Proposed Religious Discrimination Legislation and Enrolment Conditions
Published on April 15, 2020 by David Ford
The Federal Government released the second exposure draft of the Religious Discrimination Bill in December 2019, following a consultation process on the first exposure draft. While the outcome of further consultation and submissions cannot be predicted with any certainty, it is worth faith-based schools giving some thought now to the consequences of the current Bill being enacted.
The Bill is structured in similar fashion to other Federal discrimination legislation. If enacted, it would be unlawful for a school to discriminate, either directly or indirectly, against a person on the ground of the person’s religious belief or activity. Direct discrimination is where the school treats the person less favourably than the school treats another person who does not have or engage in the religious belief or activity. Indirect discrimination is where the school imposes a condition or requirement which has the effect of disadvantaging persons who hold or engage in the same religious belief or activity as the person, and the condition or requirement is not reasonable.
Specifically, it would be unlawful for a school to discriminate against a person on the ground of the person’s religious belief or activity:
- by refusing or failing to accept the person’s application for admission as a student; or
- in the terms or conditions on which it is prepared to admit the person as a student.
It is common for faith-based schools to include in their enrolment conditions a requirement that students attend chapel services or other comparable worship or prayer gatherings and religious instruction lessons. Would imposing such a condition be unlawful if the Bill became law? Could the parents of a Jewish child assert that the Christian school to which they wish to send their child is acting unlawfully by requiring the child to attend a Christian worship service?
Clearly, the condition is a condition on which the school is prepared to admit the child as a student. The Jewish parents would no doubt argue that the condition had the effect of disadvantaging all Jewish children because it would force them to attend a service where Jesus was proclaimed as the Messiah which is theologically incompatible with Judaism. The question then is whether it is reasonable for a Christian school to impose that condition. The Bill sets out a number of circumstances which have to be considered when considering whether the condition is reasonable. These include the nature and extent of the disadvantage resulting from the imposition of the condition, the feasibility of overcoming or mitigating that disadvantage, and whether the disadvantage is proportionate to the result sought by the school in having that condition. There is plenty of room for argument here!
However, all of this may be academic as the school may be able to rely upon an exemption in the Bill available to religious bodies, an expression which includes an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. Under the Bill, a religious body does not discriminate against a person by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion. Further, a religious body does not discriminate against a person by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body. A Christian school could, therefore, argue that it fell within this exemption because by requiring all students to attend Christian worship services and religious instruction, it was engaging, in good faith, in conduct to avoid injury to Christian people who would expect all students at the school to attend such activities.
The moral of this brief consideration of a Bill which may never become law is that faith-based schools ought to spend time now thinking about what they do which is core to their existence and how best to frame their enrolment documents to protect their right to do those things into the future.
This article was first published in the School Marketing Journal, Term 1 2020 edition