religious freedom

Religious Freedom Must be a ‘Positive Right’: ALRC Report Author

29 April 2024

1.8 MINS

The judge who led the Albanese Government’s review of discrimination in religious schools has called for increased legal protection for faith-based schools.

NSW Supreme Court Justice Stephen Rothman — who was appointed by Prime Minister Anthony Albanese to lead the Australian Law Reform Commission review — has stated that he was “constrained” by the terms of reference set by the Government.

Following Labor’s 2022 Election victory, the Government tasked the Australian Law Reform Commission (ALRC) with providing advice on section 38 of the Sex Discrimination Act, which currently allows religious schools to prefer staff who align with the school’s beliefs around sex, sexual identity and marriage.


In a recent interview with The Weekend Australian, however, Justice Rothman cast doubt on the ALRC report, pointing out that it was not allowed to advise the Government on the drafting of a possible religious discrimination act — which would provide a more positive right to freedom of religion.

He said that these constraints influenced the outcome of the ALRC report:

“If there weren’t the constraints associated with the report and you were looking at religious discrimination more generally, then they should have a positive right.”

Such a “positive right” would enable faith-based institutions to prefer staff who share their values, enabling them to adhere to their doctrines both in teaching and in practice — and recognising that preferring staff would not constitute “discrimination”.

This approach differs from the one Labor is rumoured to have taken with its religious discrimination bill, which uses an “exception” model — allowing religious groups to discriminate in some cases.


Responding to Justice Rothman’s remarks, law expert Dr Mark Fowler said it was clear that the Government’s terms of reference for the ALRC review “sought to achieve a particular political outcome”.

He agreed with Justice Rothman’s assessment that a bill with positive rights would be a better approach to protecting faith-based schools — and religious freedom more broadly. Such a move would be an “important recognition of an equal status of religious freedom and a recognition it is not discriminatory”.

“An exception says it is discriminatory but you can do it anyway, and that is why it is a second-order right.”

Justice Rothman also warned that people of faith felt “under attack and therefore insecure”: “I don’t think anyone should feel insecure because they believe in a religion.”

Federal Labor’s response to the ALRC’s report has been widely criticised by faith groups and the Federal Opposition.

Shadow Attorney General Senator Michaelia Cash has slammed the Government’s refusal to publish its draft religious discrimination legislation, calling on it to release the draft and allow it to be subjected to public scrutiny.

She accused the Government of consulting “behind closed doors” and “gagging stakeholders from discussing” the draft legislation.

There is no indication of when the Government will publish its draft legislation.


Image courtesy of Tima Miroshnichenko.


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  1. Jillian Stirling 29 April 2024 at 10:45 am - Reply

    The secrecy and obfuscation that the present government operates under is the worst thing about this whole situation.

  2. Gail Petherick 30 April 2024 at 12:58 pm - Reply

    Thank you for sharing this information Cody as Christian schools fight back to appoint their own staff as their conscience leads them. The Govt actions in the court setting, sound manipulative, with much smoke screening going on, to frustrate a clear decision to allow Christians schools to be true to their beliefs.
    It seems, too, our Govt is anti Christian in nearly all areas of life e.g. now interfering with Christians schools and demanding the Govt say who they select as their staff, regulating court processes and inquires so the judge finds his/her hands tied, pro abortion, pro euthanasia, pro LGBT, pro vaccine with laws that meant many lost their jobs, or were detained in isolation or unable to speak up and have a discussion about an experimental vaccine, allowing many to go free who commit crimes in the courts whilst victims pay the price, and allowing rallies to be held that oppose Christian and Jewish values.
    What has happened to our democracy?
    How did we slide into this position of having the people of Australia treated as the ‘under dog’ when they speak up for their rights?
    Is it because we have trusted the Govt in the past, as they mostly promoted Judeo Christian ethics?
    It seems we have found in the last 4 years, a war going on with the Govt verses people who don’t want to support Govt taking over Christian schools and their ethics, and don’t support the ACT Govt taking over a Christians hospital and turning into one for abortion and euthanasia. Yet the general population don’t support these changes in our nation and want a voice, so do the Christians schools, churches and independent schools. So many court cases and inquiries are being ignored or rendered powerless by a Govt that is in tune with a secular, pagan/communist mindset.
    Does that mean we no longer have the right to question the Govt and its decisions? It seems to have become more a ‘big brother’ type of institution than a Governing body that listens to the people and who recognizes their different values. (Most Australians still want Christian values)
    I was reading about the earlier separation of church and state and can see more clearly why the early Christians saw danger is merging the two ‘institutions’ of form of governance. While pagan Rome burned Christians or allowed Christians to be dragged along in chariot races or fed to lions, Christians knew where they stood and to ‘beware’ of such a governing body and the Emperor. As time went on Constantine tried to make Rome Christian and things became more liberal and although he introduced righteous laws things changed over time as the church lent more on the Govt than on God it seems.
    We may well have lent on the Govt and put our faith in it (instead of leaning on God and instead of churches standing strong) and now are waking up and paying the price. May God help in this great battle to win back Christian rights and values and may Christian schools be allowed to appoint their own staff.

  3. IAN Moncrieff 30 April 2024 at 8:58 pm - Reply

    May God help in this great battle to win back Christian rights and values and may Christian schools be allowed to appoint their own staff. In God we trust.

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