Abstract
Religious schools face enormous challenges. They need to balance the needs of their religious/faith communities on the one hand with, on the other, the imperatives created by government regulation in terms of educational principles and goals, and also in terms of anti-discrimination, safety and other protective measures. This chapter considers the parameters placed on religious schools by various forms of regulation, and how these challenges play out in reality as reflected in case law. The focus is on Australian schools, but the chapter also considers some cases and legislation in other jurisdictions: the United Kingdom, Europe, Canada and the United States.
I have presented versions of the material contained in this chapter at a number of education law conferences over the past few years. I would like to thank Bridget Nunn and David Chen, both of Thomson Geer, for their invaluable assistance at different times in preparing those papers and this chapter.
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09 February 2019
Chapter 12: Towards inclusive schools: The impact of the DDA and the DSE on inclusion participation and exclusion in Australia
Notes
- 1.
- 2.
- 3.
See Sutherland Shire Council v Folkes [2015] FCA 1288; Islamic Council of Victoria v Catch the Fire Ministries Inc. [2004] VCAT 2510 – discussed in more detail below.
- 4.
See similar provisions in Sex Discrimination Act 1984 (Cth) ss 37(a)–(c); Discrimination Act 1991 (ACT) ss 32(a)–(c); Anti-Discrimination Act 1992 (NT) s 51(a)–(c); Anti-Discrimination Act 1977 (NSW) s 56(a)–(c); Anti-Discrimination Act 1991 (Qld) ss 109(1)(a)–(c); Equal Opportunity Act 1984 (SA) ss 50(1)(a)–(ba); Equal Opportunity Act 2010 (Vic) s 82; Equal Opportunity Act 1984 (WA) s 72(a)–(c); Anti-Discrimination Act 1998 (Tas) s 52.
- 5.
For a detailed comparison of the exemptions across Australian jurisdictions see Walsh, G, ‘The right to equality and the employment decisions of religious schools’, (2014) 16 The University of Notre Dame Australia Law Review, 107–144.
- 6.
See most recently submissions to Conifer (2017); the Inquiry into the Status of the Human Right to Freedom of Religion or Belief (2017); Inquiry into the Commonwealth Government’s exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill (2017); and in years gone by proposals for reform advocated by the Greens, eg in 2016.
- 7.
See Work Health and Safety Act 2011 (ACT) s 19; Work Health and Safety Act 2011 (Cth) s 19; Work Health and Safety Act 2011 (Qld) s 19; Work Health and Safety Act 2011 (NSW) s 19; Work Health and Safety Act 2012 (SA) s 19; Work Health and Safety Act 2012 (Tas) s 19; Occupational Safety and Health Act 1984 (WA) ss 19 and 21(2); Occupational Health and Safety Act 2004 (Vic) ss 21 and 23.
- 8.
- 9.
See for example Education and Training Reform Regulations 2007 (Vic) r 52.
- 10.
See for example, Education Act 1990 (NSW) ss 8(3) and 10(3).
- 11.
- 12.
See Pothecary Witham Weld (A Firm) and Another v Bullimore [2010] UKEAT 0158_09_2903; HM Land Registry v Grant EAT [2010] UKEAT 0232_09_1504; Johns and Another, Regina (on The Application of) v Derby City Council and Another [2011] EWHC 375 (Admin); Bull and Another v Hall and Another [2013] UKSC 73; HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426.
- 13.
See similar provisions in Anti-Discrimination Act 1992 pari (NT) s 37A; Anti-Discrimination Act 1991 (Qld) ss 25(2) and 25(3); Anti-Discrimination Act 1998 (Tas) s 51(2); Equal Opportunity Act 2010 (Vic) ss 82 and 83; Equal Opportunity Act 1984 (WA) ss 73(1) and 73(2); Australian Human Rights Commission Act 1986 (Cth) s 3. There are no equivalent provisions in the other jurisdictions.
- 14.
s 4(1) Anti-Discrimination Act 1977 (NSW).
