Former High Court judge Michael Kirby has hit out at "medieval" laws allowing religious schools to discriminate against gay students.
Justice Kirby is disappointed the major political parties have hit a stalemate on outlawing the discrimination.
"The idea that in this day and age students in schools could be actually expelled or removed or told they're not welcome because of their sexual orientation or gender identity is just medieval stuff," he told ABC radio.
Labor and the coalition government agree in principle on banning discrimination against gay students, but the parties could not agree on the details before federal parliament broke up for the long Christmas break.
Labor claims government amendments to the Sexual Discrimination Act would widen discrimination against gay students, and argue their own legislative changes do nothing to stop religious schools teaching their faith.
On the question of giving schools the right to religious freedom and liberty, Justice Kirby quoted a legal expression which suggests, "The right to swing my arm finishes when I hit another person's chin."
"The right to swing my arm of my religious beliefs really hurts when that hits either students or hits staff or other people in publicly-funded education."
Justice Kirby said the issue boiled down to public money going to faith-based schools.
"My own view is that if they take federal gold they've got to comply with a non-discrimination requirement," he said.
"If they want to go off on their own and have their religious prejudice and hobgoblins and so on, then that might be acceptable, so long as they don't use federal money of taxpayers of Australia to fund institutions that act in that way."
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