Balancing religious freedom and anti-discrimination: insights from the ALRC report

The intersection between religious educational institutions and anti-discrimination laws has sparked significant debate and legal scrutiny across Australia. At the end of 2022, the Australian Law Reform Commission (ALRC) received Terms of Reference to undertake an inquiry into exemptions for religious educational institutions in Federal anti-discrimination law. The primary focus of the inquiry was to examine the extent to which religious educational institutions should be immune from prohibitions that are generally imposed on all persons in relation to discrimination (in the context of education and work).

The ALRC undertook over 130 consultations, received more than 400 submissions, and analysed around 41,000 survey responses. As a result of this inquiry, in March of this year, the ALRC tabled a December 2023 report, recommending changes to employment and anti-discrimination laws to ensure compliance with Australia’s international legal obligations.

Current legal landscape

Currently, under the Sex Discrimination Act 1984 (Cth) (SD Act), it is unlawful to discriminate against someone based on certain personal attributes. Notwithstanding this, s 38 of the SD Act allows religious educational institutions to discriminate against students and staff in certain circumstances, based on their sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, if the discrimination is, ‘in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

Similarly, ss 153, 195, 351, and 772 of the Fair Work Act 2009 (Cth) (FW Act) prohibit discrimination based on attributes protected under the SD Act in the following four aspects of employment: modern awards, enterprise agreements, adverse action, and termination. However, each provision makes exceptions for religious education institutions. In this regard, certain terms found in these aspects of employment are not considered discriminatory, ‘merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed…’.

ALRC recommendations

In response to the current legal landscape, the ALRC has put forward eleven recommendations aimed at harmonising religious freedoms in educational institutions with anti-discrimination protections. We consider there to be two key recommendations to come from the report:

1. Recommendation 1 — The ALRC recommends amending the SD Act to prevent religious educational institutions from discriminating against students and staff on the grounds of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. However, these educational institutions would retain the ability to impose, or propose to impose conditions, requirements or practices that may have disadvantaging effects if deemed ‘reasonable in the circumstances’, as currently permitted by the SD Act.
2. Recommendation 7 — The ALRC recommends amending the FW Act so that:
   1. religious educational institutions are excluded from the exceptions contained in ss 153(2)(b), 195(2)(b), 351(2)(a), 351(2)(c), and 772(2)(b) as they apply in relation to the protected attribute of religion, and
   2. in relation to the selection of staff for employment at a religious educational institution, it would not be contrary to ss 153(1), 195(1), or 351(1) to give preference, in good faith, to a person of the same religion, where the giving of such preference is ‘reasonably necessary to build or maintain a community of faith’, ‘is proportionate to the aim of building or maintaining a community of faith’, and ‘does not amount to conduct that is unlawful under the SD Act’.

The other nine recommendations from the ALRC can be found in the final report.

Legal implications and future directions

The recommendations from the ALRC will have the following effects:

1. They will limit when religious educational institutions can legally discriminate against students or staff.
2. Religious educational institutions will have to consider reasonableness when imposing conditions that may have disadvantaging effects, instead of relying on statutory exceptions to discrimination prohibitions.
3. They will align federal law more closely with state and territory legislation, and international standards.
4. They will create a more balanced legal framework that respects religious autonomy and individuals rights, optimising the exercise of human rights and effectively managing the different intersecting rights.

Addressing the intersection between religious educational institutions and anti-discrimination laws requires a comprehensive approach. At Sparke Helmore, we understand the importance of these discussions and are committed to guiding our clients through the changing legal landscape. Our team can provide expert guidance tailored to your specific needs. For more information or to discuss how these findings may impact your organisation, please contact our Workplace team.