Removing fences: the ALRC Consultation Paper on Religious Educational Institutions and Discrimination Laws

Associate Professor Neil Foster

The Australian Law Reform Commission has now released a Consultation Paper for its current reference on “Religious Educational Institutions and Anti-Discrimination Laws”. The paper, while formally acknowledging the importance of religious freedom and parental rights, will be a serious disappointment to those involved in religious schools and colleges. It effectively recommends the removal of protections enjoyed by religious educational institutions which have been designed to safeguard the ability of these organisations to operate in accordance with their religious beliefs. The “fences” protecting these bodies from being forced to conform to majority views on sexual behaviour and identity (and hence losing their distinctiveness as religious bodies) are to be knocked down, the ALRC says. But the paper offers no convincing reasons for this wholesale demolition of a structure which has served the diversity and plurality of the Australian community for many years. Rather than supporting “Diversity, Equity and Inclusion”, the paper’s recommendations would require a compulsory uniformity which would undermine the reasons for the existence of faith-based educational institutions.

The reference to “fences” is an allusion to a well-known passage from G K Chesterton. It may be helpful to quote it in full:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.

G K Chesterton, “The Thing: Why I am a Catholic” (1929), ch. 4.

Chesterton of course says it better, but the principle is this: proposals for reform which involve removing some barrier which seems to “lie in the way” of progress, need to understand why the barrier was erected first, what danger it was guarding against, and then explain why that danger is no longer a problem. In the case of the ALRC proposals, I don’t see the evidence that these issues have been properly addressed.

Background

Why has this document been released? I commented briefly on this when the inquiry was first established. In brief, after the failure of the proposed Religious Discrimination Bill under the former Coalition government, the current ALP government undertook to introduce their own version. But they took the view that before general proposals for protection of religious people against unjust discrimination could be introduced, they should get advice on the current protections for religious bodies provided under Commonwealth discrimination laws. The Government appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a Part-Time Commissioner for the Inquiry.

The ALRC has invited responses to this consultation paper, which should be provided by 24 February 2023. In addition to formal responses, it has set up a web portal for “individual views and experiences”, and is especially interested in hearing from “those connected with religious educational institutions (including schools, early learning centres, colleges, and universities)”, although any interested parties can make their views known. It would be a good idea, I think, for those who support the work of religious schools and colleges to provide comments on this portal.

Discrimination laws, and the clauses in those laws which recognise religious freedom rights, are currently an important way that religious freedom is protected in Australia. The reason for this is that some of the grounds on which discrimination complaints may be made (especially sex, sexual orientation, and gender identity) are directed at decisions that may be made by religious bodies, based on their fundamental faith commitments, which are at odds with the prevailing sexual orthodoxy in modern Australian society.

A religious school is set up, and funded, by members of a particular religion in order to provide education for children in accordance with their beliefs- whether a Christian school, a Muslim school, a Jewish school, or one from another religious tradition. Those communities take very seriously the teachings of their faith that sex is only designed by God for a marriage between a man and a woman, and that a person’s biological sex at conception determines whether they are male or female. Those beliefs, and others, are to be taught and lived out in everyday life when students are at school. A member of staff whose words and deeds deny these truths will undermine the ethos and mission of the school. A student club that advocates during school hours against the views of the religious tradition will also do so.

At the moment, some provisions of Commonwealth law operate as “balancing clauses“, allowing the balancing of the rights of religious freedom with rights not to be unjustly discriminated against. Sections 37 and 38 of the Sex Discrimination Act 1984 (Cth) allow religious groups generally, and religious educational institutions in particular, to operate in accordance with their faith commitments. There are other provisions allowing religious bodies to implement their beliefs in provision of accommodation- see s 23(3)(b). The Fair Work Act 2009 (Cth) provides broad protections to employees against discriminatory employment decisions, but contains balancing clauses recognising the rights of religious employers to operate in accordance with their faith in clauses 351(2)(c) and 772(2)(c).

Consultation Paper recommendations

The paper starts with a generally helpful overview of international obligations in relation to human rights, acknowledging that religion is a matter of great importance to many Australians, and “can be central to a person’s identity, sense of self, and purpose” (para 10). They could also have quoted the High Court of Australia’s words on the issue:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.

