This is a submission prepared for the Senate Standing Committee on Legal and Constitutional Affairs. An inquiry was established to consider:

Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff, including on the basis of sexual orientation and gender identity and other attributes covered by the Sex Discrimination Act 1984, with particular reference to proposals for amendments to current legislation, and any related matters.

A. Summary

The Committee has a reference to inquire into legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff, including on the basis of sexual orientation and gender identity and other attributes covered by the Sex Discrimination Act 1984, with particular reference to proposals for amendments to current legislation, and any related matters.

One current proposal is found in the leaked recommendations of the Expert Panel on Religious Freedom (Expert Panel) to maintain the existing exemptions in the Sex Discrimination Act but require that schools have a publicly available policy statement about their use of them. Only the recommendations of the Panel have been leaked, not its reasoning or its responses to the over 16,000 submissions made to it. A second current proposal is in the Greens’ Discrimination Free Schools Bill 2018 introduced in the Senate.

This submission makes 5 key points about the inquiry and the Discrimination Free Schools Bill and provides a more detailed human rights analysis of the issues than is found in the Explanatory Memorandum to the Bill.
1. This inquiry is premature since it is being held before release of the Ruddock Panel Report and too short to do justice to the issues. It should be held after the publication of the full Expert Panel’s report and the government response.

The Expert Panel received over 16,000 submissions and heard from people across Australia, considered and debated those carefully and has produced a detailed report on these and other issues. While it is frustrating that the report has not yet been released, it has been promised by the end of the year. It is a very poor policy making process for:

  • the Greens or any political party to pre-empt that Expert Panel’s report by introducing the Discrimination Free Schools Bill 2018 opposing the recommendations without actually seeing the report or the government’s response to it;
  • a parliamentary committee to conduct a 2-week inquiry into these issues without the benefit of that report. This Committee cannot hope to hear from, understand, and consider the views of 16,000-plus submitters in 2 weeks, yet is asked to hear and make recommendations in a ridiculously short time frame on matters that were the subject of detailed consideration by an Expert Panel without the benefit of that report.

2. The framing of the terms of reference of the inquiry and of the Explanatory Memorandum to the Discrimination Free Schools Bill 2018 are biased. They omit the competing interests and human rights inherent in this issue by focusing only on one right involved—non-discrimination—and only apply that right to only one of the groups which is subject to discrimination.

The terms of reference of this inquiry and the explanation for the Bill frame the issue only in terms of existing exemptions allowing discrimination against teachers, students and staff. Such a framing cannot hope to deal properly with the competing interests and human rights involved in this issue.

The framing of the terms of reference and the Bill obscure the question of why Australian human rights law, including the Sex Discrimination Act, does not positively protect the freedom of parents and members of religious communities to operate and send their children to religious educational institutions which are free to select staff who will model the beliefs of the religion to students and to maintain standards of behaviour for staff and students which reflect the beliefs of the religion (even if those beliefs are contrary to other sectors of society).

The framing of the terms of reference and the Bill also obscure the question of whether Australian human rights law adequately protects religious students at religious schools and their parents from discriminated against on the basis of their religion by being forced by the State, through law or threat of funding withdrawal, to teach and accommodate the expression of beliefs and behaviours which are contrary to the beliefs and behavioural standards of the religion.
These matters should be considered in any inquiry into religious schools and human rights to achieve a balanced outcome. The Expert Panel heard all of those perspectives, which is another reason to wait for that Report and the government response to it.

3. The human rights implications statement in the Discrimination Free Schools Bill 2018 is a highly selective and completely inadequate account of the human rights involved in this issue. A much fuller statement of the competing human rights involved is set out in Part B of this submission.

4. The current exemptions for religious schools could be refined and improved if there was a positive right in law for religious schools to select staff who will model and maintain behavioural standards for staff and students which model the beliefs and standards of the religion. But to simply remove the current exemptions without such a positive right in place is a completely unbalanced approach to this issue.

