Review of anti-discrimination laws puts religious educational institutions under threat

Flat White

Augusto Zimmermann


Augusto Zimmermann

21 February 2023

4:00 AM

The Australian Law Reform Commission (ALRC) has recently released its consultation paper on the subject of Religious Education Institutions and Anti-Discrimination Laws. The paper proposes the near-complete removal of any protections to these organisations. Under these proposals, religious educational institutions will be forced to hire staff, teaching, and non-teaching, who may not share or support the institutions’ beliefs and whose employment could only be terminated if staff actively undermine the ethos of the organisation.

In a broader sense, the ability of organisations to select staff on the basis of their core commitments and values is central to the democratic freedoms of our nation. When recruiting staff or appointing officeholders, a political party should be expected to display discrimination resembling that practiced by religious bodies.

For example, a politician from the Labor Party might discriminate against prospective employees with pro-life views when recruiting staff for her office team. Likewise, we could assume that environmental advocacy bodies such as Greenpeace or the Australian Conservation Foundation might be expected to discriminate against Climate Change sceptics when appointing scientists to their scientific advisory committees.

Why is it considered necessary, in some quarters, to curtail the ability of religious organisations to follow certain practices when seeking to develop their educational initiatives according to their core values?

Of course, it would be absurd to suggest that a political party should be forced to employ staff who oppose what the party stands for.

And yet, the ALRC appears to be proposing severe limitations on the right of religious organisations to give preference to persons of the same faith in the selection of employees – teaching and non-teaching. The consultative paper communicates that these organisations should only be allowed to employ staff based on their beliefs for very specific roles like chaplaincy. For other roles – including essential subjects such as maths, science, history, and English – it will be unlawful to preference the employment of teachers who support the beliefs of the religious school.

If non-religious organisations which are set up to advocate any specific point of view, such as a political party, or an environment lobby group, are allowed to require staff to support their particular ethos, why not a religious organisation established to further its own ethos?

The ‘inherent requirements test’ proposed in the ALRC in its consultative paper would limit the ability of a religious educational institution to rely on its beliefs to select staff in the area of employment because of a person’s sex, sexual orientation, gender identity, marital status, or differing religious beliefs. The defence would be limited to circumstances where religious beliefs are considered an ‘inherent requirement’ of a job, and an employee or job applicant does not meet the requirement because of a specific personal attribute.

Of course, there is no such thing as an ‘inherent requirement test’ in relation to the employment by political parties. These organisations are free, as they should be, to take political beliefs into account in recruiting staff. In the same way, religious people should have the same right as anybody else to freely associate and manage their organisations.

However, as mentioned above, the ALRC paper is proposing that religious educational institutions should only ‘continue to give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is, genuinely, a part of the role’.

In this sense, the Commission appears to ignore the fact that people who work for these organisations do not often regard their role as merely an employment position. They regard their employment positions as a religious vocation, believing that they have been called by God to behave ‘as leaders, counsellors, role models, people who guide and shape the ethos of the school’. As such, every single staff member (teaching and non-teaching) who works in these religious institutions is expected to behave as a role model and example to students of the integration of faith and life.

Dr Mark Durie, an Australian scholar in linguistics and theology, explains this as follows:

For a secular person, teaching mathematics has nothing to do with religion. However, for a religious person – and indeed for a religious organisation – all actions can be considered to be worship. What distinguishes many religious organisations is that they see their whole activity as a corporate act of worship, done in devotion and service to God, in accordance with the doctrines and principles of their faith. One reason they want to employ people of faith is that they want the whole organisation to corporately serve God through its activities.’

Considering the impact that each staff member can have on an organisation’s ability to achieve its educational goals, the need to have a broad discretion concerning employment decisions for a range of employment positions is crucial. Accordingly, the ‘general exception’ approach presently adopted by the current legislation is the only one which can afford equality of rights and sufficient freedom for faith-based communities to continue managing their educational institutions in a manner that is effective in meeting the various needs of these communities.

In other words, the superior status of the general exception model currently applied by the legislation is associated with the necessity of democratic governments to respect the right to equality. As noted by law professor Iain Benson:

Religion is an equality right itself and religious people are entitled to non-discriminatory treatment in terms of their religion as well, so placing equality and non-discrimination over against religion or placing some forms of non-discrimination (say, sexual orientation) as things more important than the religious person’s freedom against non-discrimination is an error – though an all too common one.’

By contrast, it would be unfair and unreasonable to introduce an ‘inherent requirement test’ for religious organisations when there are no such requirements for the employment decisions of other various non-religious organisations. This would represent a major failure to respect the right to equality. Indeed, according to legal academic Greg Walsh, ‘[a] State committed to equality should be similarly committed to protecting religious individuals and the organisations that they create in a manner that is sensitive to the diversity that exists within the different religious worldviews.’ As Dr Walsh correctly points out:

Demonstrating appropriate respect for the right to equality does not just involve removing laws and eliminating practices that overtly impose a detriment on someone because of a protected attribute. A State genuinely committed to the right to equality will provide comprehensive protection for individuals belonging to a protected group, and support them individually and collectively in understanding and affirming their attributes. A key way that the State can achieve this is through allowing these individuals to establish supportive organisations, and permitting them to manage group membership so that the organisations remain committed to supporting the individuals.’

This goes without saying that religious schools can play a crucial role in protecting the basic rights of religious minorities. They assist these minorities with the enjoyment of their religious culture, acting as positive measures of protection and for allowing the participation of people in decisions that directly affect themselves. As it has been said, these faith-based organisations promote the ‘survival and continued development of cultural, religious, and social identity of religious minorities’. They must therefore be regarded as significant centres in which members of these religious communities can fulfil their most valued religious commitments and discuss the historical and cultural elements of their community.

This is why the ‘general exception’ presently guaranteed under the Act should continue to apply to all employment positions of all religious educational institutions. Some religious schools may only need these protections for a number of employment positions, but the State should never undermine their equal right to freely make decisions as this right is also guaranteed for other organisations whereby membership is based on other relevant attributes such as political opinion.

The important role played by these religious schools is fully recognised in international law. For example, the International Covenant on Civil and Political Rights (ICCPR) states that parents have the right ‘to ensure the religious and moral education of their children in conformity with their own convictions’. Under its Article 18.4, the States Parties to the Covenant are committed ‘to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’. As another example, Article 5(2) of the U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)states that:

‘Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion and belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.’

Unfortunately, the above considerations were not properly understood by members of the ALRC. Its consultative paper apparently reveals a mindset that is uncomfortable with the existence of religious pluralism because that paper objectively favours a dominant secular worldview. According to legal academic Neil Foster, ‘Perhaps their view is that religious freedom is really only about whether or not one can go to church or the mosque or the temple, and that all the other claims about practicing one’s religion in community with others are just peripheral.’

Thankfully, there is still hope that these extreme proposals could be rejected. This paper is not the final position of the Australian Law Reform Commission, which has now invited written responses to its consultation. This should be provided by February 24, 2023. So, it is critical that we push back against these extreme proposals which would impose a ‘compulsory uniformity that would undermine the reasons for the existence of faith-based educational institutions’.

Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education, in Perth, Western Australia. He was a member of the Law Reform Commission of Western Australia from 2012-2017. Professor Zimmermann has written extensively on the subject of freedom of religion and belief. His latest book is entitled ‘Foundations of the Australian Legal System: History, Theory and Practice’ (LexisNexis, 2023). 

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