Faith and discrimination in schools: ALRC

Recently, the Australian Law Reform Commission (ALRC) sought responses to its Religious Educational Institutions and Anti-Discrimination Laws: Consultation Paper (Consultation Paper).

Whilst submissions closed in February this year, the ALRC has stated that its report “will now be delivered to the Attorney General by 31 December 2023” and that “the extension responds to a request made by the ALRC in late February for further time to consider more than 420 submissions received […], and more than 40,000 survey responses”.

The Consultation Paper proposes to:

  • make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law;
  • protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions;
  • allow religious schools to maintain their religious character by permitting them to give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and
  • require all staff to respect the educational institution’s religious ethos.

Ultimately, the ALRC proposes to clarify the scope of existing exceptions under anti-discrimination laws and the circumstances in which they may apply to religious schools, while introducing additional safeguards to ensure that discrimination is not permitted in specific circumstances. At the heart of the Consultation Paper and its proposals is the balancing of a religious school’s right to operate in accordance with its faith, and the need to protect individuals from discrimination on the basis of their personal attributes.

You can read more about the Consultation Paper, and its proposals, in our article published in February.

The commentary from faith and education leaders suggests that these proposals – for many – go to the very heart of what it means to be a religious school.

However, discussions on how religious schools navigate these matters is not new. School leaders have, for many years, been required to balance:

  • a school’s duty of care;
  • discrimination laws;
  • regulations which impose obligations such as child safe standards, which include matters of sexuality;
  • expectations and requirements from religious bodies or figures involved in the school community or who govern it, or from lay groups who have a religious mandate in the school; and
  • parent expectations, particularly in the age of the “consumer parent”.

Many religious schools successfully navigate these complex – and sometimes competing – issues by implementing policies and procedures that achieve a robust balance of interests, including in relation to enrolment and employment. The publication of the Consultation Paper provides an opportunity for religious schools to reflect on how they can maintain and celebrate their distinctive religious identity, values and ethos consistent with their legal obligations.

How Moores can help

For assistance with understanding your school’s anti-discrimination obligations, or reviewing your policies and procedures, please contact Practice Leaders Skye Rose, Cecelia Irvine-So or Rebecca Lambert-Smith on (03) 9843 2100.

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