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Where to now with Religious Discrimination?



On Thursday, three Bills were introduced to the House of Representatives: the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021, and the Human Rights Legislation Amendment Bill 2021.  Collectively, these bills constitute the Morrison Government’s response to the Ruddock Religious Freedom Review provided to government in May 2018. 

None of the bills deals with the enrolment of children in religious schools which blew up as an issue during the 2018 Wentworth by-election. That awaits the tweaking of the Sex Discrimination Act  which is not due until the Australian Law Reform Commission reports to government sometime in the next year or two.  In his second reading speech introducing the Religious Discrimination Bill 2021, Prime Minister Scott Morrison told Parliament: ‘Nothing in this bill — I stress: nothing — allows for any form of discrimination against a student on the basis of sexuality or gender identity. You won’t find anything of that nature in this bill. Such discrimination has no place in our education system.’ Given that both sides of our Parliament accept without reservation that such discrimination has no place in any school, religious or not, it is outrageous that our Parliament has not clarified this matter three years on, and that we will have to await yet another federal election before the matter is legislated obliging educators not to discriminate against a child on the basis of sexuality or gender identity. 

Those few religious zealots who would want to retain the power to exclude a child on the basis of sexuality or gender identity from a school in receipt of government funding need to accept that their world view can no longer be justified in Australia as an appropriate exercise of religious freedom. In 1983, the High Court of Australia delivered a definitive judgment on the limits of religious freedom in which Justices Mason and Brennan said: ‘[T]he area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them. Religious conviction is not a solvent of legal obligation.’ 

The bills introduced last week do deal with the issue of the employment of teachers in religious schools. A religious educational institution will be able to publish and implement an employment policy giving preference, in good faith, to teachers and other staff who hold or engage in the school’s particular religious belief or activity.  Mr Morrison told Parliament: ‘The bill recognises that religious schools must be free to uphold the tenets of their faith and the ethos that makes their school a community. It is recognition of the sacrifices parents make to educate their children in accordance with their values and beliefs and the choices they have made for their children's education. As many schools have said throughout this process, “faith is caught not taught”. It’s worth recalling that the UN Declaration of Human Rights states: ‘Parents have a prior right to choose the kind of education that shall be given to their children.’ The bill protects the fundamental right for religious schools to hire religious staff to maintain their religious ethos in accordance with a publicly available policy. This part of the Morrison government’s proposal would allow the Commonwealth to override a state law which does not provide this religious freedom. 

A showdown is pending with Victoria which is legislating to allow a very limited freedom to show preference for teachers subscribing to the school’s religious ethos only if conformity with the doctrines, beliefs or principles of the school’s religion is ‘an inherent requirement of the position’. The discrimination must be ‘reasonable and proportionate in the circumstances’. The Commonwealth has put Victoria on notice that the Victorian law will be a ‘prescribed law’ to be overridden by the new Commonwealth law.

When introducing its new law, the Andrews government falsely claimed that ‘there are similar laws in Tasmania which have existed for over a decade’. The Tasmanian law is very different. It not only permits discrimination for a ‘genuine occupational qualification’ but also ‘in order to enable, or better enable, the educational institution to be conducted in accordance’ with its religious ‘tenets, beliefs, teachings, principles or practices’. The Commonwealth has no intention of declaring the Tasmanian law a ‘prescribed law’. If the Andrews government were wanting to avoid a showdown with Canberra they could legislate as they promised, along the same lines as the Tasmanian law. 


'A showdown is pending with Victoria which is legislating to allow a very limited freedom to show preference for teachers subscribing to the school’s religious ethos.'


The Andrews government’s fudging of the shortfall in its new law became apparent when government member John Kennedy, a long time Catholic school principal, told the Victorian Parliament after having received extensive briefings on the law:

‘I think we just need to understand that the legislation is in one sense bigger than what could be seen by some as a circumscribed “inherent requirement”, because — in my view, anyway, and my experience — such an inherent requirement incorporates a variety of commodities, including incidental requirements and a critical mass as applied to selecting, promoting and terminating teaching and non-teaching staff. So, for example, I think it could be true that this does not apply to the gardener or the office staff — but it may very well apply to the office staff. It may be argued that the office staff have quite a connection with the local established church and so on and so forth.

