ALHR Submission: Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff
ALHR has made a submission to the Senate Legal and Constitutional Affairs References Committee on Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff
On 13 November 2018, the Senate referred the following matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 26 November 2018:
Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff, including on the basis of sexual orientation and gender identity and other attributes covered by the Sex Discrimination Act 1984, with particular reference to proposals for amendments to current legislation, and any related matters.
ALHR has submitted that faith-based educational institutions should not be permitted to discriminate against staff or students. There is no theoretical or practical justification for such an exemption from Australian anti-discrimination legislation. Discrimination is rightly made illegal because it is harmful. Discrimination against children is reprehensible. It is also inconsistent with the UN Convention on the Rights of the Child. LGBTI children are particularly vulnerable children due to the risk of homophobic or transphobic bullying in schools. Homophobic and transphobic bullying is perpetuated where permissible discrimination is able to exist in faith based institutions
Even if children who are students are not directly discriminated against by the faith-based institution in which they have been placed, they are effectively taught (where discrimination by such institutions is permitted) that faith-based discrimination is legally and socially acceptable.
The right to express one’s religious beliefs is a limited right which must be balanced against other types of rights and other peoples’ rights. It does not ‘trump’ other rights, such as the right to be free from discrimination. A secular Australian democratic government should not privilege the right to act on ‘religious’ views which are discriminatory. Where protection is desired for particular behaviour it will be relevant to what extent that behaviour reflects respect for the rights of others.
Human rights provide an appropriate standard and framework which should be applied: Without the support of a human rights framework which provides the principles and procedures for the balancing of competing interests, religious freedom for everyone in Australia in every religious community is effectively impossible (because of the conflicts in tenets of different religions). Human rights entail both rights and obligations. Hence in so far as we are ourselves entitled to the protection of human rights, we must also respect the human rights of others.2 An extrinsic standard is also required so that society does not support only the dominant religion and does not suppress secularism, atheism or other religions. A human rights framework can provide that standard.
In the words of the current UN Special Rapporteur on Freedom of Religion or Belief, Ahmed Shaheed4
‘all believers — whether theistic, non-theistic, atheistic or other — should join hands and hearts in articulating ways in which “faith” can stand up for “rights” more effectively, so that each enhances the other. Rejecting expressions of hatred within one’s own community and extending solidarity and support across faith or belief boundaries are honourable and meaningful actions.’
In ALHR’s view, laws which allow faith-based educational institutions to discriminate against staff or students are counter to the human rights framework established by the rules-based international legal order and have no practical nor theoretical justification.