The Discrimination Free Schools Bill removes the current exemptions to prohibited discrimination for religious bodies and schools in s 38 of the Sex Discrimination Act and parallel exemptions in the Fair Work Act 2009.
Under the current exceptions, religious educational institutions and religious schools do not engage in prohibited discrimination by doing an act in relation to employment of persons or maintaining school behavioral standards and discipline if the act conforms with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

As regards staff, a religious school is entitled to choose staff who believe in and will model the values of the religion. Religion and its moral life are modelled and not merely taught by staff. Religious schools can legitimately require that the beliefs and behaviour of staff conform to those of the religion, otherwise it cannot fulfil its mission of showing students how to be a Muslim or a Jew or a Christian.

As regards students, the debate has been derailed by the hypothetical red herring of a religious school expelling a student because they are gay or transgender. Expulsion for simply being gay or transgender is extraordinarily unlikely. The evidence from religious schools is that they deal sensitively with students who are experiencing same sex attraction or gender dysphoria.

“Discrimination” under the Sex Discrimination Act applies to vastly more than expulsion or non-admission or not hiring. It covers any occasion when the school treats or would treat a person less favourably than it would treat a person who has a different sexual orientation. It also covers any case where the school imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same sexual orientation as the aggrieved person (see s.5A). There are many scenarios where these could arise in a religious school.

Some of the scenarios to consider include the following. A student may assert the right to use the change rooms and toilets of the gender they identify as rather than their biological gender. A student may assert the right to take a same sex partner to a school dance or to run and publicise a student club celebrating the gay lifestyle. These types of issues are far more likely in a religious school than expulsion. If the school is unable to set and enforce behaviour standards and limit the promotion of views which are antithetical to the religion because of the threat of discrimination lawsuits by the student, the school is unable to maintain its religious ethos and modelling of the beliefs and values of the religion.

The current exemptions balance the right of persons not to be discriminated against because of sexual orientation and gender identity with the right of religious schools and staff, students and parents to maintain the religious school’s ability to express and live out the religion’s beliefs, practices and ethos. This is achieved, in part, by the freedom to employ people whose beliefs, expression and lifestyles conform to, and model, the doctrines beliefs or principles of the religion and, in part, by the freedom to set and enforce conduct standards for staff and students which uphold the beliefs and standards of the religion.

The current exemptions could be refined if there was an additional positive right in law for religious schools to select staff who will model and maintain behavioural standards for staff, and students which model the beliefs and standards of the religion. But to simply remove the current exemptions without such a positive right in place would produce a completely unbalanced approach to this issue. It would leave religious schools exposed to discrimination lawsuits for simply requiring staff and students to not engage in activity which contradicts the ethos and values of the religion in the school.

5. The Discrimination Free Schools Bill 2018 goes beyond schools to affect the operations of university and other tertiary training institutes for theology, missionaries, pastoral care and religious chaplaincy and adult religious education.

The Bill amends s 37(1)(d) of the Sex Discrimination Act. The effect is to prohibit any act or practice by a body established for religious purposes which is connected with the provision of education or training or with the employment of people who provide such education or training if the act is discrimination on the grounds of gender, sexual orientation or gender identity.

The training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order remains exempt. But the religious or other training of missionaries, religious chaplains, youth workers or ordinary members of the religion loses its exemption. Several religions consider that persons in same sex relationships are not conforming to the beliefs and practices of the religion and therefore would not make suitable missionaries or chaplains or youth workers or instructors in theological education for that religion.

However, the Bill would make a refusal to admit persons in same sex relationships into training as missionaries or chaplains or youth workers or hire them as instructors in theological education unlawful discrimination. That is a deep and unjustified interference with the freedom of a religious body to select, train and appoint persons who will represent the religion to the world.

B. Detailed Human Rights Analysis

The Institute for Civil Society considers that the Discrimination Free Schools Bill:

(1) trespasses unduly upon several rights and freedoms including some of Australia’s international human rights obligations; and
(2) contains unjustified limitations on several human rights.

1. The right of parents to ensure their children have religious and moral education in accordance with their convictions is undermined by this Bill.

