It is not inevitable: The Future of Faith-Based Schools after Ruddock

Despite comprising just 30 per cent of the twenty recommendations, it is these six, and recommendations 5 and 7 in particular, that have garnered the most media attention.6 Since the leaking of the Review by Fairfax in October 2018,7 there have been two Senate inquiries related to these recommendations.8 In its response to the Review, the government indicated that recommendations 5-8 9 will be referred to the Australian Law Reform Commission for further legal consultation.10 Recommendation 9 related to classes that contain 'instruction on religious or moral matters'.11 The Review recommended that state and territory education departments should 'maintain clear policies as to when and how a parent or guardian may request a child be removed' from these classes and that the policies be 'applied consistently'.12 Recommendation 12 dealt with the nexus between schools and the legalisation of same-sex marriage, by recommending that the Commonwealth amend the Marriage Act 1984 (Cth) 'to make it clear that religious schools are not required to make available their facilities, or provide goods and services, for any marriage'.13 An exemption of this nature already exists for 'bodies established for a religious purpose'.14 While recommendations 9 and 12 are important, it is the recommendations relating to discrimination laws that have, to date, had the greatest public and political impact. [...]the Review recommended that the remaining exemptions in the SDA be amended to require schools to have a publicly available policy 'outlining its position in relation to the matter and explaining how the policy will be enforced' .17 Between the leaking of the recommendations in October 2018 and its formal release in December 2018, the Federal Senate Legal and Constitutional Affairs Reference Committee conducted an inquiry into Exemptions that Allow Faith- Based Educational Institutions to Discriminate Against Students, Teachers and Staff.18 Despite having only the leaked recommendations and not the full Review, the committee recommended rejecting recommendations 5 and 7, and that the federal government amend sections 37 and 38(s) of the SDA, effectively removing religious schools' exemptions from the Act in relation to students.19 The committee also recommended that 'further consideration be given to amending the Sex Discrimination Act 1984 to prohibit discrimination by faith based educational institutions against teachers and staff' .20 In January 2019 the Federal Senate Legal and Constitutional Affairs Legislations Committee considered a private member's Bill,21 sponsored by Labor Senator Penny Wong, designed to carry out the recommendation to remove the exemptions relating to students.22 The committee ultimately recommended that the Bill not pass in its present form.23 However, a significant contributing factor to this recommendation was that the government had already indicated that it was referring the matter to the Australian Law Reform Commission.24 The committee therefore also recommended that 'the bill, ..., be referred to the Australian Law Reform Commission for full and proper consideration' .25 The question of whether religious schools will continue to be permitted to utilise exemptions in the SDA in relation to their staff and students is not an isolated question. The role of the federal government in continuing to fund religious schools who are permitted to discriminate against LGBTI+ staff and students in a post-same-sex marriage era is also under question. Following the leaking of the Review, a link was quickly drawn between the ability of religious schools to discriminate against LGBTI+ staff, students and contractors, and the continued funding of those schools by the government.26 The use, or potential use, of exemptions to state and federal anti-discrimination by religious schools was seen as an example of religious schools flouting community expectations, with their continued funding described as 'tax payer funded discrimination'.27 In response, religious schools and leaders sought to assure the public that schools did not make use of these in relation to students.28 Such a response was scant comfort to the Federal Senate Legal and Constitutional Affairs Reference Committee, although they were 'pleased to hear various faith-based educational institutions indicate that they have not, would not, and do not wish to expel students on the basis of their sexuality'.