Law reform recommendations lack common sense

Students process through the streets under their school banners during the Walk for Christ on the feast of Corpus Christi in 2022. A new documentary will help Catholics prepare for the feast on 11 June this year. Photo: Giovanni Portelli

Should Equality Australia be forced to hire me if I am the most qualified applicant for a role at the organisation? Equality Australia does a mix of legal work, political lobbying and campaigning and I have had close to 20 years of experience in these areas, so on paper, I should be a leading candidate for any role they advertise.

Obviously, I would not expect Equality Australia to consider my application at all, much less offer me a job, given I have spent the majority of those 20 years advocating for causes to which they are opposed.

I think that’s fair enough. Equality Australia shouldn’t have to hire someone like me because my commitment to living out my Catholic identity means it would be obvious that I don’t share their ethos. If I did ever apply for a job at Equality Australia, it would be reasonable for them to assume that I was not doing so in good faith and that I was only trying it on—either trying to undermine their mission from the inside, or testing the limits of anti-discrimination law if I was ever disciplined for proclaiming the Catholic teaching on marriage and sexuality.

I also think most reasonable Australians, whatever their religious beliefs, would be on the side of Equality Australia in this scenario and think me to be a pest who should just go look for a job elsewhere and leave them alone.

What about if the shoe was on the other foot? What if someone who publicly advocated against Catholic teaching while employed for Equality Australia decided to apply for a job at a Catholic school? Should the school be allowed to assume that this too was a try on and dismiss the application?

According to the Australian Law Reform Commission’s most recent report, the school shouldn’t be able to reject the applicant in that scenario because to do so would be considered discrimination on the basis of sexual orientation. A Catholic school might still be able to prefer Catholic staff to fill vacant positions but would have to be able to show that it was religion, and not sexuality, that was the deciding factor.

The ALRC report also recommended faith-based schools should be prevented from redeploying or terminating the employment of an existing teacher who decided they want to change their gender. So, if a Year One teacher decides to transition to a female and starts coming to school in dresses and heels, the ALRC’s view is that parents should just have to cop it and figure out a way to explain gender fluidity to their six-year-old, who is still struggling to read or tie their shoelaces.

Up until now, schools have been able to use exemptions contained within the law to make sure staff share the school’s ethos. The ALRC wants to see these protections stripped away and to force faith-based schools to prove to a court or tribunal that its employment decisions are “reasonable.”

This recommendation ignores the reality that even if a school was successful in defending itself, such a victory would come at a significant cost: negative media coverage, staff time, legal fees and more. Recent experience has also shown that when a school is accused of LGBT discrimination, students in uniform are subject to harassment while making their way to and from school.

Litigation is a distraction to education and our schools should not be consistently subject to legal threats simply for trying to operate in accordance with their beliefs.

How did the ALRC get it so wrong? The ALRC took a very narrow approach to consultation, speaking with only 131 interested people and accepting fewer than 500 submissions. Undoubtedly, this included a disproportionate number of activists which is why its conclusions appear to have so completely missed the mark of what is reasonable.

The ALRC is an independent body, and its recommendations will have no effect unless they are accepted and so the burden of “common sense” now switches to the government.

It would be a good idea for the government to see if the ALRC’s recommendations pass the pub test, but Prime Minister Anthony Albanese does not want any further consultation, saying that these matters have already been the subject of extensive inquiries. That might be true, but the two most recent inquiries that looked at this specific issue—the 2018 Ruddock review (which received more than 16,000 submissions) and a 2019 inquiry into a bill tabled by Senator Penny Wong (which received another 1,000)—each recommended that the protections for schools be retained.

The ALRC inquiry, the narrowest of the three, is the first to be commissioned by a Labor government and predictably, the first to offer the conclusions Labor sought, hence the PM’s desire to shut down any further discussions.

I think that’s the wrong move. The full effect of the ALRC’s recommendations should be subject to a full public inquiry or they should be rejected in their entirety. Australians deserve nothing less.

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