- Title
- Religious schools and discrimination against staff on the basis of sexual orientation: lessons from European human rights jurisprudence
- Creator
- Hilkemeijer, Anja; Maguire, Amy
- Relation
- Australian Law Journal Vol. 93, Issue 9, p. 752-765
- Relation
- https://sites.thomsonreuters.com.au/journals/2019/09/16/australian-law-journal-update-vol-93-pt-9-special-issue-on-religious-freedom
- Publisher
- Lawbook Co
- Resource Type
- journal article
- Date
- 2019
- Description
- The Sex Discrimination Act 1984 (Cth) (SDA) allows religious schools to discriminate against staff and contractors on the basis of their sexual orientation, as well as a range of other grounds, in order to “avoid injury to religious susceptibilities”. These provisions are inconsistent with international human rights law – as expressed in the jurisprudence of the European Court of Human Rights – for several reasons. First, the wording is impermissibly vague. Second, the provisions fail to take into account that the nature of the work is relevant in determining whether a staff member is subject to a heightened duty of loyalty. Finally, the provisions do not incorporate a balancing of staff and contractors’ rights against those of the religious school. To bring federal law in to line with international human rights law the broad exemption in s 38 of the SDA needs to be replaced with one that allows for a careful balancing of all rights in each individual case. The article ends by highlighting some legislative models that provide a balance between religious schools’ right to religious institutional autonomy and employees’ rights to equality, privacy and family life.
- Subject
- religious schools; discrimination; sexual orientation; European human rights
- Identifier
- http://hdl.handle.net/1959.13/1443257
- Identifier
- uon:41932
- Identifier
- ISSN:0004-9611
- Language
- eng
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