Dr Alex Deagon – ALRC Submission – Religious Educational Institutions and Anti-Discrimination Laws
1. The following submissions are made in my personal capacity and I do not claim to speak for any organisation.
2. Protection for religious belief and activity is necessary to address increasing hostility to religion and to fulfil our international obligations.
3. Section 116 of the Constitution protects the free exercise of religion from infringement by a Commonwealth law. Passing a law to remove the religious exemptions in the Sex Discrimination Act is likely to breach the clause, unless legislation providing equivalent rights is passed in their place.
4. The exemptions are problematic for two reasons. They unfairly and unnecessarily target sexual minorities, and they frame religious freedom rights as subservient to equality rights, and they do not provide schools with what they need, which is positive associational rights.
5. Positive associational rights would allow religious schools to preference staff and students with belief and behaviour consistent with the ethos of the school. Such preferencing is a fundamental human right. It fulfills Article 18(4) of the International Covenant on Civil and Political Rights, which obliges states (without limitation) to facilitate parents educating their children in accordance with their own convictions. This entails the ability for religious schools to preference staff and students who adhere to the religious beliefs and activities of the school’s religious ethos. As held by the European Court of Human Rights considering the issue under the European Convention of Human Rights, such preferencing is a necessary aspect of a pluralist democracy with diverse views.