The Australian Law Reform Commission (ALRC) has recommended legislative reforms to ensure the Australian Government’s policy regarding anti-discrimination laws and religious educational institutions is given legal effect in accordance with Australia’s international legal obligations.

The ALRC’s Report – ‘Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws’, was today tabled in Parliament by the Attorney General and published online.

The implementation of the government’s policy in accordance with the ALRC’s recommendations would mean that under Federal law religious schools are in much the same position as all other schools, except that religious schools would not be prohibited by the Fair Work Act from being able to give preference in employment to a person of the same religion where that is reasonably necessary and proportionate to the school’s objective of building a community of faith.

No school would be permitted to discriminate against students or staff based on those attributes protected by the Sex Discrimination Act (SDA). All schools would continue to have the benefit of those provisions of the SDA which provide that conduct with a disadvantaging effect is not indirectly discriminatory if the conduct is reasonable in the circumstances.*

Currently, under Federal law religious educational institutions are permitted to discriminate against students and staff on certain grounds, including based on sexual orientation, pregnancy, or marital status. However, anti-discrimination laws in many states and both territories already prohibit discrimination against staff and students of religious schools.

The Terms of Reference for this inquiry tasked the ALRC with recommending the legislative reforms required to ensure that the government’s policy when enacted as law, will be consistent with Australia’s international legal obligations.

The ALRC conducted over 130 consultations and received over 400 submissions and 40,000 survey responses. The implementation of the government’s policy in accordance with the ALRC’s recommended reforms will:

• substantially narrow the circumstances in which discrimination by religious educational institutions against their students and staff is permissible at law.
• maximise the enjoyment of human rights and appropriately manage the intersection of rights.
• ensure any restriction of rights is justifiable under international law.
• make federal law more consistent with state and territory laws and the law in comparable overseas.

Quotes from ALRC President, Justice Bromberg: ‘For the law to narrow the circumstances in which it is lawful for religious schools to discriminate against students and staff whilst preserving their capacity to maintain a community of faith, manages the intersection of human rights according to the international law obligations Australia is obliged to respect.’

*For some guidance as to what circumstances may be considered reasonable see 4.162 of the ALRCs Report

Ends

Contact – Francis Leach – 0409 947 180

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About the Australian Law Reform Commission

The Australian Law Reform Commission (ALRC) is an independent Australian Government agency that provides recommendations for law reform to Government on issues referred to it by the Attorney-General of Australia.

Human rights practitioners and policymakers have long considered how to ‘balance’ human rights when they intersect or overlap. But what if we have been using the wrong metaphor to guide this important work?

As part of the ALRC’s Inquiry into Religious Educational Institutions and Anti-Discrimination Laws, the ALRC and Wolters Kluwer hosted a webinar to hear from international human rights experts on how to best maximise the realisation of all rights in the context of religious educational institutions.

In launching this discussion, former UN Special Rapporteur of freedom of religion and belief, Professor Heiner Bielefeldt (University of Erlangen-Nuremberg), queried whether the ‘balancing’ metaphor presumes that human rights interact in a zero-sum manner in which one right must be compromised to allow for the other. If so, this act of balancing may detract from the aspiration that all humans enjoy all rights to the maximum extent possible.

Reframing the ‘balancing’ of rights as the ‘maximising’ of all rights, moderator Professor Carolyn Evans (Griffith University) led Professor Heiner Bielefeldt and Professor Lucy Vickers (Oxford Brookes University) through an exploration of international perspectives on how rights can be maximised in the provision of education and employment in religious educational institutions. This discussion responded to questions posed by webinar attendees such as:

• What happens when rights to non-discrimination and religious freedom interact? How are limitations on rights managed in the context of religious educational institutions?
• The child is a right holder as is the parent, how do these right interact?
• What is the role of the state as a guarantor of rights? How relevant is the child’s right to education?
• How does religious freedom permit religious educational institutions to cultivate a community of faith and when can religious freedom be limited
• If there is tension between rights to non-discrimination and religious freedom, should this be resolved by an individual leaving a religious educational institution? Does this protect all rights? 

Like Australia, countries around the world have grappled with the question of how anti-discrimination laws should apply to religious educational institutions. This engages a range of overlapping rights including the right to freedom of religion or belief, right to non-discrimination, right to education, children’s rights, and right to privacy. Different jurisdictions have – informed by their own histories and institutional structures – approached this task in different ways, leading to a range of legal frameworks.

Join the ALRC, Wolters Kluwer, and leading international experts in the fields of human rights and equality law for a live webinar to discuss international perspectives on maximising the realisation of overlapping rights in religious educational institutions.

Critical issues we will also explore include:

• The interactions of institutional autonomy and individual religious freedom;
• Equality obligations in education;
• Respecting parents’ and childrens’ rights and;
• Preferencing staff to maintain a community of faith.

Speakers:

• Professor Lucy Vickers, Professor of Law, Oxford Brookes University, United Kingdom
• Professor Heiner Bielefeldt, Professor of Human Rights and Human Rights Policy, University of Erlangen, Germany. Former UN Special Rapporteur on freedom of religion or belief.

Expert Moderator: Professor Carolyn Evans, Vice-Chancellor and President, Griffith University

Participants are invited to ask questions of speakers. Cannot attend the webinar? Register to receive the recording.

The Attorney-General of Australia, the Hon Mark Dreyfus KC MP, has today announced an extension to the reporting deadline for the Australian Law Reform Commission’s (ALRC’s) Inquiry on Religious Educational Institutions and Anti-Discrimination Laws.

