The right of faith-based schools to employ people who live out the faith of the school has been under attack for many years. When the Religious Discrimination Bill was introduced under the Morrison Government, the bill was derailed by an amendment that was added at the last minute that stripped schools of this right.
Labor’s election commitments
Leading up to the 2022 Federal Election, Anthony Albanese made commitments to faith-based schools:
A future Labor government will:
- prevent discrimination against people of faith, including anti-vilification protections;
- act to protect all students from discrimination on any grounds; and,
- protect teachers from discrimination at work, whilst maintaining the right of religious schools to preference people of their faith in the selection of staff.
Australian Law Reform Commission Review
Following the election, Attorney General Mark Dreyfus asked the Australian Law Reform Commission (ALRC) to advise on how to put that commitment into legislation.
In January 2023, the Commission released a draft report that recommended stripping faith-based schools of the ability to select staff who live out their faith, or to operate their school according to that faith. This report received hundreds of submissions in response, many pointing out the blatant violation of the basic human right of religious freedom and making alternate proposals.
More than a year later, in March 2024, the Commission released its final report, which made essentially the same recommendations. This raised questions of whether the Commission considered any of the submissions, or had already determined its position on its own ideology.
In introducing the report, the Attorney General seemed to distance himself from it, saying “The Australian Law Reform Commission’s report tabled today is not a report from the Government. It is advice to the Government, and we will continue to consider it.”
Draft legislation
The Government have drafted discrimination law reforms that will make changes to the operations of faith-based schools. However, the Government’s proposed changes have not been made public, and have only been shown to a select group on extremely restricted terms. Heads of faith, and Freedom for Faith, have been taken through the legislation by the Government and the Shadow Attorney General Michaelia Cash, who has been supplied a copy by the Government.
The most recent version of the Bill that we have seen effectively implements the recommendations of the ALRC report, and would have a devastating effect on faith-based schools.
As far as we are aware, all faith leaders who have been consulted on the current draft bill have rejected it.
Commitment to a bi-partisan approach
In late March, Mr Albanese made the commitment that any religious discrimination legislation and any changes to faith-based schools would only be introduced if it had support from the opposition: “Our position is that if there is bipartisan agreement we will proceed. If there is not agreement, then now is not the time to have a divisive debate”.
However, a week later, the Prime Minister hinted that he might move away from that commitment, saying “If the Greens are willing to support the rights of people to practice their faith, then that would be a way forward, but we don’t currently have that”. This potential change in direction received rapid condemnation from faith leaders who issued an open letter to the Prime Minister. This letter was reported widely (e.g. ABC, The Australian), and triggered multiple meetings between faith leaders and the Government.
In mid-May, the Prime Minister met with a number of faith leaders to discuss the issue. This meeting was very positive, with the PM saying that religious freedom “will not go backwards while I’m Prime Minister of Australia”. He also indicated that he believed that faith-based organisations (including schools) requiring employees to live out their faith was “not discrimination”. This meeting also effectively ruled out any deal with the Greens to pass legislation.
A positive right?
At the same time Justice Rothman, the Commissioner responsible for the Australian Law Reform Commission’s report into Faith-based schools and sex discrimination, said faith-based employers needed a “positive right” to hire staff based on their ethos.
This is in stark contrast to the recommendations of the Report. Justice Rothman explained that by saying that the limited terms of reference that were given for the report prevented a wider analysis of the needs of schools.
There is an increasing awareness that faith-based schools need more than just exemptions in certain laws – they need a positive right stating that they can operate according to their faith.
What will happen next?
The Government have not indicated what they will do next.
As they are considering their next step it is vital that they hear from as many people as possible across Australia to tell them to keep their promises and deliver legislation that will protect our basic human right of religious freedom.
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