The International Context for Religious Freedom

Professor Mark Fowler delivered a speech at the Christian Schools National Policy Forum in Canberra today comparing the consistency of the Australian Law Reform Commission's Report recommendations with Australia’s international commitments and also the subsequent comments made by Justice Stephen Rothman which directly contradicted the some of the report's key recommendations.

Professor Fowler quoted Justice Rothman who said:

'The first proposition should be that the religious institutions should be demanding of the government that religious education institutions, despite the provisions of the Sex Discrimination Act or any other discrimination legislation, or any law, written or unwritten, Commonwealth or State, should be able to discriminate in favour of, or preference, on the basis of the person’s adherence to or belief in the genuinely held religion, beliefs or tenets of the religious education institution.

Such a positive right would have the effect of rendering lawful the conduct of religious education institutions acting under that right and rendering it lawful, notwithstanding the various regimes that may exist in the different States. Further, such a right, expressed in the form just provided, would elide the sometimes-fine distinctions between direct and indirect discrimination. In my view, discrimination in favour of a person on the basis of religion, which incidentally discriminates on the basis of a protected attribute in the Sex Discrimination Act or Race Discrimination Act or other such discrimination legislation, would be indirect discrimination. But the issue is not beyond doubt and an express right of that kind would overcome any such difficulty.

Secondly, I would restrict the religious education institutions’ capacity to discriminate by providing that they “may not unreasonably discriminate against or preference a student in the enrolment, suspension or expulsion of the student on the basis of a protected attribute”. In so doing, I would bring into play the unreasonableness test that under the ALRC recommendations applies to indirect discrimination to both direct and indirect discrimination.

Thirdly, I would make the same restriction in relation to staff. Thus, I would allow a religious education institution to discriminate or preference on the basis of religion, as previously expressed, but provided they may not “unreasonably discriminate against or preference a staff member, or applicant for employment, or contract worker on the basis of a protected attribute”. This needs no further explanation but fits within the same general approach that I have suggested in relation to students.’

Download full speech HERE.