The ALRC’s religious schools review: A highly selective reading of international human rights law

In law, subtle distinctions can make all the difference. A wrongly worded direction to a jury can result in a mistrial.

One such distinction appears in international human rights law relating to the freedom of religion, which impacts the freedom of parents and schools to educate their children as they see fit.

The ALRC is currently reviewing the exceptions that apply to religious educational institutions. In short, it proposes to radically restrict the ability of religious schools to employ staff who believe the core tenets of their religion and live lives consistent with those beliefs.

Its brief is to recommend reforms in a manner consistent with Australia’s international human rights obligations. Unfortunately, the ALRC’s Consultation Paper is highly misleading on international human rights law.

Under the International Covenant on Civil and Political Rights, everyone has the right to freedom of thought, conscience and religion. There are 3 aspects to this right.

First, everyone has the right to adopt (or not) a religion of one’s choice. This right is an absolute right which must not subject to coercion, reflecting the inviolability of conscience – the internal forum is between a person and God alone.

Secondly, there is the freedom to manifest that religion in community with others in worship, observance and practice. This aspect of the right can be limited where necessary to protect public safety, order, health, or morals or the fundamental rights of others. For example, it might be thought necessary to ban the bringing of religious knives to school, in the interests of the safety of other students.

Thirdly, parents have the right to ensure the religious education of their children in conformity with their own convictions. Importantly, this right is not subject to limitations like the right to manifest one’s religion.

That is, under the Australia’s international human rights obligations, parents’ rights to educate their children is not subject to the rights of others. This is because parents have the primary responsibility to raise and educate their children – not the Australian government.

There is thus an important, if subtle, distinction between the manifestation of religion, and the parental right to educate their children.

Unfortunately, this is something that is ignored or glossed over in the ALRC’s Consultation Paper.

It nowhere mentions the distinction drawn by the ICCPR. It nowhere acknowledges that parents’ rights to educate their children is not subject to limitations under the ICCPR.

Instead, the Consultation Paper does its best to avoid this inconvenient truth.

The ALRC treats the right of parents to ensure the education of their children in conformity with their own convictions as something that can be limited to respect the rights of others.

It asks whether limiting the autonomy of religious education institutions to determine their own staff is necessary and proportionate – and surprise, surprise, concludes that these conditions are satisfied (para 55).

But these questions are irrelevant.

It is parents that have the primary responsibility to raise and educate their children.

Now, presumably the ALRC is aware of the distinction between manifestation of religion and religious education under the ICCPR. Which raises an obvious question.

People might disagree on the merits on the Australian government’s policy and it is not the ALRC’s role to determine government policy.

But the ALRC is supposed to provide independent, expert advice on matters referred to it. Surely we are entitled to expect that the ALRC delivers more than a highly selective and misleading reading of international human rights law.

– Ben Saunders, a lecturer in Law at Deakin University