CHAPTER 5
EXCEPTIONS TO UNLAWFUL DISCRIMINATION
5.1
Division 4 of Part 2-2 of the Draft Bill contains exceptions to the unlawful
discrimination provisions, which exempt activities in a range of scenarios that
would otherwise be unlawful discrimination. Submitters and witnesses raised
various issues in relation to these exceptions, with a particular focus on the
general 'justifiable conduct' exception, the 'inherent requirements of work'
exception, and the exceptions for religious organisations.
General exception for 'justifiable conduct'
5.2
Clause 23 introduces an exception to unlawful discrimination for
'justifiable conduct', which applies in relation to all protected attributes.
5.3
Subclause 23(3) provides that conduct of a person is 'justifiable' if:
- it is engaged in, in good faith, for the purpose of achieving 'a
legitimate aim' (paragraphs 23(3)(a)-(b)); and
-
a reasonable person in those circumstances would consider that
engaging in the conduct would achieve that aim (paragraph 23(3)(c)); and
- the conduct is a proportionate means of achieving the aim
(paragraph 23(3)(d)).
5.4
Subclause 23(4) provides that several matters must be taken into account
when considering if subclause 23(3) has been satisfied, including: the objects
of the Draft Bill; the nature and extent of the discriminatory effect of the
conduct; and whether the person could have engaged in other conduct with less
or no discriminatory effect.
General views on clause 23
5.5
A number of stakeholders expressed in-principle support for the
introduction of a general exception for 'justifiable conduct': for example, the
Discrimination Law Experts Group stated that this single exception is
preferable 'in place of the confusing array of singular and inconsistent
exceptions that exist in the current laws'.[1]
Concerns were raised, however, that the current wording of clause 23 needs
improvement.[2]
5.6
Suncorp argued that the drafting of this exception is too broad, and
that without further guidance from the government significant judicial
interpretation of key phrases in clause 23 will be required, possibly leading
to unnecessary disputes and complaints being brought.[3]
Other stakeholders agreed that this exception has been too broadly drafted, and
could therefore diminish protections against discrimination if it is not
reworded.[4]
5.7
Job Watch argued that clause 23 should be removed from the Bill
altogether because this exception 'will be ambiguous, complex and uncertain and
create an abundance of case law leading to further complexity'.[5]
Possible changes to clause 23
5.8
Several amendments to clause 23 were proposed by submitters. For
example, the Discrimination Law Experts Group argued that the reference to an
aim that is 'a legitimate aim' in paragraph 23(3)(b) should be replaced by an
aim that 'is consistent with achieving the objects of the Act', in order to
ensure that there is a clear connection between the justifiable nature of the
conduct and the human rights objectives of the Draft Bill.[6]
The Human Rights Law Centre agreed that, unless these principles are applied,
'there is a real risk that duty-holders will seek to defend discriminatory
conduct on the basis of a profit motive or administrative efficiency'.[7]
5.9
The Australian Council of Human Rights Agencies recommended that
clause 23 should define 'legitimate' and 'proportionate', and should also
'clarify that purely financial or commercial imperatives cannot justify
discriminatory conduct'.[8]
5.10
Ms Kate Eastman SC argued that, from a practical perspective, the
current wording of subclause 23(3) poses an unworkable test because it cannot
apply to a person who acts without any particular purpose or unintentionally
treats another person unfavourably. Ms Eastman also noted the 'onerous evidentiary
burden placed on anyone seeking to rely on this defence' and the fact that 'there
is no guidance on how concepts such as proportionality should be assessed'.[9]
5.11
Ms Eastman suggested that subclause 23(3) should be replaced with a
simpler test based on the concept of 'reasonableness', so as to provide that
conduct is justifiable 'if the conduct was reasonable in the circumstances of
the particular case'.[10]
5.12
The Law Council of Australia also preferred a 'reasonableness' test, as
opposed to the current drafting of subclause 23(3). Such a test would avoid the
need 'to identify a legitimate aim behind the conduct in every case' and reduce
the potential for 'subjective considerations to be determinative' in complaints
cases.[11]
5.13
The Department provided the following comments in relation to the
formulation of the 'justifiable conduct' exception:
Clause 23 is intended to align with the international human