- 15.
- 16.
- 17.
Just one recent example of the significant press that the issue has received can be found in Haydar, N. (2017, April 16). Safe Schools program ditched in NSW, to be replaced by wider anti-bullying plan. ABC News. Retrieved from www.abc.net.au/news/2017-04-16/safe-schools-program-ditched-in-nsw/8446680, and the many links at the bottom of that article.
- 18.
See Hurley, L. (2017, March 7). U.S. top court throws out ruling favouring transgender student. Reuters. Retrieved from https://www.reuters.com/article/us-usa-court-transgender/u-s-top-court-throws-out-ruling-favoring-transgender-student-idUSKBN16D1OD and Turner, A. (2017, March 6). BREAKING: U.S. Supreme Court Remands and vacates Gavin Grimm Case. Human Rights Campaign. Retrieved from https://www.hrc.org/blog/breaking-united-states-supreme-court-remands-and-vacates-gavin-grimm-case
- 19.
See https://en.wikipedia.org/wiki/Operation_Trojan_Horse, which includes links to the relevant government report into the allegations, and to a very large number of media articles tracing the controversy and its aftermath.
References
Legislation
Anti-Discrimination Act 1977 (NSW).
Anti-Discrimination Act 1991 (Qld).
Anti-Discrimination Act 1992 (NT).
Anti-Discrimination Act 1998 (Tas).
Australian Human Rights Commission Act 1986 (Cth).
Discrimination Act 1991 (ACT).
Education Act 1990 (NSW).
Education and Training Reform Act 2006 (Vic).
Education and Training Reform Regulations 2007 (Vic).
Equal Opportunity Act 1984 (SA).
Equal Opportunity Act 1984 (WA).
Equal Opportunity Act (2010) (Vic).
Equality Act 2010 (UK).
Fair Work Act 2009 (Cth).
Occupational Health and Safety Act 2004 (Vic) ss 21 and 23.
Occupational Safety and Health Act 1984 (WA).
Racial and Religious Tolerance Act 2001 (UK).
Sex Discrimination Act 1984 (Cth).
Work Health and Safety Act 2011 (ACT).
Work Health and Safety Act 2011 (Cth).
Work Health and Safety Act 2011 (NSW).
Work Health and Safety Act 2011 (Qld).
Work Health and Safety Act 2012 (SA).
Work Health and Safety Act 2012 (Tas).
Cases
A obo V and A v NSW Department of Education EOD [2000] NSWADTAP 14.
Achbita & Anor v G4S Secure Solutions NV [2016] EUECJ C-157/15.
Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.
Al-Kateb v Godwin (2004) 219 CLR 562.
Arora v Melton Christian College (Human Rights) [2017] VCAT 1507.
Attorney-General (Vic); Ex Rel Black v Commonwealth (1981) 146 CLR 559.
Azmi v Kirklees Metropolitan Borough Council [2007] UKEA/0009/07.
Bougnaoui v Micropole Univers SA (2015) C-188/15.
Bull and Another v Hall and Another [2013] UKSC 73.
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284.
Church of the New Faith v Commissioner of Payroll Tax (1983) 154 CLR 120.
Coy Mathis v Fountain-Fort Carson School District 8 (2013) P20130034X.
De Groen v Gan Mecachem Hendon Limited 3347281/2016.
E.T. v Hamilton-Wentworth District School Board (2016) ONSC 7313.
G.G. [Gavin Grimm] v. Gloucester County School Board; see Shapiro, I, T Burrus and D McDonald. ‘Gloucester County School Board v G.G’, Cato Institute, 10 January 2017 accessed at https://www.cato.org/publications/legal-briefs/gloucester-county-school-board-v-gg-0
Goldberg v Korsunski Carmel School [2000] EOC 93-074.
Haider v Combined District Radio Cabs Pty Ltd t/as Central Coast Taxis [2008] NSWADT 123.
HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426.
HM Land Registry v Grant EAT [2010] UKEAT 0232_09_1504.
Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510.