The International Covenant on Civil and Political Rights (ICCPR) article 18(4) obliges Australia to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. ICCPR Article 26 contains a protection against discrimination but that must be read subject to the other rights in the ICCPR including Article 18(4).

The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief art 5(2) provides that: “Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his or her parents.”

The current exemptions protect a religious body or school from being forced to accept the promotion of views and examples of conduct by staff or students which are opposed to its religious values and ethos. The effect of the Bill is that religious schools will be forced to employ persons whose beliefs or actions and lifestyles in relevant respects do not conform to the doctrines, beliefs or practices of the religion. This will limit the ability of those schools to ensure that staff are ambassadors for, and models of, the values of the religion. If religious schools are forced to employ staff who contradict the values of the religion by word or example, that will limit the ability of religious schools to provide a religious and moral education in accordance with the convictions of parents who voluntarily choose the value system of that school, contrary to the ICCPR and UN Declaration provisions cited above.

The Bill would also curtail the ability of religious schools to require students to conform to standards of behaviour consistent with the beliefs of the religion. If the Bill is enacted, a student who wanted to start a Gay Pride Club or a Gay Pride page on the student intranet to promote LGBTI lifestyles in a traditional Muslim, Jewish or Christian school could claim that a refusal by the school was prohibited discrimination under the Sex Discrimination Act and take the school to the Human Rights Commission and the Federal Court.

The comments of human rights commissioners suggest religious schools should have little confidence that these arms of the State will give weight to the reality that some religious bodies and schools seek not just to provide instruction in areas of knowledge but to create and maintain a community culture of lived values of the religion, which every member of staff (maths tacher, receptionist and the gardener) is expected to contribute to and live out.
Former Victorian Human Rights Commissioner Dr Helen Szoke commented about having to be satisfied concerning the inherent requirements test for religious school positions:

In the case of religious education teachers or chaplains, this will be clear. However, in the case of office staff or the maths teacher it will need to be made explicit how religion is relevant to the job.¹

Moira Rayner, another former Commissioner, said it was difficult to see the relevance of the beliefs or lifestyles of a cleaner, gardener or clerk in a religious school.²

But as Harrison and Parkinson have pointed out, religious associations (and schools) call on all their members (and students) to (for example) “be a Catholic” or “be a Muslim” and this goes beyond doctrinal propositions to include a holistic set of behaviours and attitudes for virtuous living including sexual behaviours and attitudes.³

In a similar vein, Patrick Lenta wrote:

Moral virtue is not simply taught, but is acquired by pupils through their association with teachers who are themselves virtuous, with the corollary that it is wrong to place pupils with teachers who are not virtuous … teachers teach moral values not didactically, as in the case of arithmetic, but through example.4

2. Freedom of Association and Freedom of Expression through voluntary associations and Cultural Rights

One purpose of the current exemptions is to allow religious bodies or schools the freedom to express beliefs and values both in teaching and in living them out in the shared life of its community of members and employees and to maintain the integrity of its expressed values and ethos. As Parkinson has stated:

modelling [the religion] within a faith community is as important as teaching [the religion] within a classroom or from a pulpit. Indeed it may well be more important and have more impact on people’s lives.5

The current exceptions protect the religious body or school from being forced to accept the promotion of views and examples of conduct by staff or members or students which are opposed to its religious values and ethos. These freedoms are not peculiar to religious bodies. They provide a freedom of internal management and ability to maintain fidelity to the expressed values and mission of the association which our society would value for any voluntary association formed to express and model a set of values whether cultural, ethnic, political or religious. Our society would not expect the ALP, the Liberal Party, or the Greens (also voluntary associations), to have to employ and retain persons who consistently spoke or acted against core party policy. So why should a law force a conservative religious school to justify to a human rights commission or a tribunal why it should not have to hire a gay rights activist maths teacher or vice versa?

