This chapter presents the key issues raised in evidence, as follows:
the broader human rights and constitutional contexts in which the
public discussion about discrimination by faith-based educational institutions has
the use of legislative exemptions in the Sex Discrimination
Act 1984 (SDA) by faith-based institutions;
support for maintaining the existing legislative exemptions;
support for removing the exemptions;
whether the application of the exemptions to students should
differ from their application to teachers; and
options for reform.
This chapter concludes by presenting the committee's view.
Human rights and constitutional contexts
The committee received a considerable amount of evidence about the
context of the existing exemptions in the SDA that allow faith‑based
educational institutions to discriminate against students, teachers and staff,
including on the basis of sexual orientation and gender identity and other
Most of this evidence went to legal frameworks briefly discussed in the
preceding chapter: namely, international human rights law and constitutional
Human rights considerations
The Attorney-General's Department submitted that the '[l]egislative
exemptions in the SDA that allow faith-based educational institutions to
discriminate against students, teachers and staff seek to balance competing
rights under international human rights law',
the right to equality and non-discrimination;
the right to freedom of thought, conscience and religion or
other relevant rights such as those under the Convention on
the Rights of the Child.
The debate regarding legislative exemptions in the SDA therefore takes
place within a broader human rights context.
Other evidence to the committee highlighted the tension between certain
rights, primarily between the right to equality and non‑discrimination,
on one hand, and the right to freedom of religion on the other. For example, in
its submission to the committee, the Australian Human Rights Commission (the
Commission) submitted that 'human rights are universal, inalienable,
indivisible, interdependent and interrelated'.
The Commission stressed:
Care must be taken to accommodate human rights wherever they
come into tension. This includes the right to freedom of religion and the right
to be free from discrimination on the basis of sex, sexual orientation and
Lee Carnie of the Human Rights Law Centre discussed how to resolve the
tension between the right to equality and non-discrimination and the right to
freedom of thought, conscience and religion or belief. Lee Carnie suggested
that the 'proportionality analysis is one avenue to consider reasonableness,
necessity and proportionality in determining where that balance is struck',
referring specifically to the Guide to Human Rights (the Guide) published
by the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
The issue of proportionality was examined in detail by the Australian Law
Reform Commission (ALRC) in its report, Traditional Rights and
Freedoms—Encroachments by Commonwealth Laws.
In discussing the justification of limits on rights and freedoms in that report,
the ALRC stated:
A common way of determining whether a law that limits rights
is justified is by asking whether the law is proportionate. This concept is
commonly used by courts to test the validity of laws that limit rights
protected by constitutions and statutory bills of rights. However,
proportionality tests can also be a valuable tool for law makers and others to
test the justification of laws that limit other important—even if not strictly
constitutional—rights and principles.
In short, a structured proportionality analysis involves
considering whether a given law that limits important rights has a legitimate
objective and is suitable and necessary to meet that objective, and whether—on
balance—the public interest pursued by the law outweighs the harm done to the
The Guide provides that, in order for a limitation to be considered
justifiable, it must comply with the following limitation criteria:
Any limitation on a right must have a clear legal basis.
Any limitation on a right must be shown to be aimed at achieving
a legitimate objective.
It must be demonstrated that any limitation on a right has a
rational connection to the objective to be achieved.
Any limitation on a right must be proportionate to the objective
Regarding the right to equality and non‑discrimination, the Guide
The right to non-discrimination applies to any form of
distinction, exclusion, restriction or preference that has the effect of
nullifying or restricting the enjoyment of human rights or freedoms on a
As for the right to freedom of religion, the Guide states:
While the right to hold a religious or other belief or
opinion is an absolute right, the right to exercise one's belief can be limited
given its potential impact on others.
The right can be limited as long as it can be demonstrated
that the limitation meets the limitation criteria and is necessary to protect
public safety, order, health or morals or the rights of others.
Regarding the final criterion—proportionality—the Human Rights Committee
Even if the objective is of sufficient importance and the
measures in question are rationally connected to the objective, the limitation
may still not be justified because of the severity of its impact on individuals
The Commission also referred to the limitation criteria in its
submission, suggesting that 'consideration should be given to replacing the
current exemptions to the SDA with a general limitations clause'—a suggestion
recommended by other submitters—on
the basis that:
A general limitations clause would clarify that conduct which
is necessary to achieve a legitimate objective, including freedom of religion,
and is a proportionate means of achieving that objective, is not
However the Commission did note that '[a]ny general limitations clause would
need to be carefully worded in order to avoid allowing discriminatory acts that
are currently unlawful'.
The Australian Lawyers for Human Rights (ALHR) offered an alternative
way in which rights may be balanced: by 'providing reasonable accommodation to
other rights and other persons: "a fair balance needs to be struck between
the rights of the individual and the rights of others"'.
The ALHR noted that this approach 'is similar to the test of proportionate
response to the harm in question which is generally used to assess whether or
not legislation is too wide in its scope'.
In assessing the particular provisions of the SDA within the human
rights law framework, Ms Anna Brown, also of the Human Rights Law Centre opined
that the existing permanent exemptions in the SDA 'are inappropriate and don't
strike the right balance between equality and religious belief'.
This position was also presented in other evidence to the committee, by, for
example, the Victorian Gay & Lesbian Rights Lobby.
Jamie Gardiner, Vice-President of Liberty Victoria, acknowledged that
the human right to equality is 'subject to some competition from other human
However, 'when it comes to schools, for example, and the teaching of children,
the best interests of the children must always come first'.
While certainly not arguing against the best interests of children, Ms
Annette Pereira, Executive Officer at the Australian Association of Christian
Schools, took a different position, emphasising the importance of protecting
freedom of religion in all areas, including the provision of education. Ms
Pereira told the committee:
While we recognise that exemptions may not be the best way to
balance the various rights that must be held in tension, if they are removed
and adequate protection isn't given to schools to hold a commonly held biblical
view of sexuality and relationships in what is taught and in managing school
life and in who the school employs, you'll be carving out an area of faith and
deeming it impermissible. You'll be deciding that those long-held beliefs of
many Christians can't be expressed in education at all—and that's a serious
step for a government to take.
It is worth noting evidence highlighting other rights that are also
engaged by this debate, including the rights of children to have an education;
the right to privacy;
and enabling parents to choose a school for their children in conformity with
their own convictions.
