Human Rights Commissioner
Lorraine Finlay
Freedom, Faith & Fairness: Navigating Human Rights in Education
Today
(Christian Schools Australia National Policy Forum, 26 May 2025).
Good morning.
I would like to begin by echoing Wendy’s earlier acknowledgment of the traditional
custodians of the land on which we meet today – the Ngunnawal people – and pay my
respects to elders past, present and emerging.
Thank you to Christian Schools Australia for inviting me to join you today for the 2025
National Policy Forum. The people in this room teach, guide and inspire tens of
thousands of students across all parts of Australia. From the outset, I want to
acknowledge the importance of the work that all of you do and say thank you.
I say thank you – firstly – in my professional capacity as the Australian Human Rights
Commissioner knowing the foundational importance of the human right to education
and the transformative impact it can have for individuals, families and communities.
But I also say thank you in my personal capacity as a Mum whose own two children
are themselves currently students at a faith-based school. To this end, I was
particularly thril ed to see that tomorrow morning’s praise and worship is being led by
the team from
– which happens to be the primary school
that my two children attended for three years when we first moved to Canberra. So –
while I know it is risky to start out a keynote address by singling out one particular
school in a room full of wonderful schools – I would like to take the opportunity to say
a particular thank you to
and the entire
staff for the vibrant
school community they have created and the positive role that they have played in the
lives of my children.
I want to focus our discussion this morning on freedom, faith and fairness. We live in
an era where each of these values is being reinterpreted – sometimes redefined – and
often put into tension with one another. And nowhere is that tension felt more sharply
than in education.
The Human Rights Landscape in Transition
We have seen dramatic shifts in the human rights landscape in recent times.
It wasn’t too long ago that the ‘North Star’ for human rights advocates working to
advance equality rights was the sentiment expressed most eloquently by Martin Luther
King Jr in his ‘I Have a Dream’ speech from 1963. In that famous speech, he spoke of
his dream ‘that my four little children wil one day live in a nation where they wil not be
judged by the color of their skin but by the content of their character.’
In the modern age of identity politics and DEI policies it sometimes feels as though we
are moving further away from realising that dream, rather than towards it. We are less
concerned with the content of an individual’s character, and choose to focus instead
on the pre-determined identity category we judge them as belonging to.
A belief in the fundamental importance of human rights is an essential part of our
shared Australian values. To give just one example, anyone applying for Australian
citizenship must sign an Australian Values Statement as part of the application
process, which includes – amongst other things – expressly recognising that Australian
society values:
• respect for the freedom and dignity of the individual;
• freedom of religion (including the freedom not to follow a particular religion),
freedom of speech, and freedom of association; and
• equality of opportunity for all people, regardless of their gender, sexual orientation,
age, disability, race, or national or ethnic origin.
2
What strikes me in reading this statement is that there is no suggestion that any of
these values are in any way secondary or inferior to others on the list, and nor should
they be. They are all critically important – both in themselves and in combination.
While these values are long-standing, the focus and importance that we attach to each
of them has clearly shifted over time, with that shift accelerating in recent times.
On one hand, we are witnessing a growing recognition of equality rights – especially
for historically marginalised communities, including LGBTQIA+ Australians. This is an
important and necessary development in a society that values human rights, with the
very foundation of human rights being the recognition that every single human being
is equal in dignity and deserves to be treated with respect.
On the other hand, there is increasing concern that these same developments may
limit the ability to express and live out faith-based convictions. Faith-based schools, in
particular, find themselves navigating a complex and evolving legal and social terrain.
Both religious freedom and equality rights are protected under the international human
rights framework. For example, Article 18 of the
International Covenant on Civil and
Political Rights guarantees the right to freedom of thought, conscience, and religion.
At the same time, Article 26 protects the right to equality and non-discrimination.
In Australia, these rights are reflected – though unevenly - in our patchwork of federal
and state human rights laws. We see this tension most clearly in current debates
around religious discrimination, proposed reforms to anti-discrimination laws, and
recent recommendations from the Australian Law Reform Commission about how
faith-based schools manage staffing and student welfare.
So the question we must ask is this: how do we honour – and truly live – our faith
convictions, while also upholding the rights and dignity of every person?
3
The Tension Between Equality and Religious Freedom
Much of the current debate is framed as a conflict – freedom of religion versus the
equality agenda. Christian schools, for example, are often cast either as bastions of
outdated beliefs or as victims of an overreaching secular state. But this framing misses
the deeper complexity of the challenge.
