Religious Freedom at Risk

The Opposition introducing a Bill into the Senate last Thursday, 28 November, as an urgent bill with limited opportunity being provided for debate.  The Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 was introduced and it amends the Sex Discrimination Act 1984 (Cth) by removing section 38(3) and limiting section 37, in a similar form to the way the Greens Bill dealt with ‘student’ issues.  The effects of these changes are outlined below.

The Senate also agreed to limit debate on the Bill to 1 1/2 hours yesterday and 2 hours on Monday, with all debate to be concluded by 12:50pm Monday, 3 December.

The Opposition’s Bill by removing section 38(3) will remove religious freedom protections for the ‘provision of education’ – having far broader impact than has been claimed.  This is because section 21 of the Act, dealing with the provision of education, includes imposing “any other detriment” within the scope of prohibited actions.  As claims have been made that teaching a traditional, Biblical view of marriage, sexuality and sexual conduct is imposing a detriment on LGBT students it is not hard to see how removing the protections of section 38(3) will remove the protection for faith-based schools to teach in accordance with their beliefs.

The Courts have also made it clear that the distinction between direct and indirect discrimination is not as clear as is claimed – the reasonableness of a school’s actions, a defence against claims of indirect discrimination, may be irrelevant.  Consequently, removing the protections of section 38(3) will remove the protection for faith-based schools to act in a reasonable way in accordance with their beliefs in managing transgender students.

Faith-based schools have made it clear that students are not being expelled on the basis of their sexual orientation, this is not why these exemptions are important.  Rather they provide, at the moment, a vital protection for religious freedom.  International law to which Australia is a signatory recognises religious freedom as a fundamental human right and accords it the highest possible protection – not just to holding a belief but expressing that belief, including through the establishment of schools based on those beliefs.

The potential impact on other religious bodies is covered well by Professor Neil Foster in his Law and Religion blog here.  As he indicates in that blog –

… the seemingly innocuous amendment to s 37 may have very wide-reaching consequences. While apparently designed as an “anti-avoidance” provision to prevent religious schools avoiding the impact of the repeal of s 38(3), the drafting opens up a range of very serious outcomes. For one thing, the provisions of s 37 are not limited to “educational institutions”, but apply to every “body established for religious purposes”, which of course will include churches and a whole range of other bodies set up with religious aims. Next, the area in which the s 37(1)(d) protection is removed is simply described as “education”. That word is so broad (going far beyond provision of formal education in schools and colleges) that it might cover, unless somehow other constrained, teaching the Bible in Sunday Schools, in small Bible study groups, and presumably in churches, mosques and synagogues in their public meetings. 

The Government is proposing amendments to the Bill which provide some important clarifications and certainty for Christian schools and religious bodies.  The Government amendments would:

  • limit the scope of the amendments to faith based schools – which has always been claimed as the area needing to be addressed.
  • ensure that, when determining if an action was ‘reasonable’ if indirect discrimination is alleged, the faith context of the school is considered provided that:
    • the school has published a policy dealing with the issue, and
    • the best interests of the child are considered.
  • ensure that it is clear that faith based schools can continue to teach ‘in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed’

While by no means an ideal solution these amendments do provide a level of certainty and clarity in relation to the key concerns we have been raising. This could be further enhanced by provide some clear examples in explanatory materials.

With both major parties having made commitments to address public concerns in relation to students within faith-based schools the amended Bill may provide the best possible outcome in this area that can be reasonably be expected.  A bi-partisan approach in supporting the Bill with the Government’s amendments may see this matter resolved quickly in this session of Parliament.

In these circumstances we are asking all schools to urgently contact all Senators in your State or Territory to indicate that you are accepting of the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 with the Government’s amendments incorporated as a reasonable and balanced outcome that addresses your major concerns in this area and ask them to support the passage of the Bill as amended by the Government’s amendments.  Contact details for Senators are available on the Parliament House website here.

Your email and/or call to each Government, Opposition and Cross-Bench Senator in your State or Territory needs to reach then as soon as possible, certainly before the vote to be held by 1:50pm on Monday 3 December.