Church of the New Faith v Commissioner for Pay-Roll Tax (1983) 57 ALJR 785 at 787, per Mason ACJ and Brennan J

The Commission notes at para 24 that the International Covenant on Civil and Political Rights (ICCPR) art 18 provides strong protection for religious freedom, and that under art 18(3) limits on the practice of religion can only be justified as prescribed by law “where this is necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. They accept that such limits (in accordance with other UN documents, such as the Siracusa Principles) must be shown to be “necessary” and “proportionate”, with a key question being whether, if there are limits imposed for a specific reason, that the limits be as least restrictive as possible.

But after these helpful principles, the paper descends into more controversial areas. One that I was particularly interested in was the statement about the current interaction between Commonwealth and State or Territory discrimination laws. In para 29 at the second dot point on p 13, they assert that, if a State or Territory law on a topic is more restrictive than a Commonwealth law on the same topic, “duty holders must apply with [sic, presumably “comply with”] the most restrictive law”. The explicit example they give is that of an educational institution in Queensland where certain conduct is prohibited under Queensland law, but not Commonwealth law, where they suggest that the body must comply with Queensland law.

With respect, as we lawyers say, this is wrong, and a strange proposition to emerge from a body designed to provide expert advice about Commonwealth law. No mention at all is made of the way that the Commonwealth Constitution provides for such a situation, where under s 109 a Commonwealth law must be given priority if there is a clash with State law. It is well established that if the Commonwealth provides a right or a defence to a party in relation to a certain matter, that cannot be taken away by an inconsistent State law on the same matter. I have argued in a recent academic article that this proposition clearly applies to discrimination laws involving religion. Of course I may be wrong, but it seems odd to find such a bald assertion on the matter without consideration of other arguments.

And when we come to the substantive recommendations, what we find is that at almost every point, balancing clauses currently in force to allow religious schools and colleges to operate in accordance with their faith, are to be abolished. The Commission sets out 4 major “Propositions”, and then to support those it adds a number of “Proposals”, which amount to specific legislative amendments. I will try to summarise these before setting them out in slightly more detail.

Proposition A : Religious schools and colleges can no longer apply conduct rules relating to student behaviour in the area of sexual activity or gender identity, except for theological colleges training clergy for formal ordination. Schools and colleges can, however (very carefully) still teach their religiously based views on appropriate sexual behaviour.

Proposition B: Religious schools and colleges can no longer apply conduct or speech rules to their staff in the areas of sexual activity or gender identity, except for theological colleges training clergy for formal ordination. But staff can be asked nicely to teach the doctrines of the religion on these issues.

Proposition C: Religious schools and colleges can require staff to share the religious outlook of the body, or preference such staff in appointments, but only where participation in teaching religion is a “genuine requirement” of the position and the differential treatment is “proportionate”. In making these decisions, however, no consideration may be given to staff behaviour, views or identity relating to sexual activity, or orientation, or gender identity.

Proposition D: Staff at a religious school or college can be required not to “actively undermine” the ethos of their employer, but no criteria relating to sexual activity or orientation or gender identity can be imposed.

The above are my summaries; I encourage those interested to read the propositions in full set out below, but I think the summaries are broadly accurate and highlight areas of great concern for religious schools and colleges.

Proposition A: Students

Discrimination against students on the grounds of sexual orientation, gender identity, marital or relationships status, or pregnancy
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.
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.
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.

See para 45, p 17

The “Proposals” put forward to implement these propositions are

• 1: repeal s 38(3) SDA 1984
• 3: amend s 37(1)(d) SDA 1984 so that the general balancing clause applying to religious bodies does not apply to religious educational institutions
• 4: amend s 23(3)(d) SDA 1984 so that the accommodation balancing clause does not apply to religious schools and colleges
• 6: amend the SDA 1984 to ensure that discrimination against students or prospective students based on a “protected attribute” of a family member of the student is unlawful
• 7: clarify that it is not unlawful under the SDA 1984 for a religious school or college to teach the doctrines of their religion on sex, sexuality and gender identity.