Most human rights are not absolute. They exist in tension with one another. The right
to religious freedom can be limited – but only when it is necessary, proportionate, and
justified in a democratic society, and only to the minimum extend necessary to meet
those thresholds.
Importantly, the same is true of the right to equality. It is not an absolute right, and it
can be subject to limitations.
This is not about choosing one value over another. It’s about holding competing rights
in constructive tension, finding principled ways through disagreement, and always
seeking to maximise the freedom that is available to every individual. That is what a
pluralist democracy requires.
How do we do this? A good place to start when faced with complexity and confusion is
to revisit first principles - something that I fear is becoming increasingly rare in an era
marked less by principled policy development and debate, and more by increasing
tribalism, growing polarisation, and the rapid weaponisation of issues.
We live in an age where the language of human rights is more common – and more
powerful – than at any previous point in human history. But we are also living in a time
where framing an idea or a policy in the language of human rights potentially places it
– at least according to some – beyond scrutiny. It increasingly feels that couching an
argument in the language of human rights is used by some as a way to end discussion
4
and debate – almost as though the innate moral virtue that attaches to human rights –
and, in particular, equality rights – shields them from scrutiny, debate or criticism.
All ideas – even the most unassailable truths – demand scrutiny and benefit from being
tested and challenged. Reasonable people can disagree about important ideas,
including about important ideas relating to human rights. We need to be able to have
open and candid discussions about human rights and the way those rights are realised
in our day-to-day lives. This is particularly important when the discussion involves a
tension between rights, as is the case when it comes to navigating the tension between
religious freedom and equality rights in education.
When we revisit first principles in this context, we are reminded that human rights are
based on the principles of universality, indivisibility and interdependence. Al human
rights have equal status and cannot be positioned in a hierarchical order.
We would do well to remember this, and I wil come back to the point a little later in
these remarks. Too often in the modern-day discussion of human rights it feels as
though we are channelling the famous line in
Animal Farm – except rather than all
animals being equal it is all human rights that are equal … but some are more equal
than others.
A principled approach to human rights requires us to remember that – even if we do
so for what we think are virtuous reasons – we cannot simply cherry-pick the human
rights that we like.
In an era increasingly defined by the push for equality, it needs to be emphasised that
religious freedom is an equally important right and not merely something to be
begrudgingly accommodated.
The Forgotten Freedom?
5
Ten years ago Peter Kurti (from the Centre for Independent Studies) described
religious freedom as ‘the forgotten freedom’. With contentious debates about religious
freedom – particularly in the context of education – being seen across the last two
parliamentary terms I no longer think it is correct to describe it as ‘the forgotten
freedom’. But it is a freedom that remains undervalued and vulnerable.
In the Australian human rights family, freedom of religion is most certainly not the
favourite child.
The ‘cherry-picking’ of favoured human rights has resulted in religious freedom in
Australia being too often treated as a ‘secondary’ or inferior right, particularly when
framed against equality rights. This stands in contrast to what might be expected given
the comparative constitutional status of these rights in Australia. Religious freedom is
actually one of the few human rights expressly provided with some level of recognition
under the Australian Constitution –
albeit recognition that is both qualified in its own
terms and that has been subsequently narrowly interpreted by the High Court. Equality
rights – by contrast – do not have any national constitutional status.
Despite this, we find equality rights being provided with greater direct protection under
Australian law and with a favoured status in our national human rights conversation.
Legal protections against discrimination on the basis of religion in federal and state
anti-discrimination laws are inconsistent across jurisdictions. Indeed, the protection of
religious belief is the missing piece in Australia’s national framework of anti-
discrimination laws. We have specific, national laws protecting individuals from
discrimination based on protected attributes including age, disability, race, and sex but
we do not have a law that specifically protects individuals from discrimination based
on religious belief.
To the extent that religious freedom is provided with some tangential protections, these
exist as exemptions to unlawful discrimination. The key examples here are sections 37
and 38 of the
Sex Discrimination Act which allow ‘religious bodies’ and ‘educational
6
link to page 7
institutions established for religious purposes’ to discriminate against people on the
basis of certain attributes protected by the
Sex Discrimination Act in certain
circumstances and provided certain conditions are met
.
These exemptions continue to be controversial and subject to debate about removal
or reform. Most recently, the 2023 Australian Law Reform Commission inquiry into
religious educational institutions and anti-discrimination laws recommended – amongst
other things – that s 38 be repealed and that the s 37 exemptions be narrowed.