Johns and Another, Regina (on The Application of) v Derby City Council and Another [2011] EWHC 375 (Admin).
Jones v Lee and Guilding [1980] ICR 310.
Krygger v Williams (1912) 15 CLR 366.
Miller v Wertheim [2001] FMCA 103.
Miller v Wertheim [2004] FCA 988.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256.
Pothecary Witham Weld (A Firm) and Another v Bullimore [2010] UKEAT 0158_09_2903.
R (on the application of E) (Respondent) v The Governing Body of JFS and the Admissions Appeal Panel of JFS and others (Appellants) [2009] UKSC 15.
R (on the application of Playfoot) v Governing Body of Millais School [2007] HRLR 34.
R (on the application of Watkins-Singh) v Aberdare Girls’ High School Governors [2008] EWHC 1865.
R (SB) v Governors of Denbigh High School [2007] 1 AC 100.
R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.
SDW v Church of Jesus Christ of Latter-Day Saints (2008) 222 FLR 84.
Sutherland Shire Council v Folkes [2015] FCA 1288.
The Interim Executive Board of X School v. Her Majesty’s Chief Inspector of Education, Children’s Services and Skills [2016] EWHC 2813 (Admin).
Trinity Western University v British Columbia College of Teachers [2001] 1 SCR 772.
Books and Journal Articles
Evans, C. (2009). Legal aspects of the protection of religious freedom in Australia. Melbourne Law School.
Evans, C. (2012). Legal protection of religious freedom in Australia. Sydney: Federation Press.
Evans, C., & Gaze, B. (2010). Discrimination by religious schools: Views from the coal face. Melbourne University Law Review, 34, 392.
Evans, C., & Ujvari, L. (2009). Non-discrimination laws and religious schools in Australia. Adelaide Law Review, 30, 31.
Ford, D. (2016). Lesbian, gay, transgender and intersex students. Retrieved from www.emilford.com.au/imagesDB/wysiwyg/LGBTIStudentsandDutyofCare-November2016PaperbyDavidFord.pdf
Schuster, M., Reisner, S., & Onorato, S. (2016). Beyond bathrooms – Meeting the health needs of transgender people. The New England Journal of Medicine, 375, 101–103. https://doi.org/10.1056/NEJMp1605912.
Walsh, G. (2014). The right to equality and the employment decisions of religious schools. The University of Notre Dame Australia Law Review, 16, 107–144.
Media Reports
Bachelard, M. (2008, February 25). At the crossroads? The Age. Retrieved from www.theage.com.au/news/in-depth/at-the-crossroads/2008/02/24/1203788145887.html?page=5
Christodoulou, H. (2016, November 7). Four ‘extremist’ schools which teach ‘men can beat their wives’ fighting government orders to shut down. The Sun. Retrieved from www.thesun.co.uk/news/2130831/four-extremist-schools-which-teach-men-can-beat-their-wives-fighting-government-orders-to-shut-down/
Conifer, D. (2017, November 19). Ministers at odds over whether to include religious protections in same-sex marriage bill. ABC News. Retrieved from http://www.abc.net.au/news/2017-11-19/split-in-turnbull-government-over-religious-amendments-to-ssm-l/9166360
Donnelly, K. (2013, January 17). Schools practise what they preach. The Sydney Morning Herald. Retrieved from www.smh.com.au/federal-politics/political-opinion/schools-practise-what-they-preach-20130116-2ctpf.html
Fyfe, M. (2009, October 4). Teacher scorned for chosen lifestyle. The Age. Retrieved from www.theage.com.au/national/teacher-scorned-for-chosen-lifestyle-20091003-ghbl.html
Haydar, N. (2017, April 16). Safe schools program ditched in NSW, to be replaced by wider anti-bullying plan. ABC News. Retrieved from www.abc.net.au/news/2017-04-16/safe-schools-program-ditched-in-nsw/8446680
Human Rights Watch. (2016, September 13). Shut out: Restrictions of bathroom and locker room access for transgender youth in US schools’. Human Rights Watch. Retrieved from www.hrw.org/report/2016/09/13/shut-out/restrictions-bathroom-and-locker-room-access-transgender-youth-us-schools
