Proposed changes to discrimination law will ‘severely limit’ freedom of religious schools

By Catherine Sheehan

Religious leaders from around the country have expressed their “deep disappointment” at changes to anti-discrimination laws proposed by the Australian Law Reform Commission (ALRC) that would place “severe limits” on the freedom of faith-based schools to maintain their religious ethos and identity.

In a letter to the Attorney-General, Mark Dreyfus MP, faith leaders said the ALRC’s Consultation Paper on Religious Educational Institutions and Anti-discrimination Laws failed to strike a balance between the right of students and staff not to be discriminated against based on sexual orientation, gender identity, marital relationship status or pregnancy, with the right of religious schools to exercise freedom in building a faith community by preferencing the hiring of staff who share the community’s religious beliefs.

“The ALRC is proposing to greatly restrict this freedom by requiring religious schools to employ teachers who may not share or support the religious beliefs of the organisation, and whose employment can only be terminated where they ‘actively undermine’ the religious ethos of the school,” the letter states.

Signatories to the letter include Archbishop Anthony Fisher OP of the Sydney Archdiocese, Archbishop Kanishka Raffel of the Anglican Diocese of Sydney, Archbishop Makarios of the Greek Orthodox Church in Australia, Imam Shadi Alsuleiman, President of the Australian National Imams Council, and Peter Wertheim AM, co-Chief Executive Officer of the Executive Council of Australian Jewry.

Submissions to the ALRC’s Inquiry expressing concern about the proposed changes have also been lodged by Catholic Education Tasmania, the Australian Catholic Bishops Conference, and the National Catholic Education Commission (NCEC).

The ALRC’s Consultation Paper proposes that when hiring staff religious schools only be permitted to preference candidates who share their religious faith when the “teaching, observance, or practice of the religion is a genuine requirement of the role, having regard to the nature and ethos of the institution”.

Faith leaders responded stating, “If this proposal was implemented, it would introduce a new test into employment law, whose application and meaning are far from certain. In any given case, the onus would be on the school to prove that it satisfied the test”.

“This would greatly expand the scope for future litigation, and would thus have a deterrent effect on any religious school contemplating engaging a candidate for employment who professes the same religion as the school, in preference to other candidates.

The ALRC’s Paper also proposes that it would be reasonable for a school to preference a candidate for a position as a religious education teacher “who was willing to teach the school’s particular beliefs around sexuality, as long as the teacher was permitted to objectively discuss the existence of alternative views about other lifestyles, relationships, or sexuality in a manner appropriate to the context”.

The NCEC’s submission to the Inquiry states that the proposals lack comprehension of the need for faith-based schools to create a community supportive of its ethos.

“The paper dismisses that faith-based schools wish to maintain a critical mass of coreligionists, where staff are seen as authentic role models for living a religious life,” the submission reads. “It also ignores that school choice is an established and well-respected component of Australia’s education system.”

NCEC Executive Director, Jacinta Collins, said the proposed reforms failed “to provide real protections for religious schools to effectively operate and teach according to their religious beliefs and ethos”.

“International law recognises protections to establish religious educational institutions and the right of parents to choose a school for their children that is in line with their religious values and beliefs,” Ms Collins said.

“In a pluralist society, Catholic schools should be free to be Catholic. This means being able to build a community of faith within the school and parish, which is not limited to a narrow approach to preferencing the enrolment or employment of Catholic students and staff, or the teaching of religious education.”

In a statement on 16 February, the NCEC referred to ABS data showing Catholic education remained the major non-government provider of education, with enrolments growing from 766,088 students in 2017 to 793,729 in 2022. Overall enrolments in faith-based education had grown from 1,211,242 in 2017 to 1,304,909 in 2022, according to the ABS.

The NCEC also referred to a survey on school perceptions (Utting, 2021) showing “63 percent of the general population, 82 percent of Catholics and 79 percent of Catholic school parents believe religious schools should be entitled to require employees to act in their roles that uphold the ethos and values of that faith’ and the school should be free to favour hiring employees who share these values”.

“As the first and foremost educators of their children, the right of parents to choose a school based on their religious beliefs is recognised in international human rights law, and Australian laws need to reflect this right,” Ms Collins said.

In their letter to the Attorney-General, faith leaders called on the government to ensure the ALRC sought “a genuine consultation with input from religious leaders and religious education experts, parents as well as secular experts”.

“Faith based schools in Australia have long been free to give preference to employing staff who share or who are willing to support the faith and beliefs according to which the school is conducted. They do not seek the right to discriminate on the basis of a protected attribute, but simply to be able to employ staff who share or are willing to uphold the religious beliefs of the school.”

Submissions to the ALRC’s Inquiry closed on 24 February and the final report will be submitted to the Attorney-General on 21 April.