Religious Educational Institutions and Anti-Discrimination Laws: Consultation Paper (2023)

The Australian Law Reform Commission seeks stakeholder submissions on proposals to change the way Commonwealth anti-discrimination law applies to religious schools and other educational institutions.

The Consultation Paper sets out four general propositions supported by 14 technical proposals for reform. If adopted, these would:

• make discrimination against students on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy in schools and other religious educational institutions unlawful, by removing exceptions currently available under federal law,
• protect teachers and other school staff from discrimination on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, by removing similar exceptions, and
• allow religious schools to maintain their religious character by permitting them to:
  • give preference to prospective staff on religious grounds where the teaching, observance, or practice of religion is a part of their role (and it is not discriminatory on other grounds); and
  • require all staff to respect the educational institution’s religious ethos.

Submissions close 24 February 2023.

Download the Consultation Paper.

Religious Educational Institutions and Anti-Discrimination Laws

Federal anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth), prohibit discrimination in a wide range of settings against people on grounds including sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. However, these laws provide exceptions for religious educational institutions, including schools.

These exceptions mean that discrimination on certain grounds by religious schools is not unlawful under Federal law where it is ‘in good faith’ and ‘in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’.  The exceptions recognise the impacts that anti-discrimination law, which protects fundamental rights to non-discrimination and equality, may have on the exercise of the fundamental right to freedom of thought, conscience, and religion.

The Australian Government has committed to reforming Federal anti-discrimination laws to ensure that a religious educational institution:

• must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
• must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
• can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.

The Government has asked the ALRC to consider what changes should be made to Federal anti-discrimination laws to ensure, to the extent practicable, that these laws reflect the Government’s commitments in a manner that is consistent with Australia’s international human rights obligations.

Under treaties that it has signed, Australia has obligations to respect and protect human rights including rights to non-discrimination and equality, freedom of thought, conscience and religion, life, privacy, freedom of expression, freedom of association, work, education, cultural rights, and children’s rights. In undertaking this reference, the ALRC will consider the frameworks that international human rights law provides for managing the intersections of these rights, and the experiences of other jurisdictions, to propose reforms consistent with Australia’s international obligations.

The Terms of Reference for this Inquiry replace those of a previous Inquiry into Religious Exemptions in Anti-Discrimination Legislation that had been on hold since March 2020 pending potential legislative developments.