Danger lies in meddling with faith-based schools

Uniform requirements delivered from on high will cause only chaos and deep resentment.

The two major parties have now both put forward proposals for reform of the law concerning students in faith-based schools. Both proposals have the potential to be a lawyer’s picnic. As a lawyer, this is one meal I have no appetite for. They have dramatic ramifications, not only for the schooling sector but for all religious institutions.

Labor’s bill not only removes the exemption for faith-based education institutions, it also pulls back the exemption that applies to all other religious institutions so that they must conform with the Sex Discrimination Act whenever they provide education.

On a plain reading, this would capture the Sunday morning sermon, the Friday kutbah at the mosque, a Buddhist meditation course, the children’s Sunday school, the midweek Bible study, the Friday night youth group talk. It is quite clear to both the preacher and the recipient in all of these exchanges that they are participating in an act of education that expands upon religious principles.

Australian courts have recognised that in certain contexts, comments can amount to discrimination. Many religions provide substantive requirements on matters such as marriage, the family, relationships, the respective roles of men and women, on gender, on sexuality. Much of this is plainly “discriminatory” within modern Australia, and the terms of the existing act reflect this understanding (hence the need for “exemptions”).

There are, however, two carve-outs offered by Labor, judicial gauntlets that if successfully run will mean the bill will not apply. The first is that the bill does not apply to “the employment of persons to provide that education”. The effect is a religious body can exercise discretion over who it employs to provide its religious teaching, it just can’t require that they teach the content of its beliefs.

The second judicial gauntlet offered provides that the teaching won’t be discriminatory if the religious body can establish it is indirect discrimination and that it is “reasonable” in the eyes of a secular court. Assuming that the teaching is indirect discrimination (a technical legal classification), past court decisions provide some guidance on how the reasonableness test could unfold. The test requires that each complaint be determined case by case, having reference to what was said, in what context, to whom and in front of whom. The test is reasonableness, not correctness or “whether the alleged discriminator (preacher) could have made a ‘better’ or more informed decision”. A judge may regard the subjective preferences of the complainant receiving the religious education in determining what is reasonable.

It is not enough that a sermon has a “logical or understandable basis”. Needless to say, the test holds the prospect for years of resulting litigation that will give religious bodies, their members, schools and students little clarity.

In response, the Coalition has its own proposals for reform. These introduce their own unique uncertainties where they permit a school to impose a publicly notified “condition, requirement or practice” in good faith where it flows from the school’s belief and where it is in the “best interests of the child”.

The requirement for public notification is an important reform in the interests of parents and children. However, what is the content of the “best interests of the child” test? On the face of it, this articulation presents as decidedly imprecise.

The same could be said of the “good faith” requirement when applied to schools. Without some degree of further clarification, these requirements could introduce a high level of uncertainty for students, their families and for religious education institutions.

To take some worked examples, what do these requirements mean when applied, for example, in a sex education class? What do they mean when applied to students who have a preferred gender other than their biological sex in the context of shared accommodation? Can the “best interests” of other children be considered? What does the test mean when a student says, “I no longer want to attend chapel”? In the interests of both children and the entire school community, these are matters that should be clarified.

The European Commission of Human Rights has recognised the existence of a human right to establish and maintain private religious schools.

In that decision, it criticised the respondent government for treating education as “something entirely within ‘le fait du Prince’ ” for presuming that the state had the ability to dictate that children be “led to think only in the directions that are decided by the political majority of the parliament”. Pluralism in the provision of education to the coming generation is necessary to protect against state-imposed uniformity and as a means to ensure freedom of thought within our society.

These are matters we tinker with at our great peril. Within modern Australia, such fundamental freedoms are won or lost within the granular terms of anti-discrimination law.

Mark Fowler is an adjunct associate professor at Sydney’s Notre Dame Law School.