In her evidence to the committee, Ms Robin Banks elaborated on this latter
right, and the tension between this right and freedom of religion:
[I]n the International Covenant on Economic, Social and
Cultural Rights, there's a provision that deals specifically with the right to
education, and it deals with the question of parents being able to choose the
school for their children, to ensure that the religious and moral education of
their children is in conformity with their own convictions. The provisions that
currently exist in discrimination law undermine that protection, because they
allow schools to say, 'This child cannot come to this school,' irrespective of
the child's religious beliefs, because of, say, their sexual orientation. With
the notion of freedom of religion, it's important to understand that it's a highly
personal right. The idea that an institution has a right that overrides the
individual's rights seems to me somewhat problematic, because parents do want
to be able to choose the school their children go to, and that position has
been highly supported by governments in this country, and yet we're saying
that, under the current law, that can be overturned or undermined by the school
choosing to say, 'This child is not entitled to stay at this school,' because
of the child's sexual orientation or gender identity.
In addition to human rights considerations, Jamie Gardiner expressed
concern that the existing exemptions may be unconstitutional, stating that:
...in our view, following the writings of Professor Luke Beck
of Monash University, which we commend to the committee...religious exemptions in
Commonwealth legislation are in themselves a violation of section 116 of the
Constitution. They amount to giving a privilege, a benefit, to religious bodies
that is not available to non-religious bodies—and should not be available to
anyone, of course. That amounts to a preference and in many ways an
establishment of one class of religious thinking against the rest of the
country's other class.
Dr Tiffany Jones also expressed concern about the constitutionality of
the current provisions in the SDA, stating that:
...it is unconstitutional for the Australian Commonwealth to
make any law for imposing any religious observance – including allowance for
the exclusion of or discrimination against LGBTs in religious schools as
currently exists in the SDA. It is also unconstitutional for the Australian
Commonwealth to allow a religious test for qualifying for working in
Australia’s government-funded religious education sectors and schools for LGBT
teachers and staff; and unconstitutional (given our legal requirement that all
young people whether religious or not be physically at school until of age) to
enforce such religious compliance tests for LGBT students.
Associate Professor Luke Beck offered an additional perspective on the
Commonwealth's power under the SDA with respect to faith-based schools,
alerting the committee to the Commonwealth's power under section 51(xx) of the
Constitution—the corporations power:
A corporation is an entity that has legal personhood (ie
perpetual succession, and the ability to sue and be sued) regardless of how it
is described. A trading corporation is such an entity that has some substantial
trading activities. Selling education, which is what non-government schools do,
is trade and nongovernment schools are corporations.
Associate Professor Beck concluded that:
If a law is supported by the corporations power it does not
matter whether the law implements any of Australia’s treaty obligations or
indeed if it breaches any of Australia’s treaty obligations.
On the other hand, Dr Alex Deagon stated that 'any attempt to remove the
exemptions at the Commonwealth level may breach the free exercise clause of
Section 116 of the Constitution by prohibiting the free exercise of
Indeed, as discussed in chapter 1, section 116 of the Constitution does not
directly protect states from passing laws that restrict religious freedom or
A further position was expressed by Professor Patrick Parkinson AM, who
submitted that there are 'grave doubts' about the constitutionality of any
provisions preventing discrimination on the basis of gender identity. This is
because Commonwealth antidiscrimination law mainly rests upon the external
affairs power, but there are questions over whether prohibitions on
discrimination on the basis of gender identity (as distinct from sexual
orientation or intersex) is sufficiently linked to a convention or treaty for
These varying positions indicate that the constitutionality of the
existing provisions in the SDA, and any proposed changes to the SDA, remains a
matter of some debate.
Do faith-based educational institutions 'use' the legislative exemptions?
As discussed in chapter 1, much of the public discourse on this issue has
focused on the treatment of LGBTIQ+ students and teachers at faith‑based
schools. One issue raised in evidence considered the extent to which existing
legislative exemptions are actually being relied upon by schools.
A representative of Christian Schools Australia, Mr Mark Spencer, supported
the exemptions but presented a clear view regarding discrimination against
Fundamentally, we are here [at today's hearing] because of a
lie—a claim that faith based schools are expelling gay students and the
government wants to expand that right. This is simply not true. As we've
consistently said throughout this debate, our schools have never expelled a
student solely on the basis of their same-sex attraction. They never have, they
never will and they don't want the right to.
Archbishop Peter Comensoli of the Australian Catholic Bishops Conference
advised the committee:
Catholic schools do not discriminate unjustly against
students or staff. Our schools would not expel a student just because of their
sexual orientation. But we want to maintain laws that would protect our
capacity to teach a Christian understanding of sexual ethics and marriage
according to our own faith tradition, as is the choice of parents in that regard.
In the same vein, Mr Ray Collins of the National Catholic
Education Commission stated that, in his experience in the sector, he does not recall
'any complaint being lodged by a principal or by parents in relation to the
actions of a teacher who might be gay'.
Similarly, the President of the Australian Catholic Primary Principals'
Association, Mr Brad Gaynor, said that he was 'unaware of situations
where we've actually had to use the legislation'.
Many witnesses at the committee's hearing were asked to provide examples
of cases in which the legislative exemptions 'have been involved or invoked',
whether in relation to students, staff or contractors at faith‑based
Noting that some of these questions were taken on notice, many witnesses had
not provided examples at the time of writing.
However, other factors may account for why few formal complaints were
presented to the committee.
For example, Ms Brenda Appleton, Chair of Transgender Victoria,
explained that while she is aware of concerning cases, they may not have been
recorded as formal complaints:
...we don't have a lot of cases of discrimination that are out
and published where action has been taken. To take action is actually a very
outing thing, and for most teachers and for some students we find that they are
reluctant to take action because it's going to have an impact on their future
career or if they go to another school...
I've been an advocate for trans and gender-diverse people in
Victoria for 20 years and have been aware of more than 100 cases of
apparent discrimination. Very few of them get developed and taken to court or
have action taken because of the outing process involved...
The committee also heard that there may also be some self-selecting of
those who are involved with faith‑based schools, particularly among
teachers. For instance, Mr James Laussen, Principal of Overnewton Anglican Community
College, explained that he discusses the school's Christian ethos with
prospective teachers. While his school is accepting of diverse sexualities and
genders, and argued in favour of removing the current exemptions, Mr Laussen told
the committee that he is aware of another school that:
...has very strict statements about what it expects of its
staff in relation to marriage and relationships outside marriage and so on. But
they make that up front, so therefore the staff member is making a choice to
work in that workplace before they actually go there.
Similarly, Mr Spencer of Christian Schools Australia explained that
these matters are rarely litigated, 'largely because people coming to our
schools know who we are, the nature of our school and what is expected of them.