Hurley, L. (2017, March 7). U.S top court throws out ruling favouring transgender student. Reuters. Retrieved from https://www.reuters.com/article/us-usa-court-transgender/u-s-top-court-throws-out-ruling-favoring-transgender-student-idUSKBN16D1OD
Jabour, B. (2012, May 1). Teacher sacked over pregnancy. Brisbane Times. Retrieved from www.brisbanetimes.com.au/queensland/teacher-sacked-over-pregnancy-20120501-1xw79.html
Lipka, M. (2016). Americans are divided over which public bathrooms transgender people should use. Pew Research Center. Retrieved from www.pewresearch.org/fact-tank/2016/10/03/americans-are-divided-over-which-public-bathrooms-transgender-people-should-use/
McCarriston, G. (2017, March 16). Partisan gap widens on transgender bathroom rights. YouGov. Retrieved from today.yougov.com/news/2017/03/16/partisan-lines-drawn-which-bathrooms-transgender-p/
Pells, R. (2016, October 14). Islamist girls’ school that taught pupils gay people should be killed and men could beat their wives forced to close. Independent. Retrieved from www.independent.co.uk/news/education/education-news/islamist-girls-school-jamia-al-hudaa-taught-pupils-gay-people-should-be-killed-forced-closure-aliyah-a7361596.html
Rankin, J., & Oltermann, P. (2017, March 13). Europe’s right hails EU court’s workplace headscarf ban ruling. The Guardian. Retrieved from www.theguardian.com/law/2017/mar/14/employers-can-ban-staff-from-wearing-headscarves-european-court-rules
Tomazin, F. (2009, March 25). Christian school rejects teacher. The Age. Retrieved from www.theage.com.au/national/christian-school-rejects-teacher-20090324-98y0.html
Turner, A. (2017, March 6). BREAKING: U.S. Supreme Court remands and vacates Gavin Grimm case. Human Rights Campaign. Retrieved from https://www.hrc.org/blog/breaking-united-states-supreme-court-remands-and-vacates-gavin-grimm-case
Other
Human Rights and Equal Opportunity Commission Inquiry. (1998). HRC Report No 6.
James, D., & Clarke, T. (2009). Evidence to Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Melbourne, Inquiry into the exceptions and exemptions in the Equal Opportunity Act — Public hearing. Victorian Independent Education Union, 3. Retrieved from www.parliament.vic.gov.au/images/stories/committees/sarc/EOV/transcripts/5_August__Victorian_Independent_Education_Union.pdf
NSW Education Standards Authority. (2017). Modifications to a NESA syllabus. Retrieved from http://rego.nesa.nsw.edu.au/registered-individual-non-government-schools/registration-requirements/curriculum/modifications-to-a-nesa-syllabus
NSW Education Standards Authority. (2017). Registered and accredited individual non-government schools (NSW) manual. Retrieved from http://educationstandards.nsw.edu.au/wps/wcm/connect/e9aad3a8-808b-468f-a8e1-92de94b10e31/reg-accred-individ-non-gov-manual.pdf?MOD=AJPERES&CVID
Victorian Independent Education Union. (2009). Evidence to Scrutiny of Acts and Regulations Committee, Inquiry into the exceptions and exemptions in the Equal Opportunity Act — Public hearing. Retrieved from http://www.parliament.vic.gov.au/images/stories/committees/sarc/EOV/transcripts/5_August_-_Victorian_Independent_Education_Union.pdf
Williams, G. (2017). Submission to inquiry into the status of the human right to freedom of religion or belief.
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Seemann, J. (2018). Meeting the Challenges Facing Religious Schools: An Australian Perspective. In: Trimmer, K., Dixon, R., S. Findlay, Y. (eds) The Palgrave Handbook of Education Law for Schools. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-77751-1_10
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