As foreshadowed in the press reports noted in my previous post, the ACT Government has now introduced a Bill designed to curtail the current religious freedom enjoyed by religious schools in the Territory to operate in accordance with their beliefs. The Discrimination Amendment Bill 2018 (ACT) is an unwise proposal and it is likely that it would be invalid as contrary to Commonwealth law.
I will assume the reader is familiar with the background to the Bill as noted in my previous post. Here I will just briefly indicate how it achieves its goals.
The central provision is cl 6, which simply repeals s 33 of the Discrimination Act 1991. That is the provision which at the moment allows religious schools to choose staff whose lifestyle is consistent with the school’s religious framework, and to implement student polices which also do so. While the stated purpose is to remove the ability of schools to select or deal with staff or students based on their sexuality, in fact it removes any right of such schools to take into account any of the protected attributes under s 7 of the Act. (An exception in relation to religious belief is restored by an amendment to s 46 which we will note below.) But, for example, this means that a religious school could also not choose to remove a female teacher who was single but had become pregnant, contrary to the moral code the school was committed to; or an unmarried male teacher who started living in a sexual relationship with his girlfriend.
Clauses 4 & 5 of the Bill attempt to close off a possible way of avoiding the impact of the repeal of s 33. Section 32 of the Act currently contains a broad exemption for religious bodies in relation to a number of areas, and in particular under s 32(d) a religious body is allowed to implement:
(d) any other act or practice of a body established for religious purposes, if the act or practice conforms to the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
The amendments will add the words “other than a defined act” to this, making a “defined act” something that is not protected. The Bill will then insert new s 32(2) as follows:
(2) In this section:
defined act, by a religious body, means an act or practice in relation to—
(a) the employment or contracting of a person by the body to work in an educational institution; or
(b) the admission, treatment or continued enrolment of a person as a student at an educational institution.
The ability of “educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed”, to act in accordance with their beliefs, having been removed by s 33, this amendment is designed, it seems, to apply the same carve-out to a “religious body” which engages people to work in an “educational institution”, or admits persons as students to such.
This may simply be aimed at organisations whose primary purpose is running a school or other educational institution, but it is so broadly worded that it could apply in many other circumstances. For example, will a church which employs someone to teach scripture or some other form of religious education in a school or university, be able to rely on their religious views to exclude someone from another religion, or an openly gay person, from being appointed? Perhaps not. The broad wording would seem to open up the possibility that this new clause would apply to such a case. Indeed, whether intended or not, the definition of the phrase “educational institution” itself, in the Dictionary at the end of the Act, by including the words “other institution at which education or training is provided”, could be said to extend to any church which conducts a regular program of teaching for either adults or children.
A court might well say that since the Act distinguishes between “religious bodies” and “educational institutions”, churches are not meant to be caught by the second phrase. If the proponents of the Bill agree, the very least they could do would be to insert a clarification to that effect. But even if this is done, the clause’s obvious effect on churches employing people to provide classes in schools is a clear detriment to the religious freedom of those churches.
There are then some additions to s 46 of the Act, which are only needed because, despite the repeal of s 33, the intention is to to allow religious schools to still choose staff and students on the basis of their religious beliefs. But this choice will now have to advertised publicly beforehand. (That itself is not a bad idea.)
In my previous post I noted that there is a plausible argument that a Bill like this one would be ineffective and invalid, as contrary to Federal law (the current provisions of the Sex Discrimination Act 1984 (Cth) s 38). I still maintain that this is likely.
In addition, it is worth noting that, while there is some debate on the matter, most Constitutional scholars today take the view that s 116 of the Constitution is applicable to Territory laws. Any law “for prohibiting the free exercise of any religion” would be invalid, at least if, as it was expressed in the main authority on the provision, it was an “undue infringement” of religious freedom. There would of course be room for debate about whether or not this was such a law, and whether any infringement was “undue” when taking other interests into account. But to my mind that is yet another reason for seeing this as an unwise piece of legislation.
As is well known, the Federal Government has commissioned and received an extensive expert report on religious freedom issues, the Ruddock Report, which has not yet been released. From the recent leak of its recommendations, it is known that it deals with issues related to those dealt with in this ACT Bill. It would seem to be wise for the Territory not to legislate too quickly without having had a chance to consider the arguments in the Report for the recommendations they have made, which do not line up with this Bill.
Religious schools, where parents can choose to send their children to be educated in accordance with a particular religious tradition, cannot operate if their ethos is undermined by their being forced to adopt policies which contradict those religious beliefs. This proposed ACT law will strip religious freedom from many of those schools, and take away that choice from many parents. It should not be adopted.
This post first appeared on Neil Foster’s blog, Law and Religion