Schools’ Rights
Since 2018, there have been attacks on the right of faith-based schools to hire staff who believe in and live out the faith of the school, and to engage in disciplinary action where staff or students do not live in accordance with that faith.
Currently, this issue is legislated by the federal Sex Discrimination Act 1984, which prevents discrimination on the grounds of sex, marital status or pregnancy. In 2013 this was expanded to include sexual orientation, gender identity or intersex status. The Act also provides exemptions for religious schools, if the discrimination is “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”
History of challenges to the SDA
In 2018, Senator Penny Wong put forward an amendment to the Sexual Discrimination Act, aimed at removing the power of religious schools to discriminate against same-sex attracted students. There were numerous problems with the Bill:
- Religious schools were not, in fact, expelling same-sex attracted students on the sole grounds of their sexual orientation.
- The Bill went far beyond dealing with that issue and would have seriously reduced the religious freedom of religious schools to operate in accordance with their religious beliefs.
- The Bill was so widely framed that it removed protections for all “religious bodies” in relation to “education”, which had the potential to make it unlawful for churches to teach the doctrines of their faith to their own members.
This Bill was a matter of much debate, and ultimately did not get passed.
In 2022, the Liberal Government put forward a long-awaited Religious Discrimination Bill based on the recommendations of the Ruddock religious freedom review. During an all-night sitting the Labor Opposition managed to add an amendment to the Bill that removed the exemptions from the SDA that allowed faith-based schools to discriminate based on sexual orientation or gender identity. The Government eventually shelved the Religious Discrimination Bill after faith leaders said that, with the amendments, the Bill now did more harm than good.
More recently, In March 2024, the Australian Law Reform Commission released its report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws (ALRC Report 142). The report recommended the removal of all of the “balancing clauses” in the SDA.
It was in response to this report that the Albanese government drafted the Religious Discrimination Bill.
A Religious Discrimination Bill
In August 2024, the Prime Minister declared that he was not progressing with a religious discrimination bill in this term of Government. He said that it was because he could not get cooperation from the Opposition.
This is not entirely true. In the previous months, heads of faith and Freedom For Faith had taken part in a confidential consultation process. The Government had provided a draft religious discrimination bill. Certain leaders were invited to respond under the strictest conditions of confidentiality. A letter was submitted with a detailed analysis of the proposal, what was wrong and how it could be fixed.
The Government never responded to the letter. Despite multiple other letters and attempts to meet with the Attorney-General or the Prime Minister, the Government did not give any response.
The Government invited the Opposition to negotiate, and the Opposition replied that the Government needed to respond to proposals from the heads of faith. We again asked the Government to meet with us, to negotiate something we could encourage the Opposition to support. We also asked the leader of the Opposition to meet with the Prime Minister to start the conversation directly, or to publicly state that they support our proposals. Neither the Government nor the Opposition responded favourably to these requests.
So, without a single meeting to discuss the content of our proposals, the Prime Minister announced that the bill was dead.