There is a self-selection process up-front...'
Equal Voices suggested a number of reasons as to why complaints of
discrimination rarely reach a tribunal or court, including:
power imbalances between an
educational provider and victims of discrimination;
the personal damage often caused
by discrimination that renders victims unable or unwilling to proceed to a
formal complaint; and
the inherent difficulties in the
system of lodging a complaint, most obviously because the exemptions themselves
would make such a process futile.
Notwithstanding the above points, some examples were received of cases
in which faith‑based schools appear to have relied upon existing
legislative exemptions. For example, the Independent Education Union of
Australia described a number of cases in which its members has contacted the
union with concerns about discrimination.
Mr Anthony Odgers, Assistant Federal Secretary of the Independent
Education Union, clarified in respect of these examples that the legislative
exemptions are relied upon only by 'a small and diminishing minority of
employers in non-government schools'.
Indeed, he suggested that 'less than two per cent of all employers are
responsible for 100 per cent of the issues that we have around discrimination'.
The committee heard that the majority of schools facing these issues with
respect to teachers would treat the issue as a contractual matter.
As Mr Odgers explained:
...those protections that are provided to the employer and that
are enforceable, whether for breach of the agreement or breach of contract, are
sitting alongside a legislative regimen in relation to the Sex Discrimination
Act and the Fair Work Act. One is utilised weekly—the common law provisions of
the contract and/or the agreement; the other is rarely, if ever, utilised in
the Catholic system. It's utilised more often, but still quite rarely, by
Mr Odgers further stated that not only are the legislative exemptions
rarely relied upon, but in many cases of alleged discrimination 'the employer
doesn't rely on anything'.
Mr Odgers also indicated that proportionately few unfair dismissal cases
relating to faith‑based schools are arbitrated by courts, as disputes
about ongoing employment are normally settled through a payment to the
employee. In part, this relates to business incentives:
The committee would be aware that it's not good business for
schools to have any form of publicity that indicates that those who are
responsible for teaching students at the school are in any way unhappy with or
that there's any sort of disputation, and that disputation of that sort tends
to sit on the front page of daily newspapers for some time.
Support for maintaining the existing legislative exemptions
There were a number of arguments that were proffered in support for
maintaining the existing legislative exemptions. These arguments are summarised
institutions should be able to uphold their religious ethos
In oral evidence to the committee, some religious groups emphasised the
importance of enabling faith‑based schools to uphold their religious
ethos. For example, as Archbishop Comensoli of the Australian Catholic Bishops
The freedom of Catholic schools to employ staff who support
our mission, both inside and outside employment, is essential to ensure the
schools are educational communities that demonstrate Christianity to their students
both in word and in practice.
A representative of the Islamic Schools Association of Australia,
Mr Adel Salman, made a similar point in respect of Islamic schools:
The association is not calling for staff to be hired and
fired on the basis of their sexuality, but they are expected to uphold the
ethos and values of the school. Likewise, with students, the association is not
calling for students to be discriminated against or in fact to be expelled from
the school because of their particular sexuality, but by the same token the
students and their families need to understand that the school will be teaching
the particular values and principles of the religion.
The Executive Officer of the Australian Association of Christian Schools,
Ms Annette Pereira, was concerned that without adequate protection,
schools could be forced:
...to teach in ways that contradict what they genuinely
believe, to act against their conscience and beliefs in the way they handle
behaviour, and to employ staff who don't share in and meaningfully uphold the
beliefs of the school.
This concern was shared by a number of submitters.
Ms Pereira expressed further concern about government action in
What we are trying to point out is the position that a faith
based school is placed in if the government is to define what is and isn't
permissible belief. Either we say faith based schools actually aren't
legitimate and there isn't a place for them—that is, the doctrine and teaching
of that faith is inherently problematic and unacceptable—or we allow schools to
continue operating with boundaries around how they teach, operate and employ
consistently with what they believe.
The committee heard various rationales in support of these views. For
instance, Ms Beth Blackwood, Chief Executive Officer of the Association
of Heads of Independent Schools of Australia, underlined the importance of parental
We believe that a high-quality schooling system in Australia
depends on parents having the freedom to exercise their rights and responsibilities
in regard to the education of their children, and that includes educating them
in schools of a religious faith.
In addition, the Executive Officer of Catholic Secondary Principals
Australia, Mr Frank Fitzgerald, highlighted that no-one 'is compelled
to either seek employment or enrolment at our schools'.
He posited that it is entirely reasonable to:
...expect that those who freely choose to become part of our
school community as employee, student or family come in the understanding that
they are accepting these standards and beliefs. In saying this, our school
leaders are realistic in their understanding that not all who join our
communities may privately agree with all aspects of the entire range of
standards and beliefs that we manifest. Our principals respect the individual's
privacy in these matters.
A different articulation of this point—regarding the fact that
involvement with religious schools is not compulsory—was put by Mr Spencer of
Christian Schools Australia:
For our schools, we generally take the pretty clear view that
there is a biblical truth around sexuality, a biblical truth around sexual
conduct. That's a traditional, historical view. And there's a traditional,
historical view around marriage that our schools would generally hold to. We
have got staff in our schools who have indicated to the school leadership that
they're same-sex attracted, but they take the view that it's not what God's
best plan is for them. It's a struggle they have, but they don't accept it,
they don't try to live it out, they don't try to be or identify as gay. They're
struggling with same-sex attraction. Those teachers are within our schools now,
and they're working within the confines of the doctrines of those particular
schools. So those situations do exist...
And we'd say, for those staff [who are same-sex attracted],
that there are lots of other schools that they can seek employment in. No-one's
forcing people to come and work in our schools. We're clear, we're explicit,
about our faiths and beliefs and the doctrines and tenets we hold to, and
people have choices, whether they come into our schools as parents or staff.
The existing exemptions protect
faith‑based educational institutions
The committee heard evidence that supported the legislative exemptions
as a way to enable schools to act in accordance with their religious ethos.
For example, Ms Pereira of the Association of Christian Schools
expressed concern that removing the exemptions might create grey areas in the
law 'where it's quite hard for schools to know what they are and are not
permitted to do until it's tested'.
Mr Salman of the Islamic Schools Association pointed to the risk of
unfair dismissal claims if the exemptions were removed:
[W]ithout the current provisions and exemptions [schools]
would not be able to hold staff to that level of accountability to adhere to
the schools' values and ethos. The schools would then potentially be the subject
of unfair dismissal claims.
Representatives from both the Catholic organisations and the Christian
school organisations indicated that they first aim to resolve issues from a
pastoral perspective and in a constructive manner.
