The Australian Law Reform Commission (ALRC) has released a Consultation Paper on Religious Educational Institutions and Anti-Discrimination Laws. Submissions close on 24 February 2023.
The ALRC carried out the consultation in response to a request from the Commonwealth Attorney General the Hon Mark Dreyfus MP KC. That request asked the ALRC to recommend reforms to the law to implement the Government’s policy commitments in this area in a way that is consistent with Australia’s international legal obligations. These policy commitment include reforms to ensure that a religious educational institution:
- must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
- must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy; and
- can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
The paper sets out four general propositions which would be implemented by amending the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth).
We have briefly outlined and commented on the proposed reforms below. Interested parties are encouraged to read the Consultation Paper in full, which is comprehensive and clear.
In summary, the proposed reforms, if adopted, would:
- 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
This is generally consistent with the current law in all States and Territories except for Western Australia. Similar reforms are proposed in Western Australia but have not yet been enacted.
- 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
This is generally consistent with the current law in the ACT, Tasmania and Victoria. Similar provisions are enacted but not yet in force in the Northern Territory and are being considered in Queensland and Western Australia. Proposals for similar reforms have been made in South Australia.
- 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).
This is generally consistent with the law in Victoria and provisions that have been enacted but are not yet in force in the Northern Territory. Proposals for similar reforms have been made in Queensland, South Australia and Western Australia.
The proposed provisions would require the institution to show that preferencing individual staff on religious grounds was justified because:
- it is a “genuine requirement of the role” that the individual participates in the teaching, observance, or practice of the religion. This must be assessed with regard to factors including the nature and religious ethos of the educational institution;
- the differential treatment is proportionate to the objective of upholding the religious ethos of the institution; and
- the criteria for preferencing in relation to religion or belief would not amount to discrimination on another prohibited ground (such as sex, sexual orientation, gender identity, marital or relationship status, or pregnancy), if applied to a person with the relevant attribute.
The ALRC provides examples indicating that this might permit a school to discriminate (if proportionate in all the circumstances) on the grounds of dietary restrictions or dress. However, it appears that a school may not be able to discriminate on the grounds of beliefs about a protected attribute such as homosexuality.
- Require all staff to respect the educational institution’s religious ethos
This is provision has no existing State or Territory equivalent. It is intended to complement the limitation on the ability of religious educational institutions to discriminate in employment.
The ALRC proposes that this could include the ability to impose “reasonable and proportionate codes of staff conduct and behaviour” subject to prohibitions of discrimination on other grounds. An educational institution would be able to require its staff not to publicly denigrate or ridicule the religion of the institution, but could not terminate employment on the basis of conduct that it considered was inconsistent with those beliefs, if that conduct related to a protected attribute under anti-discrimination law. The ALRC provides the example of an educational institution being unable to terminate the employment of a lesbian teacher on the grounds that she was actively undermining the religious ethos of the institution merely by entering into a marriage with a woman.
Responding to the Consultation Paper
Members of the public are invited to respond to the Consultation Paper, by making a formal submission (which can be public or confidential) and/or responding to a confidential survey. Submissions close on 24 February 2023.
How can we help?
Moores can help if you have any questions about the Consultation Paper or what the proposed reforms mean for your organisation.
Please contact us for more detailed and tailored help.
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