In a submission that I co-authored with Joshua Forrester and Dr Augusto Zimmermann
back in 2018 to the Expert Panel on Religious Freedom (more commonly known as
the ‘Ruddock Review’) we spoke about the message that this sent about the relative
importance of religious freedom, observing:
1
‘Religious freedom is not sufficiently protected when it exists merely as a narrow
exemption that is grudgingly accepted in antidiscrimination legislation. This implicitly
undervalues the importance of religious freedom, with the consequence that it is
consigned to a secondary role and is left vulnerable to removal at a later date …
Freedom of religion should not be considered as an exemption. It is a fundamental
freedom that deserves to be protected in a positive sense.’
This general prioritising of equality rights in Australia is also clearly evident in our
institutional structures and designs. For example, within the Australian Human Rights
Commission we have a President and seven specific purpose Commissioners, of
which I am one. For each of the anti-discrimination laws I mentioned previously, a
dedicated Commissioner has been established to focus exclusively on advancing
equality through the lens of a specific protected attribute. We have an Age
Discrimination Commissioner, a Disability Discrimination Commissioner, a Race
Discrimination Commissioner, and a Sex Discrimination Commissioner.
1 Lorraine Finlay, Joshua Forrester & Dr Augusto Zimmermann,
Submission to the Expert Panel on
Religious Freedom, 9 February 2018, p.5.
7
Now I want to emphasise that each of those Commissioners is making an important
contribution to advancing human rights in Australia, and this is not a criticism of either
them or their roles. But we should recognise that when the majority of the senior roles
in our National Human Rights Institution are created by direct reference to anti-
discrimination legislation, it wil necessarily result in an institution that – by intentional
design – has a greater focus on equality rights than on other rights and freedoms.
Balancing Conflicting Rights in Education
Which brings me back to first principles – Australian law and human rights structures
currently prioritise equality rights over other rights and freedoms, including religious
freedom. But this is not an approach that is required by – or potentially even consistent
with – Australia’s overall international human rights obligations.
Under the international human rights framework our human rights are universal,
indivisible and interdependent. As I said at the start of this speech – and it is worth
saying again – al human rights have equal status and cannot be positioned in a
hierarchical order.
But how do we put this into practice in our schools and other educational settings?
The starting point should be that all human rights are important, and we should seek
to give them all the widest scope of operation that is possible in each case. Instead of
simply prioritizing one right at the expense of the other, the way in which conflicting
rights should be accommodated needs necessarily to be more nuanced, wil depend
largely on the particular circumstances of the individual case example, and should
always aim to protect the rights of both sides to the greatest extent possible.
I don’t pretend there is a simple or perfect answer to the growing tension between
equality rights and religious freedoms in education. But I do have two suggestions to
8
offer up today that might help us to work through some of these complexities in a more
constructive way.
Freedom of Association
The first is to remember that neither equality rights or religious freedoms exist in a
vacuum, and that the broader human rights framework has a role to play in helping us
to navigate through potential conflicts. In particular, we should not forget about the right
to freedom of association – another right that is, again, too often overlooked or
diminished in the modern human rights conversation in Australia.
Freedom of association – protected under Article 22 of the ICCPR – plays a vital role
in safeguarding religious freedom and helping to guide the navigation of conflicts,
particularly in educational contexts. It allows faith-based schools to form communities
grounded in shared beliefs and values, creating environments where religious identity
can be freely expressed and nurtured. It recognises that education is not just about
learning a curriculum but also – perhaps even primarily – about the formation of
character, conscience and community.
It allows us to recognise that these do not need to be beliefs and values shared by
every Australian, that faith-based schools are not attempting to impose those beliefs
and values on the broader Australian society, and that a faith-based school will not
necessarily be the right environment for every student or teacher. It does not have to
be. What freedom of association reminds us is that we can recognise and support
people being allowed to make different choices – some of which may not align perfectly
to our own.
Freedom of association does not mean freedom from scrutiny or accountability, but
rather the recognition that pluralism and diversity are best protected when individuals
and communities are free to associate around common convictions. Equality does not
9
require uniformity. In this way, freedom of association becomes a cornerstone for
religious expression, educational choice, and social cohesion in a democratic society.
A General Limitations Clause
The second suggestion is to consider adopting a new approach to anti-discrimination
law reform by focusing less on new protections or specific exemptions, and instead on
the way that we think about discrimination.
