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Without Prejudice: May 2024

Balancing Faith and Equality: The ALRC Inquiry on Religious Educational Institutions and Anti-Discrimination Laws

By Keshavi Perera

“All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis” – UN Vienna Declaration and Programme of Action.

Context of the inquiry: 

Since 1984, Australia’s anti-discrimination laws have been the subject of several inquiries and law reform proposals. In recent times, the intersection of religious beliefs and anti-discrimination laws has sparked significant debate in Australia. At the heart of this discussion lies the treatment of students and staff in religious educational institutions. The Australian Law Reform Commission (ALRC) has undertaken a crucial inquiry to address these concerns and propose necessary reforms. 

Source: ALRC Religious Educational Institutions and Anti-Discrimination Laws Report – Figure 2

Which Acts are actually relevant?

The Sex Discrimination Act serves as a crucial safeguard against discrimination based on various personal attributes. However, exceptions within the Act cater to specific contexts, notably religious educational institutions. Section 38, for instance, offers exemptions concerning discrimination in education and employment, allowing actions aimed at preserving religious sensitivities.

Meanwhile, the Fair Work Act addresses discrimination in employment through provisions covering modern awards, enterprise agreements, adverse action and termination. Similar to the Sex Discrimination Act, these provisions include exceptions tailored to religious institutions, mirroring the exemptions in section 38. Additionally, considerations for the "inherent requirements" of specific roles are accounted for.

Recommendations proposed by the ALRC: 

In accordance with the below five guiding principles, the ALRC conducted an inquiry on Australia’s international legal obligations to identify how relevant the current anti-discrimination laws might best reflect and comply with those obligations. 

Source: ALRC Religious Educational Institutions and Anti-Discrimination Laws Report – Figure 3

Although the ALRC made 11 recommendations, there are two key recommendations, Recommendation 1 and Recommendation 7. 

Recommendation 1: 

Proposes legislative amendments to the Sex Discrimination Act 1984 (Cth) to ensure that religious educational institutions cannot discriminate against students or staff based on protected attributes such as sexual orientation, gender identity or marital status. While some exceptions would still apply, the overall aim is to narrow the circumstances in which discrimination is lawful and reasonable. The ALRC acknowledges that these reforms may limit certain freedoms, such as the freedom to manifest religion, but deems them justifiable under international law. Additionally, the recommendation aims to enhance various human rights, including the right to equality, education and freedom of expression.

Recommendation 7: 

Another key recommendation focuses on allowing religious educational institutions to give preference to staff of the same religion to maintain a community of faith. This proposal suggests amendments to the Fair Work Act 2009 (Cth) to align with the government's policy. It aims to balance the need for religious cohesion with the rights of individuals, ensuring that discrimination on religious grounds remains lawful only in specific circumstances.

What are we seeing in our communities?

LGBTIQ+ organisations across the nation have supported the ALRC report and are urging not only the government to embrace its recommendations but also educational institutions. Much of social service provisions such as health, aged care and many others are often dependent on religious organisations. As such it is common for LBGTIQ+ people to re-closet themselves or sometimes even de-transition when they need to move into such facilities. In more rural areas, people have an even more limited choice in service providers, so this type of discrimination, using public funding, cannot stand. Some religious groups caution that implementing the recommendation could weaken schools' authority to employ staff who adhere to the religious doctrine. In contrast, Olympic athlete Ian Thorpe aligned with advocates for equality, urging the Labor party to its election promise of amending the legislation

Overall, these recommendations seek to strike a balance between religious freedom and equality, ensuring that individuals are not unfairly discriminated against while respecting the religious character of educational institutions. By aligning Commonwealth laws with international standards and state regulations, the proposed reforms aim to create a more consistent and just legal framework for all Australians.


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