After years of promises to protect religious freedom made by both sides of federal politics, last month Prime Minister Anthony Albanese has asked the Coalition to work with the government to pass a Religious Discrimination Bill and remove exemptions currently contained in the Sex Discrimination Act 1984 for faith-based schools. Failing agreement, the Prime Minister said he is open to getting the legislation through the Senate with support of the Greens — but at the risk of deepening the divisions between many people of faith and the left side of politics.
There are, in fact, solid arguments in favour of a bipartisan deal. This is not just about appeasing the churches. If the issues are properly understood, some LGBTIQ+ organisations and secular women’s groups ought to be strongly in support of the freedom of religious organisations to maintain their identity and ethos, for their freedoms also are under threat. Not only have changes made to the Sex Discrimination Act in 2013 under the last Labor government led to arguments over exemptions for faith-based schools and other religious bodies, they have also precipitated sharp divisions among LGBTIQ+ communities and women’s organisations, as have similar changes made to the law at state and territory level.
So what are the salient issues? It seems to me that there is one non-issue, a second issue on which there is already a large measure of bipartisan agreement, and a third issue on which there is disagreement but which could be resolved by means of the application of a long forgotten, fundamental human right.
Even if all these three issues are resolved, however, there is a fourth problem which may be a stumbling block — namely, the need to have a consistent, nationwide approach. This will involve overriding positions that have been taken by a number of Labor state governments to the extent that the state and federal laws are inconsistent.
Expulsion of LGBTIQ+ students from faith-based schools
As things currently stand, section 38(3) of the Sex Discrimination Act 1984 allows faith-based schools to discriminate against students on the basis of sexual orientation or gender identity. Christian school organisations have never asked for that right.
Students are not expelled from faith-based schools because they come out as LGBTIQ+. Faith-based schools have made clear to successive governments that they neither want nor need the legal right to expel same-sex attracted students. The only right they have sought to protect is that they can teach their beliefs and doctrines on issues of sex and family life, and maintain appropriate school rules, without being dragged before a tribunal. This can be achieved by other means without the necessity for the current broad exemption.
This is not to say that no same-sex attracted boy or girl has ever been bullied in a Christian school, or felt uncomfortable with the prevailing religious ethos of the school — but this cannot be attributed to the effect of s.38(3) of the Sex Discrimination Act. Neither state schools, nor independent schools, nor faith-based schools have a perfect record of support for same-sex attracted teenagers over the last thirty years. But on the whole, faith-based schools have an exemplary record of pastoral care for all students. Their enrolments keep on climbing. Christian school enrolments grew by 50 per cent between 2012 and 2022 while enrolments in Islamic schools doubled. Parents are choosing these schools in large numbers.
Maintaining the identity and ethos of faith-based organisations
On the second issue — the right of religious organisations to select or prefer staff who share the same faith — there is actually a large measure of agreement between the federal government and the Coalition. There has been enough information provided to faith leaders in private briefings to indicate that the Albanese government’s proposed Religious Discrimination Bill looks a lot like the Morrison government’s bill, although there are some significant differences in the details. Both Labor and the Coalition agree that any faith-based organisation should be allowed to select or prefer staff who adhere to the beliefs of the organisation.
In its terms of reference to the Australian Law Reform Commission (ALRC), the federal government made it clear that it wanted legislative proposals to ensure that faith-based schools “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 Commission could have just adopted the approach that had received bipartisan agreement only a couple of years ago when Labor, then in opposition, supported almost all aspects of the Religious Discrimination Bill developed by the Morrison government. But it decided to go further, proposing significant restrictions on the rights of faith-based schools to select staff who have a commitment to the faith of the school. While it entitled its report “Maximising the Realisation of Human Rights”, in reality it decided that the religious freedoms of parents should be limited in preference to the rights of others. As its summary report explained:
The ALRC has concluded that the recommended reforms may limit, for some people, the freedom to manifest religion or belief in community with others, and the parental liberty to “ensure the religious and moral education of their children in conformity with their own convictions”.
Not too much maximising of human rights there. The Commission said it approached its work on the basis that it is necessary for each human right to be respected and treated “on an equal footing” with all other rights. However, in practice it decided that while all rights are equal, some are more equal than others.
Its recommendations included amending the Fair Work Act specifically to eliminate many religious rights for faith-based schools. What the ALRC proposed is that the hiring practices of faith-based schools should be subject to decisions by courts as to whether a preference for a person to adhere to the faith of the school is “reasonably necessary” and “proportionate”, if someone litigates the issue. The effect of its recommendations is that faith-based schools should be restricted in their staffing policies in order to allow non-religious maths teachers to have a greater choice of teaching jobs to apply for.
Very often, the best way to maximise human rights is to maximise human freedoms. This is the only approach likely to present a lasting solution to several conflicts which arise out of the prohibition on discrimination based upon gender identity or sex orientation.