In the USA, the Supreme Court has held that the First Amendment rights to free speech and assembly (association) and to petition include a constitutional freedom of people to gather in voluntary associations to express ideas—a right of expressive association. This is not based on the freedom of religion clause of the First Amendment but applies to all expressive associations, whether religious or not. The Supreme Court has held that the right of expressive association can override non-discrimination laws and government policies if the effect of non-discrimination laws or policies would be to force associations to include persons (as employees or members) and that would interfere with the ability of the association to consistently express its values.6

The ICCPR protects freedom of expression and of association. Implicit in this is the freedom of members of a voluntary association not to be forced to join with or accept as other members or employees of voluntary associations those whose views and practices are antithetical to the values of the voluntary association.
Article 27 of the ICCPR provides:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Being forced by law to accept within a religious body or school persons who do not accept and practice the religion and who speak and act inconsistently with the religion is a limitation on the right of Australians in a religious minority to declare and practice that religion.

Therefore, the Bill limits the right to freedom of association and the cultural rights of people with a shared religious background.

3. Freedom of Religion and Belief

Religious freedom of individuals and bodies is well established in international human rights law. Some of the relevant provisions appear in Appendix A.
Article 18 of the ICCPR provides:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Under the Bill, schools would be forced to hire staff whose beliefs and behaviour in relation to sexual orientation and gender identity are antithetical to the religion or face a discrimination complaint and lawsuit. Schools would be forced to accept the expression by staff and students of beliefs and behaviour in relation to sexual orientation and gender identity which are antithetical to the religion or face a discrimination complaint and lawsuit.

The ability of parents to ensure the religious and moral education of their children in conformity with their own convictions (Article 18(4)) is limited by the Bill. State schools do not enable that freedom and many parents choose to pay additional fees on top of their taxes to send their children to a religious school to ensure their religious and moral education.

In addition, the freedom of a student under Article 18(1) to demonstrate his or her religion or belief in worship, observance, practice and teaching, as part of a community in that school (and even individually in that body or school) is impaired by the Bill. The culture of the school is radically changed from one where the student knew that school standards and all staff supported the student’s religion in belief and practice to one where only some staff do and some staff and students can freely oppose it under protection of anti-discrimination law.

4. Discrimination Against Religious Persons and Organisations

The Bill is discriminatory because it imposes a legal standard of discrimination law which applies only to religious organisations.

The Bill limits the religious freedoms of staff, parents and students in religious schools who would be forced to accept as employees persons whose beliefs and activities are antithetical to the religion. But in international law, religious bodies and schools also have freedom of religion rights. Carolyn Evans has written:

While individuals choose to exercise their religion within an organised religious group, the state must respect the autonomy of this group with respect to decisions such as the freedom to choose their religious leader, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications. 7

5. Limitations on the above rights by the Bill are not justifiable

All human rights (including the right to non-discrimination) are subject to limitations.

The right in ICCPR Article 18(3) to manifest religious belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. It is not necessary in order to protect teachers and students from discrimination on the grounds of sexual orientation to give them State protection under anti-discrimination laws to disrupt and oppose the religious values and ethos of a religious school of which they are a part.

That is why a better balance overall could be achieved by giving schools the positive right in law to protect their religious values and ethos in their hiring, behavioural and disciplinary standards, rather than just through an exemption in anti-discrimination law. But the Bill provides for no such positive right, it simply removes the exemptions from anti-discrimination laws.

In evaluating that blanket removal with no positive right given to protect their religious values and ethos, a balance of harms analysis favours the religious school over the teacher or the student because the teacher and student have many other options for employment or education. However, the school cannot recover its religious ethos once compromised.

There is no evidence that there is in fact any significant discrimination against staff or students under the religion exceptions as they currently stand. Even if there were such evidence, a weighing of the respective harms to the rights involved leads to the conclusion that the current exceptions should not be restricted further. An individual applicant or employee whose beliefs or conduct contradict the doctrines, beliefs or practices of the religion of the religious employer will in almost all cases be able to find alternative employers where there is no such conflict. For example, a person whose application for a teaching position in a religious school is refused because the person contradicts the doctrines, beliefs or practices of the religion could move to a large number of independent schools or any government school and find that their religious beliefs or conduct in relation to sexual activity or sexual orientation raised no concerns at all. That is, their employment options remain broad and varied.

