The Sanctity of Religious Schools Could Be Eroded by WA’s Anti-Discrimination Review

Principal Bernadette Fabri along with students pose for a photograph at St Patrick's Primary School, Parramatta in Sydney, Australia, on Feb. 18, 2021. (AAP Image/Dan Himbrechts)

Commentary

An indispensable part of religious freedom is the freedom to associate.

A key way that governments may support religious freedom is by allowing people to create institutions and allow them to manage memberships so that they can be committed to the core principles of their founders.

After all, as noted by law professors Rex Ahdar and Ian Leigh, the freedom to associate is also tied closely with the freedom to exclude others.

“In a liberal society, those so excluded are free to join other religious groups (or to form their own group) and so this should not be seen as harmful,” they wrote.

Ahdar and Leigh also said that government intervention to stop any form of exclusion (via non-discrimination laws) could end up impeding on religious liberties.

“Paradoxically, perhaps, exclusive societies add to the diversity of society.”

In this context, the Attorney-General of Western Australia (WA), John Quigley, recently tabled a report into the Review of the Equal Opportunity Act 1984 that has major ramifications for religious schools across the state.

The Law Reform Commission of WA, which authored the report and where I served for five years, made 163 recommendations, including anti-discrimination protections to those that identify as “trans, gender-diverse, or non-binary without the need for recognition from the Gender Reassignment Board,” as well as strengthening legal protections for “LGTQIA+ staff and students in religious schools.”

Attorney-General John Quigley speaks during a press conference in Perth, Australia, on June 27, 2018. (AAP Image/Richard Wainwright)

Another key recommendation is an “inherent requirement test” that would force religious schools to prove that religious beliefs or activities are an essential requirement of the job.

Organisations must also prove that conformity with the prevailing religious belief is an inherent part of the job—meaning non-Christians could even be hired for roles at religious schools.

International Human Rights Implications

So now the drafting process of a Bill to reflect these aspirations has commenced.

It is important to note that the role of religious schools is fully recognised under international law.

For example, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) declares that parents have the basic right to ensure the “religious and moral education of their children in conformity with their own convictions.”

And since religious freedom recognised by international law, the WA government should not make it too hard for schools to become authentic religious education institutions.

Therefore, a significant way in which governments can protect religious freedom is by giving communities sufficient freedom to associate.

“The right to discriminate on religious grounds is essential to the freedom [of a religious organisation] as the group could not exist as a distinctive religious entity without it,” writes Reid Mortensen, professor and head of law at the University of Southern Queensland.

How Can Religious Schools Stay Religious?

Even when some employment positions in these religious schools are not considered to have the characteristic of religious vocation, the “mission fit” of employees is critical for these schools to provide an authentic religious environment.

By the same token, ordering the employment of teaching staff who do not support the core values of a religious school will undermine the purpose of such a school.

In some instances, these schools may steadily lose their religious identity and become indistinguishable from government and non-religious schools.

Of course, there is no point in having a religious school if the only staff with a religious worldview are the principal, the chaplain, and the religious studies teacher.

The facade of St. Patrick's Cathedral in Melbourne, Australia on Sept. 9, 2018. (AP Photo/Rod McGuirk, File)

As noted by Vanessa Cheng, executive director of the Australian Association of Christian Schools, the proposed changes in WA make it very difficult for religious schools to employ staff and preference families in enrolment who share their beliefs.

“Surely it is not for the government to determine how a Christian school should be a Christian school,” she said.

The ability to discriminate on the basis of an organisation’s core principles is central to democratic freedom.

When recruiting staff or appointing officeholders, a political party shows the same discrimination practiced by religious organisations.

Governments must work to ensure these freedoms are protected and ensure schools have the flexibility to make decisions—even dismiss employees—based on their beliefs.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.