The Times Australia
The Times World News

.

Religious schools can build a community of faith without discriminating. The law should reflect that

  • Written by Liam Elphick, Lecturer, Faculty of Law, Monash University
Religious schools can build a community of faith without discriminating. The law should reflect that

In 2018, Australians were shocked to learn that religious schools still had the right to discriminate against LGBTQ students and staff.

Politicians called it “utter crap[1]”. Polling found[2] 74% of Australians opposed it.

Federally, both the then-Coalition government and Labor opposition committed to protect LGBTQ students from discrimination. Yet, almost five years later, laws allowing religious schools to expel LGBTQ students and sack LGBTQ staff remain in place.

Late last year, Attorney-General Mark Dreyfus asked[3] the Australian Law Reform Commission (ALRC) to inquire into how to end discrimination against LGBTQ students and staff while allowing religious schools to build and maintain their communities of faith.

Last month, the ALRC released its consultation paper[4]. It recommended the exceptions in federal discrimination law allowing religious schools to discriminate be removed.

In response, some faith leaders and commentators have argued the ALRC proposals threaten the future of religious education[5], represent a “fundamental attack[6]” on religious freedom, and would be “catastrophic[7]” for religious schools.

This is entirely untrue.

The ALRC proposals are sensible, clear and necessary. They cut through the noise that has surrounded these issues for many years. They appropriately protect both the rights of LGBTQ kids and teachers to be treated with dignity and respect, and of religious schools to maintain their connection to faith.

There are still some improvements that can be made. But this is our best opportunity to ensure federal discrimination laws finally catch up with contemporary values.

Read more: Schools can still expel LGBTQ+ kids. The Religious Discrimination Bill only makes it worse[8]

What are the ALRC proposals?

At the federal level in Australia, exceptions for religious schools have always existed.

Currently, the Sex Discrimination Act allows religious schools to discriminate[9] on the basis of sex, sexuality, gender identity, marital status, and pregnancy where the discrimination is in “good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.

This sounds like a complicated test, but it is very easy to satisfy. A religious school simply has to prove there are some members of its religion who would want to keep out, or treat differently, particular students or teachers - such as LGBTQ students or unwed teachers.

The ALRC proposes removing these exceptions. This would, finally, make it unlawful for religious schools to discriminate in this way.

The ALRC proposals would prevent discrimination against LGBTQ students and teachers while allowing faith schools to maintain a religious community. Shutterstock

The ALRC also proposes reforms to ensure religious schools can still build and maintain a community of faith through hiring and termination of staff. These reforms would allow schools to preference staff on the basis of their religion – but not sex, sexuality or gender identity – where religion is a genuine occupational requirement of their role.

Christian schools could hire Christian teachers, Jewish schools could hire Jewish teachers, and Islamic schools could hire Muslim teachers.

Several states and territories, including Tasmania[10] and Victoria[11], already adopt a similar approach. Not only has the sky not fallen, but religious schools in Australia only seem to be growing[12].

The ALRC has also proposed that religious schools be granted a right to terminate the employment of staff who actively undermine the “ethos” of the school’s religion, where the termination is proportionate in the circumstances.

Read more: Australians reject discrimination that is based on religious belief: new research[13]

How would the proposals affect religious schools?

The ALRC proposals would stop religious schools from expelling students or subjecting them to different treatment to their peers because they are gay or transgender. These proposals would also stop a religious school from sacking a teacher because, for instance, they are a single mother or in a relationship outside of marriage.

What the proposals would not do is force religious schools to hire or continue the employment of staff who fail to uphold reasonable and non-discriminatory codes of conduct and behaviour.

All employers, including religious schools, can adopt non-discriminatory codes of conduct – and the vast majority do. Such codes give employers the right to protect the culture and values of their organisation, including religious values and culture. As long as they are reasonable, nothing in the ALRC proposals affects such codes of conduct.

These proposals simply mean that religious schools would be in the same position as other schools and employers. They will be able to protect their organisational culture and values through existing discrimination law mechanisms.

How should the proposals be improved?

As we set out in the Australian Discrimination Law Experts Group’s submission[14] to this inquiry, there are three ways in which the proposals should be improved.