However, the exemptions support further action where necessary. As Archbishop
School principals work to resolve such issues pastorally...but
sometimes there is a breakdown in the relationship, as can happen in any
workplace relationship, and then schools need to rely on the protections of the
law to undertake their work.
On this same issue, Mr Spencer of Christian Schools Australia told the
...our aim is to resolve these things pastorally in a
constructive manner with the staff member involved, and by and large that is
the case. In some cases, we can't find that resolution so, yes, we will terminate
staff members who don't share our faith, values and beliefs, and that is a
fundamental element of our schools.
There was some discussion about whether the outcomes sought by these
groups, which are currently provided by the exemptions, could still be offered
if a distinction were made between a person's attributes (such as their sexual
orientation) and their conduct (such as advocating positions contrary to the
school's religious teachings).
In the following exchange, Archbishop Comensoli of the Catholic Bishops
Conference posited that a person's attribute is not easily distinguished from
Senator RICE: But would you agree that that mere
attribute is not sufficient for either a student or a teacher to be asked to be
removed from your school communities?
Archbishop Comensoli: That 'mere attribute', as
you're saying it, is kind of—
Senator RICE: Well, that's right: someone who is
same-sex attracted or gender diverse.
Archbishop Comensoli: Yes. The 'mere attribute' is
never divorced from action. So, one's life is lived out in terms of this
supposed mere attribute. So, we always come back to those questions of, what
are the circumstances here? What's the context of what's happening? And so on
and so forth. So those are the pastoral ways in which each situation is
considered in its own circumstances.
Archbishop Comensoli also provided a hypothetical example—that would
likely be acceptable to a Catholic school—in which a teacher's private life was
separate from their school life:
Archbishop Comensoli: ...To use a hypothetical
example—just as a hypothetical—suppose someone lives in one part of Melbourne,
up in the north, and they might be a maths teacher in the southern part of
Melbourne. There's no connection in terms of relationships of location and so
on. They have made it known privately to the principal that they're in a
same-sex relationship, but the person is quite willing to speak and act
publicly, within the school context, according to the mission identity. There
would be no question asked there, I think. It's when it becomes an act—
CHAIR: An act of advocacy that affects the school
Archbishop Comensoli: Yes.
As was later stated by Mr FitzGerald of Catholic Secondary Principals
Australia, 'if we move by whatever means to a place where a Catholic school is
just seen as a place where any views can be promoted and tolerated, it gives
rise to tension'.
Regarding the meaning of 'advocacy', Mr Collins of the National Catholic
Education Commission stated that it would depend on the circumstances and
context in which the act occurs:
You'll have to look at each individual situation, and in
those situations I think you'll find that Catholic schools act very pastorally
with the staff involved. If that is perceived to be having a negative effect
within the school then the principal would work with the teachers involved and
come to an understanding in relation to that.
On this point, Mr Francis Moore of the Catholic Archdiocese of Melbourne
told the committee that without the legislative exemptions:
...if action were to be taken [by a school against a person],
it could be taken on the basis that the school is discriminating against the
person based on other rights. I see these provisions as, in fact, providing an
overlapping of legal protection in terms of both discrimination law and
employment law. Those don't completely overlap, but they do overlap in part.
Regarding the question of distinguishing a person's attributes and
conduct, Mr Spencer of Christian Schools Australia suggested to the
committee that current law has commingled the two
concepts. He stated that if the legislative exemptions were removed in an
attempt to make the two concepts distinct in law, then Christian schools would
'have the potential of litigation on the basis of us merely trying to ensure
our staff protect our faith, values and beliefs'.
Notably, representatives from both the Catholic Bishops Conference and
Christian Schools Australia stated that the schools they represent would likely
seek to take action if any person, regardless of their attributes, was
advocating positions contrary to their faith, albeit the action may not rely
upon the existing exemptions. For example, if a heterosexual teacher was
advocating in support of same-sex marriage in the classroom, this would be
regarded as an action in contradiction to the Catholic faith.
Mr Salman of the Islamic Schools Association also stated that advocating
same-sex marriage in the classroom would be problematic.
On the point of whether a person's attribute could be divorced from their
conduct, Mr Salman's answer drew on whether the person's attribute was publicly
known in the school community:
If the teacher were married in a same-sex union and that
became something that the staff community, or the school community, became
aware of then that would be a direct contradiction of the school's principles.
The school on one hand would be teaching such, and then a member of staff would
be doing something altogether different. In that case, some schools would
actually take the position that that is not in adherence with our principles
and might ask the staff member to resign, or they might take action to dismiss
the staff member.
Support for removing the legislative exemptions
There were also a number of arguments offered by inquiry participants in
support of removing the legislative exemptions, the most significant of which was
that the existing exemptions in the SDA are discriminatory and harmful.
The legislative exemptions are
discriminatory and harmful
In contrast to the evidence discussed in the previous section of this
chapter, many submitters and witnesses supported the removal of the existing
legislative exemptions on the basis that the exemptions are discriminatory and
cause harm to various persons and groups, particularly in the LGBTIQ+
For example, Mr Jeremy Stowe-Lindner, the Principal at Bialik College who
spoke from the perspective of the Jewish faith, and submitted that:
Sexual identity in particular, and rarely but importantly
gender identity as well, is a personal decision and reality for individual
citizens that should have no impact whatsoever on their education, or
educational admission. We are all created equally and I strongly encourage the
law to support this, and prevent discrimination.
Ms Felicity Marlowe, Executive Director of Rainbow Families Victoria,
told the committee '[w]e believe that the current exemptions under the [SDA] are
discriminatory, unnecessary and out of step with modern Australia'.
Further, Mr Rodney Croome, Spokesperson for Equality Tasmania and
just.equal, suggested that when considering this issue:
...we return to the basic reasons we have antidiscrimination
laws in Australia. These laws are there to provide the same opportunities in
life to everyone. They are there so that we can all be chosen according to our
capacity and, to quote Martin Luther King, the content of our character, not
irrelevant factors such as our sexual orientation or gender identity. In this
context, for students, I think that means having the same opportunities to
contribute to and to gain from school life, including if that school life is at
a faith based school. For teachers, it means being judged according to their
abilities as teachers, not according to irrelevant factors, and I think that is
what most parents who send their children to faith based schools will want.
Evidence from Mr Daniel Comensoli, Policy Analyst at the National LGBTI
Health Alliance, indicated that while most LGBTI Australians live healthy
lives, 'a disproportionate number experience poorer mental health outcomes and
have a higher risk of suicidal behaviours than their non-LGBTI counterparts'.