‘I believe, in the material I received from the framers and so on of the bill, that it makes clear that in fact the provision allowing a religious individual to discriminate on the grounds of a broad range of protected attributes is still there. I think it is important to recognise that that critical mass can mean that whilst the first and foremost thing should be to have a qualified teacher of physics, it does not follow that there has to be a Catholic physics teacher, for example. But it might mean that there should be a critical mass of teachers, for example, who are adherents of the Catholic faith, and obviously so. So I do not see that the legislation goes against that.’

If the Victorian law is unamended in the upper house, presumably John Kennedy and others in the Andrews government could have no objection to the new Commonwealth law making it abundantly clear that Kennedy’s genuine and considered understanding of the religious liberty is accorded to the administrators of religious schools in Victoria. 


'We can still accord dignity and equality to all while permitting religious schools to adopt hiring policies different from state schools so as to maintain the distinctive ethos of religious schools.'


Archbishop Peter Comensoli, the Archbishop of Melbourne, has had the carriage of this matter for the Australian Catholic Bishops. Backing the Commonwealth provisions that would protect the ability of religious organisations to hire people who share their faith and values, he has said: ‘We want the freedom to hire people for the sake of our mission, just like other non-faith-based organisations. The value of religious organisations to people of faith and wider society is in their religious mission and their ability to embody and pursue that religious mission. Operating religious organisations, such as religious schools, according to their mission includes recognising their ability to hire staff who want to teach and model the vision of the school.’ We can still accord dignity and equality to all while permitting religious schools to adopt hiring policies different from state schools so as to maintain the distinctive ethos of religious schools.

There is no way that the Morrison bills will pass through the Senate until they have first been subjected to detailed scrutiny by a parliamentary committee. I still can’t see that happening before the 2022 federal election. The only way it could occur before the election would be if the bills were to enjoy support from the Labor Opposition. 

I am left wondering why we need to wait for the law reform commission to report on kids in school. Why not deal with students, teachers, and staff at the same time?

Morrison was right when he told the Parliament on Thursday: ‘[T]he faith of any religion, as well as no religion, shouldn’t override the rights of others in a free society. That means we rightly have a secular democracy and government, but that does not afford secular humanism the status of a state religion’. Getting the balance right, we religious citizens need to recall the High Court’s injunction that ‘religious conviction is not a solvent of legal obligation.’




Frank BrennanFr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). He is a peritus at the Fifth Plenary Council of the Australian Catholic Church.

Topic tags: Frank Brennan, Anti-discrimination, Freedom of religion, Religious Discrimination Bill



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Existing comments

I have been attempting to articulate 3 key principles in the midst of the present political flurry: (1) There should be no adverse discrimination against kids. (2) Religious schools should be able to choose staff with an eye to maintaining the school’s religious ethos. (3) Should a highly conservative or evangelical school want to be very restrictive in staff selection, that selection should not be on the basis of sexual orientation, and it should be based on a published, coherent moral principle rigorously and equally applied to all staff regardless of their sexual orientation.

Frank Brennan SJ | 29 November 2021  
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Forensically well-reported, Frank, as well as succinctly commented upon. Thank you!

Michael Furtado | 30 November 2021  

Frank Brennan, No 3 could be in conflict with No 2.
If an overt and militant LGBTQI teacher pushed his/her orientation views on students in a co educational school, would that not be in conflict with current catholic doctrine?
Schools in Melbourne are being urged to use gender neutral pronouns and scrap 'mum and dad' in favour of 'parent' as part of a campaign to improve inclusivity for LGBTQI+ students.

Unisex bathrooms, non-gendered sporting teams and the flying of rainbow flags to are also recommended to improve inclusivity.

Xavier only offers boy/girl education to year 4. Year 4 to 12 is male only. Change hastens slowly. Now I realize that the first boy to transgender at Xavier has graduated in year 12 (much to the relief of the Premier)-
surely the selection process for teachers should be based on their expertise qualifications for the subjects they teach rather than their orientation?

Francis Armstrong | 30 November 2021  

No. Religious belief or lack thereof should NEVER be a condition of employment. No employer should be able to force employees to adhere to that employer's religious beliefs. Nor should any employer be allowed to control an employee's lawful private life.

That should ALWAYS be unlawful, and any religious person who can't see how it could backfire on them and people they care about is not thinking clearly.

