship status, or pregnancy). (see Proposition C.)
- The paper indicates that schools should be able to expect all staff to respect their institutional ethos, but this is then rendered meaningless with the explanation that they should not be able to take action to prevent a staff member from actively undermining their institutional ethos. (See Proposition D.)
These proposed changes are far reaching and will dramatically change the legal landscape for religious schools in Australia. Section 38 of the Sex Discrimination Act 1984 (Cth) currently provides minimal but serviceable protection in support of the fundamental rights of religious schools to operate in accordance with their doctrines, tenets and beliefs. The removal of these protections will place religious schools in an almost impossible situation, arguably leaving them unable to operate their organisations for the purposes for which they were established.
The National Catholic Education Commission, the peak body for Catholic education in Australia, has expressed concerns at the narrow approach adopted by the ALRC, saying that “the proposed reforms fail to provide real protections for religious schools to effectively operate and teach according to their religious beliefs and ethos”:
“Changes to anti-discrimination laws must go hand in hand with proactive legislation to protect religious freedom.
In a pluralist society, Catholic schools should be free to be Catholic”.
Associate Professor Neil Foster is unequivocal about the impact of the proposed changes:
“There is absolutely no doubt that the proposed reforms would substantially interfere with the religious freedom of the institutions and the parents”.
This is an extremely concerning development.
The ALRC is seeking responses to the consultation paper by 24 February 2023. In addition to accepting formal written submissions, the Commission is also inviting responses by way of a confidential online survey which can be accessed here.
We would urge everyone who is concerned about this attack on religious freedom in Australia to make their views known to the Commission, either by way of written submission or participation in the survey.
Wendy Francis, National Director for the Australian Christian Lobby will be hosting two webinars to explain these proposals and let you know how you can make your voice count on this critical issue:
Wednesday 15 February, 7:30pm (AEDT)
Thursday 16 February, 7:30pm (AEDT)
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