1. Deleting new s 37(3)

An important amendment, numbered KQ147, deletes the part of the ALP Bill which adds new s 37(3). That provision is one that I highlighted in my previous post as creating a number of unpredictable consequences, not just for religious schools but also for churches generally. The provision applies, not just to “educational institutions”, but to all “bodies established for religious purposes”. The broad scope of the word “education” may mean that it would, if enacted, prohibit churches from teaching the Bible’s view on sexuality in Sunday School classes, if a student complained that they had been treated “less favourably” because they learned that the Bible regards homosexuality as a sin. Or it might prevent a church, or a University Christian group, from instructing a volunteer youth leader or Bible study leader (responsible for “education”) to step down because he or she was teaching material contrary to the Bible’s view on sexuality. Removal of the proposed s 37(3) is a good idea.

2. Adding a “reasonableness” test for “indirect discrimination”

A couple of the other Government amendments seem to be aimed at achieving similar goals- they may be alternatives rather than cumulative. In broad terms they seek to deal with the problem of religious schools not being able to “directly” discriminate, by clarifying factors that can be taken into account in dealing with a charge of “indirect” discrimination. I think the most helpful of these is amendment KQ148. It would add a new s 7E which would read as follows:

 7E Educational institutions established for religious purposes: reasonableness test  (1) For the purposes of section 7B, a condition, requirement or practice imposed, or proposed to be imposed, in relation to a student by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed is reasonable if: (a) the condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed; and (b) the condition, requirement or practice is imposed, or proposed to be imposed, in a manner that is consistent with a policy of the educational institution that complies with subsection (2); and (c) if the student is a child—in imposing, or proposing to impose, the condition, requirement or practice, the educational institution has regard to the best interests of the child. (2) A policy of an educational institution complies with this subsection if the policy: (a) is in writing; and (b) is publicly available; and (c) sets out the educational institution’s policy in relation to adherence to its doctrines, tenets, beliefs or teachings; and (d) complies with any other requirements prescribed by the regulations for the purposes of this paragraph. Proposed Government amendment KQ148

This new provision relates to determining whether the imposition of some requirement on students which is “indirectly discriminatory”, is “reasonable”. Perhaps the operation of the provision is best illustrated by an example. A religious school may have a policy that students may not conduct activism campaigns which undermine the religious ethos of the school. This would prevent, for example, students setting up an “atheism” club. It may also prevent establishment of an LBGTI club. While the policy on its face does not seem to discriminate against students on the ground of their sexual orientation, it could be argued by same sex attracted students that is “indirectly discriminatory” under s 5A(2) of the Sex Discrimination Act1984 (Cth), because it imposes a requirement that “disadvantages” such students. Using proposed new s 7E the school will be able to say: this policy is “imposed … in good faith in order to avoid injury to the religious susceptibilities of adherents of [our] religion or creed”. If they have made their policy clear and in writing, that will satisfy the section, so long as they can then show that the school “has regard to the best interests of the child”. Here, however, is the first problem I see with this provision. How will the “best interests of the child” be established? Of course I support, as all schools would support, decisions being made in the best interests of children. But determining what that means may be difficult, especially if the matter has to go to a secular court. The school may be convinced that the best interests of children at the school will be served by them not being tempted to move away from the teachings of their religion by other students engaged in activism. But a secular psychologist may say that a “same sex attracted” student should be supported and encouraged in their chosen sexual activity. Belonging to a religious community may mean a view on human flourishing which is quite different to others in the wider community. That is what true “diversity” means, and why we allow faith-based schools in the first place. I think this “best interests” test will not be helpful, unless it is accompanied by some phrase such as “under the religious beliefs of the institution”. But it would be better simply to remove it. The second problem I see with this approach, however, is that providing a defence for an “indirect discrimination” claim, does not solve the problem created in the “direct discrimination” area. The defence in s 7B does not apply where there the very ground of the discrimination is the “prohibited ground” under discrimination law. Here is where some careful explanation is needed. Religious schools, as indicated previously, do not want to “expel” or discipline students simply on the basis of their internal “sexual orientation”. But the reach of the “direct discrimination” provisions as drafted go well beyond that. Courts have ruled in the past that one cannot separate “homosexual orientation” from “homosexual activity” and “support for homosexual activity”. One clear example comes from the decision of the Victorian Court of Appeal in Christian Youth Camps Limited v Cobaw Community Health Service Limited  [2014] VSCA 75, where a Christian youth camp were told that their decision not to hire their premises to a group wanting to run a week-long camp for same sex attracted youth, the aim of which was celebrate and normalise homosexual attraction, amounted to discrimination on the grounds of sexual orientation. In response to their claim that the decision was not made on the basis of the orientation of the persons involved (that the camp was perfectly happy to host lesbian parents, for example, at an ordinary family weekend), the Court of Appeal ruled that a distinction could not be made between “orientation” and “support for homosexuality”.

