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Christian Schools Australia (CSA), which represents some 140 faith-based schools across the country, has called on Labor to clarify its plans regarding the Sex Discrimination Act, in the wake of revelations it would scrap exemptions that enable faith-based schools to employ teachers that represent their ethos and teach its traditional values.  Although Labor’s education spokeswoman Tanya Plibersek has signalled a willingness to support religious schools to continue to employ staff that “faithfully represent their values”, she declined to provide details of exactly how those rights would be protected under Labor’s pledge to amend the Sex Discrimination Act if elected.

CSA national policy director Mark Spencer said the group had previously held constructive conversations with Labor over the issue, which sparked fierce public debate late last year when recommendations from the Ruddock review into religious freedom were released, but it was now unclear what Labor’s intentions were.  Mr Spencer has sought clarification from Labor. “It sounds as though they expect us to rely on the employment process to deal with staff matters but you can’t put something in the employment contract if it is protected in discrimination legislation,” he said.

“We would be concerned with any plan to remove the exemption without replacing it with some other protection for religious schools” Mr Spencer said.  Charity lawyer Mark Fowler, an adjunct associate professor at the Notre Dame School of Law, agreed that removing the religious exemption without introducing accompanying legislative protection for schools posed a risk to faith-based schools. “Private parties cannot contract out of federal anti-discrimination law,” Mr Fowler said. “Where a school requires fidelity from its employees that conflicts with a statutory prohibition on discrimination, the statute will override the contract, unless an exemption applies.

“Moreover, to authentically model their beliefs to students and the community, many schools seek to prefer teachers and staff who actually share their beliefs. “On the face of it, Labor’s proposal appears to be to remove this ability.” Currently, the Sex Discrimination Act prevents discrimination against people based on their sexual orientation, gender identity or relationship status however there are exemptions that permit religious schools to discriminate in their employment decisions, as well as in relation to education and training, if it is in the interests of upholding religious values.

The Australian Law Reform Commission is currently looking into religious exemptions in anti-discrimination legislation, including the Ruddock review and some of its more contentious recommendations.  The Australian Catholic Bishops Conference (ACBC) has expressed its desire to retain the existing exemption and strenuously denies that Catholic schools used the exemptions “to expel or otherwise discriminate against students simply on the grounds of sexual orientation, gender identity or intersex status”. “The exemptions allow schools to focus on educating students according to their mission and identity,” the ACBC wrote.

“We are concerned that without adequate recognition of our religious freedom, we will not be able to maintain a school community that operates in accordance with the tenets of its faith and in a spirit of harmony and cohesion” the ACBC went on.  In advice to the National Catholic Education Commission, the ALP said it respected the right of people to practise their religion freely and that Ms Plibersek had “made our position on the rights of religious schools very clear in parliament when she stated, ‘schools are also entitled to have rules that ensure staff don’t deliberately and wilfully behave contrary to the values of the school’.”

It stressed that Labor was “not proposing to amend the Sex Discrimination Act which allows educational institutions to impose reasonable conditions in accordance with their doctrines, beliefs or teachings.” Some within Labor believe that those discrimination provisions could be key to religious schools being able to ensure that its teachers outwardly adhere to the institutions values.  In a dissenting report on Senator Penny Wong’s proposed Sex Discrimination Amendment Bill 2018, Labor Senators raised the issue of whether schools needed to rely on exemptions to uphold the fidelity of an employee at their school or whether it was a contractual matter.

Their report referred to a hypothetical example of a teacher “who was not supportive of the teachings of the church and who voiced that belief publicly”.  “The committee noted that the failure to uphold a specific teaching, needed to be pursued through the contract with the employee,” said the Labor Senators’ report.  Ms Plibersek said that she did not believe that there was “any tension” between the rights of schools to require employees uphold their values and protecting people from discrimination. “What the Schools want is employees who can live by or demonstrate the values of their school,” she said.

She went on “I think it is possible to find that balance without discriminating against people because of who they love or how they identify.  I don’t think that’s beyond us.” Labor has advised advocacy group Equality Australia that it would “continue to work to remove all discrimination against LGBTI people from Commonwealth law”.  “Labor will not give up,” the response said. “We do not believe that freedom from discrimination and religious freedom are mutually exclusive.  We do not believe that the removal of these exemption will hamper a religious schools’ capacity to continue to teach its religion and operate according to its traditions and beliefs.”

Source:  Compiled by APN from media reports