Facing discrimination complaints: exemptions for Faith-Based Schools
Facing discrimination complaints: exemptions for Faith-Based Schools
Faith-based schools play a significant role in Australia’s education system (accounting for approximately 30% of registered non-government schools), providing academic instruction within the context of religious teachings. However, the issue of discrimination within faith-based schools has sparked intense debate in recent years, requiring a delicate balance between preserving religious freedom and ensuring that individuals are not subject to unfair treatment or exclusion.
The current anti-discrimination legal system
This issue is further complicated by the various sources of anti-discrimination law (including both state/territory and federal law) that ‘overlap’ in this space, which makes reform more difficult.
The Australian Human Rights Commission has responsibilities under several federal Acts, including the Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and the Sex Discrimination Act 1984.
In addition to the federal legislation, each state and territory in Australia has its own legislation relating to equal opportunity and anti-discrimination agencies (for example, the Anti-Discrimination Board in NSW), with statutory responsibilities in relation to dealing with complaints. While the federal and state/territory acts are similar, they apply in different ways and have different ‘exemptions’ from discrimination available to schools.
The risk of non-compliance
Last year, a school in Brisbane came under fire in the media following an update to its enrolment conditions, which denounced homosexuality and purported to exclude transgender students from the school. Several unlawful discrimination complaints were subsequently lodged with the Queensland Human Rights Commission. This was a public relations disaster that could have been avoided with a better understanding of both discrimination law and the views of the broader school community.
The Anti-Discrimination Act 1991 (Qld) makes discrimination in relation to defined attributes (including sex, sexuality, religious beliefs and gender identity) unlawful in certain places, including at work or school. Queensland schools can still preference students (and staff) of a certain religion when selecting them but they cannot discriminate against current students on religious grounds while actually providing education. This is what ultimately led to discrimination complaints for the school in Brisbane when updating its enrolment contract. Tasmania is similar, in that you can discriminate in the admission of students based on religious belief, but cannot discriminate against them on this ground after a student has been enrolled.
Other states and territories have similar (but not identical) anti-discrimination legislation in place. What differs among the states and territories is the extent of the exemptions (that offer protection from a claim of unlawful discrimination) available to faith-based schools. These religious exemptions typically fall under two broad categories: firstly, whether a school can discriminate when enrolling students (and in some cases, after enrolment) based on religious beliefs and, secondly, whether a school can preference or select teachers and/or other staff based on religious beliefs.
Generally speaking, schools across the jurisdictions can, to some extent, preference both student enrolment and staff selection based on religion. However, an exemption based on religion when selecting staff and students is quite different to a broader exemption from unlawful discrimination (say, on account of sex or other related attributes) that might allow schools to discriminate based on non-religious attributes.
In Victoria, for instance, discrimination for religious reasons when engaging staff needs to be for a genuine occupational requirement (such as for the teaching or practice of religion), whereas currently, in NSW, most types of discrimination by a private school (other than racial discrimination and sexual harassment) are not unlawful under the Anti-Discrimination Act 1977.
As such, it is important to consider the laws that apply in your state or territory. Of course, even where exemptions exist in your jurisdiction, you should consider whether your religious teachings justify you in relying on those exemptions. You may also have to consider the views of your school community.
Federal anti-discrimination
Federal anti-discrimination laws, including the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) (which applies to national system employers), also prohibit discrimination in a school against people on grounds including sex, sexual orientation, gender identity, marital or relationship status, or pregnancy.
Faith-based schools may be able to rely on a federal exemption to discrimination for a particular attribute under the relevant Act, where discrimination is not unlawful because an action is taken by a faith-based school conducted in accordance with the teachings of a particular religion, if the action is taken ‘in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’ (see for example the exemption in section 38 of the Sex Discrimination Act 1984). However, this is not always an easy exemption to make out; it will require evidence that the religious susceptibilities of a majority of the adherents of that religion have been injured by the discriminatory act.
Further, these exemptions are not always consistent to those available under state or territory law. This can leave schools open to complaints under state and territory law, even where they have complied with federal law. Education authorities must therefore comply with both; an exemption under the applicable state/territory Act may not apply under the federal Acts (and vice versa).
Federal discrimination reform
In January 2023, the Australian Law Reform Commission (ALRC) released a consultation paper following its review of religious educational institutions and anti-discrimination laws, ultimately proposing to:
- make discrimination against students on certain grounds (including sexual orientation, marital status, pregnancy and gender identity) in faith-based schools unlawful, by removing exemptions available under federal Acts;
- protect teachers and other school staff from discrimination on the same grounds, by removing these exemptions;
- permit faith-based schools to preference prospective staff on religious grounds where the teaching or practice of religion is a part of their role; and
- require all staff to respect the faith-based school’s ethos.
The response to the ALRC’s proposals from faith-based schools has been largely negative, with faith-based schools arguing that their ability to preference teachers of the relevant faith is crucial to maintain their religious ethos and values. Conversely, critics argue that maintaining these exemptions can lead to unfair treatment and contend that exemptions prevent talented staff from securing positions based on merit.
Following some of these comments, the Prime Minister, Anthony Albanese, reiterated that Labor will respect ‘religious schools’ right to select staff based on faith’. It remains to be seen the extent to which any of the ALRC proposals will be adopted.
Conclusion
As the discourse surrounding discrimination in faith-based schools continues, it is both necessary and appropriate to seek solutions that balance the rights of faith-based schools and individuals with the principles of equality and inclusivity.
If you need any assistance navigating the exemptions that apply to your faith-based school, contact David Ford or Stephanie McLuckie.