Reports in the press note that that the ACT Government has announced its intention to “close a loophole” in discrimination laws by removing the capacity of religious schools to apply their religious beliefs in staffing decisions. The law being referred to is not a “loophole”, it is part of the fundamental architecture of discrimination law around Australia, with rare exceptions, and removing these provisions would not be a good idea.
The context of the proposals is the recent debate in Federal Parliament about the leaked recommendations of the Ruddock Report (for comment here see here and succeeding blog posts linked at the bottom of this one.) In particular concern has been expressed that religious schools may apply their faith-based moral framework (which in many cases includes the view that homosexual activity is not part of God’s purposes for humanity) in dealing with students and staff at the school. The Federal Government has indicated that it will be introducing amendments to relevant Federal laws to clarify that religious schools may not expel students merely on the basis of their sexual orientation (though apparently they are still in negotiation with the Opposition over the form of this amending legislation). But it is still not clear whether there will be any changes in relation to teachers.
In a previous post I outlined the provisions of Federal law relating to religious schools and gay teachers. In short, under s 38(1) and (2) of the Federal Sex Discrimination Act 1984 (“SDA”), religious schools who make employment decisions in relation to teachers taking into account their sexual orientation, are protected from being sued under sections 14 and 16 of the SDA, which generally forbids such discrimination in employment and contracting arrangements.
As well as the Federal SDA dealing with this matter, there are religious “balancing clauses” in most equivalent State and Territory discrimination laws around Australia. This paper reviews the overall situation around the country. (It notes that most other jurisdictions provide protection for religious schools in these areas, with the main exception being Tasmania.)
The ACT law on religious schools and gay teachers
The ACT Discrimination Act 1991 (DA), s 33 is a balancing clause designed to protect the right of religious schools to operate in accordance with their religious ethos.
Educational institutions conducted for religious purposes
33 (1) Section 10 or 13 does not make it unlawful for a person (the first person ) to discriminate against someone else in relation to—
(a) employment as a member of the staff of an educational institution; or
(b) a position as a contract worker that involves doing work in an educational institution
if the institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(2) Section 18 does not make it unlawful for a person (the first person ) to discriminateagainst someone else in relation to the provision of education or training by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first person so discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Sections 10 and 13 of the DA deal with work arrangements, and section 18 with provision of educational services. Section 33 is very similar to s 38 of the Federal SDA in its current form. One of the main differences is that the protection provided to religious schools by s 33 of the DA covers all of the “protected grounds” of discrimination set out in the ACT law, rather than being confined to the limited grounds noted in the SDA. But the effect, in relation to actions based on homosexuality, is effectively identical.
By way of reminder, these provisions are there because most major religions do not believe that homosexual behaviour is consistent with their view of God’s purposes for humanity. Parents who choose (often at some expense) to send their children to religious schools of a particular tradition, are entitled to expect that the school will be conducted in accordance with that tradition. It would be difficult to do so if religious views about appropriate sexual behaviour were undermined by open student opposition, and in particular by the lifestyle of teachers.
Proposed ACT changes
The press report noted above suggested that, even prior to the form of amendments to the SDA in relation to students being settled, the ACT Government will put amendments to s 33 to its legislature. The report on the Canberra Times website notes:
Mr Barr will [table] a draft bill next Thursday to amend the ACT’s discrimination laws to prevent discrimination against students and teachers on the basis of sexuality, gender identity, race, pregnancy or intersex characteristics.
There is then a curious note that the ACT Chief Minister is suggesting that he thought the provisions here would be “trumped” by the ACT’s Human Rights Act 2004 (“HRA”). This is somewhat odd. For one thing, the HRA does not of itself over-ride existing Territory law. While Territory courts are required to “interpret” laws in accordance with the HRA (s 31), if they find that an existing law is incompatible with the HRA all they can do is to make a “declaration of incompatibility”, which has no binding effect until acted upon by the ACT legislature (s 32).
Apart from that matter, there are no good reasons to suppose that s 33 of the DA is incompatible with general human rights laws. All such laws need to balance the various human rights that are provided in documents such as the International Covenant on Civil and Political Rights (“ICCPR”) and the HRA Part 3. One key provision of HRA Part 3 is s 14:
Freedom of thought, conscience, religion and belief
14 (1) Everyone has the right to freedom of thought, conscience and religion. This right includes—
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching. (emphasis added)
Of course there is also a general right to be free from discrimination (see HRA s s 8). But the balancing of the rights to free exercise of religion and the right to not face discrimination, is a task that the ACT legislature has reserved to itself in the way that it has formulated the DA. Indeed, it is interesting to note that in the HRA itself we find the following in s 27A:
Right to education
27A (1) Every child has the right to have access to free, school education appropriate to his or her needs…
(3) These rights are limited to the following immediately realisable aspects:
(a) everyone is entitled to enjoy these rights without discrimination;
(b) to ensure the religious and moral education of a child in conformity with the convictions of the child’s parent or guardian, the parent or guardian may choose schooling for the child (other than schooling provided by the government) that conforms to the minimum educational standards required under law. (emphasis added)
The highlighted reference to the rights of parents to see their children educated in conformity with their religious and moral convictions, is an allusion to the important art 18(4) of the ICCPR, which provides exactly that right. The HRA itself, then, seems to clearly acknowledge that there are different moral views among parents, and that parents have the right to send their children to religious schools which reflect those views. Removing the right of those schools to conduct their affairs in accordance with those views seems to undermine, not support, the HRA.