He further explained that these poorer health outcomes are not directly caused
by a person's sexual orientation, but rather:
...they are due to experiences of discrimination, harassment
and violence, as key social determinants of health. The exemptions currently in
federal antidiscrimination law that allow faith based schools to discriminate
against staff and students on the grounds of their sexual orientation and
gender identity exacerbate and, to some extent, legitimate discriminatory
conduct against LGBTI teachers, staff and students, and this will continue to
have a detrimental impact on their overall health and wellbeing. That is why
the exemptions need to be repealed.
The Royal Australian & New Zealand College of Psychiatrists also
discussed mental health in their submission, and expressed their concern:
...that laws allowing faith-based education institutions to
discriminate against students, teachers and staff on the basis of sexual
orientation and gender identity are likely to increase the mental health
problems of people in LGBTIQ+ communities.
Evidence shows that the discrimination and marginalisation
experienced by lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ+)
people increase the risk of developing mental health issues, and also creates
barriers to accessing supportive services. For many LGBTIQ+ people, faith is an
important source of strength and support which can be beneficial in a person’s
journey of recovery. As such, faith-based discrimination can seriously
undermine the mental health of LGBTIQ+ individuals, especially children and
The committee received evidence regarding a range of adverse actions allegedly
taken by faith‑based educational institutions against students or staff
on the basis of an attribute otherwise protected by the SDA, such as sexual
orientation or gender.
For example, Ms Appleton of Transgender Victoria described the experience of a transgender
science teacher who had been assigned male at birth, and was working in a
Catholic boys school in Melbourne:
After many years working through her gender identity issues,
she approached the school to request their support to enable her to transition
at school. They refused, and she was forced to resign. This was at a very
vulnerable stage in her life and career. She then needed to seek employment
post her transition, which was not easy and required her again to conceal her
One submitter to the inquiry—who advocated for the repeal of subsection
38(3) of the SDA and amendment of paragraph 37(1)(d)—reflected on their past
experience as a student in a faith-based school and shared how the existing
provisions of the SDA, if used by their school, could have had serious negative
implications for them:
On a personal note, if my faith-based school had expelled me
or otherwise discriminated against me on the basis of my sexual orientation, it
is likely that this information would have become known to my parents, putting
me at risk of homelessness due to rejection by my homophobic family of origin.
This is exactly what happened shortly after I completed secondary school: our
relationship completely broke down upon their learning about my sexual
orientation, forcing me to become independent of my family at short order. This
was a difficult and devastating time for me, but at least I was nineteen: a
young adult and able to fend for myself. Had I been a few years younger, my
position would have been even more precarious, and the outcomes may have been
much worse. Not all LGBTIQ young people live in an accepting home environment,
and no school student should be put at risk at home due to discrimination on
the part of their school.
The examples received by the committee did not only relate to sexual
orientation or gender. As discussed in chapter 1, various other attributes are
listed in the SDA, including pregnancy and marital status. The Independent
Education Union provided examples that went to some of these issues, such as a
case in which a teacher at a Catholic school was allegedly dismissed because
she became pregnant via IVF.
A further example, relating to marital status, was explained as follows:
An Assistant Principal in regional Catholic diocese was
called to a meeting with the Executive Director who said that 'it had been
brought to his attention' that the Assistant Principal was married to a woman
whose first marriage had not been annulled. The Assistant Principal was
therefore not in a genuine Catholic marriage and this was inconsistent with a
leadership role in a Catholic school.
When the Executive Director asked if an annulment could be
obtained, the Assistant Principal indicated that his wife was reluctant to
pursue this option as her first husband would oppose it and she did not want to
subject her two children to the demeaning annulment process.
The Assistant Principal was then demoted to a classroom
teacher position with salary maintenance for a year. (It is noted that
subsequently an annulment was obtained and the member, now correctly married in
the view of the Church, obtained another Assistant Principal position.)
Ms Megan Mitchell, National Children's Commissioner, provided
particular evidence relating to discrimination on the basis of pregnancy.
Having investigated the matter in 2017, Ms Mitchell relayed quotes from
interviews she conducted with pregnant young people, including:
'I was scared the school was going to kick me out because I was
'The school told me to leave when I got pregnant'; and
''I was at school, but, by the time I was 20 weeks, I left
because I was in and out of hospital. I asked the school for homework, but they
didn't provide any support.'
Ms Mitchell noted that while some of the young people she interviewed
would have attended religious schools that the SDA currently exempts from
antidiscrimination laws relating to pregnancy, that 'wasn't something I looked
at in particular'.
However, the Australian Human Rights Commission's National Children's
Report 2017 did recommend the following:
The Australian Government, through the Council of Australian
Governments' Attorneys-General Council, should work with states and territories
to review their laws, policies and practices to ensure that discrimination
against a child or young person on the ground of their pregnancy, breastfeeding
or parental status/responsibilities is prohibited without exceptions.
In addition to these and other examples of adverse action allegedly
taken by faith‑based educational institutions under the current
exemptions, which the committee published, the committee also received some
other examples in camera.
However, not all evidence positing the harms caused by the exemptions
relied on adverse action actually being taken by schools. As Mr Odgers of the
Independent Education Union suggested:
...many staff and students in faith based schools, fearing
persecution, have suppressed their sexual orientation or gender identity and/or
their marital status and have been, and are being, harmed as a result.
One example reflecting this situation was provided by Ms Marlowe of
Rainbow Families, who quoted a lesbian stepmother of five children:
'I teach at a conservative Catholic primary school and am
constantly afraid that someone will find out and that I will lose my job. I'm
the main income earner, and my employment is incredibly important. I worry that
I'll lose my job. I worry that my employer won't give me a good reference if she
finds out. This could affect my future employment possibilities. I feel like a
criminal, and I've done nothing wrong.'
Similarly, Mr Benjamin Dudman told the committee that while he
thoroughly enjoyed his Catholic education:
...the loneliest time of my life came in high school when I
realised I was gay and felt I could not reach out to anyone for fear of being
rejected and discriminated against.
Mr Dudman said that he felt left to deal with his sexuality alone:
I considered suicide, I considered somehow masking my
sexuality for the duration of my life, I distanced myself from my family and
friends as I tried to figure out how to survive as a young, gay person.
