1. Religious Freedom and Christian Schools Understanding Anti-Discrimination Law Chelsea Pietsch, Executive Officer

2. Outline What is religious freedom? How is it protected in international law? In what way are Christian schools a manifestation of religious freedom? What are the challenges to religious freedom in an Australian context? What can Christian schools do to ensure they can continue to uphold their faith-based mission and purpose?*

3. What is religious freedom? Concept grounded in nature of human person Humans are created free and equal – In the image of God (Genesis 1:26) Rational creatures who seek truth – Ultimately, seek God To deny the pursuit of truth, is to deny what it means to be human Interference in religious freedom should be limited

4. Article 18 International Covenant on Civil and Political Rights (ICCPR) Freedom of thought, conscience and religion Freedom to have/adopt religion or belief Freedom to manifest religion or belief – Individually or in community – In private or public Freedom to manifest religion or belief in: – Worship – Observance – Practice – Teaching

5. Article 18(3): Limitation Clause ‘Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are: – prescribed by law; and – necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.’

6. Article 18(4) ICCPR Parents and legal guardians have the liberty to ‘ensure the religious and moral education of their children in conformity with their own convictions.’

7. Freedom of Association Article 22 ICCPR -‘Everyone shall have the right to freedom of association with others.’ Article 27 ICCPR – Special protection for religious minorities to profess and practice their own religion

8. Religious Schools Religious schools are often an expression of religious freedom in action Communities established with the object/purpose/mission of professing, practicing and teaching a particular faith

9. Your mission Mission contained in founding docs – Constitution; – Articles of association Serves as guide/steering mechanism What is your school’s mission statement? – Example

10. Your mission How does your school ensure it lives out its mission? Does this include: Corporate prayer/worship? Religious education? Selection criteria for staff/students? Standards of conduct for staff/students?

11. Challenges to your mission Anti-discrimination laws, which seek to: – prevent discrimination and – enhance equality.

12. Anti-discrimination law explained General prohibition Exception – Protect legitimate purpose – Demarcate what is discrimination what is not by means of exceptions or exemptions Active constituency seeking to eliminate or reduce religious exceptions – View exemptions as unjust concessions – Promote principles of non-discrimination and equality

13. Anti-discrimination law continued… Degree of autonomy given to schools differs from State to State Every State is different Three examples: – NSW; – Tasmania; – Victoria Also look at challenges to exceptions in these States Please note that the following excerpts of legislation is paraphrased

14. NSW What is prohibited? – Discrimination in employment – Discrimination against students or potential students on grounds of age, sex, disability, marital status, homosexual or transgender status. What are the relevant exemptions? – Private educational institutions are exempt

15. Challenges Mr Alex Greenwich, MP Introduced Bill Government would not support it Now pursuing matter through Board of Studies If this fails, will reintroduce his Bill

16. Tasmania What is prohibited? – Discrimination in employment – Discrimination in education on grounds of a total of 22 attributes, including: sexual orientation, lawful sexual activity, gender, gender identity, intersex, relationship status… What are the relevant exemptions? – Different for employment and education

17. Tasmania: Employment (s 51) (1)A person may discriminate against another person on the ground of: (1)religious belief or affiliation or religious activity (2)if the observance or practice of a particular religion is a genuine occupational requirement in relation to employment. (2)A person may discriminate against another person on the ground of: (1)religious belief or affiliation or religious activity (2)if in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion; and (3)discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.

18. Tasmania: Education (s 55A) (1)A [religious] school may apply to the Commissioner for an exemption in relation to religious belief, religious affiliation or religious activity (2)If (1)Relates to the admission to that school; (2)There are more children seeking admission than places available

19. S 55A continued…. (1)A school must demonstrate that: a)The school is conducted in accordance with tenets, beliefs, teachings, principles or practices of a particular religion; b)The school doesn’t discriminate on grounds other than religious affiliation; c)Religious affiliation is; a)determined by affiliation the person, parents or grandparents; and b)demonstrated objectively. d)The school is oversubscribed for that particular year group.

20. An improvement rather than challenge Exemptions were actually inserted at the beginning of 2014 The amendment originally requested by the Archbishop Prior to the amendment, no exemptions relating to the admission/enrolment of students on the basis of their faith. Strangely, insertion of s 55A is a slight improvement!

21. Victoria What is prohibited? – Discrimination in employment – Discrimination in education on grounds of a total of 17 attributes, including: gender identity, lawful sexual activity, marital status, sexual orientation What are the relevant exceptions? – General exception

22. Victoria Section 83 Religious Schools A religious school [religious educational institution conducted in accordance with religious doctrines, beliefs or principles] can discriminate on the grounds of: religious belief or activity; sex; sexual orientation; lawful sexual activity; marital status; parental status; gender identity

23. Victoria continued… IF: The discrimination occurs in the course of establishing, directing, controlling or administering a school that: conforms to the doctrines, beliefs or principles of the religion; or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

24. Challenges Recent Cobaw decision Law Institute of Victoria’s ‘Call to Parties’

25. Challenges for peak bodies Pressure on schools to adopt a “non-discriminatory” approach to employment/provision of education Potential to undermine the mission of your schools – To operate in accordance with doctrines, tenets, beliefs However, lack of clarity due to conflicting laws in each State Makes it very difficult to set a national policy Compliance with anti-discrimination laws needs to be managed on a state level

26. Upholding your faith-based mission: some suggestions (1) Understand your purpose/mission – Revisit and amend if required Ensure purpose/mission understood by current and prospective members of the community Consider moving towards greater transparency – Understand constraints of the law Bullying/harassment separate issues

27. Upholding your faith-based mission: some suggestions (2) Understand what exceptions are and why they are important Understand and keep an eye on the law Be prepared to advocate for the retention of exceptions or support those who can – Lesson from Cth Sex Discrimination Amendment Act Boards and executives to consider possible responses