Jeremy | 30 November 2021  

I enjoy Frank's articles because he's always so damned right; it makes me doubt myself when I think he might have overlooked something. I'll credit Simon Birmingham for the observation that the Bills appear to be unnecessary (but no doubt there'll be the occasional opportunity for them to be tested in some court, if these things really need to go that far). At the moment I get the impression the Bills are somewhat like instructions on how to use a mixing bowl properly; hoping to cater for an enormous, complex scope of "could be" culinary contents but eventually missing that someone wants just an inverted pudding. So hypothetically, within Frank's emphasized list of (1)(2)(3) if a student molests or vilifies another at a previous school a second school cannot reject them; if a teacher converts to another religion or ceases to be a member of the laity they may be dismissed. More worrisome, (3), how any Bill containing anything to do with an understanding of the human condition can pass through Australia's parliament house, a building where a staggering 50% of those polled claim some sort of sexual abuse or discrimination, where coherent moral principle is in perpetual draft and any moral compass points to the iron fist holding the party line.

ray | 30 November 2021  

Frank, this is small fry! Some of us will never forget how you cut your teeth in taking on Western Australian mining interests. A Jesuit to the core!

Michael Furtado | 01 December 2021  

Frank – while accepting your efforts at navigating a modest middle position, especially with regard to religious school staffing, it does not seem to have dawned on the religious schools lobby that if their wishes are embodied in legislation they will have, in all probability, taken a Trojan horse into their midst. The current arguments such as 'faith is caught and not taught' with attendant implications on whole of school staffing represents a radical shift to the position advanced by the Catholic sector during the 1980 D.O.G.S. High Court Case. This revised and somewhat brazen position would enable a different challenge to be put to the High Court, separate and distinct from the 1980 matter and open to a very different outcome.

Bill Burke | 01 December 2021  

‘The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe….’

The above quote is irrelevant to the situation of a child.
It implies settled beliefs, a characteristic of adults, not children. Children are fluid or yet to be formed. They are socialising into belief. If they don’t act in accordance with the belief, they won’t integrate, and won't be able to apply, the belief properly. Being continually exposed to a fact which is discordant to a normative Christian belief that gender is subordinate to sex (ie., daily seeing a small boy acting as a girl) without being able to act on the belief by asking questions pertinent to the growth of understanding that belief will violate the freedom to believe by sabotaging the process of learning to believe.

If Hebrews 11:3 is correct and it is through faith that one understands, what are the youngsters supposed to understand if they are denied the tools to construct faith?

Or, is the agenda is to make the belief extinct?

This, then, isn’t about mapping the scope of religious belief but mapping the extent to which behaviour in public in school (primary school, even) can be eccentric without being questioned.

roy chen yee | 01 December 2021  
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Children have a deeply-embedded sense of the preciousness of life that is seen as innate. For one who commits so zealously to the magisterium, you miss the value of Baptism. There the celebrant seeks the motives of parents in their request for the sacrament, beyond it being read as a traditional naming-ceremony. Sponsors and their motives are also recommended, sometimes multiply to ensure that the child is nurtured and safeguarded in circumstances in which s/he is highly vulnerable during their early and adolescent life. Enrollment in a Catholic school, so that the socialising influence of parents can be complemented, is also recommended. Even evolutionary scientists and child development experts in the psychology and sociology of childhood, such as Vygotsky, Erikson, Piaget, Bruner, Montessori, Maslow and Carl Rogers, provide overwhelming proof on the basis of their research that such special spiritual attention is essential to human growth and repair. Even Freud and Pavlov concede that appetite-satisfaction is not the sole basis of human motivation and that, nurtured from very young, children demonstrate a high degree of altruism. Aquinas corroborates this by saying that, although prone of evil, we are basically good. Could it be that this counters your 'Fallen Angels' theology?

Michael Furtado | 06 December 2021  

'Religious conviction is not a solvent of legal obligation.' I guess Shadrach, Meshach and Abednego (Daniel 3) had not read that ruling when they defied the decree of King Nebuchadnezzar. Perhaps they were distinguishing 'social' law - ius positum - from 'natural' law? From participation of the individual in war, to participation in acts in a concentration camp, religious conviction may not be a 'solvent', but neither should complicity in moral wrongs be demanded, even if 'legal' at the time and place.

