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Religious Discrimination Bill 2019

On 29 August 2019, Christian Porter, the Federal Attorney-General, released a draft Religious Discrimination Bill and has invited comment on it by 2 October 2019.

Should schools be concerned, excited or even interested?

Much has already been written about this so let me focus in these Notes simply on one aspect of discrimination in education. The Bill makes it unlawful for a school to discriminate against a person on the ground of their religious belief or activity:

(a) by refusing or failing to accept the person’s application for admission as a student; or

(b) in the terms or conditions on which it is prepared to admit the person as a student.

Religious belief or activity means:

(a) holding a religious belief; or

(b) engaging in lawful religious activity; or

(c) not holding a religious belief; or

(d) not engaging in, or refusing to engage in, lawful religious activity.

Most schools think that they do not discriminate in the enrolment process against students or their families on the ground of their religious belief or activity. However, there are many faith-based schools which include in their enrolment conditions a requirement that students attend religious instruction classes and religious activities such as a chapel service. The normal response to parents who might challenge this requirement is that this is all part of the school’s offering and that, if they don’t like it, they should go elsewhere. If the Bill becomes law, will that response stack up?

It depends on whether or not the school is a religious body. This expression includes a school that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion. Most faith-based schools will have in their Constitution a statement of faith. This may be a broad statement from which one might conclude that the religion is, for example, Christianity. If the statement of faith is a little narrower, one might conclude that the religion is a particular part of Christianity; for example, Protestant, Catholic or Orthodox Christianity, or Evangelical or Liberal Christianity. As is already the case with other anti-discrimination legislation at both federal and state levels, determining what is the “particular religion” can make a big difference to the way the legislation affects the religious body.

The Bill states that a religious body does not discriminate against a person by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted. Therefore, to justify its requirement that students attend religious instruction classes and religious activities, the faith-based school must be able to show that these requirements are in accordance with the teachings of its religion. These schools’ statement of faith may currently say very little, if anything, about religious instruction classes or religious activities. If the Bill becomes law, faith-based schools will have a lot of homework!

There are of course many other provisions in the Bill that I have not touched upon here. However, for many of you, the one sub-section that I have highlighted will make you think that you ought to be concerned and interested, even if not excited. For further information about how the Bill could affect your school as outlined above or in areas such as school discipline and expulsions or staff employment, please contact David Ford.

David Ford

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