Shifting tides for faith-based schools and anti-discrimination laws
On 21 March 2024, the Commonwealth Attorney-General presented in Parliament the Australian Law Reform Commission’s final report into the exceptions to anti-discrimination protections that are available to religious educational institutions (including faith-based schools). The Commission has proposed a number of recommendations that, if implemented by the Commonwealth Government, would either abolish or significantly narrow the scope of exceptions to anti-discrimination protections that faith-based schools currently have under Commonwealth law.
Relevantly, the Commission has recommended that the Commonwealth Government:
a) repeal the exception in section 38 of the Sex Discrimination Act 1984 (Cth). This exception currently lets educational institutions established for religious purposes (including faith-based schools) discriminate in relation to employment, hiring contractors, and in providing education and training, provided that such discrimination is in good faith in order to avoid injury to the religious susceptibilities of adherents of the educational institution’s religion;
b) amend the general religious exception in section 37(1)(d) of the Sex Discrimination Act to expressly say that it does not apply to faith-based educational institutions. This general religious exception lets bodies established for religious purposes discriminate in relation to acts or practices that conform to the doctrines, tenets or beliefs of their religion or are necessary to avoid injury to the religious susceptibilities of adherents of their religion;
c) amend the general religious exception in section 23(3)(b) of the Sex Discrimination Act to say that religious educational institutions cannot discriminate in providing accommodation (unlike other religious bodies);
d) amend the Fair Work Act 2009 (Cth) to say that religious exceptions to certain general protections in that Act do not apply to religious educational institutions; and
e) amend the Fair Work Act to say that giving a preference, in good faith, to a person of the same religion as the religion of an educational institution in relation to the selection of staff for employment is not contrary to certain general protections in that Act, if it:
(i) is reasonably necessary to build or maintain a community of faith;
(ii) is proportionate to the aim of building or maintaining a community of faith, including in light of any disadvantage or harm that may be caused to any person or persons not preferred; and
(iii) does not amount to unlawful conduct under the Sex Discrimination Act.
The Commission has also made other consequential recommendations.
As you may be aware, responses to the Commission’s recommendations, including from faith-based schools, have been mixed. The Commonwealth Government has suggested that it will put forward changes to Commonwealth anti-discrimination laws that are consistent with the Commission’s recommendations. However, any changes to the law will of course be subject to the political process (and potentially, further engagement with interested community members and organisations – including leaders of faith organisations and faith-based schools). We say all this to stress that the Commission’s recommendations are some way from becoming law. However, it would be prudent for faith-based schools to continue to keep an eye out for changes in this area as policy settings shift.
We are conscious that the Commonwealth Government is not the only Australian jurisdiction that is looking to change, or has already changed, its anti-discrimination laws in a way that would significantly narrow the scope of exceptions to anti-discrimination protections that faith-based schools currently have under the law.
The Queensland Government’s new Anti-Discrimination Bill removes “genuine occupational requirements” exceptions to Queensland anti-discrimination protections that are in the current Anti-Discrimination Act 1991 (Qld). Consultation on the Anti-Discrimination Bill finished on Friday, 22 March 2024. The Anti-Discrimination Bill, if it becomes law in Queensland, will let faith-based schools and other religious educational institutions in Queensland discriminate in employment or other work arrangements only on the basis of religious belief or religious activity and only if participation in the teaching, observance and practice of the educational institution’s religion is a genuine occupational requirement of the work.
In recent years, other jurisdictions (notably, Victoria and the Australian Capital Territory) have already changed their anti-discrimination laws in the same way. As discussed in a previous edition of Education Law Notes, New South Wales is currently reviewing its anti-discrimination laws and may revisit exceptions to anti-discrimination protections that are currently available to faith-based schools.
If your faith-based school needs help to consider how it can conduct (or continue to conduct) its activities in accordance with its religious ethos, in light of the changing anti-discrimination landscape, please contact David Ford, Stephanie McLuckie or Samuel Chu.
