Glaring deficiency in discrimination law remains in religion stoush

Religious schools protect the international human right of parents to ensure the moral and religious education of their children. Picture: NCA NewsWire / David Crosling

With the passage of the religious discrimination bill stalling in the Senate, the issue of religious freedom now appears set to be an election issue, yet again. The Labor amendments against the package cast light on the likely terrain on which the two parties will now marshal their arguments.

The key distinction is found in an amendment passed by the House of Representatives in the early hours of Thursday. That amendment would remove section 38(3) of the Sex Discrimination Act 1984, which provides an exemption for religious schools concerning gay and transgender students.

The backlash among religious groups was swift. However, peak bodies for religious schools consistently state that no school seeks to expel a child because they are gay or transgender. Why then was the amendment so virulently opposed?

Mark Spencer of Christian Schools Australia cited the “increasing concerns around appropriate treatment regimes, how access to facilities can be managed, and what impacts arise in relation to sporting activities” for gender-transitioning students. These are highly sensitive issues, not just for religious schools. Only two years ago plans to construct a Brisbane state high school without specifically designed boys’ and girls’ bathrooms except in change rooms were overturned by Labor Queensland Premier Annastacia Palaszczuk, who personally intervened in response to a public backlash.

In addition, religious schools highlighted the inadvertent limitations the amendment would place on their ability to teach beliefs. If a complainant alleges that a school’s religious teaching is indirect discrimination, a school would need to justify their teaching actions as “reasonable” before a secular court. This is highly uncertain terrain for schools seeking to convey their values to the next generation, at the behest of parents, while dutifully complying with the law.

That these issues appear to have eluded those advocating for the reform is extraordinary. The complexities associated with effectively the same proposal were fully considered by two parliamentary inquiries in 2018. As the committees could not agree upon a measure that would resolve the competing interests, the reform was referred to the Australian Law Reform Commission for detailed consideration.

Religious schools protect the international human right of parents to ensure the moral and religious education of their children. As the Australian Human Rights Commission has recognised, that right is not subject to limitation. Restrictions on that right arguably breach what the European Commission on Human Rights has termed the “guaranteed … right to think freely”; contravening the commission’s warning against state education systems where students are “led to think only in the directions that are decided by the political majority of the parliament”.

Given the centrality of these freedoms to an open society, it is extraordinary these inadvertent implications did not feature within the recent parliamentary debate. They will need to incorporated if there is to be any accord on these matters.

Turning to the religious discrimination bill itself, submissions to the two recent parliamentary inquiries that recommended passage of the bill disclose the overwhelming support from religious institutions is an approval not just of any bill that would protect against religious discrimination, it is an endorsement directed at the precise protections found within the government’s bill itself.

Chief among the proposals garnering their sanction are the following measures: provisions specifically requiring judges to refrain from acting as theologians to interpret religious doctrines; protections to religious corporations from discrimination; clarification that faith-based charities can retain their religious ethos; protections to institutions that hold a traditional view of marriage from loss of their charity status; and distinct protections to professionals and tradespersons against regulatory bodies.

Importantly, for the first time in commonwealth law the bill also recognises the longstanding principle of international law that when a religious body acts in accordance with its beliefs it is not “discriminating”. In these matters the government is to be credited for their responsiveness to the concerns of religious institutions during the three-year consultation process. To Labor’s credit, all of these protections received bipartisan support this week.

The chief remaining distinction between the two parties concerns the protection for “statements of belief” against complaints in commonwealth, state and territory anti-discrimination law. The clause is understood to be a response to a complaint against Catholic archbishop Julian Porteous for circulating a pamphlet outlining the Catholic view of marriage and parenting among parishioners. The ability of religious institutions to make such respectful and reasonable contributions to public discourse is a hallmark of a free and open society.

As the dust settles after the ructions of the past week, the glaring lacuna in existing commonwealth laws still remains: Australians may still be discriminated against on the basis of their religious belief under commonwealth law. For residents of NSW and South Australia there is no protection. These striking deficiencies must be remedied.

Mark Fowler is an adjunct associate professor at the University of Notre Dame, School of Law, Sydney, and adjunct associate professor in the Law School, the University of New England.