I have spelled out in some detail in my previous blog post on the law relating to teachersunder the Federal SDA, why the move proposed by the ACT is a bad idea as a matter of policy.
Proposed ACT changes may in any event be ineffective
So far the draft form of any amending ACT law has not been released. But if it proposes, for example, to completely remove the right of religious schools to take into account student behaviour in relation to homosexuality, and declared orientation of teachers, then it seems likely that these changes would in any event be ineffective. That is because, as far as can be determined, such protections for religious schools would remain in the Federal SDA, which would over-ride the ACT law.
Making the complete case for this view would make this already long post too unwieldy. I have argued this in some more detail in the previously linked paper on State and Territory balancing clauses, at pp 23-26. But let me summarise as best I can fairly briefly.
The previous paper addressed the question of a conflicting State discrimination law, which would be rendered invalid by s 109 of the Constitution. But the same logic will apply to the ACT, even though it is not a State.
The ACT legislature derives its legislative powers from the Australian Capital Territory (Self-Government) Act 1988 (Cth) (“the Self-Government Act“), which provides in s 28 that
28 (1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.
(2) In this section:
(a) a law in force in the Territory (other than an enactment or a subordinate law)…
It is clear from this that a law of the Territory cannot have an effect which is inconsistent with a law of the Commonwealth. This sort of clash was discussed in the decision of the High Court of Australia in The Commonwealth v Australian Capital Territory  HCA 55 (“the ACT Same-Sex Marriage case“), where the court ruled that ACT legislation establishing an institution of “same sex marriage” before the law of the Commonwealth had been changed, was invalid as inconsistent with the Marriage Act 1961 (Cth).
Determining whether an ACT law is inconsistent with a Federal law is not a matter of the verbal formulation used, but, as the High Court said in the case noted above, “the topic within which the status falls must be identified by reference to the legal content and consequences of the status, not merely the description given to it” (at ). In this case it is not a question of “status” but “obligations”. Here it seems that the “topic” can be fairly described as the question, may a religious school use the sexual orientation of a student or teacher as part of its decision-making in employment or education? If the proposed ACT law operates as foreshadowed, the answer would be: “No”. But the SDA of the Commonwealth answers that question, “Yes”.
Applying the decisions on s 109 noted in the paper noted above, it seems clear that if allowed to operate, the ACT law would impair the operation of the Federal law. To take one criterion set out in one of the High Court decisions on the point, State law will be invalid where “the State law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law” (Dickson v The Queen  HCA 30 at ).
I also noted in that paper that this view is also shared by academic commentators on discrimination law.
In Rees, Rice and Allen Australian Anti-Discrimination Law (2nd ed; Federation, 2014) at para [3.3.11] the authors explicitly refer to s 38 SDA (providing a general exemption to religious schools) and the fact that the Commonwealth law is “more generous” to employers than some State laws. They say:
“There are also instances in which State legislation, if valid, appears to remove or diminish an entitlement granted by Commonwealth law to various organisations to engage in conduct which would otherwise be unlawful discrimination. For instance, s 38 of the Cth SDA…[citing the defence]. In some States, however, conduct of this nature is unlawful because it falls within a general prohibition against discrimination in employment on these particular grounds and the exceptions granted to educational institutions established for religious purposes to engage in conduct which would otherwise be unlawful if performed by others are not as broad as those which exist in the Cth SDA.” (emphasis added)
In effect, the authors are saying that s 109 would probably invalidate these differing State provisions.
These comments on the operation of s 109 also appear to be equally applicable to the operation of s 28 of the Self-Government Act.
The proposed amendments to ACT discrimination law are not necessary to be consistent with the ACT human rights law. They are a bad idea, in that they will remove the freedom of ACT parents to choose to send their children to schools which operate in accordance with a traditional and well-established religious and moral framework. And in any event, it seems likely that any attempt to remove rights granted to such parents, and to religious schools, will be legally ineffective to diminish rights given by over-riding Federal law.
Previous comments relating to the Ruddock Report
This post first appeared on Neil Foster’s blog, Law and Religion.