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Private schools should ‘never’ be able to expel kids based on sexuality: LCA
No blanket exception to anti-discrimination laws currently exists to allow private schools to expel students on the basis of their sexual orientation or gender identity, and no such exception should ever come to pass, says advocacy organisation Law Council of Australia.
Jerome Doraisamy
Speaking in the wake of political and public debate last week following the leaking of recommendations made by the Ruddock Religious Freedoms Review, LCA president-elect Arthur Moses SC said that while specific exemptions to anti-discrimination laws existed in certain jurisdictions, no blanket exemption applied.
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“The starting point under the Sex Discrimination Act 1984 (Cth) (SDA) is that it is unlawful for a school to expel a student because of a student’s sexuality or sexual orientation,” he said.
“All schools have to comply with both the SDA and relevant state or territory laws. From a practical perspective, schools use the SDA as a benchmark.”
“Section 38(3) is an exemption for religious schools, but the exemption only applies under specific circumstances, including that the school expelling a student is doing so for the purpose of ‘avoiding injury to the religious susceptibilities of adherents to the religion.”
The school must also be conducted in accordance with the specific doctrines, tenets, belief or teachings of a religion, he continued, and the school can only expel the student on the grounds of sexual orientation “in good faith”.
“A private school exemption was introduced in NSW in 1981, but this is complex and controversial,” he noted.
“What is true is that there is no blanket exemption to the SDA for Australian private schools.”
Mr Moses said that LCA welcomed Prime Minister Scott Morrison’s comments from last Thursday, in which he said: “we do not think that children should be discriminated against”.
A society should be judged by how it treats its children, Mr Moses argued.
“We should treat our children compassionately, fairly and with care. We should never have laws that would traumatise or stimatise our children – no humane society does that. Australians are fair and compassionate, they would not agree with such proposals.”
“The Prime Minister is right to dismiss this as a law worth considering. All children in Australia should be treated equally and with care,” he concluded.
