This week, in the final week of sitting, the Federal parliament will have to decide if a bill from Labor’s Senator Penny Wong strikes the right balance between religious freedom and discrimination law.

Christian groups such as Freedom For Faith are warning that the bill will restrict what churches and theological colleges are able to teach. Their position is backed by a number of legal academics.

The Labor Bill will remove “exemptions” from the Sex Discrimination Act (SDA) that allow schools to discriminate against gay students. Wong’s ‘explanatory memorandum’ describes the bill as preventing “schools from discriminating against students on the basis of sexual orientation, gender identity or intersex status.” As Eternity has reported, no recent case of expelling or refusing enrolment to a gay student has been found despite our search for one.

The bill does not address the issue of which staff schools should be able to employ.

Labor also claims that “This Bill would not affect the operation of the indirect discrimination provisions in the SDA, which will continue to operate in a manner that allows faith-based education institutions to impose reasonable conditions, requirements or practices on students in accordance with the doctrines, tenets, beliefs or teachings of their particular religion or creed.”

But some Christians are concerned whether the Bill will provide these safeguards.

“Unfortunately, the amendments do much more than stop schools expelling students on the basis of their internal sexual orientation (a goal all sides of politics agree on)”, says Professor Neil Foster from the University of Newcastle Law School.

“They will have a serious impact on the ability of such schools, and other religious bodies, to operate in accordance with their religious beliefs. A more nuanced approach is needed.”

Professor Mark Sneddon, Adjunct Professor of Law at Monash University agrees that the Bill has wider effects  and gives details in an open letter.

He writes that the Bill will:
*  “Restrict the freedoms of religious adult education colleges including theological colleges and religious institutions for training missionaries, chaplains, youth workers etc; and
* “Apply to the acts and practices of a religious body (such as a church, temple, mosque or synagogue) which are connected with the provision of education by that body – this would seem broad enough to include sermons, and any education based on the Bible, the Koran, the Torah and other scriptures to adults, youth and children in the religious body, whether general scripture education or education applied to topics like relationships, marriage and sexuality.”

Sneddon’s letter can be read here.

Foster and other critics raise the issue of “indirect discrimination” which is banned by the SDA. This may affect compulsory chapel, or religious instruction, use of changing rooms by gender, or same-sex partners at school socials. Some of these may be regarded by the courts as “indirect discrimination” because they could be held to make LGBT students’ life at school more difficult.

Foster’s analysis can be read on his Law and Religion Australia blog here  and here.

Sneddon gives these examples of  “indirect discrimination” which would apply if the Labor bill was passed.

“(a) by the manner in which the religious body provides the other person with those services or makes those facilities available to the other person (e.g. the manner of the sermon or scripture teaching is discriminatory because the content of the teaching based on sacred scriptures is critical of same-sex marriage or of the behaviour of those having sex outside marriage (straight or gay) but not of other forms of sexual behaviour, or because the teaching criticises the idea and practice of gender transitioning).
“(b) by refusing to provide a person with those services or to make those facilities available to the other persons (e.g. the religious body provides separate training on marriage, relationships and sexuality to men only and women only groups, or refuses to provide training on relationships to people known to be actively engaged in extramarital sex);
“(c)  in the terms or conditions on which the religious body provides the other person with those services or makes those facilities available (e.g. the religious body requires attendees at the training to affirm that they are living godly lives in accordance with the teachings of the religion including on relationships and sexuality).
“Such discrimination can lead to a complaint and lawsuit under the Sex Discrimination Act if the Bill is passed.”

Coalition senators have moved amendments to:
• Make it clear the changes to the sex discrimination act apply to schools but not churches, Sunday schools and student Christian groups.
• a “reasonableness” test on school policies that might be “indirect discrimination”.
• immunity for “teaching activity” by faith-based educational institutions.

Foster makes the point that the Coalition ‘s “reasonableness” tests will mean it will be up to the courts the determine what is “reasonable” indirect discrimination.

This bill has been brought on quickly and the amendments even more quickly. In a matter of a few days, the Christian critics of both the bill and the coalition amendments believe they have found significant gaps or uncertainties.

The federal parliament has become less predictable as the Morrison government has moved into minority status. The release of the Ruddock report into Religious Freedom may happen this week and this may strengthen the argument to leave the Labor bill for further consideration over the summer break.