On 19 November 2018, the Federal Senate Inquiry into "Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff" (Senate Inquiry) had its first public hearing. It comes close on the heels of the Federal Religious Freedoms Review (Religious Freedoms Review) whose report has not yet been publicly released. However, continued media focus on both the Religious Freedoms Review and the Senate Inquiry has meant non-government schools established for religious purposes have been caught in the crosshairs with an increased focus on their policies for recruitment, enrolment and pastoral care.

Current Religious Freedom Laws in Australia

The right to freedom of thought, conscience and religion is protected under international law in Article 18 of the International Covenant on Civil and Political Rights. Despite Australia's international legal obligations, there is only limited protection of that right in current domestic law. Australia has no entrenched bill of rights at the federal level to constrain the making of laws which interfere with the freedom of religion, however, under section 116 of the Australian Constitution, some protection is provided by restraining the legislative power of the Commonwealth.

Because of its international treaty obligations, the Commonwealth has the power to deal with anti-discrimination matters. However, due to the limited interpretation by the High Court of section 116 of the Constitution, protection of religious freedom usually falls to state and territory anti-discrimination laws which class religion as a "protected attribute", meaning that there is a prohibition against discrimination on the grounds of religious belief.

Religious Freedoms Review Recommendations

The inconsistency in relation to the protection of religious freedom resulted in the Prime Minister announcing the Terms of Reference for the Religious Freedoms Review on 14 December 2017. In undertaking the Religious Freedoms Review, the Prime Minister instructed the Panel to:

• consider the intersections between the enjoyment of the freedom of religion and other human rights
• have regard to any previous or ongoing reviews or inquiries that it considers relevant
• consult as widely as it considers necessary.

Consultations were held in February and March 2018 and the Panel received over 15,000 submissions. The Panel conducting the Religious Freedom Review delivered the Report to the Prime Minister on 18 May 2018.

The Report recommendations have not currently been publicly released, however, certain sections revealed through a Fairfax Media investigation have shown some recommendations of interest to non-government schools operating for religious purposes.

Of the 20 recommendations released by Fairfax Media, Recommendations 5 and 7 relate to amending the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) to provide that religious schools can discriminate in relation to the employment of staff, the engagement of contractors and in relation to students on the following grounds.

Recommendation 5

The Commonwealth should amend the Sex Discrimination Act to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that:

• The discrimination is founded in the precepts of the religion.
• The school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced.
• The school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors.

Recommendation 7

The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that:

• The discrimination is founded in the precepts of the religion.
• The school has a publicly available policy outlining its position in relation to the matter.
• The school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated.
• The school has regard to the best interests of the child as the primary consideration in its conduct.

Current Exemptions to Anti-Discrimination Laws for Religious Educational Institutions in Australia

In Australia, anti-discrimination law exists at both a federal and state level.  In each jurisdiction these laws prohibit discrimination against a person because of personal characteristics such as sex, gender, age, race, disability and political beliefs. However, there are currently exemptions in each jurisdiction for religious schools to discriminate against employees based on characteristics or qualities that would go against the teachings and beliefs of the school. This is commonly referred to as the "religious institutions exemption".  The current exemptions in each jurisdiction differ in wording but each contains some form of the "religious institutions exemption". As a broad example, if homosexual behaviour is against the teachings of a religion with which the school is affiliated, a school’s decision not to employ a person who engages in a homosexual relationship will not be considered discriminatory under Commonwealth anti-discrimination laws.

Commonwealth anti-discrimination legislation, particularly section 38 of the Sex Discrimination Act, currently provides an exemption for religious non-government schools who choose not to hire an individual as a member of staff on grounds that would otherwise be discriminatory, if that decision is in abidance with the school’s religious affiliations. Section 38 also provides similar exemptions for religious non-government schools in relation to contractors and students.

The Religious Freedoms Review has recommended that the Sex Discrimination Act exemptions for students, employees and contractors be extended across all states and territories, something some, but not all, states already allow.   This will mean, because federal law overrides state law, that the impact of this change will vary from state to state depending on the terms of its current religious institutions exemption as shown in the table below.

The Religious Freedom Review also accepted the right of religious schools to discriminate against students on the basis of gender identity or sexual orientation, but the Review could see no justification for a school to discriminate on the basis of race, disability, pregnancy or intersex status.

Senate Inquiry Focus

However, as discussed in Parliamentary Hansard, "the public outcry [about the recommendations coming out of the Review] that has ensued makes clear that these exemptions, even as they currently exist in a minority of jurisdictions, are out of step with the views and beliefs of most Australians." Despite support for the current exemptions as expressed in a letter issued by 34 NSW Anglican principals, the Senate Inquiry has been tasked in the Terms of Reference with further reviewing the "legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff, including on the basis of sexual orientation and gender identity and other attributes covered by the Sex Discrimination Act 1984, with particular reference to proposals for amendments to current legislation, and any related matters."

So far, after the first day of public hearings on 19 November 2018, the Senate Inquiry has received five submissions, with key themes including:

• the best interests of children (Human Rights Commission and Australian Lawyers Alliance)
• language and terminology regarding "gender" and "sex" (Independent Schools Association)
• transparency (Independent Schools Association).

Follow up media articles have indicated that legislation regarding the religious institutions exemption will be introduced in the coming weeks.

Possibility for Future Reforms for Schools

Over the years, there have been numerous state and territory legislative proposals to challenge the religious institutions exemption. Currently, none have succeeded in achieving anti-discriminatory equality among schools in Australia. Non-government schools should be aware of their obligations under the Australian Wellbeing Framework, as outlined in our previous article, and any state and territory registration guidelines, to promote inclusion, where all members of the school community are active participants in building a welcoming school culture that values diversity and fosters positive, respectful relationships. At a minimum, the Religious Freedoms Review and the Senate Inquiry will bring about a renewed focus on non-government school's compliance frameworks, particularly in relation to enrolment of students, recruitment of staff and contractors and pastoral care policies for diversity and inclusion.