The solvable issue: LGBTIQ+ staff
The issue of conflict between LGBTIQ+ rights and the rights of religious bodies is, on its face, the most difficult. Section 38(2) of the Sex Discrimination Act 1984 allows faith-based schools to discriminate against staff on the basis of sexual orientation or gender identity. The federal government wants to repeal this. The terms of reference given to the Australian Law Reform Commission required it to come up with recommendations to implement this policy.
Some background on this issue is necessary. The government’s proposals represent a departure from the bipartisan position agreed a little more than a decade ago. The right to discriminate against LGBTIQ+ students and staff in faith-based schools was introduced by the then-Labor government in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (SDA). Mark Dreyfus was Attorney-General and Anthony Albanese was Deputy Prime Minister. The Explanatory Memorandum to the Bill, authorised by Mr Dreyfus, said this:
The importance of the right to freedom of religion is recognised in sections 37 and 38 of the SDA. These sections provide exemptions for religious bodies and education institutions from the operation of the prohibition of discrimination provisions of the SDA in order to avoid injury to the religious susceptibilities of adherents of that religion or creed … The Bill will extend the exemption at section 38 of the SDA, so that otherwise discriminatory conduct on the basis of sexual orientation and gender identity will not be prohibited for educational institutions established for religious purpose. Consequently, the Bill will not alter the right to freedom of thought, conscience, and religion or belief in respect of the new grounds of sexual orientation and gender identity.
Senator George Brandis, for the Opposition, expressed his agreement:
You cannot have freedom of religion if you also have legislation which requires, which imposes by statutory obligation, an obligation upon a church or religious institution to conduct its affairs at variance with the tenets of its teachings.
So there was a bipartisan consensus. Attitudes on the left of politics, and to some extent on the right, have changed in the last decade, but the fundamental human rights issue remains. How can you have freedom of religion if the government won’t allow religious bodies to conduct themselves in accordance with their teachings?
This is not just an issue for theologically conservative Christians. It is an issue for other faiths as well, not least in Australia’s growing Islamic community.
The divisions within the gay and lesbian community
The concern to rectify past wrongs against gay and lesbian people is understandable, but now some gay and lesbian people find their rights are under threat for similar reasons to people of faith. This is because, currently, anti-discrimination laws make little room for freedom of association, even for groups or organisations that have been established for just one sex, or for a social, religious, cultural or political purpose.
The issue has arisen, for example, in Launceston, Tasmania, where a lesbian group has been refused permission to limit attendance at their meetings to biological females. The application in question was brought by a member of the LGB Alliance. She wanted to organise “same sex attracted dances” involving performances as “drag kings”. This sounds like the kind of event that would be embraced by the Sydney Mardi Gras. Yet the application was refused by the Anti-discrimination Commissioner and a tribunal because of the impact upon transgender rights.
This is an issue on which there is considerable division even among people who otherwise share a progressive outlook and would be likely to support policies advanced by the Labor Party or the Greens. It ought to be a problem that could be resolved on a bipartisan basis.
Women’s organisations and gender identity
The same issue affects some organisations providing single sex facilities. Take, for example, women’s gyms. Under Queensland law it is will soon be unlawful, when a 2023 Act commences, for a women’s gym to exclude a male-bodied person who has registered a legal identity as female because that would be discrimination in the provision of goods and services on the basis of sex characteristics. There is no exemption that can be claimed for organisations that provide single-sex facilities limited to those who are biologically female. None is proposed in the Queensland government’s new Anti-Discrimination Bill.
The position of women’s gyms under federal law in relation to those male-bodied persons who are legally registered as women is one of the many uncertainties arising from the 2013 amendments to the Sex Discrimination Act, which included gender identity as a protected characteristic.
There may be women’s gyms that have no problem in allowing membership to male-bodied persons who identify as female. They are proud to be inclusive. Others may recognise that their members typically join women’s gyms because they want the benefits that such a single-sex facility offer — including bodily privacy, freedom from the “male gaze” and from other detriments they may experience when sharing facilities with perspiring men, however they might identify.
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The solution to this problem is to allow for more freedom of association in the Sex Discrimination Act. Freedom of association is a right protected by international law. The Australian Human Rights Commission is frank about the way Australia violates this human right. “Freedom of association … [is] not generally protected in Australian law”. It observes that several Australian laws limit this freedom. One of them, although not named as such by the Commission, is the Sex Discrimination Act. State and territory laws similarly limit the right of freedom of association.
In a multicultural society, the best way to accommodate differences of this kind is to grant freedom to groups that are established for a particular social, religious, cultural or political purpose to maintain their identity, ethos, and values. That respects people’s choices and allows for a “live and let live” solution to otherwise intractable conflicts between rights.