Andrew | 01 December 2021  

My frustration with this issue is highlighted when you see what I wrote THREE YEARS AGO before the last federal election, and here we are with parliament having adjourned for Christmas once again having done nothing to address the situation of LGBTI students: https://www.eurekastreet.com.au/article/religious-freedom-in-secular-australia. The Australian Parliament is broken.

Frank Brennan SJ | 03 December 2021  
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One might say the same thing about the Church. Where are the responses to the Royal Commission? Could it be that both the Parliament and the Church are run by men?

Ginger Meggs | 03 December 2021  

I checked and you reported presciently and valiantly. I hope you persevere with this brief, Frank. Hopefully our skepticism won't overtake our ability to discriminate between legislative exigency and the influence it can exert on ethical decision-making in the educational sphere and vice-versa.

Michael Furtado | 06 December 2021  

Thank You Father Frank,
To All commentators let's say: K.I.S.Sunshine! And let us address the all embracing need all children have from early childhood and on to tertiary Ed.

1st  A Teacher does more than teach a subject matter by interacting with students everyday, therefore it is beneficial for children in their formative years to see and feel before them teachers who uphold and live by the virtues and ethos of the religious school chosen by parents.

Re. sexual orientation  etc.,  this matter is very delicate and requires much more than making a fuss about it in the class room  .... long story.

Shall we try to consider  that Religious Freedom  should cover much more than  the Bill 2021 in question?

Thank You Bill Burke,  You have opened the 'vision' we have in mind:

- hmm ... our Secular or Religious Australia is a sorry sight!
What kind of Society - of Families do we want to create?

Our schools: religious, private or public have FAILED DISMALLY to educate and train every child therein to learn to live a virtuous life!
The devastating consequences of such  grievous omission
are available in the statistics of the  Family Law Courts: - They are a National Tragedy! 

What is our Religious or Secular Society doing about it?

Both Church and State Governments have failed dismally in their duty of care!

Perhaps this space is not the place to address the seriously detrimental lack of necessary education and training for all children from an early age to enable them 'to become better people, wise and happy!"

Perhaps we should  read all about it in The Public Education Speech by The Honourable Henry Parkes M.P., - The Public Schools Bill, September 12, 1866, Sydney, NSW.

The above mentioned memorable Public Education Speech by the man who was appointed as Premiers of NSW 5 five consecutive times,  has been printed in a magnificently illustrated  book:  

-The Australian Constitution for Children   2021

By R. Melino-Solomon
Little Red Apple Publishing

Thank You All!

Very Concerned Families Network.

Luciana | 04 December 2021  
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I dunno that Parkes (who admittedly had some good ideas) is a go-to guy on matters of discrimination. Yes, he pedalled for the women's suffrage movement but he also was instrumental in the white Australia policy construction. It wasn't just something that happened around him, either. See Charles E Lyne, Life of Sir Henry Parkes, George Robertson & Co, Sydney 1896 (hereafter Lyne) pp 476-7. Parkes expressed his own view about the entry of non-whites in these terms: “I contend that if this young nation is to maintain the fabric of its liberties unassailed and unimpaired, it cannot admit into its population any element that of necessity must be of an inferior nature and character”. It might be wise to reconsider Parkes' speech might be based on the assumption that the kids are all white or not "inferior", as he might consider them. It's easy to pronounce seemingly admirable edicts when you've excluded those who won't fit the model. I'm sure he was a nice guy to the right people.

ray | 05 December 2021  

Roy Chen yee, how is banning a transgender child from attending a religious school an expression of Christian belief? And why would the majority of students without dysphoria need to feel their religious belief system is under attack? Jesus would have welcomed the outsider. And children are wiser and more perceptive about seeing beyond tribal doctrines than you give them credit for.

AURELIUS | 06 December 2021  

Thanks for another thoughtful article, Frank.

In this debate, there are several important issues that should be recognised.

* Problems are going to occur if we privilege religious freedom above other freedoms.

* The revised legislation seems to be more about freedom to discriminate than the right to freedom from discrimination.

* The legislation is unnecessary and is causing great division. The politicians who want to force this legislation through would be better advised to show their good faith about human rights by developing a greater political commitment to formulating a comprehensive charter of human rights for Australia, to cover all freedoms - including religious belief

Andrew(Andy) Alcock | 11 December 2021  

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