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity. (at [57]) Maxwell P, in Christian Youth Camps v Cobaw (2014)

(I have discussed other examples of this interpretation of “orientation” in a paper linked here at pp 10-12.) So, if protection against “direct discrimination” in this area is removed, what will go is not only the never-used right to expel students on the basis of their internal orientation, but also the right for schools to set out policies which relate to student behaviour and might be viewed by a court as “indissociably linked” to orientation. So a school policy which said that same sex partners should not be brought to a school formal, would arguably also be under threat of a claim for direct discrimination. And it would not be protected by this new s 7B, or any other protections relating to “indirect” discrimination, because it would (whether one agrees with this or not) probably be regarded as an act of “direct” discrimination. What I think is needed is a clear protection against both direct and indirect discrimination claims, such as is present in current s 38(3). It could be refined to make it clear that it does not apply to a decision based on internal “orientation” alone, but it must cover policies of a religious school which relate to conduct and behaviour. Two of the other proposed amendments, KQ150 and KQ151, also relate to “indirect discrimination” protections, by amending s 7B to incorporate reference to religious policies directly into the reasonableness determination relevant to indirect discrimination. To be honest, I am not sure why we have these two very similar provisions as well as proposed new s 7E. I can only suppose they are alternatives that might be put forward in case one of the others does not get up. The difference between these seems to be that KQ151 only relates to primary and secondary schools, and KQ150 applies to all educational institutions, which would faith-based include Universities and colleges. While they do provide some extra protection, they also suffer from the problem noted above that they do not deal with “direct” discrimination claims.

3. Exempting “teaching activity”

Finally, amendment KQ149 does something a bit different. It inserts a new, more general provision as s 7F:

 7F Educational institutions established for religious purposes  (1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity: (a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and (b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings. (2) In this section: teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution.

This amendment will over-ride both direct and indirect discrimination provisions which would otherwise be applicable. It gives an immunity to “teaching activity” by faith-based educational institutions, which is in done in good faith in accordance with the doctrine of the faith. This new section seems a sensible amendment. It would be particularly helpful if the widely drafted s 37(3) amendment noted above were passed. In that case it would protect the right of schools and colleges to teach in accordance with their faith commitments without being accused of direct or indirect discrimination. However, it should be noted that this clause would not protect other “religious bodies” such as churches, mosques or synagogues to provide education in public meetings, services, Sunday Schools or small groups. So it if is designed to respond to the s 37(3) problems it does not go far enough. The other gap not covered by this new s 7F is that it does not apply to “behaviour and conduct” policies that schools may wish to implement as part of their corporate life together. Many religious schools operate as faith communities where everyone, from the principal to the religion teacher to the maths teacher and the administrative staff, are expected to model religious values in their activities and lives. So while it seems sensible to have clear protection for the teaching that happens in the classroom, more is needed to protect the community life of the school. Section 7F, in other words, would give no protection for school policies relating to student support for the religious ethos of school outside the actual classroom.

Conclusion

To sum up, these amendments proposed by the Government will soften the edges of the problems created by the ALP Bill. But they are still not sufficient to deal with all the restrictions that would result for faith-based schools to operate in accordance with their religious convictions in the whole life of the school community. I would recommend that these amendments (both ALP and current Government ones) be rejected as a whole, that the Ruddock Report be released soon so that it can be calmly digested over summer, and any changes to be made in this area only be made after careful consideration of the contents of that Report.