A student at a religious school who insisted on advocating for a gay lifestyle might be disciplined but again there are a very large number of schools to which that student could move where such advocacy would be tolerated or even welcomed, so the student’s education options remain broad and varied.

But if the Bill is enacted, the religious body or school cannot go elsewhere. Its ability to maintain its ethos and values for its other staff, students and parents in these matters is compromised and once compromised cannot be recovered. For the same reason, the current ability of individuals to attend or use or send their children to a religious body or school, all of the staff of which express and live out the values of the religion, is foreclosed by the Bill.

There is a less restrictive means than the Bill, which is reasonably available to achieve the purpose of protecting the rights of non-discrimination while upholding the freedoms of expression, association, cultural rights and right to choose the moral and religious education of a child. It is the current exception in section 38 which should not be repealed or weakened unless there is a positive right created in law for religious schools to maintain their character and ethos through staffing policies and behavioural and disciplinary standards.

Mark Sneddon
Executive Director, Institute for Civil Society

Appendix A: Some Relevant International Declarations and Conventions on Religious Freedom

Relevant provisions of the applicable international declarations and conventions include the following.

Universal Declaration of Human Rights 1948 (UDHR)

Article 18

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

International Covenant on Civil and Political Rights (ICCPR)

Article 4 No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

The ICCPR was ratified by Australia on 13 August 1980. Australia acceded to the First Optional Protocol to the ICCPR with effect from 25 December 1991.

Declaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief (Religion Declaration)

Articles 2 & 3

These provisions prohibit any act or practice of intolerance or discrimination on the grounds of religion or belief by any person in any capacity whatsoever.

Articles 4 & 7

These place obligations on States to take positive measures to counter intolerance and discrimination on the ground of religion and belief.

Article 5

Freedom to impart religion or belief to one’s children – children have a right of access to a religious education that is consistent with the wishes of their parents.

Article 6

Religion and belief in practice – provides a list of minimum freedoms, including freedom to teach religion and belief and freedom to establish and maintain appropriate charitable institutions and freedom to assemble and worship.
This Declaration has been declared to be a “relevant international instrument” for the purposes of the Australian Human Rights Act 1986 (Cth).

Convention on the Rights of the Child

Article 28

Provides for education to develop the child to his or her fullest potential, but this article is not to be construed so as to “interfere with the liberty of individuals and bodies to establish and direct educational institutions …”
Convention against Discrimination in Education

Article 5(b)

“ … it is essential to respect the liberty of parents … firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as … approved by the competent authorities and secondly, to ensure … the religious and moral education of the children in conformity with their own convictions … “
Institute for Civil Society
PO Box 2107 | Camberwell West | VIC 3124
ABN:46 611 668 243
Australian Registered Charity

1 Herald Sun 27 September 2009 http://www.heraldsun.com.au/news/victoria/gay-rights-groups-angry-at-victorian-equal-opportunity-laws-allowing-discrimination/story-e6frf7kx-1225780078806
2 Eureka Street 13 August 2009.
3 See Harrison and Parkinson, “Freedom beyond the Commons: Managing the Tension Between Faith and Equality in A Multicultural Society” (2014) 40 Monash University Law Review 413, 444
4 Lenta, “Taking Diversity Seriously: Religious Associations and the Work-Related Discrimination” (2009) 126 South African Law Journal 827, 853.
5 Parkinson, “Christian Concerns about an Australian Charter of Rights” (2101) 15(2) Australian Journal of Human Rights 83, 97.
6 Boy Scouts of America v Dale (2000) 530 US 640, Hurley v Irish-American Gay Lesbian and Bisexual Group (1995) 515 US 557. See also Rumsfeld v FAIR 126 S.Ct 1297.
7 Carolyn Evans, Legal Protection of Religious Freedom in Australia (2012) p.35. Evans acknowledges that group religion rights like all rights are subject to limitation but such limitations need to be reasonable and justified. See also Nicholas Aroney,”Freedom of Religion as an Associational Right” (2014) 33 University of Queensland Law Journal 153 at 178ff.