Religious Freedom for schools in Australia

The Religious Discrimination Bill was designed to expand discrimination protections, not change or remove any existing federal protections.

The Australian Law Reform Commission was tasked with reviewing the provisions of the federal Sex Discrimination Act, a process that is completely unrelated to the Bill.

However, some MPs and activist groups ran a calculated campaign against faith-based schools, by drawing the two efforts in one.

Two Parliamentary inquiries reviewed the Religious Discrimination Bill and associated legislation and recommended that the Bills be passed and agreed in the majority to leave consideration of the SDA until after the ALRC report.

The millions of people of faith across Australia, and the students in faith-based schools, deserve proper protection in law. Instead, they were unfairly attacked by a confected campaign of misinformation and misdirection run by anti-faith activist groups.


Parliament Fails Faith Communities

Within a week of two Parliamentary Committees recommending that Parliament pass the Religious Discrimination Bill and related legislation, the Government withdrew the legislative package.

Both the inquiry by the Parliamentary Joint Committee on Human Rights and the a second inquiry into the legislative package is being undertaken by the Senate Legal and Constitutional Affairs Legislation Committee recommended that the bills be passed in their reports.

This was the last hurdle in a marathon gestation for this legislation. As far back as 1998 the then Australian Human Rights and Equal Opportunity Commission recommended a federal Religious Freedom Act.

On 22 November 2017, the Australian Government appointed an Expert Panel site into Religious Freedom, chaired by the Hon Philip Ruddock, to examine whether Australian law adequately protects the human right to freedom of religion. The Expert Panel provided its report on 18 May 2018.

From 29 August 2019 to 2 October 2019, the then Attorney-General invited submissions on the first exposure drafts of 3 draft bills, which together formed a legislative package on religious freedom.

From 10 December 2019 to 31 January 2020 the Prime Minister and the Attorney-General invited comments on the second exposure draft of these 3 bills.
There were approximately 13,000 written submissions, and roundtables with more than 90 stakeholders from all key sectors, including from religious, legal, LGBTIQ+ and community groups through these processes.

On 25 November 2021 the current draft legislative package was introduced into Parliament.

Then as indicated above, two extensive Parliamentary inquiries reviewed this package of legislation and recommended that the bills be passed.

Despite this truly extraordinarily detailed and extensive process, people of faith listening to the debate on Wednesday night and into Thursday morning have been vilified and falsely accused of outrageous and truly unbelievable behaviour.

The conclusion was that pre-dawn on Thursday morning the Religious Discrimination Bill was passed, with the Government’s technical amendments, but amendments were made in related legislation which would remove section 38(3) of the Sex Discrimination Act 1984.  This amendment was proposed by Ms Sharkie and supported by other cross-bench MPs, the Greens, the Opposition and five Liberal MPs.

Unsurprisingly, the Attorney-General revealed later in the morning that this amendment would have unintended consequences and the Government withdrew the bills from consideration in the Senate.

The amendment to the Sex Discrimination Act 1984 is effectively ‘Wong 2.0’ – being the same in substance as proposals made by Senator Wong in 2018.  These proposals were reviewed by two Parliamentary committees at the time and rejected by Parliament.  With the complexities understood by the Government the proposals were referred to the Australian Law Reform Commission (ALRC) for review.  This process, taking into account the effects of both the Sex Discrimination Act 1984 and the proposed Religious Discrimination Act were scheduled to take place six months after the passage of the Religious Discrimination Act.

As it stands at present:

  • there are no Federal protections against religious discrimination and will not be until and unless a new government passes legislation after the Federal election, and
  • there is no process to review the provisions in the Sex Discrimination Act 1984 which have been [falsely] claimed to result in students in faith-based schools being expelled merely on the basis of their sexual orientation or gender identity.

The Parliament has delivered a lose/lose outcome!

No Christian school has expelled a student merely on the basis of their sexual orientation or gender identity.  There is clear bi-partisan agreement that this should not be lawful according to correspondence between the Prime Minister and Opposition Leader last year.

Christian schools support this principle, provided that provisions remain in place to ensure that Christian and other faith-based schools can continue to:

  • Teach in accordance with the doctrines, tenets, beliefs or teachings of the school,
  • Employ staff who share, and can thus authentically model, the doctrines, tenets, beliefs or teachings of the school, and
  • Conduct the school in a manner that supports the doctrines, tenets, beliefs or teachings of the school.

A large group of Christian schools wrote to the Prime Minister, Opposition Leader, Attorney-General and Shadow Attorney-General to ask them to provide true leadership on this issue:

” … WE CALL ON BOTH THE GOVERNMENT AND OPPOSITION TO WORK TOGETHER TO RESOLVE THE DETAILED TECHNICAL ISSUES INVOLVED, AVOID THE UNINTENDED CONSEQUENCES PREVIOUSLY IDENTIFIED, AND BRING THIS MATTER TO A RESOLUTION BEFORE THE NEXT FEDERAL ELECTION. 

PEOPLE OF FAITH IN AUSTRALIA, OF ALL BELIEFS AND BACKGROUNDS, OF ALL COLOURS AND CREEDS, NEED THE EQUAL PROTECTION THAT THE RELIGIOUS DISCRIMINATION BILL WAS INTENDED TO PROVIDE.

THE STUDENTS IN FAITH-BASED SCHOOLS WHO MAY BE DEALING WITH ISSUES ABOUT THEIR SEXUAL ORIENTATION, OR GENDER IDENTITY OR EXPRESSION, DESERVE TO HAVE THEIR GENUINELY FELT, BUT UNWARRANTED, FEARS ADDRESSED.

THE CHRISTIAN SCHOOLS WE REPRESENT, AND THE THOUSANDS OF OTHER RELIGIOUS ORGANISATIONS THAT SERVE OUR COMMUNITY NEED THE STABILITY THAT WELL-CONSIDERED LEGISLATION WOULD PROVIDE.”

Flash back to 2013: Bipartisan Support For Religious exemptions in the SDA

The protections and exemptions related to the attributes of sexual orientation and gender identity introduced into the Sex Discrimination Act 1984 by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 were uncontentious at the time.

The inclusion of these exemptions as part of that legislation was so commonplace that it received bi-partisan support, it was supported by the ALP in Government and the Coalition in Opposition’

At the time, both the Attorney-General, Mark Dreyfus and the Shadow Attorney-General, George Brandis, well understood the role these exemptions played’.

This is what makes amending these exemptions so fraught, as exemptions are an integral part of a broader and interlinked legislative and drafting approach.

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