On Nov. 4 2022, Attorney-General Mark Dreyfus requested the Australian Law Reform Commission (ALRC) to report on the reforms that would need to be undertaken to ensure that the Sex Discrimination Act 1984 (Cth) reflects the Government’s commitment to amend the Act “in a manner that is consistent with the rights and freedoms recognised in the international agreements to which Australia is a party.”
The consultation is likely to be an exercise in futility because the terms of reference discloses the government’s intention to amend the Act to prohibit religious schools from discriminating against students and staff on the basis of their sexual orientation, gender identity, marital or relationship status or pregnancy.
Yet it also indicates that the reform should enable religious schools to continue “to build a community of faith by giving preference, in good faith, to persons of the same religion as [practised by] the educational institution in the selection of staff.”
Even a perfunctory reading reveals that the proposed amendments are logically inconsistent and incompatible with each other. It is impossible for religious schools to continue as faith-based communities if they go through.
The Proposals Are Filled With Contradictions
The consultation paper contains four general propositions (A, B, C, and D) and 14 technical proposals, listing the reforms needed to achieve the substantive general propositions.Proposition A contains two clearly incompatible proposals. It prohibits discrimination against students on the grounds of sexual orientation and gender identity, but permits religious institutions “to teach religious doctrines or beliefs on sex or sexual orientation in a way that accords with their duty of care to students.”
It would be fair to suggest that religious schools and their students would be better served by a students’ admission policy that condones discrimination in “good faith” “to avoid injury to the religious susceptibilities of the adherents of that religion or creed” in accordance with the s 38(3) exception in the current version of the Act.
Indeed, if the ALRC’s proposed amendment were to be adopted—a likely outcome of the legislation’s review—religious schools will be pressured into censoring themselves either by not inculcating its beliefs into the student body or by minimising their religious importance.
The same problem exists with proposition B, which prohibits discrimination against staff, but allows schools “to require staff involved in the teaching of religious doctrine or belief to teach religious doctrine or belief on sex or sexuality ... in accordance with their duty of care to students and staff.”
The inconsistency between these provisions is exacerbated by the fact that only teaching staff involved in the teaching of religious doctrine would be able to benefit from the reform, whereas the selection of all other teachers would be subject to the anti-discrimination edicts.
This approach, surely, is a recipe for destroying the ethos of a religious school.
The proposal to allow religious schools to give preference to a believer who will be teaching religion (Proposition C), is not likely to make a difference. Proposition D proclaims that religious schools “should be able to expect all staff to respect their institutional ethos” and “be able to take action to prevent any staff member from actively undermining the institutional ethos of their employer.”
To this purpose, schools would be able to impose “reasonable and proportionate codes of staff conduct and behaviour relating to respect for the institution’s ethos.”
This commendable and promising proposal, however, is reduced to a meaningless allowance because these codes of conduct may not be relied upon to require teachers and administrative staff to hide their own sexual preferences, thereby undermining the school’s ethos by their actions or general behaviour.
There Is No Middle Ground
The paper also exemplifies the continuing and challenging conflict between freedom of religion and the right to be free from discrimination on the ground of sexual orientation. It correctly admits that both are “important rights in a liberal society and represent important underlying values.”But it is not immediately clear as to why the right to be free from discrimination must necessarily take precedence over the right to religious freedom.
The ARLC attempts to seeks a solution that would allow all people to enjoy their rights. It emphasises the importance of reasonableness and proportionality, and commendably insists that rights must be considered seriously.
Yet, in recommending the adoption of incompatible objectives, it fails to strike a sensible balance between these two competing rights.
However, it appears that, in an increasingly secular society that embraces a relativist philosophy, it is always the latter—freedom from discrimination—that wins this contest, and in the process, eviscerates communities of faith.
Hence, the present exceptions to the Sex Discrimination Act should be maintained, and religious institutions, in their admission and selection processes, should be allowed under Commonwealth law to discriminate against staff and students who do not share the religious ethos or moral values upon which these institutions are based.
There is nothing intrinsically wrong with s 38(1), dealing with staff, and s 38(3), concerning students, of the Sex Discrimination Act as it presently stands.