First, because of the complex relationship[15] between the Fair Work Act and federal discrimination laws, some of the ALRC’s proposals regarding the Fair Work Act have unintended consequences.

Certain proposals would actually allow an alternative route - enterprise agreements - through which religious schools could discriminate against LGBTQ staff.

This should be fixed by amending the Sex Discrimination Act to stop it being overridden by Fair Work Act enterprise agreements, and fixing the legal language in the ALRC’s Fair Work Act proposals.

Second, the ALRC has proposed that school curriculums should be entirely exempt from the Sex Discrimination Act. This undermines one of the purposes of the inquiry: to stop LGBTQ kids from being discriminated against at religious schools.

Instead of directly excluding them, schools and teachers could instead use the cloak of the “curriculum” to vilify and discriminate against students on the basis of their sexuality or gender identity.

It is difficult to see how this proposal is consistent with the duty of care owed by schools to students. It is also unclear how such a proposal would operate in conjunction with the development and implementation of the national curriculum. It should be rejected.

Third, the terms “ethos” and “religious ethos” are used throughout the ALRC’s proposals.

The term “ethos” has never been used in any of Australia’s 13 federal, state or territory discrimination laws. Nor is it found in the international human rights treaties on which those laws rely.

Importing the concept of an institution having an “ethos” is unnecessary and confounding. References to “ethos” should be removed.

These three proposals undermine the value of the ALRC’s otherwise sensible proposals. They give rise to confusion and legal complexity. Fixing them will ensure the great promise of the ALRC inquiry is fulfilled.

School is not just about learning maths and English. It is the place young people learn some of their most important formative lessons about their individual worth and the worth of their peers.

Religious schools can build and maintain a community of faith without discriminating against LGBTQ students and staff - indeed, many already do. It is well and truly time for the law to reflect that.

References

  1. ^ utter crap (www.news.com.au)
  2. ^ found (www.smh.com.au)
  3. ^ asked (www.theguardian.com)
  4. ^ consultation paper (www.alrc.gov.au)
  5. ^ threaten the future of religious education (www.theaustralian.com.au)
  6. ^ fundamental attack (www.theage.com.au)
  7. ^ catastrophic (www.spectator.com.au)
  8. ^ Schools can still expel LGBTQ+ kids. The Religious Discrimination Bill only makes it worse (theconversation.com)
  9. ^ allows religious schools to discriminate (www6.austlii.edu.au)
  10. ^ Tasmania (www.legislation.tas.gov.au)
  11. ^ Victoria (classic.austlii.edu.au)
  12. ^ growing (www.abc.net.au)
  13. ^ Australians reject discrimination that is based on religious belief: new research (theconversation.com)
  14. ^ submission (www.adleg.org.au)
  15. ^ complex relationship (www6.austlii.edu.au)

Read more https://theconversation.com/religious-schools-can-build-a-community-of-faith-without-discriminating-the-law-should-reflect-that-200532

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

The Role of Your GP in Creating a Chronic Disease Management Plan That Works

Living with a long-term condition, whether that is diabetes, asthma, arthritis or heart disease, means making hundreds of small decisions every day. You plan your diet against m...

Troubleshooting Flickering Lights: A Comprehensive Guide for Homeowners

Image by rawpixel.com on Freepik Effectively addressing flickering lights in your home is more than just a matter of convenience; it's a pivotal aspect of both home safety and en...

My shins hurt after running. Could it be shin splints?

If you’ve started running for the first time, started again after a break, or your workout is more intense, you might have felt it. A dull, nagging ache down your shins after...

Metal Roof Replacement Cost Per Square Metre in 2025: A Comprehensive Guide for Australian Homeowners

In recent years, the trend of installing metal roofs has surged across Australia. With their reputation for being both robust and visually appealing, it's easy to understand thei...

Why You’re Always Adjusting Your Bra — and What to Do Instead

Image by freepik It starts with a gentle tug, then a subtle shift, and before you know it, you're adjusting your bra again — in the middle of work, at dinner, even on the couch. I...

How to Tell If Your Eyes Are Working Harder Than They Should Be

Image by freepik Most of us take our vision for granted—until it starts to let us down. Whether it's squinting at your phone, rubbing your eyes at the end of the day, or feeling ...