‘Discrimination’ has become a word with inherently negative connotations. Nobody
wants to be thought of as discriminating against anyone or anything. However, it is
important to remember that discrimination is not itself an inherently positive or negative
concept. Instead, a great deal depends on the specific context and circumstances and
also on exactly what you mean when you adopt this term. There are certainly many
circumstances in which discrimination is morally repugnant and cannot be justified.
Apartheid is one clear example. Ultimately, however, discrimination itself is simply the
making of a choice and can often be entirely justified. For example, electing to have
surgery performed by a trained surgeon rather than a person with no medical training
whatsoever is a form of discrimination that is entirely rational.
The real issue is to determine
when discrimination should be appropriately exercised,
and when legal limits should be enforced.
One way of doing this in Australia would be by redefining what is meant by
discrimination through the introduction of a general limitations clause into existing anti-
discrimination laws, along the lines identified by the Australian Law Reform
Commission in its 2012
Freedoms Report. This would clarify that conduct which is
necessary to achieve a legitimate objective – including the protection of freedom of
religion – and is a proportionate means of achieving that objective, is not discrimination.
10
The effect of a general limitations clause would be to re-calibrate the relationship
between conflicting human rights, but to do so by using language that does not suggest
that the freedom of religion is an inferior or secondary right that is only granted as a
limited exception to equality rights.
Reconciling Faith and the Equality Agenda
But, in the absence of reforms to provide stronger legal protections for religious
freedom, can the contemporary equality agenda be reconciled with the faith-based
mission of Christian schools?
I believe it can – but only if we move away from an adversarial posture and towards
one of principled engagement.
There is a deep alignment between Christian values and human rights principles. The
call to love your neighbour, to act justly, to show mercy, and to be compassionate —
these are foundational to both Christian values and the human rights framework.
We need to base our approach and our advocacy around these values.
The challenge is clear: the legal environment and the human rights landscape are both
shifting. There wil be less space for arbitrary or poorly justified practices in the name
of religious freedom. But that need not be a threat. It is also an invitation - to clarity, to
leadership, and to renewed purpose.
The opportunity lies in becoming schools that exemplify the best of what Christian
education can be: intellectually rigorous, spiritually grounded, and ethically engaged.
It also lies in collective advocacy - ensuring that the voices of Christian schools are
part of legislative and policy debates, not from a place of fear or a defensive
11
positioning, but from a commitment to the common good and a strong belief in the
positive contribution that Christian schools make to students, families and our nation.
One final point that I want to make is that seizing this opportunity requires courageous
and compassionate advocacy. I am increasingly concerned about the state of human
rights advocacy in Australia, and the way that we approach public discourse.
While we have focused specifically today on the challenges of reconciling religious
freedom and equality in our schools, more broadly we are facing a time of great
complexity and significant challenges for our nation. However, this is also a time where
our public discourse has never been more fractured. We are quick to assume the worst
of each other, we prefer to cancel rather than to persuade, and we seem to have lost
the wil to try and find common ground. We no longer separate the person from the
idea – the idea that you could be friends with somebody you disagree with politically is
increasingly seen as morally objectionable and a sign of impurity, rather than a virtue.
This all serves to diminish our ability to meet the policy challenges that we face, it
diminishes our ability to improve human rights outcomes, and it diminishes our
democracy.
Ultimately, if we want to strengthen human rights in Australia we need to be wil ing to
listen and learn from one another, to break free from our increasing tendency to lock
into siloed tribes, and to approach challenging conversations about important issues
with a spirit of constructive engagement.
Conclusion
We are living in challenging and complex times.
12
link to page 13
But in navigating challenging and complex times, we must not abandon our beliefs. To
the contrary, they are more important than ever. The times call for us to live them out
with courage and compassion, and to lead with faith, integrity and grace.
Striking an appropriate balance between religious freedoms on the one hand, and
equality rights on the other, poses a significant challenge. Milton Friedman famously
cautioned that ‘the society that puts equality before freedom wil end up with neither’.
He went on to say that ‘the society that puts freedom before equality wil end up with a
great measure of both’.
2 The path ahead is not an easy one, but I remain convinced that freedom, fairness and
faithfulness can stil walk together.
The starting point is to reassert the importance of religious freedom – not as a right to
be begrudgingly tolerated at the margins of Australian society, but rather as a human
right of equal importance to other rights, including equality rights.
Thank you.
2 Milton Friendman, from
Free to Choose, Episode 5, ‘Created Equal’ (PBS Television, 1980).
13