rights law concept of 'legitimate differential treatment'. Although a new
concept to Commonwealth anti-discrimination law, it requires similar analysis
to the defence of reasonableness in existing indirect discrimination provisions
in the anti-discrimination Acts, and reflects the policy rationale underpinning
existing exceptions and exemptions.[12]
Exception for inherent requirements of work
5.14
Some submitters opposed the inclusion of the 'inherent requirements of
work' exception in clause 24. The Australian Council of Trade Unions contended
that, since clause 24 will apply to all protected attributes under the Draft
Bill, it represents a significant expansion from the current legislation:
Current legislation provides an exception allowing employers
to discriminate on the grounds of the inherent requirements of the job only in
the areas of Disability, Age and Sex Discrimination in more restrictive terms
than the provisions in the exposure draft. Expanding the exception to all areas
of discrimination and expanding the terms of the exception will mean that it
will be easier for employers to discriminate on the basis of any of the
protected attributes by claiming the employee is unable to meet an 'inherent
requirement' of the job.[13]
5.15
The ACTU argued that under the Draft Bill:
The only protection available to employees will be becoming
involved in lengthy arguments as to whether the requirement is an 'essential
element' of the position, the results of which would be very uncertain. In
these scenarios the onus is on the employee who is in a vulnerable situation,
to be informed of their rights, and to argue for their retention at the
workplace, when it should be clear in the legislation that these scenarios
would constitute discrimination.[14]
5.16
The Discrimination Law Experts Group agreed that extending this
exception to all protected attributes represents a 'potentially substantial
broadening of its application and a reduction in protection against
discrimination'.[15]
In addition, the 'inherent requirements of work' defence would already
reasonably be covered under the general defence provisions in clause 23, and
the inclusion of clause 24 would have the effect of significantly undermining
the protective role of clause 23:
The primary purpose of introducing a general justification
defence (cl 23) is to ensure that organisations have sufficient scope to
achieve their legitimate aims (such as appropriate recruitment and performance
management of employees), subject to appropriate constraints...Under the inherent
requirements provision in cl 24, duty bearers can determine what a job entails
and how it is to be carried out (that is, its inherent requirements) without
any obligation to examine the availability and feasibility of less
discriminatory alternatives as is required under cl 23.[16]
Departmental response
5.17
The Department made several points in its supplementary submission relating
to clause 24. It explained that clause 24 'is not intended to set a lower
threshold than the existing exceptions' and that, according to jurisprudence on
the meaning of 'inherent requirements', employers are not permitted to organise
or define their business to permit discriminatory conduct.[17]
The Department explained that the question of whether a condition is an
inherent requirement of the job is 'an objective element that is not simply a
matter of employer discretion':
Inherent requirements are those which are permanent and
inseparable from the nature of the particular work—that is, no adjustment could
be made. If an adjustment to work practices can easily be identified that
would allow discrimination to be avoided it is very unlikely that a specific
policy will be an inherent requirement of a job.[18]
5.18
The Department also pointed out that the burden of proving that a
condition is an inherent requirement of the job will be borne by the employer,
as is the case currently.[19]
Exceptions for religious organisations under the Draft Bill
5.19
The committee received submissions from a wide variety of individuals,
academics and organisations with differing views regarding the exceptions for
religious organisations contained in clauses 32 and 33. Clause 32 outlines
exceptions for the appointment of priests, ministers or members of religious
orders, while clause 33 provides broader exceptions for religious bodies
and educational institutions.
Balancing freedom of religion with
the right to equality and non-discrimination
5.20
In commenting on the religious exceptions, submitters and witnesses discussed
how anti-discrimination legislation should deal with the interaction between
the right to religious freedom and expression, and the right of individuals to
equality and non-discrimination.