Mr Dudman went on to state:
If religious schools continue to be allowed to discriminate
against LGTBQIA+ people, it sends a clear message to young queer people like I
was, that you are not accepted, not welcome, and you are somehow wrong for
being who you are. None of these are true, but it is what I felt growing up and
it is what a lot of students and staff feel on a daily basis in religious
For example, Mr Comensoli of the LGBTI Health Alliance stated that even
if the exemptions aren't applied, teachers know they exist:
That hovers over employees in religious schools, and that
means that there's an extra burden of threat hanging over these people. When
teachers or staff want to go to their employer to complain about wages or
conditions, they know that the school could terminate their employment on some
unrelated ground, and there's no justification for that at all.
On behalf of Rainbow Families Victoria, Ms Marlowe stated that if her
children are at an otherwise supportive faith‑based school, 'we worry
that we could be just one new principal or one new school board member away
from those exemptions being exercised'.
The Principal of Carey Grammar Baptist School, Mr Phillip Grutzner, made
a similar point in response to others' argument that the exemption is not used
and therefore does not need to be removed:
The first question is the question of: 'We're not going to
use the legislation; therefore, it doesn't matter.' My personal opinion is: why
have the legislation in the first place if you're not going to use it? So we
would be arguing to remove the legislation that allows an opportunity at some
time in the future to discriminate.
Some witnesses put to the committee that removing the exemptions would
help address these problems.
As Ms Marlowe of Rainbow Families stated:
I think that the most impactful thing that could occur as
part of removing these exemptions is the lifting of the fear and of the daily
fear that a child or a young person or a staff member would have going to work
or school every day and not being able to be their authentic self.
The Rainbow Catholics InterAgency for Ministry also opposed the current
exemptions in the SDA 'which [allow] faith‐based
educational institutions to discriminate against teachers, students and staff
on the basis of their gender identity, sexual orientation, marital status or
other attributes', stating that '[t]he existence of discriminative laws and
practices are in contradiction to Catholic teachings and have lasting and
damaging effects on the health and wellbeing of our whole community'.
Other arguments supporting the
removal of the exemptions
The Human Rights Law Centre presented research indicating that Australia
is out of step with other likeminded countries on this issue—namely New
Zealand, the United Kingdom, Ireland and Canada.
While these jurisdictions do have various relevant exemptions, Lee
Carnie stated that '[i]n relation to discrimination against students, Australia
is a clear outlier'.
Further, while the situation is more complicated in these jurisdictions with regard
to teachers and other employees, 'Australian laws are still at odds in
explicitly singling out LGBT teachers and staff.'
Mr Rodney Croome also referred to a broadly representative survey of the
LGBTI community which found overwhelming support for removing the exemptions.
Many submitters raised the issue of tax-payer funded schools
discriminating against students.
This was also highlighted by Ms Marlowe of Rainbow Families in her evidence to
...we strongly believe that any educational institution
receiving government funding should not be allowed to discriminate due to a
person's sexuality, gender diversity, family structure or relationship status,
be they a child, young person, family member, parent, carer or school staff
However, Adjunct Associate Professor Mark Fowler submitted that 'such
arguments are misguided. They fail to account for the importance of
associational freedom to democratic society and undermine liberal neutrality,
autonomy and pluralism', elaborating that:
The Australian Bureau of Statistics notes that ‘Nearly a third
of Australians (30 per cent) reported in the Census that they had no religion
in 2016.’ However, such calls for a ‘secular’ society often overlook the
logical extension of the subsidy argument – that the 70% who profess a form of
religious belief are also subsidising non-religious persons through the
proportion of their taxation that is applied to public schools. Rather a truly
neutral, democratic and pluralistic society will seek to most accurately
reflect both the religious and non-religious sentiments that are exhibited
within its underlying polity. In the context of this current Inquiry, this is
most properly acquitted through the ongoing presence of both public schools and
private religious schools.
Finally, Mr Odgers of the Independent Education Union advanced that the
exemptions are rarely used and unnecessary for religious schools—that is,
sufficient protections for religious schools already exist.
As Mr Odgers stated:
The IEUA believes that current requirement at common law
requiring an employee to exhibit fidelity and good faith toward their employer
is sufficient to address a situation where a staff member is alleged to have
acted in a manner contrary to the ethos and fundamental principles of a school.
This would be supported by contract and employment law. As Mr Odgers
explained, employees of faith‑based schools would have signed a letter of
appointment that 'commits them contractually to respect the belief system of
the school wherein they are employed'.
In addition, many would be employed under an industrial instrument containing 'an
extensive mission statement for the school and an obligation on individuals not
to do anything that would offend the principles set out in that statement'.
Removing the legislative exemptions would not change the current system which
operates using contracts, and Mr Odgers did not see the basis for some
religious schools' anxieties that they would be exposed to litigation.
It should be noted that, with respect to Mr Odgers' evidence, Lee Carnie
from the Human Rights Law Centre stated that:
...an employer can't contract out of discrimination law. So,
even if there is a preference for the Education Union that it be contained in
the terms of an employment contract, if the exemption is removed from the Sex
Discrimination Act, schools would be required to comply with that.
Should the application of the exemptions to students differ from their
application to teachers?
As noted in chapter 1, the exemptions recommended in the Religious
Freedom Review in relation to students are different from those in relation to
Some religious groups giving evidence to the inquiry acknowledged that
students and employees differ in important ways, but stopped short of advocating
for the removal of the exemptions in relation to either group. For instance,
Archbishop Comensoli of the Catholic Bishops Conference noted that staff are
...at least to be supportive of a particular identity and
mission, stated up‑front from the beginning, just as you would in any
circumstance. The more senior the role within employment the more that that
However, Archbishop Comensoli suggested that the situation in regards to
students is different, noting that students 'do not come to a school having
signed up to a mission or ethos in an employment contract or any sort of
Nonetheless, representatives of the Bishops Conference and the Catholic
Education Commission indicated that there might still be some need for the
exemption in relation to students.
Representing the Islamic Schools Association, Mr Salman observed that
teachers have more power and authority in their actions than students, and
students are more vulnerable so schools need to 'tread very carefully'.
However, the Islamic Schools Association stated that the current exemptions
strike 'a reasonable balance',
giving flexibility to schools to act according to the religious beliefs of the
school. For example, Mr Salman hypothesised that:
If a student were to come out as being same-sex attracted
then, as long as they kept that to themselves and were not advocating for that
and were not trying to influence other students in that regard, I think the
school would have no issue. It is when a student is advocating for that...that
would be a problem.
Mr Salman added that a school would not take any steps against that
...as long as the student was generally abiding by the school's
values and ethos and was not advocating for a particular view that was in
contravention of what was being taught in the school.
However, other witnesses supported the removal of the exemption in
relation to both students and teachers.
