The ALRC has released a Religious Educational Institutions and Anti-Discrimination Laws: Consultation Paper seeking "stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions'.
The Consultation Paper sets out four general propositions supported by 14 technical proposals that 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,
- 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, and
- 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.
Principle 1: Human dignity is central to the expression and protection of all human rights.
The recognition and protection of human dignity underlies and holds unconditional status in the international human rights framework. All of the human rights at issue in this Inquiry are important to human dignity. Although people may hold differing views about how difficult issues should be resolved, the methods used to resolve them should promote respect.
Principle 2: All human rights engaged by this Inquiry are fundamentally important.
All human rights are universal, inalienable, indivisible, interdependent, and interrelated. This Inquiry engages with a broad range of human rights. Respect for, and the protection and fulfilment of, each of these rights is fundamentally important.
Principle 3: Human rights should be considered holistically.
In managing intersections between human rights, the substance of the rights at issue should be preserved to the maximum degree possible. The broad range of rights relevant to education within religious educational institutions must be considered holistically. International human rights law provides a framework for managing the intersection of these rights. In situations where human rights appear to be in tension, ‘pragmatic elasticity’ is required to produce ‘practical concordance’ of all human rights involved, to the maximum degree possible. Application of a competing or hierarchical lens, or engaging in a balancing act that produces ‘trade-offs’ should be avoided
Principle 4: Education performs a key role in maintaining a pluralist and socially cohesive society.
Australian society is diverse, with many different ethnic, racial, religious and social groups all living together. The Alice Springs (Mparntwe) Education Declaration, agreed on by all Australian Education Ministers in 2019 commits Australian governments to ensuring ‘education promotes and contributes to a socially cohesive society that values, respects and appreciates different points of view and cultural, social, linguistic and religious diversity’.
Principle 5: Students are at the centre of this Inquiry.
Students are the direct beneficiaries of education and are owed a duty of care by all institutions that deliver that education. The design of policy that impacts students must place at its heart the best of interests of those students. Parents, carers, and religious educational institutions and their staff, including teachers, perform an important role in supporting the educational and spiritual development, and wellbeing, of students. Staff also deserve safe workplaces and fair conditions of employment.
The consequent propositions are
A Discrimination against students on the grounds of sexual orientation, gender identity, marital or relationships status, or pregnancy
1. Religious educational institutions should not be allowed to discriminate against students (current or prospective) on the grounds of their sexual orientation, gender identity, marital or relationship status, or pregnancy, or on the grounds that a family member or carer has one of those attributes.
2. Religious educational institutions should be permitted to train religious ministers and members of religious orders, and regulate participation in religious observances or practices, unfettered by sex discrimination laws. Where applicable, religious educational institutions should also continue to benefit from the exception available to charities in relation to the provision of accommodation.
3. Religious educational institutions should be permitted to teach religious doctrines or beliefs on sex or sexual orientation in a way that accords with their duty of care to students and requirements of the curriculum.
B Discrimination against staff on the grounds of sex, sexual orientation, gender identity, marital or relationships status, or pregnancy
1. Religious educational institutions should not be allowed to discriminate against any staff (current or prospective) on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy.
2. Religious educational institutions should be able to select staff involved in the training of religious ministers and members of religious orders, and regulate participation in religious observances or practices, unfettered by sex discrimination laws. Where applicable, religious educational institutions should also continue to benefit from the exception available to charities in relation to the provision of accommodation.
3. Religious educational institutions should be able to require staff involved in the teaching of religious doctrine or belief to teach religious doctrine or belief on sex or sexuality as set out by that institution and in accordance with their duty of care to students and staff, and requirements of the curriculum.
C Preferencing staff involved in the teaching, observance, or practice of religion on religious grounds
1. In relation to selection, appointment, and promotion, religious educational institutions should be able to preference staff based on the staff member’s religious belief or activity, where this is justified because:
- participation of the person in the teaching, observance, or practice of the religion is a genuine requirement of the role;
- 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.
2. The nature and religious ethos of the educational institution should be taken into account in determining whether participation of the person in the teaching, observance, or practice of the religion is a genuine requirement of the role.
D Ongoing requirements on all staff to respect the religious ethos of the educational institution
1. Religious educational institutions should be able to expect all staff to respect their institutional ethos. A religious educational institution should be able to take action to prevent any staff member from actively undermining the institutional ethos of their employer.
2. Religious educational institutions should be able to impose reasonable and proportionate codes of staff conduct and behaviour relating to respect for the institution’s ethos, subject to ordinary principles of employment law and prohibitions of discrimination on other grounds.
3. Respect for an educational institution’s ethos and codes of conduct or behaviour should not require employees to hide their own sex, sexual orientation, gender identity, marital or relationship status, or pregnancy in connection with work or in private life, or to refrain from supporting another person with these attributes.