The report, which was initially due on 21 April 2023, will now be delivered to the Attorney General by 31 December 2023.

The extension responds to a request made by the ALRC in late February for further time to consider more than 420 submissions received in response to its Consultation Paper on reform proposals, and more than 40,000 survey responses.

Part-Time Commissioner tasked with leading the Inquiry, the Hon Justice Stephen Rothman AM, said that the ALRC was pleased to have been granted further time to work through the issues raised by stakeholders in relation to proposed reforms.

“The issues raised by this Inquiry are of great significance to a large number of Australians. It is important that the Commission considers the many varied perspectives thoroughly and sensitively.”

The extension will also enable the ALRC to engage further with its Advisory Committee in finalising its recommendations, but will not involve another round of broad consultations in light of the large volume of submission and survey responses already received.

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The Australian Law Reform Commission (ALRC) today released a Consultation Paper with proposals for changing the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

On 4 November 2022, Commonwealth Attorney-General, the Hon Mark Dreyfus MP KC, asked the ALRC to recommend reforms to the law to implement the Government’s policy commitments in this area in a way that is consistent with Australia’s international legal obligations.

The paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:

• make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,
• protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and
• allow religious schools to maintain their religious character by permitting them to:
• give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and
• require all staff to respect the educational institution’s religious ethos.

The proposals would bring Commonwealth anti-discrimination laws into greater alignment with the majority of Australian states and territories.

The ALRC seeks feedback on its propositions and proposals by 24 February 2023. It will provide its final recommendations to the Attorney-General by 21 April 2023.

Federal anti-discrimination and employment laws, including the Sex Discrimination Act  1984 (Cth) and the Fair Work Act 2009 (Cth), prohibit discrimination in a wide range of settings on grounds including sex, sexual orientation, gender identity, marital or relationship status, and pregnancy. However, these laws currently provide broad exceptions for religious educational institutions, including early childhood education centres, schools, colleges, and universities.  The ALRC’s proposals would remove exceptions relating specifically to students and staff in religious educational institutions, while retaining exceptions relating to participation in religious worship and observance and the training and appointment of religious leaders.

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Anti-Discrimination Laws Inquiry Update

27 January 2023

Consultation Paper Released

Today the Australian Law Reform Commission released a Consultation Paper with proposals for changing the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

Stakeholder submissions are now invited.

Submissions close 24 February 2023.

Individual views and experiences

In addition to accepting formal written submissions from organisations and individuals on specific law reform proposals contained in the Consultation Paper, the ALRC has also provided a confidential survey for members of the public to share their views and experiences on some key questions relevant to the Inquiry.

Completion of the confidential survey does not preclude making a formal written submission on the propositions and technical proposals contained in the Consultation Paper – it is possible to do both.

The survey will remain open until 24 February 2023.

Previous Inquiries and Key Reports Considered

Extensive consultations have been undertaken previously on the issues under examination in the inquiry into Religious Educational Institutions and Anti-Discrimination Laws. 

The ALRC is considering submissions and reported findings from previous inquiries, in addition to key reports, published over almost 40 years, from 1984-2022, at Commonwealth, state, and territory levels.

What do you think?

Stakeholder feedback is crucial for developing recommendations for simplification of corporations and financial services legislation.

In this Background Paper, Reflecting on Reforms II – Submissions to Interim Report B, the ALRC provides an overview of the feedback it has received, by way of formal submissions, on questions and proposals outlined in Interim Report B. This feedback will inform the development of proposals in Interim Report C, as well as recommendations for reform made in the ALRC’s Final Report.

The Australian Law Reform Commission has today received Terms of Reference from the Attorney-General of Australia, the Hon Mark Dreyfus KC MP, to consider reforms to the way Federal anti-discrimination laws apply to religious educational institutions.

The Government has appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a Part-Time Commissioner for the Inquiry.

The new reference  asks the ALRC to consider what reforms should be made, compatible with Australia’s international human rights obligations, to ensure, to the extent practicable, Federal anti-discrimination laws reflect the Government’s policy commitments in this area.

The Terms of Reference describe the Government’s commitments as ensuring ‘that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’.

The ALRC is required to report back to the Attorney-General by 21 April 2023.

In conducting its Inquiry the ALRC will have regard to extensive consultations previously undertaken on these issues by federal, state, and territory inquiries. Based on this, it will undertake further consultations in accordance with the Terms of Reference.

President of the ALRC, the Hon Justice SC Derrington AM, welcomed the new Inquiry.

“We will work closely with stakeholders to understand the key issues in managing the intersections of the important rights and freedoms raised by the Inquiry.

“In this, we are fortunate to be able to build upon a number of recent inquiries that have examined these issues at the Commonwealth, state, and territory level,” Justice Derrington said.

She also warmly welcomed the appointment of Justice Rothman to the role of Part-Time Commissioner for the Inquiry, noting his eminence and experience in the field.

The Terms of Reference replace a previous Inquiry into religious exemptions in anti-discrimination legislation that has been on hold since March 2020.

ENDS

Religious Educational Institutions and Anti-Discrimination Law Inquiry: https://www.alrc.gov.au/inquiry/anti-discrimination-laws/

Terms of Reference: https://www.alrc.gov.au/inquiry/anti-discrimination-laws/terms-of-reference

Further information on the work of the ALRC:  https://www.alrc.gov.au/

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