The federal attorney general, Mark Dreyfus, has asked the Australian Law Reform Commission to review the country’s religious exemptions for schools in federal anti-discrimination law, in the first formal step towards new religious discrimination laws.
The government won’t be moving forward on any proposed legislation until at least the middle of next year, with the ALRC not due to report back until April. The review will be headed by Justice Stephen Rothman AM of the NSW supreme court, a former president of the Great Synagogue.
Rothman made headlines ahead of the marriage equality plebiscite by announcing he would be voting yes, writing that he considered it “an issue that affects civil society and civil law; not our religion”.
One of Rothman’s tasks will be addressing Labor’s three main principles for anti-discrimination law: that it not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy; it not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy; and that it can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
The ALRC review will look not just at existing anti-discrimination legislation, but also the gaps.
“The ALRC should also have regard to the government’s commitment to introduce legislation to [among other things] prohibit discrimination on the basis of religious belief or activity, subject to a number of appropriate exemptions,” Dreyfus set out in the terms of reference.
“In doing so, the ALRC should consider whether some or all of the reforms recommended as a result of this inquiry could be included in that legislation.”
Dreyfus said Labor was meeting its election commitment but would not be rushed.
“Before the election, we committed to tasking the ALRC with advising on the best way to protect staff in religious schools from discrimination at work, while maintaining the right of religious schools to preference people of their faith in the selection of staff,” he said. “Today’s referral delivers on that commitment.”
The former Coalition government attempted to rush through religious discrimination laws ahead of the May election to belatedly meet a commitment it made at the previous election. Five members of the Liberal party crossed the floor to vote in favour of Labor amendments to add protections for LGBTQ+ students at religious schools. Uncertain of having the numbers to pass it, the Morrison government did not introduce the bill into the Senate.
Students remain the main focus of the Labor government review, with the aim of any potential legislation to extend any necessary anti-discrimination protections, although limited further protections for staff will also be included.
Anna Brown from Equality Australia said staff were also deserving of anti-discrimination protections.
“One in three students and almost two in five school employees are employed in non-government schools, most of which are religiously affiliated. Everyone deserves the same legal protections from discrimination, no matter where they work or study,” Brown said.
“It is not acceptable for a religious school – or any employer – to discriminate against a person because they are gay or transgender, or because they refuse to sign up to discriminatory beliefs about LGBTQ+ people.”
Equality Australia was also concerned the scope of the review did not include religious-affiliated organisations outside of education, such as health care.
Dreyfus said the review was a “crucial first step” towards the government’s commitment to extending anti-discriminations “including to people of faith and to staff and students in religious schools”.
“The government remains committed to legislating to protect people of faith from discrimination and vilification. This legislation will be drafted in a manner that does not remove existing legal protections against other forms of discrimination.”
But it will be a balancing act, with religious organisations looking for some protections to run their education institutions in line with their doctrines.
