Religious discrimination: Anthony Albanese’s draft laws reflect the ALRC’s recommendation to remove section 38 of the Sex Discrimination Act

Anthony Albanese’s draft religious discrimination reforms include a blanket removal of section 38 from the Sex Discrimination Act, which would receive fierce backlash.

Anthony Albanese during question time on Thursday. Picture: NCA NewsWire / Martin Ollman

Anthony Albanese has proposed a blanket removal of section 38 from the Sex Discrimination Act – a move that would ignite a fierce fight from religious schools and the Coalition – and instead wants to give religious institutions the ability to preference teachers based on their faith through a new Religious Discrimination Act.

The proposal, which forms part of the government’s draft religious discrimination reforms, aligns with the Australian Law Reform Commission’s report into religious educational institutions and anti-discrimination laws.

The contentious report was ­released on Thursday and sparked a backlash from the ­Catholic Church and Christian and Islamic schools, who warned it would severely limit the ability of faith-based educational institutions to operate and teach according to their ethos.

LGBTQI+ groups urged the government to implement the ALRC’s recommendations.

A number of Coalition MPs see the removal of section 38 from the act as a “red line” that cannot be crossed, with one MP cautioning earlier this week that it would be “bedlam if that happened”.

While the Coalition is expected to work constructively with the government after the Prime Minister declared bipartisanship was necessary to progress his religious discrimination overhaul, opposition legal affairs spokeswoman Michaelia Cash called on Labor to address faith group concerns over the ALRC’s recommendations.

After receiving the government’s draft legislation on Wednesday night, Senator Cash also revealed Labor had put forward religious discrimination reforms – which she is not able to share publicly – that contained “substantial changes” to the Coalition’s 2019 legislation.

Tabling the ALRC’s report in parliament, Attorney-General Mark Dreyfus said the government wanted an “enduring solution” to protect students, teachers and people of faith and declared Coalition support was “essential”.

He stressed the ALRC’s report was not from the government but was advice to the government.

“Just as commonwealth law prohibits discrimination on the basis of race, gender, sexuality, disability and age, no one should be discriminated against because of their faith,” Mr Dreyfus said.

“Equally, no students or member of staff should be discriminated against because of who they are. At the same time, religious schools must continue to be able to build and maintain communities of faith.

“The government recognises and respects the right of parents to send their kids to a religious school because of the beliefs and values they teach their children.”

The ALRC recommended removing section 38 of the SDA altogether, which would prevent religious schools from insisting students adhere to the doctrines, tenets, beliefs and teachings of their religion and from preferencing teachers of the same faith when hiring staff.

There is also a significant winding back of protections for religious institutions in the Fair Work Act, with the ALRC saying it should be changed so that religious educational institutions can employ staff to give preference to a person of the same religion if it is “reasonably nece­ssary to build or maintain a community of faith”.

The preference must be proportionate to the aim of building or maintaining a community of faith, including in light of any disadvantage or harm that may be caused to any person not preferred, and cannot amount to conduct that is unlawful under the SDA.

The ALRC recommends an equivalent exception for religious schools should be included in a future Religious Discrimination Act.

The removal of section 38 and creation of separate religious freedom protections – as the government and ALRC is suggesting – has been resisted by faith groups, which argue there would be restrictions imposed on their schools so that teachers who weren’t of the same faith could be hired for non-religious subjects.

Christian schools denounced the ALRC’s report as a “direct ­attack on faith and freedom of ­belief in Australia”, saying it had fewer protections for faith-based schools than the body’s previous consultation report.

“If these ALRC recommendations are adopted, it means the government can tell Christian schools who we can employ, what we can believe and teach,” Australian Association of Christian Schools executive officer Vanessa Cheng said, adding: “It sets a scary precedent.”

Archbishop of Melbourne Peter Comensoli and Anglican Bishop of South Sydney Michael Stead said the ALRC’s recommendations were unhelpful and fell short of meeting the government’s election promises, calling for the major parties to reject the report and work with faith communities to help draft better laws.