Religious Freedom Review

The Australian Government finally released the Report of the Expert Panel on Religious Freedom along with its Response in mid-December 2018.

The Panel recognised that faith-based organisations have played, and continue to play, a vital role in civic life in Australia by, amongst other things, running schools and institutions for higher learning.

The Panel could see no reason to preclude faith-based organisations from continuing to be entitled to apply for public funding for their activities on the same terms as they have had to date. The Panel did not agree that public funding should be tied to religious bodies “waiving” or renouncing exceptions from anti-discrimination laws.

However, the Panel considered that, where there was only one service provider or employer in a community, thus precluding choice on the part of the consumer of that service or prospective employees, it should be open to governments to insist that the sole provider not discriminate against any part of the population, and that in circumstances of limited employment opportunities, be open to the employment of suitable and qualified persons regardless of intrinsic qualities such as their sexual orientation. This should be of some comfort to faith-based schools as they operate in a sector where there are many employment opportunities.

The Panel heard from faith-based organisations that protections were needed to ensure that organisations do not lose their charitable status because of their religious beliefs. The Panel did not consider that charities (including schools) which were established for religious purposes and which continued to advocate their religious views, including a “traditional” view of marriage, were at risk of losing their charitable status under Australian law. However, the Panel, believing that there was benefit in certainty, recommended that the Charities Act 2013 should be amended to clarify that advocacy of a “traditional” view of marriage would not, of itself, amount to a “disqualifying purpose”. The Australian government has said that it will seek to implementthis recommendation as soon as practicable. This ought to ensure that faith-based schools can continue to teach and promote the values and practices that are integral to their faith.

The Panel specifically considered employment in religious schools noting that schools conducted in accordance with the principles of most major religions operate throughout Australia. The Panel heard from a number of religious schools that education in their schools is not just about teaching the curriculum but also about teaching religious truths and providing an environment that supports religious belief and models these truths in the way staff live. The Panel heard repeatedly that faith is “caught not taught”. Not surprisingly, the Panel listened to opposing views about the employment of staff who adhered to and modelled the stated beliefs of the school. Some stressed the importance of all teachers being able to do this while others argued that a school should only be able to require this of those who taught religious education. In other words, the Panel had to confront head-on the lawfulness of discrimination on the ground of religion.

The difficulty for the Panel was that discrimination on the ground of religion often looked like it was discrimination on other grounds, particularly those of sexual orientation, gender identity and marital relationship status. As the Panel concluded, “This is an extremely complicated area of law”. In the end, the Panel recommended that the Federal Government should amend the Sex Discrimination Act 1984 to provide that religious schools can discriminate in relation to the employment of staff on the basis of sexual orientation, gender identity or relationship status provided that:

(a)    the discrimination is founded in the precepts of the religion;

(b)   the school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be  enforced; and

(c)    the school provides a copy of the policy in writing to employees.

This was all too much for the Federal Government which, in its response to the Religious Freedom Review, said that this recommendation required further review. We agree that this is needed, particularly in relation to what is meant by “discrimination founded in the precepts of the religion”. Clearly, nothing is going to happen in this area until after the next Federal election.

The other very complex area into which the Panel delved was the enrolment of students in religious schools. There was a general consensus that religious schools were not seeking the right to refuse enrolment to children on the basis of their sexual orientation or gender identity. Nevertheless, the Panel recommended that the Federal Government should amend the Sex Discrimination Act 1984 to provide that religious schools be able to discriminate in relation to students on those grounds provided that:

(a)    the discrimination is founded in the precepts of the religion;

(b)   the school has a publicly available policy outlining its position in relation to the matter;

(c)    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; and

(d)   the school has regard to the best interests of the child as the primary consideration in its conduct.

The Federal government responded that this recommendation also required further review. Subsequently, there has been some negotiation between the Government and the Opposition about how to implement this recommendation. Once again, the result is that no changes to the legislation have been made and there will be further debate on this issue after the next Federal election. Our concern is that none of the major political parties appears able to understand the potential (and presumably unintended) consequences of the solutions they are proposing.

Finally, we note that not all Australian jurisdictions prohibit discrimination on the basis of a person’s religious belief or activity. For example, this is not a ground in New South Wales. The Panel considered that Australian laws should do more to protect the right to non-discrimination on the basis of religious or other beliefs. Accordingly, the Panel recommended that the Australian government should either amend the Racial Discrimination Act 1975 or enact a Religious Discrimination Act to render it unlawful to discriminate on the basis of a person’s “religious belief or activity”, including on the basis that a person does not hold any religious belief. The Panel added that, in doing so, consideration should be given to providing for appropriate exceptions and exemptions for religious bodies, religious schools and charities.

Please contact g%BE%A5%DA%BA%D5b%9B%A3%C5%BDs if you would like further advice on the implications of the Panel’s Report for your school.