“The overall effect of implementing (this recommendation) would be to narrow the circumstances in which it would be lawful to discriminate against students or staff at religious educational institutions, on the basis of attributes protected under the Sex Discrimination Act,” the report stated.
Currently, Section 38 of the Sex Discrimination Act (SDA) allows religious schools to discriminate against employees and contract workers on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy if the discrimination is conducted in accordance with that school’s particular religion, creed, doctrines, tenets, or beliefs.
The ALRC has recommended Section 38 be scrapped entirely.
Enacted in 1984, the Sex Discrimination Act (SDA) of Australia aims to eliminate discrimination based on sex, gender identity, sexual orientation, pregnancy, and marital or relationship status.
However, a disparity exists in that if a non-religious school were to expel a student or dismiss a staff member based on their sexual orientation, they would be in breach of the SDA, but would not breach the Act if it was done for religious reasons by a religious school.
Religious Discrimination to be Considered in any Changes to the Act
The recommendations for change set out in the report are compounded by the need for an equivalent exception for religious schools that hire staff based on their religion, and where they can legally use this discretion when employing.There is currently no law banning religious discrimination at the federal Level, but the wheels have been in motion since 2017 when an expert panel was appointed to look into whether the law protects the right to freedom of religion.
The Future Religious Discrimination Act has been antagonistic, with five Liberal MPs crossing the floor on the issue in 2021.
The ALRC said the Fair Work Act should also be changed to “allow religious educational institutions to give preference to persons of the same religion in selecting employees, in order to build and maintain a community of faith.”
Earlier this week, after initially being onside with changes to religious discrimination laws, prime minister Anthony Albanese said he was concerned by a lack of bipartisanship from Coalition partners and appeared hesitant at the idea of bringing in the reforms.
Attorney-General Mark Dreyfus’s response to the report was that the government wanted to be inclusive of the beliefs of religious and non-religious people alike.
“The government will seek to enhance protections in anti-discrimination law in a way that brings Australians together,” Mr. Dreyfus said.
“Just as Commonwealth law already prohibits discrimination on the basis of race, gender, sexuality, disability and age, no one should be discriminated against because of their faith. Equally, no students or member of staff should be discriminated against because of who they are.
“At the same time, religious schools must continue to be able to build and maintain communities of faith. The government recognises and respects the right of parents to send their kids to a religious school because of the beliefs and values they teach their children.”
