The recently released report of the Law Reform Commission, entitled Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, has generated commentary on its impact on religiously affiliated schools, and freedom of religion in Australia. As foreshadowed in its Interim Report, the Commission has recommended that religiously affiliated schools should be prohibited from discriminating against staff and students who fail to exhibit the religious ethos, values, and aspirations of the school.

Specifically, the report prohibits discrimination against students ‘on the basis of sexual orientation, gender identity, marital or relationship status, or pregnancy’ but, incongruously, permits religious institutions to teach religious doctrines or beliefs on sex or sexual orientation in a way that accords with their duty of care to students. The result is that religious schools will be pressured into censoring themselves either by not inculcating its beliefs into the student body or by minimising their religious importance. As such, religious schools and their students would be better served by a students’ admission policy that condones discrimination in ‘good faith’ to ‘avoid injury to the religious susceptibilities of the adherents of that religion or creed’ in accordance with the section 38(3) exemption in the current version of the Sex Discrimination Act 1984 (Cth).

The proposed reform prohibits discrimination against staff but allows schools to impose ‘reasonable’ requirements to ensure the teaching of religious doctrine or belief. Presumably, only teaching staff involved in the teaching of religious doctrine would be able to benefit from the reform because the imposition of such a requirement on teachers, who are not involved in religious instruction, would be unreasonable and, therefore, subject to the anti-discrimination law.

The Commission’s proposal also envisages that religious schools would be able to prevent any staff member from actively undermining the institutional ethos of their employer. To this purpose, schools would be able to impose reasonable and proportionate codes of staff conduct and behaviour relating to respect for the institution’s ethos. Although, at a superficial level, this is a commendable and promising proposal, it is reduced to a meaningless allowance because these codes of conduct may not be relied upon to require teachers and administrative staff to hide their own sexual orientations, thereby undermining the school’s ethos by their actions or general behaviour.

The Commission’s recommendations, surely, are a recipe for destroying the ethos and values of religiously affiliated schools. It could thus be expected that the bill, if implemented, will disembowel and fatally affect the religious and moral fabric of these schools. After all, the ability to positively discriminate against employees based on an organisation’s core values and principles is a fundamental aspect of the right to freedom of association, a core value of every truly tolerant society. Consistent with this, it is essential for the autonomy of these schools that they can freely select, without external interference, people of likewise religious persuasions during the appointment process of non-teaching officeholders and recruitment of teachers.

The tendency in some quarters to portray religious institutions as somehow different in this respect from political institutions is not just unfortunate but exhibits anti-religious bigotry. For example, when recruiting their own staff, a political party is allowed to discriminate on the ground of political belief in the offering of employment to another person as a ministerial adviser, member of staff of a political party, member of the electorate staff of any person, or any similar employment. Surely, religious organisations should equally be allowed to positively discriminate against those who do not display their commitment to the values and ethos of these organisations.

Why is the continued existence of institutions with competing visions inherently less problematic within the political realm than within the religious realm?

Although this is an existential matter for religious organisations, there is now a continuing and persistent campaign to remove their exemptions in anti-discrimination laws. Yet, religious people must have the same right as everybody else to freely associate and manage their institutions. These individuals do not wish to receive exceptions to discriminate but to be respected in their basic right to continue having the freedom to make decisions based on religious belief and practice, including to take adverse action against any employee where issues of personal conduct are incompatible with the religious values of the employing organisation.

However, the Commission’s recommended reform effectively means that staff members, even if they despise the values of their religiously affiliated school, cannot be discriminated against on the grounds enumerated in the proposed legislation. Furthermore, the recommendations also envisage that students cannot be refused admission even if they do not subscribe to the ethos and values of the religiously affiliated school. Hence, whenever there is a conflict between a supposed right not to be discriminated against, and freedom of religion, the former always wins.

Why is it that in Australia, ‘equality’, taken to its illogical extreme, must always prevail over freedom of religion?

In Australia, religion is in decline, especially the Christian religion. As is evidenced by the results of the last Census (and reproduced in the Commission’s report), Australia has become a post-Christian society. As we noted in our book The Unlucky Country, ‘the nation’s impressive Christian heritage is increasingly doubted, suppressed, and even denied as our contemporary society moves away from Christianity toward radical secularism’ and that ‘affiliation with Christianity decreased from 52 per cent in 2016 to 44 per cent in 2021’.

The Catholic Archbishop of Sydney, Anthony Fisher, reflecting on the Commission’s recommendations, recently lamented that religion is under threat in Australia. He warns us that ‘religious Australians are increasingly at risk of being sacked for expressing traditional Christian beliefs, while their ability to contribute to society is being deliberately diminished’. According to Fisher, this is occurring at the same time as ideologues are seeking to force a ‘radical curriculum and policies on all schools in the area of sexuality and gender’, including gender identification policies, gender transitioning, and abrosexuality (‘gender fluidity’).

So, the search is on to find the cause of Fisher’s dire prediction. In our opinion, it may have to do with the principle of neutrality. This principle is invoked by federal and state governments to refrain from favouring or disfavouring either sectarianism or secularism. Accordingly, governmental hostility towards religion would violate the neutrality principle as it elevates secularism and demeans religion. The converse would also apply because governmental preference for religion adversely affects secularism.

Although the implementation of this principle might appear to be appealing, in practice, it has managed to remove religion from Australian public life by trivialising the significance of religion and removing it from the public arena. In addition, and more importantly, when the neutrality principle is used to protect religion, this protection is only achieved by deconstructing the concept of ‘religion’ and by removing the religious nature, characteristics, or significance of a relevant religious act or symbol.

For example, removing the ability of a religious organisation to freely select its own employees is to deprive its adherents of benefits that cannot be obtained by an alternative process. For some of these organisations, any employment position is actually a religious vocation, thus making it essential that employees have a good mission fit. In fact, even when employment positions do not appear to have the characteristic of religious vocation, still the mission fit of employees might be critical in assisting such organisations achieve their spiritual goals in creating an authentic religious environment.

As can be seen, the neutrality principle is a convenient but specious principle – one that is inherently incapable of facilitating the free exercise of religion in Australia. So, rather than maximising basic human rights, the Commission’s recommendations affect the proper enjoyment of these rights by unreasonably marginalising religion and maximising the non-discrimination principle. Naturally, demonstrating a genuine respect for equality requires a protection for religious organisations when they are affirming their expressions of religiosity. A key way to achieve this important goal is through allowing religious people to create their own institutions and permitting them to manage group membership unaffected by undue government intervention, so that these institutions remain committed to the values and principles of their religious founders.

In this sense, we are rather convinced that the anti-discrimination mantra, which always prevails over freedom of religion (and freedom of association), is facilitated by the deceptive implementation of what we call the ‘neutrality principle’ according to which sectarianism and secularism are assumed to be in perfect balance. However, in seeking this balance, our governments in Australia effectively denigrate and demolish not just freedom of religion but freedoms in general. ‘Neutrality’ is therefore the code word that ultimately destroys the religious values of our civilisation, because it prevents good people from advocating what is noble, decent, and moral in our supposedly free and democratic society.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia. 

Zimmermann and Moens are the authors of The Unlucky Country (Locke Press, 2024).

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