ALRC

Summary:

The Australian Law Reform Commission (ALRC) has recommended stripping the right of faith-based schools to choose to employ staff who believe, uphold, and live out the faith of the school – except in very limited circumstances.
Implementing the ALRC’s proposed reforms would represent a major blow to a faith-based school’s ability to preserve their faith community and teach and operate in accordance with their religious beliefs and ethos.
Faith-based schools are crucial for parents who seek to raise their children in accordance with their moral and religious convictions, a right that is protected under international law but at risk of being undermined by the proposed reforms made by the ALRC.
Legislation that undermines faith-based schools is not only an attack on parental rights, it also presents a threat to all religious institutions. In Victoria, a similar restriction has been extended to all other religious institutions (including churches, mosques and synagogues). There is a real risk that restrictions could be extended to all religious institutions at the national level in the future.

We are asking the Federal Government to keep their original promises to faith schools, and reject the proposals floated by the Australian Law Reform Commission.

The Risk to Schools, Churches, Mosques, etc.

All religious institutions – including churches, mosques, synagogues, schools and charities – need to be able to employ staff who believe, uphold and live out their faith. This is one of the fundamental expressions of the freedom of religion and association as declared in the International Covenant on Civil and Political Rights (ICCPR).

However, there is currently no explicit protection of these right in Australian law. Instead, they exist as exemptions in other anti-discrimination legislation, such as the Federal Sex Discrimination Act, or similar laws in each State or Territory. This means that religious bodies can easily lose their freedom to preference staff of their own faith by simple amendments to existing anti-discrimination laws.

This is exactly what has happened in Victoria. In 2021, an amendment to the Equal Opportunity Act restricted the ability of faith-based schools – and all other religious institutions – to select staff based on their faith to only instances where “conformity with the doctrines […] is an inherent requirement of the position” and where “the discrimination is reasonable and proportionate in the circumstances”. There is no clarity as to which roles in a church, temple or school have an inherent faith requirement, nor what is “reasonable and proportionate” in any particular circumstance.

The Second Reading Speech made it clear that the inherent requirements test was intended to be very limited. This includes the statement that a person’s actions are not a basis for discrimination, but only their expressed “religious belief”. That means that living contrary to the faith would not be a basis to discriminate, even in roles where religious faith was an inherent requirement. The speech also highlighted the ambiguity of the “reasonable” clause, and pointed out many situations where discrimination by the religious organisation “may not be reasonable”, even if the role had inherent religious requirements.

Faith-based Schools

Many Australian parents want their children to be educated in a way that upholds their moral and religious values. This is a right protected under the International Covenant on Civil and Political Rights (ICCPR). At present, Australian parents can choose to send their children to a religious school. This choice is an important expression of our pluralist society, allowing parents of Christian, Muslim, Jewish, Buddhist and all other faiths to educate their children in a faith community that upholds their faith and values. Faith-based schools make up a very large portion of schooling in Australia.

A school’s culture is set by the teachers and other staff on a daily basis. For a faith-based school to stay true to its religious ethos and values, it needs to be able to choose to employ staff who believe, uphold, and live out their faith. This is necessary to protect the right of the parents to educate their children in their faith.

Labor’s Commitment

In the lead-up to the last Federal election, Anthony Albanese made the commitment:

A future Labor government will:

prevent discrimination against people of faith, including anti-vilification protections;
act to protect all students from discrimination on any grounds; and,
protect teachers from discrimination at work, whilst maintaining the right of religious schools to preference people of their faith in the selection of staff.

This commitment has been re-stated recently by Attorney General Mark Dreyfus. PM Albanese has answered questions from Labor back-benchers and confirmed that Labor policy is that “faith based schools can employ people of their own faith”.

As part of the legislation process, the Government asked the Australian Law Reform Commission (ALRC) to consider what law changes were needed so that:

… an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

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;
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 ALRC Proposal

The ALRC released its Consultation Paper on the 27^thJanuary 2023. While the Paper notes the importance of religious freedom and parental rights, it goes on to recommend severe restrictions of those rights. The proposed reforms effectively strip faith-based schools of the right to give preference to staff who share their religious beliefs and require staff to model their religious beliefs in the area of gender, sexuality and relationship choices and behaviours. Additionally, the ALRC recommends restricting the ability for faith-based schools, on behalf of parents, to address student behaviour in the area of gender and sexuality, including where their behaviour would undermine the school’s religious ethos.

These reforms, if enacted, will severely undermine a faith-based school’s ability to maintain an authentic and holistic faith environment for their students. Such measures would represent an unprecedented infringement on the rights of parents to ensure that their children receive an education that aligns with their religious and moral beliefs, rights protected in international law.

For example, the paper proposes that faith-based educational institutions should be allowed to prefer to employ staff based on religious belief, so long as:

participation of the person in the teaching, observance, or practice of the religion is a genuine requirement of the role […]
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. (p. 22)

The first point is arguing that faith-based schools could only preference staff of the same faith for limited roles like chaplain, but not for teachers and support staff.

On the second point, the paper goes on to argue:

a key aspect of this proposition is that preferencing on the grounds of religion cannot be used to justify discrimination in relation to attributes protected under the Sex Discrimination Act. For example, a religious educational institution could not refuse to consider a person as a ‘practising’ member of its religion because the person was LGBTQ+ or in a same-sex relationship, where the person adhered to other religious criteria that the institution reasonably applied. (p. 23)

In case it was unclear if there was a distinction between employing a person due to their sexuality, or their religious beliefs about sexuality, the paper also proposes that schools could not require staff to hold orthodox beliefs:

a school could not require, as a condition of appointment, any staff member or prospective staff member to sign a statement of belief by which they had to affirm that homosexuality is a sin (because this would be discriminatory against an LGBTQ+ applicant) (p. 24)

As the paper states in its examples, a religious institution that required specific dietary restrictions, while also holding a traditional view of sexuality as a core part of their faith, could require their staff to uphold the dietary requirements, but could not require their staff to uphold or live by their teachings on sexuality (p. 24).

In effect, the paper proposes that the Government define which core tenets of the world’s faiths are valid to uphold, and which are not, and that an individual’s sexual expression takes precedence over faith at all times.

Following significant public pressure, the ALRC requested an extension of time to complete their final proposal. The Attorney General has extended the review until December 31, 2023.

Our Request

We are asking the Federal Government to keep their original promises to faith schools, and reject the proposals floated by the Australian Law Reform Commission.

The ALRC is yet to release its final report, but if it continues on the line of thought of the Consultation Paper, then the proposals will be in clear opposition to Labor commitments, as well as international law.

Many MPs in the Federal parliament are either unaware of the ALRC proposals or fail to recognise their radical implications for parents and schools. It is imperative that we act quickly to inform our local MPs of the potential threat to parental rights and religious freedom posed by the ALRC’s recommendations.

The most powerful way to do this is to have a meeting with them. Click here for a guide to making a meeting with your local MP.

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