ACT Chief Minister Andrew Barr will move to strip religious schools of the legal right to reject gay teachers, reforms he says will go further than the Morrison government promise to better protect gay students.
Mr Barr will tabled a draft bill next Thursday to amend the ACT's discrimination laws to prevent discrimination against students and teachers on the basis of sexuality, gender identity, race, pregnancy or intersex characteristics.
The changes would be modelled on Tasmania's discrimination laws and would resolve a "legal loophole" created by the conflict between the Discrimination Act 1991 and the Human Rights Act 2004, Mr Barr said.
It follows the leaked recommendations of the Ruddock review of religious freedoms, commissioned after the same-sex marriage postal vote, which recommended entrenching an exemption for religious schools in some state and territories' discrimination laws in Commonwealth legislation.
The ACT is one of those jurisdictions but Mr Barr said he had presumed the human rights legislation trumped the discrimination exemptions.
"I think arguably it doesn't, that was certainly the advice we received, that there were ambiguities, that someone could bring a case and argue the Human Rights Act provisions were strong enough and a court may not find that so we wanted to be very clear on that question," Mr Barr said.
The federal government was also supposed to table its own legislation this week to protect gay students.
Earlier this month Attorney-General Christian Porter urged state and territory governments to abolish exemptions permitting religious schools to expel students on the basis of their sexuality, after the government experienced a massive backlash to the recommendations of the Ruddock review.
However Mr Barr said he had heard of examples where the exemptions had been used to discriminate against teachers in Canberra, and his bill would also cover teachers and other school staff.
He spoke of a Canberra teacher called Fred, who taught at a conservative Christian school for a number of years.
Mr Barr said the teacher had excellent references, was very well qualified and got on well with students and staff at the school.
"He left for 18 months and in that time his marriage ended and he started a new relationship as a gay man. On his return, his interview for reappointment went very well, but Fred was not offered casual teaching or a casual contract or part-time work. Other teachers less qualified than Fred were offered positions. Fred felt devastated. Fred is a well-qualified teacher with solid references. He was not given a reason," Mr Barr said.
"This discrimination should not, must not, be acceptable anywhere, especially not in our schools. And especially not in Canberra, the most LGBTIQ inclusive and welcoming city in Australia."
Hugo Walker also used to be a teacher at a Canberra religious school. When he came out six years ago, he felt he had no choice but to quit.
"I felt like it was the honourable thing to do, to resign from the school. If someone had outed me the school would have felt compelled to sack me. Some families from very conservative churches would have demanded I was sacked," Mr Walker said.
Mr Walker had worked at the school for 14 years and was a highly regarded member of staff.
Despite this - and even if the exemption didn't exist - Mr Walker said he would have resigned once he came out.
"Had it come out that a gay man was teaching at the school, that information would have been destructive in the parent community and certain people would have wanted me to be immediately removed from staff," Mr Walker said.
"The same people who used to say I was such a good role model, such a good teacher are the same ones who scurry away when I see them in the Canberra Centre."
ACT Opposition leader Alistair Coe said the example Mr Barr described was concerning.
"I think most people would not support a school that fired a teacher on the basis of their sexuality especially if that teacher was a good teacher, that should be the basis for whether they are hired and whether they are retained at the school," Mr Coe said.
However, Mr Coe said there was a non-government sector for a reason.
"We’ve got to make sure we do allow the diversity in the system, be it an Islamic school a Catholic school or a Christian school. There’s got to be some leeway but I think the vast majority of Canberrans and the vast majority of Australians would think it unreasonable that a student was suspended or expelled on the basis of their sexuality," Mr Coe said.
"We want to see what legislation the government is proposing, we want to make sure it doesn't put unreasonable restrictions on schools and to allow faith schools to still be faith-based schools. It is a matter of getting the balance right but I think we can get a reasonable approach."
Christian Schools Australia’s executive officer of policy, governance and staff relations Mark Spencer said the religious exemptions were not a loophole, but rather a legislative tool to balance different, but equal, human rights in the Discrimination Act.
Mr Spencer noted the ACT's human rights laws included a right to freedom of religion.
"For a Christian school seeking to be a genuinely Christian school to not be able to employ staff who share and model their beliefs it fundamentally changes the nature of the whole school," Mr Spencer said.
"Our schools are tightly woven communities where all staff play an important role and all staff need to share the values. Students and parents will very quickly pick up if a teacher is saying one thing in class but living out something different and it completely undermines what they are teaching."
However, Mr Walker said if religious schools wanted to retain the right to discriminate according to their beliefs, they should relinquish any claim to taxpayer money.
"If they want to stick to their dogma, that's their choice, they can do so but they can be self-funded like Christian schools are in the United States," Mr Walker said.
The changes to the ACT's laws were foreshadowed during an emotional debate, brought about by Labor backbencher Suzanne Orr urging the ACT's parliament to reject the proposed federal changes.
"Whether a teacher works for a government, independent or private school they should be valued for their commitment to education, not degraded for their personal identity," Ms Orr said.