There is a way forward
The solution, I believe, is to repeal section 38 of the Sex Discrimination Act 1984 so that there is no longer a legal right for religious educational bodies to discriminate against LGBTIQ+ staff, in accordance with the government’s election promise — and then replace it with a section that applies to any group or organisation established for a particular sex, or for a social, religious, political or cultural purpose. Such a provision ought to allow that, by contract, the organisation may require its staff to support the ethos and values of the organisation and to abide by a code of conduct, including in relation to issues that are otherwise subject to prohibitions under the Sex Discrimination Act. The condition of this should be that it makes its enforceable values clear to all shortlisted prospective staff.
The new section should also apply to voluntary organisations or clubs established for a particular sex, or for a social, religious, political or cultural purpose. The definition of a club could include businesses such as women’s gyms or clubs promoting activities exclusively for same-sex attracted people, such as a lesbian group. The provision would allow such an organisation to limit its membership in accordance with its purpose, as long as its rules are made clear to prospective members.
This would mean that a faith-based school would be entitled to select staff consistently with its ethos, values, and purpose and require its staff to support those aspects of the school’s work. By contract, staff could agree to abide by a code of conduct — including in relation to issues concerning sex, sexual orientation, gender identity, marital or relationship status or pregnancy — so long as they know that is what they are signing up for. Freedom of contract is, after all, a rather basic legal value. Those who may hold quite different values to theologically conservative schools would be entitled to the same freedom, and this includes organisations within the LGBTIQ+ community.
This solution, then, rests upon giving choices to adults as long as they are informed. Teachers are capable of exercising choices about which schools to work in. There is a great deal of variety in the views of faith-based schools on issues of sexual orientation, as Professors Carolyn Evans and Beth Gaze found many years ago. Most non-government schools will be untroubled by having a teacher who is in a same-sex relationship, as will most of their students. But respect for religious belief means that we can allow schools, by contract with their staff, to organise their community by reference to different beliefs from the majority of the population. In practice, all that many faith-based schools will ask of staff is that they uphold the values of the school and do not seek to undermine its religious mission.
The need for a nationally consistent approach
One issue remains. There is no point in having a bipartisan deal at the federal level if there is not a nationally consistent law on how to balance these different rights and freedoms. If no agreement on change can be reached now, then the least-worst alternative is to leave the bipartisan consensus of 2013 intact.
The incentive for faith groups to accept change is that their rights are being seriously eroded by Labor state governments, most notably Victoria. As I argued back in 2021, the Victorian government has been involved in what appears to many to be a war on religious faith. The Equal Opportunity (Religious Exceptions) Amendment Act 2021 removed most religious exemptions that had previously protected the right of faith-based organisations to maintain their identity and ethos. Employment decisions in faith-based schools are now subject to oversight by the courts if the matter is litigated, which must rule on whether being an adherent to the faith is an inherent requirement of the position and whether a restriction related to religious belief is “reasonable and proportionate”.
The changes in Victoria removed most of the religious freedoms of faith-based organisations other than the right to meet for public worship. The change to the law means, for example, that a faith-based school could not dismiss a middle-aged teacher who was known to be having sex, consensually, with vulnerable young women in violation of the moral code of the school and most of its parents. This is because “lawful sexual conduct” is a protected attribute in the legislation.
Queensland proposes to go even further. In a consultation draft of its Anti-Discrimination Bill, it proposes that one of the grounds on which discrimination should be prohibited is “sex work activity”. That is defined in such a way as to include actors in pornographic films as well as those who sell sexual access to their bodies for money. The effect of the proposed legislation is that a Catholic school could not dismiss a member of staff found to have his or her own pornographic website where voyeurs can pay to see images — even if those images had been circulating among the student body, causing significant difficulties for the school.
These attacks on religious freedom — typically in the name of “human rights” and “equality” — represent a profound threat to faith-based schools and other religious bodies. They also represent a threat to Labor’s voting base in constituencies, such as western Sydney and Queensland, where religious faith could have a significant effect on the preferences of voters. In other words, some federal Labor MPs have as much of an incentive to forge an acceptable bipartisan proposal as religious organisations do.
So there has to be a nationally consistent approach which settles the argument and charts a new way forward for all groups and organisations that are established for a particular social, religious, political or cultural purpose. Whatever their purpose, they need the right to maintain their ethos and values or to restrict their membership in conformity with their purpose. We can end many of the exceptions in the legislation for religious bodies if we recognise that other groups need the same freedoms.
Such a reform would involve acknowledging that Australia is a multicultural and pluralistic society in which the law needs to give room for a range of different beliefs and values.
Patrick Parkinson AM is an Emeritus Professor of Law at the University of Queensland and a board member of Freedom for Faith. He has been active in law reform debates about religious freedom.
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