Arguments for more explicitly
referencing the right to religious freedom
5.21
Many religious organisations pointed out that freedom of religion is
acknowledged as a fundamental human right under Article 18 of the International
Covenant on Civil and Political Rights (ICCPR), as well as being recognised
under other provisions of the ICCPR and other international treaties.[20]
These groups asserted that, by dealing with religious practice and education
through 'exceptions' to anti-discrimination provisions, the Draft Bill
inherently undermines the value of religious freedom as a right in and of
itself. For example, the Australian Association of Christian Schools remarked:
[T]here is a misconception held by many that religious
freedom is a lesser right, an 'exceptional' right, rather than a concept
which should be included within the very definition of unlawful discrimination
itself. It is therefore both misleading and unhelpful to deal with the issue of
'religious freedom' by way of 'exceptions'.[21]
5.22
Submitters suggested amendments to the Draft Bill relating to
recognition of religious freedom, including:
- incorporating a recognition of the right to religious freedom in
the definition of unlawful discrimination;[22]
or
- amending the heading of Part 2–2, Division 4 – currently 'Exceptions
to unlawful discrimination' – to read 'When discrimination is not unlawful',
and the heading of Subdivision A – currently 'Main exceptions' – to read 'Reasonable
grounds for different treatment' and then deleting the word 'exception'
throughout the Division, in order to avoid treating religious freedom as an
'exception';[23]
or
- adding a paragraph to the 'justifiable conduct' exception in
clause 23 to explicitly provide that the 'protection, advancement or exercise
of another human right protected by the [ICCPR] is justifiable conduct'.[24]
5.23
Religious organisations also asserted that they are not claiming to be
'above the law' with regards to anti-discrimination provisions, but rather that
the law should be designed to adequately protect freedom of religion in
specific circumstances. Bishop Robert Forsyth from Freedom 4 Faith contended
that religious bodies are still subject to the law, but are the beneficiaries of
specified exemptions within the law, 'as, indeed, are social clubs and
political parties and a whole range of things':
The law does apply to us all. It is just that it applies in
different ways to us. And in terms of implying that we have the right to just
arbitrarily pick on people, I would regard it as unlawful, for example, for the
Anglican church to withhold emergency relief services to someone on the basis
of their sexual orientation. There is no doctrine in our church that holds
that; in fact, to withhold such relief is contrary to our doctrines...[I]t may
happen, but it is indefensible, and it is not protected by this law.[25]
Arguments for limiting religious
freedom in justified circumstances
5.24
Some submitters argued that the broad exceptions granted to religious
organisations give too much weight to the right to religious freedom, compared
to the competing rights of equality and non-discrimination.[26]
For example, the Human Rights Law Centre argued that, in cases of competing
rights, neither should automatically prevail:
If a discriminatory policy or practice is explained and shown
to be reasonable and proportionate then the discrimination should be allowed...[W]hile
[the proposed exceptions] may allow for justifiable discrimination in some
circumstances, they may also allow for discrimination that is not reasonable
and proportionate. Importantly, these broad permanent exceptions leave no scope
for analysis or consideration of either the merit or the effect of the
discrimination in question.
Currently, the religious exceptions set up a regime whereby
religious freedom cannot ever be curtailed in the name of equality. This regime
perpetuates a false and unjustified hierarchy of rights, entrenches systemic
discrimination and generally restrains society's pursuit of equality.[27]
General arguments that religious
exceptions are not needed
5.25
UnitingJustice Australia did not support broad exceptions for religious
organisations, except in relation to the ordination or appointment of religious
leaders:
We acknowledge...that the exercise of religious freedom is
subject to the regulatory norms that govern Australian society...
We do not believe that [clause 33] is necessary, in light of
the need to balance the rights of the wider community with the freedoms to be
afforded to religious groups...When religious bodies are provided [with] what
amounts to a 'blanket exception', there is no incentive for that body to ensure
that it does not discriminate, and no incentive to promote equality and
inclusion in areas of employment and representation other than those leadership
positions necessary to maintain the integrity of the religious organisation.[28]
5.26
Some submitters and witnesses contended that the religious exceptions in
clause 33 are unnecessary due to the justifiable conduct exception in clause 23.
For example, Ms Lucy Adams from the Public Interest Law Clearing House
Homeless Persons' Legal Clinic told the committee:
[W]e are often working in tandem with a number of faith-based
organisations that provide really excellent services to vulnerable members of
our community. I guess our concern with the blanket exception is that it is not
needed. Those organisations can rely on the general exception of justified
conduct...Another thing we raise is that in our experience dealing with these
faith-based organisations, this exception is antithetical, I guess, to the
approach that they take to providing services, which is inclusive,
compassionate and non-discriminatory. On that basis our argument is that the
blanket exception is not needed.[29]
Protected attributes to which
religious exceptions apply
5.27
The Discrimination Law Experts Group argued that, if religious
exceptions are to be retained in the Draft Bill, 'pregnancy' and 'potential
pregnancy' should be removed from the list of attributes to which the exceptions
in clause 33 will apply. In particular, potential pregnancy 'can operate as a
proxy for sex discrimination in relation to all women before menopause, and may
enable discrimination on the basis of sex in a covert way'.[30]
The Reverend Brian Lucas from the Australian Catholic Bishops Conference agreed
that the protected attribute of potential pregnancy could be removed from the
religious exceptions, stating that 'the doctrinal position of the Catholic
Church would be fully supportive of not discriminating against people on the
basis of potential pregnancy'.[31]
5.28
The Human Rights Council of Australia went further, arguing that there
is 'no logical reason' for religious exceptions to apply to some attributes,
such as sexual orientation and gender identity, and not to others such as race.
