Religious groups argue for right to hire, fire staff based on sexuality

The Minns government has been warned that attempting to stop religious schools from hiring or firing staff because of their adherence to “Christian ethos”, including sexuality, would be a breach of religious freedoms.

Religious groups including Catholic Schools NSW, Christian Schools Australia and the Presbyterian Church all argue that existing exemptions within the state’s Anti-Discrimination Act which allow private schools to discriminate on the basis of sexuality, marital status or gender should be retained because of their religious views.

Church groups have argued that NSW laws allowing them to hire and fire staff based on their sexuality should not be changed.Credit:

The demands from religious organisations to keep the exemptions in place signal a looming test for the Minns government as it seeks to balance their concerns with a push from key crossbench MP Alex Greenwich to prevent gay students and teachers from being expelled or fired by religious schools on the basis of their sexuality.

The Minns government ordered the NSW Law Reform Commission to review the state’s decades-old Anti-Discrimination Act in July last year as Greenwich was preparing to introduce his omnibus Equality Bill into parliament. The legislation would, among other things, overturn the decades-old exemptions within the act.

Due to be debated in parliament next month, Greenwich’s Equality Bill is wide-ranging. It includes provisions removing the requirement for a transgender person to undergo a surgical procedure to update the sex on their birth certificate, as well as giving courts the power to issue a parentage order for children born of commercial surrogacy outside of NSW.

Those elements are most likely to be dealt with when the bill comes before the parliament next month, while provisions requiring any alteration to the Anti-Discrimination Act are likely to be delayed until after the Law Reform Commission’s review is complete later this year.

Many submissions to the review argued against maintaining the exemptions enjoyed by private schools, calling them outdated and harmful to gay and transgender students and staff.

The NSW Independent Education Union said its “strong view” was that anti-discrimination exemptions “should be lifted to ensure that our laws reflect contemporary community standards”.

“We would also expect that most private educational institutions would not oppose removal or limitation of many of the current exemptions,” it said.

The NSW Council for Civil Liberties agreed, arguing that the risk of expulsion on the basis of gender or sexuality was “harmful and unacceptable” to students.

But in submissions to the commission’s review, religious organisations made clear they intended to fight any attempt to remove staffing exemptions.

Catholic Schools NSW argued its right to “employ staff who can promote the religious character of a Catholic school” was “critical to maintaining the institutional integrity” of the sector, saying some of the terms of reference for the review raised “issues and serious concerns”.

The submission argued that the right of parents “to determine the religious and moral education of their children” was a fundamental human right under the International Convention on Civil and Political Rights, to which Australia is a signatory.

Similarly, Christian Schools Australia, a coalition of Christian schooling groups, said in a submission to the review that “without the protections provided by these exceptions, situations may arise where employment and enrolment decisions may fall foul of the act”.

That would undermine “the community of faith our schools seek to preserve”. It argued that attempts to “modernise or ‘reflect contemporary community standards’ within the act must not come at the cost of foundational and timeless human rights”.

It said that whether those rights were “presently fashionable or enjoy community support is not an appropriate measure of either their importance or need for protection”.

In 2022, Victoria changed its Equal Opportunity Act to remove similar exemptions for schools hiring staff except in cases where “the beliefs, doctrines or principles” of the religious organisation was an “inherent requirement of the job”.

A number of submissions to the review argue that NSW should seek to bring its act in line with the Victorian standard, but the Presbyterian Church of Australia argued that this would undermine a school’s ability to “operate with a consistent Christian ethos ... in all aspects of school life”.

“This cannot be maintained if schools can only prefer candidates with Christian convictions for a limited range of positions,” it said.

Despite some Christian school groups previously saying they did not expel students on the basis of their sexuality, the Presbyterian Church in its submission argued that it should have the right to “expect students to behave in consistency with Christian ethical standards”.

Those standards included “Christian sexual ethics”, it said, and any changes to anti-discrimination laws in NSW “should continue to enable schools to do this”.

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