Mr Jonathon Hunyor, Chief Executive Officer of the Public Interest Advocacy
Centre, supported a consistent approach in relation to students and staff.
He suggested that 'trying to draw some sort of line between how we treat people
under 18 and how we treat people over 18 really doesn't make sense'.
Jamie Gardiner also suggested that removing the exemptions only for
students, and not teachers, would continue to harm students:
[I]in a way, discriminating or holding the sword of Damocles
over the heads of teachers and staff is itself indirect discrimination against
LGBTI students. You cannot possibly have safe and equal education in a school
where your teachers have to hide part of themselves and cannot support you, as
was said before. It is essential that teachers and other staff be covered by
the same equal opportunity protections and antidiscrimination protections as
the students and everyone. It's an extension of an existing right. To split the
two makes no logical sense.
A similar point was made by Mr Comensoli of the LGBTI Health Alliance,
who explained the need to support students who are sexually and gender diverse,
saying 'amending laws for students but not teachers is unjustifiable. Teachers
facing discrimination at faith based schools on the basis of their sexual
orientation or gender identity can't support students'.
Options for reform
In the course of advocating their position in favour of or against the
existing legislative exemptions, some witnesses suggested specific amendments
or broader reforms.
In particular, a number of witnesses supported amendments that would
draw on existing Tasmanian antidiscrimination law.
As discussed in chapter 1, Tasmanian law has a much narrower exemption than
current Commonwealth law. Former Tasmanian Anti‑Discrimination
Commissioner, Ms Robin Banks, explained:
There's a general prohibition against discrimination by
education providers in relation to all of the protected characteristics, and,
while there are exemptions in the act—or defences, as they are for faith based
organisations—they relate only to exempting conduct where the discrimination is
on the ground of religious belief, affiliation or activity. A school could
refuse to employ or decide not to employ a person in a relevant job if the
person wasn't a person of the school's faith.
Ms Banks further clarified that the legislation does not permit
discrimination based on the religious belief of the discriminator; rather, 'it
is the religious belief, affiliation or religious activity of the person
against whom the discrimination is directed'.
In 2015, Tasmania also introduced an exemption relating to students allowing
faith‑based schools to discriminate only in relation to a student's first
enrolment at a school, not in relation to subsequent enrolments, suspension or
Ms Banks also noted, as context, that the Catholic Education Office had
indicated that from time to time that it is forced to make a choice between prospective
students, and it desired the ability to preference a child of faith or of a
Mr Rodney Croome of Equality Tasmania informed the committee that
according to Equal Opportunity Tasmania, over the 20 years that Tasmania has
had these laws, there have been no claims of discrimination by staff or
students in Catholic or independent schools. Further, Mr Croome was not aware
of any religious-based education authority that has found the laws to be
onerous, and there has been no public debate to suggest this is the case.
Indeed, Mr Croome told the committee that:
...the consensus I have from teachers and students who are
LGBTI in the Tasmanian Catholic and independent schools systems is that the
culture of those schools has changed immensely over the 20 years in no small
part due to the fact that our Anti-Discrimination Act doesn't allow
Notwithstanding these arguments, the Australian Association of Christian
Schools submitted that Tasmania’s legislation 'does not provide adequate
freedom to religious schools'. It posited that the law is insufficiently clear
and that schools are vulnerable to legal action because of this uncertainty:
Until the law in Tasmania is tested it is unclear what will
be considered lawful. Faith-based schools do not have the clarity they need to
be certain that they have the freedom to operate in ways that are consistent
with their beliefs. If the Commonwealth Government was to adopt the model of
Tasmania, it would be failing to protect the freedom of faith-based schools.
Ms Anna Brown of the Human Rights Law Centre proposed specific
amendments to the SDA which, in effect, would remove the current exemptions.
She also expressed concern about leaked recommendations of the Religious
Freedom Review, particularly the way in which they proposed 'exceptionalism
around sexual orientation and gender identity and relationship status, compared
with other attributes'.
Ms Brown further stated:
We don't believe it's necessary to introduce or retain
exemptions in relation to the protected attributes that are the subject of this
inquiry based on what's been described as upholding the religious ethos or
values of a religious school. This is because...employment law already allows
employers to make employment decisions to uphold a particular ethos within an
organisation, and employees already have an obligation of fidelity and loyalty
to their employer, which means that they can't act in a way that undermines
Regarding the protection of religious freedoms, Ms Brown expressed
support for, in future, an exemption that would allow a religious school to
discriminate on the basis of religion in particular circumstances—that is, the
...only allow discrimination on the basis of religious belief
and it would have to be part of the inherent requirements of the position held
by the employee and also necessary to conform with the doctrines, tenets and
beliefs of that religion.
More broadly, representatives of the Human Rights Law Centre supported
the protection of the right to freedom of thought, conscience, religion and
belief in Australian law, and saw a charter of human rights as the most
appropriate mechanism for this:
So, ideally, we would say the removal of these exemptions
would come as part of a comprehensive modernisation and consolidation of
antidiscrimination laws and, we would also say, as part of the introduction of
a federal human rights act that protects freedom of religion and belief from
government overreach within a robust framework that protects all human rights.
Several other witnesses also expressed support for a charter of rights
that would protect all rights in a way that is, in their view, appropriately
In respect of amendments to the SDA, Ms Megan Mitchell, National
Children's Commissioner, told the committee that the Australian Human Rights
Commission supports removing subsection 38(3) in its entirety, but also
supports other changes:
The position of the commission is that there should be
alternatives to the current system of religious exemptions to
antidiscrimination laws that do recognise a protected attribute for freedom of
religion and belief.
In advocating for the removal of the exemptions, Mr Jonathon Hunyor of
the Public Interest Advocacy Centre emphasised the importance of simplicity,
noting that the drafting and legal interpretation of current discrimination law
is 'notoriously complicated'. He suggested that this 'is particularly unhelpful
when it comes to Australians understanding their rights and ensuring they're
protected and respected'.
On behalf of the Catholic Archdiocese of Melbourne, Mr Francis Moore
expressed concern with religious freedoms being expressed as an 'exemption' in antidiscrimination
law rather than as a positive right. He stated that the recognition of
...as exemptions rather than as rights can give rise to the
perception they are less significant as rights because they are framed as
exemptions rather than rights. We understand that rights need to be balanced.
But I think the challenge that we have is: why are our rights recognised as
exemptions when others are recognised in terms of rights?
