Religious schools raise alarm on hiring rules

Religious schools are urging the government not to remove protections for faith-based educators from the Sex Discrimination Act, faith leaders warning religious education is under threat.

A report will recommend the removal of key protections from the Sex Discrimination Act. Picture: istock

Faith-based schools have urged Labor to safeguard the right to hire teachers who share their spiritual beliefs ahead of a report this week that will recommend the removal of key protections from the Sex Discrimination Act, reigniting a fraught national ­debate over religious freedoms.

The Australian understands the Australian Law Reform Commission will recommend the removal of Section 38 from the SDA in its entirety in a report that is due to be tabled no later than Thursday. This outcome would be in keeping with the proposal contained in its January 2023 consultation paper.

An alliance of the nation’s most senior spiritual leaders warned Labor last year the removal of the exemptions in Section 38 would prevent schools from preferencing the employment of teachers who shared their beliefs and spiritual outlook.

Islamic, Jewish and Christian leaders said this would place the future of religious education in Australia under threat.

Mark Spencer, director of public policy for Christian Schools Australia, told The Australian on Sunday that “we need the ability to employ staff who share our ­beliefs and that includes our ­beliefs around gender, sexuality and marriage”. He warned the removal of the protections in Section 38 of the SDA would “create a massive problem for Christian schools” and risk setting up a “lawyers’ ­picnic”.

Christian Schools Australia public policy director Mark Spencer.

The Coalition’s attempts to legislate protections for religious communities after the 2017 same-sex marriage vote were pulled from the former parliament following a backbench revolt over concerns about the treatment of gay and transgender people by ­religious schools.

Ahead of the election, ­Anthony Albanese promised Labor would introduce its own religious discrimination bill.

In November that year, Attorney-General Mark Dreyfus tasked the ALRC with looking at how to shield students and teachers against discrimination on the basis of their sexual orientation or gender identity, while also ensuring educational institutions could maintain their “religious ethos”.

The current exemptions in section 38 of the SDA allow religious education institutions, when hiring, to preference teachers who are of the same faith as the school. They also allow schools to insist that students adhere to the doctrines, tenets, beliefs and teachings of a particular religion.

But they have created controversy because they are expressed by way of exemptions, allowing schools to lawfully “discriminate” on the basis of an individual’s sex, sexual orientation, gender identity or relationship status in limited circumstances.

The Australian has been informed the ALRC report will recommend the removal of the exemptions from the SDA, but propose a future religious discrimination bill provide new protections allowing schools to maintain their spiritual character.

A spokeswoman for Mr Dreyfus made clear the ALRC report would not necessarily reflect the position of the government, saying only that Labor was “considering the Australian Law Reform Commission’s report”.

There are also grave concerns that any new protections in a ­future religious discrimination bill would only allow schools to preference staff in roles where the observance or practice of religion was genuinely a part of the role – such as religious education.

Schools remain worried they could lose their ability to preference the hiring of teachers on religious grounds when it came to essential subjects such as maths, science, history and English.

Opposition legal affairs spokeswoman Michaelia Cash told Sky News there was a risk that “religious schools will not be able to conduct themselves in ­accordance with their values”.

Executive Officer for the Australian Association of Christian Schools, Vanessa Cheng, said that a new religious discrimination bill would not be as effective if it was accompanied by the removal of the exemptions in Section 38 the SDA.

She argued there was a risk that, if the exemptions were removed, the SDA and a future religious discrimination bill could act in competition with one another. Ms Cheng said it would be less clear when a school was exercising its rights to preference staff on religious grounds, leaving faith-based educators more open to claims of sexual discrimination.

“At the end of the day, schools want to focus on education and not litigation. And we don’t want to be tied up in the courts defending claims because there is confusion about whether we are preferencing them (teachers) on their religious affiliation,” she said.

Mark Fowler, Principal at Fowler Charity Law, warned the removal of the exemptions in Section 38 would place “inordinate emphasis on the distinction between direct and indirect discrimination”.

Section 7B of the SDA allows for “indirect” discrimination where “reasonable” and “proportionate”. This section makes clear that it is possible to impose a condition, requirement, or practice that is likely to disadvantage a person with a “protected attribute” – so long as this condition can be shown to be “reasonable in the circumstances”.

The potential disadvantage would also need to be “proportionate to the result sought by the person who imposes … the condition, requirement or practice”.

Following the removal of the exemptions in Section 38, Section 7B would become more important in determining discrimination cases brought under the SDA. Professor Fowler said that both the “reasonableness and proportionality tests are notoriously imprecise.”

“Judicial convictions as to what is ‘proportionate’ and ‘reasonable’ may well admit of significant variation,” he said.

He also said the imprecise boundary between what constituted indirect and direct discrimination was widely recognised overseas and, in Canada, the Supreme Court had moved towards a greater reliance on exemptions – the opposite approach of what the ALRC had proposed – to better navigate this complexity.