The Australian Law Reform Commission (ALRC) had its ‘Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws’ report tabled by Attorney General Mark Dreyfus in Federal Parliament on Thursday 21 March, in response to continued debate among politicians about the religious freedoms of schools and institutions while not breaching sex discrimination laws.
The ALRC recommended that religious schools and institutions can continue to prefer to employ a person of the same religion where it is ‘reasonably necessary and proportionate’ to building a ‘community of faith’ but may not discriminate against staff or students based on attributes protected in the Sex Discrimination Act (SDA).
“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,” said ALR President Justice Mordecai Bromberg.
Under current Federal Law, schools are able to discriminate against staff and students based on their sexual orientation, pregnancy or marital status, though most state and territory governments already have laws in place regarding this. Victoria amended the Equal Opportunity Act 2010 in 2022 to prevent religious schools and bodies from discriminating against people based on the above.
The ALRC report is expected to reignite the push for a new Religious Discrimination Act and amendments to the Sex Discrimination Act, though Prime Minister Anthony Albanese and the Labor Government have called for bipartisan support from the Coalition to pass the reforms and avoid a ‘culture war’. The Religious Discrimination Bill 2022 that was first introduced by the former Morrison Government in 2022 before being passed by the lower house the next year was shelved due to concerns from religious school organisations that it didn’t go far enough, while others were also concerned the bill wouldn’t protect transgender kids from expulsion based on their identity.
Attorney General Mark Dreyfus issued a statement following the release of the report to state that the government would seek to enhance protections in anti-discrimination law in a way that brings Australians together.
“The Australian Law Reform Commission’s report tabled today is not a report from the Government. It is advice to the Government, and we will continue to consider it,” he said.
The Australian Human Rights Commission, Equality Australia, the Public Interest Advocacy Centre and the Law Council of Australia are among those who have come out in support of the ALRC’s recommendations; while the National Catholic Education Commission, the Australian Christian Lobby, Christian Schools Australia have all come out against them. The Executive Council of Australia Jewry, the Australian Sikh Association and the Australian National Imams Council have all come out backing the search for a ‘fair’ solution, compromise and ‘striking the right balance’.
Casey MP Aaron Violi is a proud alumni of a local Catholic school, Mount Lilydale Mercy College, one of 13 Mercy Education schools in the country inspired by Catherine McAuley, the founder of the Sisters of Mercy.
“No one in Australia should be discriminated against based on their race, religion, sexuality, identity, disability, age or otherwise,” Mr Violi said.
“I have engaged with many religious school leaders in our community over the past year and heard their concerns around protecting choice in education.”
Shadow Attorney General Michaelia Cash was provided Labor’s draft bills, which haven’t been released publicly, and released a statement on Monday 25 March criticising the ‘strict conditions’ imposed on the Coalition, such as preventing them from distributing it to third parties, and the ‘lack of transparency in not releasing them publicly or calling for an inquiry.
“My own experience at Mount Lilydale Mercy College has led to my fundamental belief that parents should have choice in education, whether they’re choosing a school on religious grounds, for its sporting achievements, for its great reputation in the arts or similar, it is so important that Australian families have choice in education,” Mr Violi said.
“There appears to be substantial changes to the religious discrimination legislation that was introduced by the Coalition in 2021, so we are giving those changes the scrutiny they require.”
