By Augusto Zimmermann LLB, LLM, PhD
The Australian Law Reform Commission (‘ALRC’) has recently released its consultation paper on the subject of “Religious Education Institutions and Anti-Discrimination Laws”.[1] The paper proposes the near complete removal of any protections to these organisations. Under these proposals, religious educational institutions would 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 is staff actively undermine the ethos of the organisation.[2]
Religious organisations in Australia have long contributed to the delivery of important services in healthcare, aged care, and in educational and social welfare sectors. Such faith-based initiatives are key components of a free and diverse democratic society. Historically, Christian denominations have made some of their strongest contributions within the Australian education sector. Some of the nation’s most exclusive independent schools were established by Christian denominations during the postcolonial era.
Unfortunately, the ALRC is now proposing severe limitations on the right of these 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.[3] 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.
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.
The Commission appears to ignore the fact that people who work for religious 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”.[4] 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.
Religious schools and higher education institutions also 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. 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.[5]
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 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”. [6] Under its Article 18.4, the States Parties to the Covenant are commanded “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”.[7]
Unfortunately, the above considerations were not properly understood by members of the ALRC. Its consultative paper reveals a mindset which is uncomfortable with the existence of religious diversity because this 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”.[8]
Thankfully, there is still hope that these extreme proposals could be rejected by the ALRC final report or the Albanese Government. The alternative of compulsory uniformity would frankly undermine the reasons for the existence of faith-based educational institutions.[9]
Augusto Zimmermann is Professor and Head of Law at the Sheridan Institute of Higher Education, in Perth, Western Australia. He is also President of the Western Australian Legal Theory Association and served as a Commissioner with the Law Reform Commission of Western Australia from 2012 to 2017. Professor Zimmermann has written extensively on the subject of freedom of religion and belief.
[1] ‘Consultation Paper: Religious Educational Institutions and Anti-Discrimination Laws’, Australian Law Reform Commission, January 2023, p 20.
[2] John Steenhof, ‘This is a serious blow to your rights’, Human Rights Law Alliance, email correspondence, Saturday 11 February 2023.
[3] ‘Consultation Paper: Religious Educational Institutions and Anti-Discrimination Laws’, Australian Law Reform Commission, January 2023, 22.
[4] Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 1055 (Michael O’Brien).
[5] Carolyn Evans and Leilani Ujvari, ‘Non-discrimination Laws and Religious Schools in Australia’ (2009) 30(1) Adelaide Law Review 31, 38.
[6] International Covenant on Civil and Political Rights (1966), Art. 18(4).
[7] Ibid.
[8] Associate Professor Neil Foster, ‘Removing fences: the ALRC Consultative Paper on Religious Educational Institutions and Discrimination Laws’, Freedom for Faith, February 2, 2023, at https://freedomforfaith.org.au/articles/alrc1-removing-fences/
[9] Ibid.