From The Point: religious discrimination proposals include fatal flaws
The Australian Law Reform Commission (ALRC) released a consultation paper in January this year which recommended the removal of the exceptions from anti-discrimination law which have allowed religious schools to discriminate against students and IEU members because of their sex, sexual orientation, gender identity, marital or relationship status or pregnancy.
This recommendation resulted from an inquiry initiated last year by the new federal Attorney-General Mark Dreyfus which effectively asked the ALRC to advise it as to how to end such discrimination.
The IEU supports the removal of these exemptions which have enabled a small minority of intolerant employers to relentlessly bully and dismiss hundreds of IEU members over many decades. This discriminatory conduct included the dismissal of LGBTIQ+ members, those who were living apart from their partners, members who used non-approved methods of IVF and others who simply sought a dialogue with their church over its religious teachings and moral values.
The IEU agrees with three academics who wrote for The Conversation who described the removal of those exemptions as “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.”
However, the effect and integrity of these proposed changes is threatened by other recommendations made by the ALRC.
The Government also requested advice from the ALRC on changes that would ensure that religious schools could preference staff of their own religion so that they “can continue to build communities of faith”.
And, worryingly, some of the ALRC’s responses would yet again allow non-government schools to discriminate against IEU members.
Most contentiously, the ALRC suggested that the Government should examine creating new laws which would allow employers to discipline and dismiss employees who “actively undermine the ethos of the (religious educational) institution”.
In its submission to the ALRC, the IEU strongly opposed this position because it would effectively remove the protections for IEU members the government said it wishes to put in place with the exemption changes.
There are obviously unfair aspects to this deeply flawed proposal. Firstly, an ethos is to be specific to a school and therefore can be unmoored from or even at odds with the school’s faith base.
Secondly, there is no requirement for a school ethos to be reasonable or even lawful. In fact, the more unreasonable, narrow, and intrusive the school’s ethos is the more likely that members could be dismissed without intentionally breaching the school’s ethos.
Australia’s leading anti-discrimination experts, academics, and the ACTU are stridently critical of this element of the ALRC’s proposal.
In their submission, the Australian Discrimination Law Experts Group (ADELG) writes: “To the extent that any organisation has an ‘ethos’, existing employment law provides mechanisms for ensuring that employees uphold such ethos. There is no need to specifically include this term in the proposals; its potential breadth could privilege religious educational institutions above all other employers”.
ADELG points out that there is not, nor has there ever been a reference to the term ‘ethos’ in any of Australia’s 13 federal, state or territory discrimination laws; the term has no meaning or history in Australian discrimination legislation; Australian discrimination case law has never considered its meaning or scope; and it doesn’t appear in the international human rights treaties underpinning Commonwealth discrimination law.
“We see no reason to import a concept of such nebulous nature into our laws... Doing so runs the risk of unintended consequences, particularly the possibility of creating a much broader right to preference or terminate employment than currently exists under Australian law.”
ADELG says determining the meaning of ‘ethos’ would be confusing for “those seeking to comply with the law and those seeking to enforce it and resolve complaints”.
This would “undermine the overall clarity of the proposed reforms and, again, add to the complexity of laws that were intended to be accessible”.
Under such a law, what rights would parents, teachers and students have – each with their own individual right to freedom of religion and belief – to determine the ever-evolving religious ethos of their educational institution? These communities may – and often do – disagree as to the ethos they attach to their religion, or religious educational institution.
The ALRC is expected to provide its final report to the Attorney-General by 21 April 2023. The IEU encourages all members to keep informed about this hugely important piece of legislation.
The IEU calls for federal legislation that:
· Protects all employees from discrimination, in line with Australia’s human rights undertakings
· Removes the special exemptions that allow religious institutions to discriminate
· Provides clearer parameters for the use of any ‘employee preference’ as they relate to the religion of an employee in a faith-based school
· Consolidates existing federal legislation to provide for discrimination protections as part of a single, broad-based, federal human rights regimen
· Introduces a positive duty on organisations to eliminate discrimination
· Empowers the Fair Work Commission as a free and impartial discrimination resolution service. Opportunity now exists for the federal government to deliver equality to all workplaces and ensure protection from discrimination regardless of occupation or place of work.