Explainer: can religious schools discriminate in their enrolments?

All Australian anti-discrimination laws provide for some exemptions. Among the most controversial are those granted to religious schools.

The Tasmanian lower house has recently passed a bill to amend laws that provide exemptions for religious schools in its anti-discrimination laws. The proposed amendments will provide more flexibility for religious schools in the selection of their students.

The bill is not yet law as it still needs to pass the upper house. However, the bill is an opportunity to examine the exemptions granted to religious schools under anti-discrimination laws around Australia.

Every state and territory, along with the Commonwealth, has anti-discrimination laws. These prohibit discrimination on a range of grounds, which vary slightly from jurisdiction to jurisdiction. There are some commonalities, however. For example all states and territories and the Commonwealth prohibit discrimination on the basis of race, sex or gender, sexual orientation or sexuality and age.

The Tasmanian law

All state and territory anti-discrimination legislation provides some kind of exemption from the general anti-discrimination laws for religious schools. In Tasmania the current exemption is found in sections 55A and 55B of the Tasmanian Anti-Discrimination Act 1998.

Section 55A deals with individual schools while section 55B deals with school systems such as the Catholic school system.

In both cases schools may apply to the Anti-Discrimination Commissioner for an exemption. In order to be eligible for an exemption schools must demonstrate that:

a) the school is conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion

b) their policy for admission only includes discrimination on the basis of religious affiliation

c) the test for religious affiliation is objective and based on the religious affiliation of the student, their parents or grandparents

d) the school is oversubscribed.

The school will only be granted an exemption if it meets these criteria. An exemption does not permit the school to discriminate on any ground it likes. The school is only permitted to discriminate on the basis of a student’s religious affiliation.

Opinions vary over whether religious schools should be able to discriminate, but the fact is they already do in most Australian states.from www.shutterstock.com.au

Schools granted an exemption can choose to exclude students who do not share the school’s religious beliefs. For example, Jewish schools can choose to enrol only Jewish students. Similarly Catholic schools can choose to enrol only Catholic students.

It has been reported that the proposed amendment to these laws would

allow prejudiced school authorities to turn away students for any number of tawdry reasons dressed up as ‘religious belief’.

This is an exaggeration. The proposed amendments are minor and if passed would permit no more discrimination than in other states and territories.

The proposed amendment

The proposed amendments would replace section 55A and 55B with a single new section 51A. This section would continue to permit religious schools to discriminate on the basis of a student’s religious beliefs. However, schools would no longer need to apply for an exemption and would no longer need to demonstrate that the school is oversubscribed.

Schools would still be limited to discriminating on the basis of a student’s religious belief, something they are already permitted to do under the existing laws. As MP Jeremy Rockliff explained when introducing the bill to the Tasmanian parliament, the purpose of the amendment is to provide schools with certainty:

Schools are able to apply for exemptions under the Act but this can be a cumbersome and uncertain process as it is difficult to predict whether the preconditions for an exemption will be met - that is, whether a year group may be oversubscribed with students seeking admission.

Other states and territories

Tasmania is not the only state to provide exemptions for religious schools. In Victoria , Queensland and the Northern Territory schools that exist to teach students of a particular religion may exclude students who are not of that religion.

In Western Australia a religious school may discriminate against a student on any basis except race, impairment or age.

In New South Wales a private education authority (which includes religious schools) may discriminate against students on the basis of sex , marital or domestic status , disability, transgender or homosexuality.

The only state that does not have this kind of exemption for religious schools is South Australia. However, in South Australia it is not unlawful to discriminate on the basis of a person’s religion. It is, however, unlawful to discriminate on the basis of a person’s religious appearance or dress. A fine distinction – but an important one. Religious schools, however, are exempt.

Tasmania is currently the only state that requires religious schools to apply for an exemption. It is also the only state that requires schools to demonstrate that their school is oversubscribed before being granted that exemption. The proposed amendments will therefore bring Tasmania into line with the majority of Australia’s other states and territories.

Whether or not religious schools should be permitted to limit enrolments to students who share the school’s religion is a debate on which opinions vary wildly. However, whichever stance you take the Tasmanian amendments are no more discriminatory than other states and territories and are much narrower than in states such as Western Australia and New South Wales.

Renae Barker does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.