Archbishop Comensoli of the Catholic Bishops Conference also supported 'getting
a positive statement into legislation around religious freedom as a fundamental
He suggested that this:
...might start to enable the possibility of recognising this
right in its fullest sense, alongside all the other various rights that we
enjoy in Australia, such that there are then mechanisms by which balancing can
happen rather than one right trumping another.
The representative of Christian Schools Australia, Mr Mark Spencer,
reiterated what his organisation had put to the Religious Freedom Review:
Firstly, we want to redefine discrimination properly so that
we have a better understanding of it and the public has a better understanding
of it, and to say that there is a need to balance rights. Secondly, we want to
incorporate protections for religious freedom that allow faith communities to
live out their faith in a balanced and proportional way.
It should be noted that, with respect to possible reforms and as
discussed in chapter 1, evidence from the Attorney‑General's Department
discussed the technical implications of various amendments, indicating that
amendments would need to be closely considered.
Furthermore, a large number of witnesses
from organisations across the spectrum—including organisations that support the
existing exemptions as well as those that oppose them—supported the release of
the full report of the Religious Freedom Review, in order to put the leaked
recommendations in context and better inform public debate.
The leak of the recommendations of the Religious Freedom Review caused
great concern in much of the community, not least because it appears many
Australians were unaware of the broad exemptions to discrimination laws
provided to faith-based educational institutions. The issue sparked deep and
understandable concern regarding the possibility of a student being expelled
from a school solely because of their sexuality. It is clear that action must
be taken to address this issue.
In the first instance, the government should publish the full report of
the Religious Freedom Review. The Expert Panel heard from over 15,000
Australians who took the time to engage with this significant review. While the
recommendations are now available, the public still does not know the basis on
which the Panel reached those conclusions. It is telling that so many
participants in this inquiry—even those holding opposing views—support the
release of the Panel's full report to better inform public debate.
In particular, the report and findings of the Religious Freedom Review
are pertinent to both the subject of this inquiry and to any legislation on
this issue that may be introduced to the Parliament, by any party, in the
coming days or weeks.
The fact that the government may not have yet considered and finalised
its response to the review is not a sound basis for not releasing it now. It is
open to the government to publish the report now, and subsequently finalise its
position on the issues raised. Indeed, this would allow the government the
benefit of a more informed public debate on which to draw.
Further, apparent leaks of the Review's recommendations show that the
Panel recommends amending legislation to permit discrimination by faith‑based
schools against students or employees on the basis of sexual orientation,
gender identity or relationship status.
The weight of evidence to the committee indicated that this kind of legislation
would not provide adequate protections for LGBTIQ+ communities. The committee
is concerned that the Panel's recommendations would carve out and entrench
discrimination against certain groups in particular—that is, on the basis of
sexual orientation, gender identity or relationship status, in particular
The committee recommends that the government reject
recommendations 5 and 7 of the Religious Freedom Review, which permit
faith‑based educational institutions to single out certain groups for
discrimination on the basis of sexual orientation, gender identity or
relationship status, in particular circumstances.
The committee recommends that the government immediately release to the
public the full report and findings of the Religious Freedom Review.
The committee considers that all students should be protected from
discrimination on the basis of gender, sexuality, and the other attributes
covered by the Sex Discrimination Act. The committee heard harrowing stories of
the suffering that this discrimination can and has caused. Even where the
exemptions are not acted upon, the mere fact that the discrimination is
permitted by law sends a destructive message to children and reinforces
homophobia. The children who might suffer discrimination under these exemptions
are often experiencing the most vulnerable period of their lives. It is
critical that legislation which enables and exacerbates the trauma of children
The committee was pleased to hear various faith‑based educational
institutions indicate that they have not, would not, and do not wish to expel
students on the basis of their sexuality. It was also positive to hear that
these schools generally consider the child's best interests in the first
However, if it is the case that the exemptions are not being used
against students, that is no reason to maintain them. Rather, it is reason to
remove them as unnecessary. The committee did not hear any satisfactory
examples of cases in which a school might need these exemptions in order to
uphold its religious ethos.
The committee recommends the Australian Government amend section 37
and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend
any other relevant legislative provisions, to prohibit discrimination against
students on the grounds of the protected attributes in the Act.
Regarding teachers and other employees, the committee heard mixed
evidence about whether the existing legislative exemptions are necessary for
schools to uphold their ethos.
It is clear that some schools simply have no desire to rely on the
exemptions. However, other evidence suggested that the exemptions are necessary
and minimise the risk of schools being caught up in litigation.
The committee understands that schools are anxious to ensure that their
staff uphold the ethos of the school. Nonetheless, it has not been fully established
that schools need to be able to discriminate on the basis of a teacher's attribute,
as distinct from their conduct. If an employee conducts themselves in the
school community in accordance with the school's values, it is not clear why there
should be scope for adverse action to be taken against them simply because they
hold a particular attribute.
The committee is concerned about the stress and fear experienced by
employees as a result of these exemptions. Even if a school is otherwise
supportive, the fact that the exemptions exist creates a fundamental risk to
employees' livelihood, particularly if the school's attitude were to change.
Importantly, the exemptions do not only harm staff. Students are also being
sent the wrong message about what is and is not acceptable in modern Australia.
In addressing these issues—and removing the current exemptions relating
to both students and teachers—the committee considers that Tasmanian
antidiscrimination law provides a useful model. As was explained by various
witnesses, the Tasmanian laws appear to have worked successfully for over 20
years. They also appear to strike the right balance between ensuring that
students and staff are protected from unreasonable and harmful discrimination,
while also ensuring that religious schools can maintain their religious ethos. Consideration
should be given to amending Commonwealth legislation to remove the current
exemption in relation to both students and teachers, while also maintaining
some protections for religious schools.
The committee recommends that further consideration be given to amending
the Sex Discrimination Act 1984, and any other relevant legislation, to
prohibit discrimination by faith‑based educational institutions against
teachers and staff on the grounds of the protected attributes in the Act. In so
doing, consideration should be given to the relevant provisions of the Anti‑Discrimination
Act 1998 (TAS) discussed in this report.
The committee acknowledges that this debate takes place in a broader
human rights context. In the committee's view, the existing exemptions do not
strike the right balance between the right to religious freedom and other
rights, such as the right to equality and non‑discrimination.
However, it is important that faith‑based educational institutions
be able to uphold their ethos in a reasonable way. Australia's religious
communities should feel that their religious freedoms are respected and
protected. The committee considers that, within appropriate bounds, there is
scope to affirm positively and protect religious freedoms in Australia.
The committee recommends that consideration be given to inserting in law
a positive affirmation and protection of religious freedom in Australia that is
appropriately balanced with other rights.
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