The suggestions are intended to ensure that the legislation is in line with international legal obligations
The Australian Law Reform Commission (ALRC) has published its recommendations for reforms in relation to anti-discrimination and religious educational institution legislation.
The recommendations are intended to ensure the government’s policy regarding these laws is in line with the country’s international legal obligations. The commission undertook over 130 consultations, received more than 400 submissions, and analysed around 40,000 survey responses.
The attorney-general tabled the Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws report in Parliament.
If the ALRC’s recommendations were to be implemented, under federal law religious schools would be in a similar legal position as other schools; however, religious schools would have the specific provision under the Fair Work Act to preferentially employ individuals of the same faith when it is “reasonably necessary and proportionate to the school’s objective of building a community of faith”, the commission said.
Nonetheless, schools would not be allowed to discriminate against students or staff based on attributes protected under the Sex Discrimination Act (SDA). All schools would be protected by provisions of the SDA holding that “conduct with a disadvantaging effect is not indirectly discriminatory if the conduct is reasonable in the circumstances”.
At present, religious educational institutions can discriminate based on grounds such as sexual orientation, pregnancy or marital status.
“For the law to narrow the circumstances in which it is lawful for religious schools to discriminate against students and staff whilst preserving their capacity to maintain a community of faith, manages the intersection of human rights according to the international law obligations Australia is obliged to respect”, ALRC President Mordecai Bromberg said.
The Australian Human Rights Commission approved the tabling of the report.
“Our federal laws must not allow discrimination against students or teachers at any school on the basis of their sex, sexuality or gender identity, and I encourage the government to amend the Sex Discrimination Act accordingly”, Sex Discrimination Commissioner Anna Cody said. “Our laws should also ensure that the allowance of preferential employment by religious institutions should only occur where it is necessary to maintain a community of faith, and any such allowances should be reasonable and proportionate. This is in keeping with international human rights law”.
