The Commonwealth Attorney-General, Mark Dreyfus, has formally asked the Australian Law Reform Commission to review the religious exemptions for educational institutions. The Attorney-General has indicated in his Media Release that New South Wales Supreme Court justice Hon Stephen Rothman has been appointed to lead the inquiry.
The Terms of Reference are much narrower that the reviews proposed by former Attorney-General Christian Porter. The new terms of reference focus very narrowly on religious education institutions and require:
- consideration of what reforms to Federal anti-discrimination laws
(including section 38 of the Sex Discrimination Act 1984 (Cth) and the
Fair Work Act 2009 (Cth)) should be made in order to ensure, to the
extent practicable, Federal anti-discrimination laws reflect the
- to amend the Sex Discrimination Act 1984 (Cth) and other Federal anti-discrimination laws (as necessary), including the Fair Work Act 2009 (Cth), to ensure that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
- must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
- must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
- can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
- in a manner that is consistent with the rights and freedoms recognised in the international agreements to which Australia is a party including the International Covenant on Civil and Political Rights.
This will not be a public inquiry but a 'targeted consultation' which will 'have regard to existing reports and inquiries'.
A report will be provided to the Attorney-General by 21 April 2023.
It is important to understand that this inquiry is not seeking to determine whether to amend the existing exemptions but merely how to do so.
As we indicated in our Media Release -
‘Since 2018 Christian schools have sought to have the current
exemptions reviewed and modernised’....
‘The current exemptions are confusing and have allowed activists to create a climate of fear amongst LGBT students in faith-based schools with their false claims about expulsion’
‘Christian schools want to see the current exemptions redrafted and anti-discrimination laws clarified to ensure an appropriate balancing of fundamental human rights, ... we know that this is an essential element of ensuring
that fundamental protections against religious discrimination are