The Commission provides some examples of the operation of their proposals in para 48. Some of the possible examples are of things that actually don’t happen anyway now, as far as I know (such as expelling an LGBTQ student on account of that status). But some that will be of concern include:

• Schools can teach religious doctrine, but the Commission says in doing so, this must be in a way that “respects its duty of care to students.” No school would deny that it owes a duty to be careful not to cause physical or psychological harm to students. But this qualification seems to assume that the mere conveying of a religious doctrine might cause relevant “harm”. In another part of the paper, on p 24 when dealing with staff, the Commission says that requiring a staff member to affirm that “homosexuality is a sin” would automatically be discriminatory against that staff member. If that is what the Commission believes, then it may be argued that teaching this as a doctrine to students could be argued to cause harm.
• A school can apply “reasonable uniform requirements” as long as “adjustments could be made to accommodate transgender or gender diverse students”. This is an important issue which religious schools wrestle with now, but the thrust of this comment is to suggest that a school would be required to allow a girl who claimed that she was now a boy, to wear a boy’s uniform (and vice versa). Many religious schools (and many schools which are not religous) see major problems with allowing a “social transition” where there are likely many other issues involved. Many religious schools would have a strong view that a person’s sexual identity is fixed at conception and cannot change. Indeed, this passing comment by the Commission raises a whole range of issues, including the fundamental question which has not yet been resolved by the courts, as to whether a refusal to recognise a social transition by uniform or bathroom policies, does actually amount to discrimination on gender identity grounds. (For an excellent analysis of these issues under the current law, see this recent academic comment from Professor Parkinson.)
• A school could not refuse to accept as school captain an LGBTQ student. The issue here is whether a student who has decided to announce and celebrate their homosexual sexual orientation, can be held up by the school (as school captains usually are) as an “example” and “role model” to other students, when this is contrary to the religious teachings that underpin all the school’s activities.

Proposition B: Staff

Discrimination against staff on the grounds of sex, sexual orientation, gender identity, marital or relationships status, or pregnancy
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.
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.
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.

See para 51, p 20

The relevant legislation Proposals are:

• 2: repeal sub-sections 38(1) and (2) of the SDA 1984
• 3: Disapply s 37(1)(d) SDA 1984 from religious educational institutions (as previously noted)
• 4: Disapply accommodation provisions in s 23(3)(b), as noted above
• 5: Amend the Fair Work Act 2009 so that religious balancing clauses do not apply to religious schools and colleges
• 7: allow teaching of doctrines

Examples are given at para 54. Here are some challenging implications:

• A Roman Catholic University lecturer announces that he is in a same-sex relationship. Even if the University has asked staff to live in accordance with Catholic doctrine, under the changed rules he could not be disciplined or denied promotion.
• We are told that a religious school can require a gay teacher to “teach the school’s doctrine” on sexual issues, but the Commission qualifies this by saying that they must be able to “provide objective information about alternative viewpoints”. At this point we see that the Commission thinks the government should be prescribing the curriculum for religious schools

Proposition C: Preferencing Staff and teaching religion

At first glance it seems odd that the Commission has decided to make recommendations about possible discrimination relating to the religious beliefs of staff. After all, their inquiry was mostly directed to issues arising under the SDA 1984. However, the third dot point of their terms of reference did refer to “build[ing] a community of faith by giving preference, in good faith, to persons of the same religion”. So Proposition C:

Preferencing staff involved in the teaching, observance, or practice of religion on religious grounds
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.
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.

Para 55, p 22.

Examples are given at para 60. They are framed in relation to the current law (where, at the Commonwealth level, religious discrimination prohibitions only arise under the FWA 2009), but also in relation to a possible future Commonwealth law forbidding religious discrimination. Challenging examples include:

• A school can preference staff who will adhere to specific religious forms of dress or diet; but they cannot choose to ask staff to sign a statement affirming religious doctrine on sexual issues, including for example a statement that “homosexuality is a sin”.
• Even staff engaged to teach religious beliefs, if such teaching involved comment on sexual behaviour, must be “permitted to objectively discuss the existence of alternative views about other lifestyles, relationships or sexuality”. Again, the Commission is interfering with what is to be taught.

Proposition D: Staff to respect religious ethos

Proposition D1 is mostly harmless, but it should be noted how low the bar is set! The other parts raise concerns.

Ongoing requirements on all staff to respect the religious ethos of the educational institution
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.
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.
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.

Para 60, p 25

The bar of “not actively undermining” the ethos of the school is surely a minimum that would go without saying in any organisation whose ethos included support for a specific worldview. But when we look at D2 and D3 more concerns are raised. Under D2, codes of conduct for staff are permitted but “subject to… prohibitions of discrimination on other grounds”. What this means can be seen in one of the examples at para 66:

• A school could not 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.

Proposition D3 would lead to a similar result as it refers to not “requiring” employees to “hide” various matters.

Why are these fences removed?

