Advocacy

Australian Law Reform Commission Inquiry

The Australian Law Reform Commission (ALRC) sought feedback on faith-based schooling as part of its consideration of changes to anti-discrimination laws which currently provide some exemptions for faith-based schools.

The National Catholic Education Commission made a submission to the ALRC Inquiry outlining the disappointment of Catholic education stakeholders and serious concerns with the proposed reforms.

Summary of key points

The key points outlined in this submission are that:

• the Terms of Reference of the ALRC Inquiry have not been adequately addressed in the consultation paper, particularly the third point that educational institutions can continue to build a community of faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed
• the issues of enrolment and employment are treated similarly in the ALRC’s propositions without a full and proper understanding of religious freedom or the mission and operation of religious schools
• the ALRC’s paper displays an impoverished understanding of religion and freedom of religion, creates a hierarchy of rights, and places religious rights below other rights in the proposed anti-discrimination reforms
• there is a lack of evidence, and domestic and international case law, underpinning the ALRC’s propositions
• the ALRC’s proposed reforms do not meet the ALRC’s own legal framework for this inquiry to ensure that any limitation on human rights has a ‘compelling justification’, ‘pressing social need’, are ‘proportionate’, and ‘least restrictive’
• the serious deficiencies in the ALRC’s proposals need to be addressed to ensure religious rights are protected
• the NCEC recommends that the ALRC goes back to the drawing board to ensure an appropriate balancing of protected rights

In seeking to make their views known on this issue, Catholic education leaders and parents may find the following messages helpful in communicating with school communities and local members of parliament:

• Catholic education is highly valued and respected in Australia and has educated millions of students over 200 years
• Catholic schools should be free to be Catholic, and operate and teach according to their ethos
• Religious freedom needs the same protection as other rights in Australia
• A parent’s right to choose a school that reflects their values and beliefs must be protected and respected
• There is currently no Religious Freedom Legislation in Australia to uphold the rights of parents to ensure the religious and moral education of their children.
• As the first and foremost educators of their children, the right of parents to choose a school based on their religious beliefs is recognised in international human rights law, including Article 18 of the International Covenant on Civil and Political Rights, which Australia has signed.
• The creation of a community of faith in Catholic schools goes beyond the teaching of religious education. For example, a community of faith supports students in their spiritual and moral development, it benefits mental and emotional health, provides longer-term happiness and fosters a contribution to society
• The ability of faith-based schools to operate, employ and teach according to their faith needs to be consistent in every state and territory to meet the needs of all Australian students.
• The proposed reforms by the ALRC would remove or severely restrict the ability of Catholic schools to prioritise the employment of staff and enrolment of students from our faith background, or to operate and teach in accordance with our Catholic ethos.
• Changes to current anti-discrimination laws must go hand-in-hand with the introduction of laws to protect religious freedom

A recent survey on school perceptions showed 63% of the general population, 82% of Catholics and 79% of Catholic school parents believe religious schools should be ‘entitled to require employees to act in their roles that uphold the ethos and values of that faith’ and the school should be free to favour hiring employees who share these values. (Utting, 2021)

 

Background to the Australian Law Reform Commission’s (ALRC) review

On 4 November 2022, the Federal Attorney General, Mark Dreyfus KC MP, released the terms of reference for the Australian Law Reform Commission’s review of laws protecting faith-based schools.They include amendments to the Sex Discrimination Act 1984 and other federal anti-discrimination laws to ensure educational institutions 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’s Consultation Paper was released on 27 January 2023.

• NCEC media release on the release of the ALRC’s Consultation Paper
• NCEC media statement on the announcement of the ALRC review

On 20 April 2023, the Attorney-General announced an extension for the reporting date for ALRC’s review of religious exemptions for educational institutions in Federal anti-discrimination law to give the ALRC further time to properly consider the very large number of submissions to the inquiry. The ALRC will provide its advice to the Government before the end of the year.

Australian (Albanese) Government on religious freedom

Following the 2018 Religious Freedom Review the major parties committed themselves to providing a broader framework to protect religious freedom. As submissions to the Ruddock Review highlighted, various problems with the current framework include ‘the absence of a positive right to freedom of religion in Australian law’, heavy reliance on exceptions in anti-discrimination legislation (which a number of states and territories have since restricted), and ‘inconsistent approaches across different jurisdictions’. Attempts by the Morrison government to legislate a Religious Discrimination Act were unsuccessful.

In their 2021 National Platform, the Australian Labor Party committed, if elected, to work towards an equal and inclusive nation. This commitment extends to Australia’s diverse religious communities. The platform makes clear that ‘Labor recognises that the freedom to have or adopt a religion or belief, to change a religion or belief, or not to have or adopt a religion or belief is absolute’.

Moreover, Labor believes in and supports the right of all Australians to have and to manifest their religion or beliefs, and the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith. Such rights should be protected by law and, in accordance with Article 18 of the International Covenant on Civil and Political Rights, subject only to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Labor believes that people of faith deserve the same human rights, equality, respect and safety as every other Australian. No Australian should ever be vilified, discriminated against or subjected to violence or threats of violence because of that person’s religion or religious belief. Labor will therefore ensure that Australia’s anti-vilification laws are fit for purpose.

On 26 July 2022, the newly elected Prime Minister Anthony Albanese said his government would address the religious discrimination issue during this term of Parliament.

Religious Discrimination Legislation under the Morrison Government

The Australian Parliament considered proposed legislation on religious freedom during 2021-2022. This is important legislation considered protections for the rights of parents to choose a faith-based school for their children that reflects their beliefs and values, and for Catholic schools to operate according to their ethos and mission.

The three bills before Federal Parliament in relation to religious freedom were:

• The Religious Discrimination Bill 2021
• The Religious Discrimination (Consequential Amendments) Bill 2021
• The Human Rights Legislation Amendment Bill 2021

There were two Inquiries relating to the legislation that reported back to the Parliament on 4 February 2022:

1. JOINT PARLIAMENTARY INQUIRY: Religious Discrimination Bill 2021 and related bills – Download report

Catholic education’s submission to the Joint Parliamentary Committee on Human Rights is focused on those sections in the Religious Discrimination Bill 2021 and related bills that are related to schools and school systems. The Australian Catholic Bishops Conference (ACBC) has also made a submission to the Committee and should be read concurrently with Catholic education’s submission.

2. SENATE INQUIRY: Religious Discrimination Bill 2021; Religious Discrimination (Consequential Amendments) Bill 2021 and Human Rights Legislation Amendment Bill 2021 [Provisions] – Download report

The NCEC also made a submission to the Senate Legal and Constitutional Affairs Legislation Committee.

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