Australia: The Religious Freedom Review Report recommendations regarding sex discrimination

Last Updated: 26 December 2018
Article by Merryn Lynch and Josephine Heesh

In this article, we examine recommendations 5 and 7 contained in the Religious Freedom Review Report of the Expert Panel ("the Report"), and explain why those two recommendations have garnered the most media coverage and sparked the fiercest debate.

The background

The Report of the Expert Panel was delivered to Prime Minister Turnbull on 18 May, 2018 following a two month consultation period. Upon receipt of the Report, Prime Minister Turnbull commented: "I look forward to considering the report in detail and will consult with members of the Government before releasing it to the public and responding to its findings."

On 12 October 2018 Fairfax Media leaked the Report.

The Government released the Report, and it's response, on 13 December 2018.

The Recommendations

The Fairfax Media report contained 20 recommendations, however, the recommendations that garnered the most media coverage and sparked the fiercest debate are recommendations 5 and 7.

These recommendations suggest the amendment of Sex Discrimination Act 1984 (Cth) to allow religious schools to, respectively, "discriminate in relation to the employment of staff, and the engagement of contractors" and "in relation to a student basis of sexual orientation, gender identity or relationship status". However, the recommendation provides that "the discrimination is grounded in the precepts of the religion" and that the school policy on the issue is made publically available, provided to current and prospective employees contractors, and students. Recommendation 7, which relates to discrimination in relation to student, also states that the discrimination may take place provided that "The school has regard to the best interests of the child as the primary consideration in its conduct."

Academics Liam Elphick, Amy Maguire and Anja Hilkemeijer have commented that "Much of the immediate reaction to the leaks incorrectly claimed that the recommendations would grant such a right for the first time", which is not the case.

Sex Discrimination Act 1984 (Cth)

Currently, section 38 of the Sex Discrimination Act 1984 (Cth) permits educational institutions established for religious purposes to "discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with...":

  • "employment as a member of the staff"
  • "a position as a contract worker"
  • "the provision of education or training"

However, for the discrimination to be lawful, the education institution must "discriminate in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed."

Elphick, Maguire and Hilkemeijer have explained that the additional limitations contained in recommendations 5 and 7 would actually "constrain this existing right to discriminate".

The Response

While the right of faith-based schools to discriminate on the basis of "sexual orientation, gender identity or relationship status" has been enshrined in legislation for some time, the release of the recommendations by Fairfax seems to made many more people aware of the fact, and sparked debate on the legitimacy of such an anti-discrimination exemption.

The exemptions "that enabled faith-based schools to discriminate against teachers, contractors students and so forth" were actually introduced in 2013 by the Gillard Labor Government. The current Labor leader, Bill Shorten, has voiced support for repealing the existing exemptions, stating: "It's time our laws reflected the values we teach our children." The Liberal Party, on the other hand, appear to be " split" on their stance to the current exemptions.

In an address given following the publication of the recommendations, the Anglican Archbishop of Sydney, Dr Glenn Davies, argued for the right of "religious organisations... to operate according to their religious ethos", explaining that he believed that "Anglican schools, if they are going to remain Anglican, must be able to employ staff who support the Christian values of the school". However, he stated: "Let's be very clear. Anglican schools in Sydney do not expel students for being gay."

What's next?

While the Expert Panel's Report, and the Government's response, were not released until 13 December 2018, in the final sitting days of Parliament in early December, the Government tabled proposed amendments to the Sex Discrimination Act that, in its view, "would have removed discrimination against students while also protecting religious schools' ability to maintain their ethos". However, the proposed amendments did not have the support of the Opposition, and no new legislation was enacted.

In its official reply to the Report, the Government responded to recommendations 5 and 7 as follows:

While noting and agreeing with the principle underpinning the... recommendations ..., the government is of the view that further consideration is necessary to address the complexities associated with these recommendations.

In particular, the Government:

will consult with the States and Territories on the terms of a potential reference to the ALRC [Australian Law Reform Commission] to consider [the] recommendations 1 and 5 to 8 of the Review with a view to settling upon a legislative mechanism that would, on a nationally consistent basis, achieve the twin purposes of limiting or removing altogether (if practicable) legislative exemptions to prohibitions on discrimination based on a person's identity, while also protecting the right of religious institutions to reasonably conduct themselves in a way consistent with their religious ethos.

We will keep you abreast of future developments in this area, and in particular any proposed amendments to the Sex Discrimination Act flowing from the Report.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Merryn Lynch
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