Each of the Propositions noted above has material in the paper which aims to justify the removal of these “fence” provisions which have protected the ethos of faith-based schools and colleges for many years. Without exploring them all, we may take para 55, dealing with Proposition B on rules around staff, as an example. The Commission says that these changes have “the potential to interfere with institutional autonomy connected to the right of individuals to manifest religion or belief in community with others, parents’ freedoms in relation to their children’s religious education, and freedoms of expression and association”. They even go on to acknowledge that “staff may act as important role models in faith formation”, so that the “interference with institutional autonomy is likely to be greater than in relation to exceptions concerning students”.

These are all very important points, though somewhat understated. The word “potential”, I think, could be removed. There is absolutely no doubt that the proposed reforms would substantially interfere with the religious freedom of the institutions and the parents. The Commission later (in the Appendix to the paper, from A.11) correctly notes that religious freedom is always seen in the context of the communal life of religious communities. As they say, quoting a UN report:

In his 2013 report on the intersection between religious freedom and gender equality, UN Special Rapporteur Bielefeldt explained:

“This is not just an external aspect of marginal significance. Religious communities, in particular minority communities, need an appropriate institutional infrastructure, without which their long-term survival options as a community might be in serious peril, a situation which at the same time would amount to a violation of freedom of religion or belief of individual members.”

Appendix, A.11, page 41.

The Commission also correctly refers to the rights of parents in relation to their children’s religious education, a right clearly seen in art 18(4) of the ICCPR, and referred to (with a very cursory comment) in paras A.26-A.28 of the Appendix.

So, with these clear harms breaching rights given under international law, how does the Commission justify its proposed reforms? In para 55 of the main paper it asserts with very little argument that its proposals are “necessary” to protect “both students and staff”. Presumably this is because staff who are supportive of, say, LBTQ causes will provide support for students with similar views. They also assert that the reforms are “proportionate” because no other changes will do the job properly. Acknowledging a significant burden on the institution, we find this amazing comment: “it [the reform] does not burden the essence of the rights in the way that allowing discrimination on [SDA] grounds would.” (emphasis added). What then, according to the ALRC, is the “essence” of religious freedom? Perhaps their view is that this is really only about whether or not one can go to church or the mosque or the temple, and that all the other claims about practicing one’s religion in community with others are just peripheral!

If we turn to the Appendix to find more detailed comment on these issues, the case, to my mind, is not any stronger. Against the substantial burden imposed on the school or college to accept staff who disagree with their ethos on sexual matters, we are told at A.40 that discrimination on SDA grounds “may impact on their rights to equality and non-discrimination, employment, health, privacy and freedom of thought, conscience and religion” (emphasis added).

“May” impact? Even if we put to one side the uncertainly, this looks at first sight like an impressive list. But digging in, it becomes less so. What are the rights that staff have to “equality and non-discrimination”? If this simply means “rights not to be dismissed from religious bodies for opposing their ethos”, then the point is completely circular. That is the very issue we are seeking to justify. But otherwise it is an empty category. No-one in the community, despite popular conceptions to the contrary, has a free-standing right to “non-discrimination”! Prohibitions on unjust discrimination are based on specific characteristics in particular circumstances.

Nor indeed do any of us have overarching rights to a job, or to good health, or to privacy. All of these are good things that we hope that citizens can have, but they do not amount to “rights” we can assert against the State or each other, except in certain defined circumstances. What we are discussing here is what those circumstances should be. The argument is not assisted by arm-waving assertions of “rights” that do not exist.

We are then told, with more clarity, that it is a bad thing for someone to be “excluded” from an area of “public life”- see A.42. But why has employment by a religious school become an area of “public life”? It is not like admission to a cafe or a bus. Any employment has conditions which must be met before someone is employed. If an institution which is set up to advocate for a specific view of the world- such as, for example, a political party, or an environment lobby group, or a body set up to further indigenous rights- is allowed to require staff to support its ethos- why not a religious school explicitly established to further a religious view of the world?

Conclusion

The reader who has persevered to this point of this over-long post will know my views about the recommendations of this consultation paper. In short, they remove valid protections for religious educational institutions (which means for the religious individuals who have set up these bodies to nurture and support young people growing in their faith, including the parents who pay serious money to send their children along.) I may be able to come back to the list of specific “proposals” in more detail at a later stage. For the moment, while there is some merit in Proposal 7 (reinforcing that it is not unlawful for religious schools to merely teach religious doctrines), I think all of the others will be detrimental to religious freedom and should not be supported.