It contended that 'the only attribute that is distinguishable logically for
religious purposes is religion', and recommended that religious exceptions
apply only to the attribute of 'religion'.[32]
Exceptions for religious organisations
in relation to employment
5.29
Submitters commented on the exceptions contained in paragraphs 33(3)(b)
and 33(4)(b), which permit religious bodies and educational institutions to
discriminate in matters relating to the employment of individuals by those
organisations. Several submitters welcomed these exceptions, asserting that it is
important that educational institutions and other bodies established for
religious purposes be allowed to make employment decisions in accordance with
those purposes. For example, Freedom 4 Faith stated:
No faith-based organisation seeks to discriminate against
anyone else but many choose staff, or at least prefer staff, who adhere to the
beliefs of the organisation, because such beliefs are central to the expression
of the organisation’s work and purpose.[33]
5.30
Mr Robert Johnston from the Australian Association of Christian Schools
explained how this process can work in practice:
In matters of faith...when a person comes to make [an] application
for a position in our schools we would want to be sure not only that they share
that faith but they are able to articulate that and demonstrate it in lifestyle
choices and so forth. So all of our staff in our school—a gardener in the
school in which I was principal for 27 years, for example, was also there for
27 years and was a very significant player in terms of some of the pastoral
work [at the school]...Obviously we want a person there who will be consistent
with the values and beliefs of the school, so a discrimination is made even in
the employment of people who are not teachers because of the fact that they
model their faith in these sorts of contexts...So not just teaching but in fact
for all positions in the school we are making a discrimination on the basis of
faith—not an unlawful discrimination but we are making a discrimination there.[34]
5.31
The Anglican Church Diocese of Sydney contended that organisations
hiring employees in accordance with their founding values and identity is
necessary for religious and non-religious organisations:
The staff of an organisation determine its culture and
identity, particularly over time. Many of the Christian charities that have
maintained their Christian identity over time have done so because they have
strict recruitment practices.
This is uncontroversial in other areas of society. An
environmental group would not be expected to employ people who do not believe
in climate change and a political party would not be expected to employ staff
who do not share its ideology, whether in a frontline position or otherwise.[35]
5.32
Other submitters argued that the exceptions for religious organisations
in relation to employment are unjustified and should be removed from the Draft
Bill. For example, Job Watch contended that the list of attributes that can be
the subject of discrimination by religious organisations does not bear any
relationship to a person's ability to successfully undertake the duties or
responsibilities of a particular job:
[T]he relationship status or sexual orientation of a person
who is employed to perform cleaning duties at a church or a person who is
employed as a mathematics teacher at a religious school are irrelevant as those
attributes do not provide any meaningful information in relation to determining
how well they can perform their respective jobs. Likewise, a person who is
employed to perform cleaning duties at a church or a person who is employed as
a mathematics teacher at a religious school does not need to '[conform] to the
doctrines, tenets, or beliefs of that religion' to be able to adequately
perform their duties.[36]
5.33
The Independent Education Union of Australia agreed that there should be
a 'readily ascertainable relationship between the position an employee holds
and an employer's ability to rely on the proposed exceptions'.[37]
The Queensland Independent Education Union argued that the more limited
employment-related exceptions for religious employers under Queensland
anti-discrimination legislation should be adopted in the Draft Bill.[38]
Conduct which 'conforms to the
doctrines, tenets or beliefs of a religion'
5.34
Subparagraph 33(2)(b)(i) and subparagraph 33(4)(c)(i) provide for, in
relation to religious bodies and religious educational institutions
respectively, an exception for discriminatory conduct engaged in, in good faith,
that 'conforms to the doctrines, tenets or beliefs' of a religion.
5.35
The Discrimination Law Experts Group expressed concern that, with
respect to religious educational institutions, paragraph 33(4)(c) expands the
limits of discrimination previously allowed:
Under s38 of the [Sex Discrimination Act] discrimination by
religious educational institutions was allowed only when it was necessary in
good faith to avoid injuries to religious susceptibilities of adherents of the
religion or creed. But under cl 33(4)(c) of the Draft Bill, discrimination
is allowed also in the alternative, when it conforms to the doctrines, tenets
or beliefs of the religion. No case has been made to justify this expansion of
the exception[.][39]
5.36
Several religious organisations contended that the inclusion of these
subparagraphs will ultimately require the courts to make rulings on whether
certain activity is in conformity with religious doctrine or belief, matters
which are not easily established and which judicial bodies may not have appropriate
expertise to determine. Freedom 4 Faith argued that wording religious
exemptions in this way can lead to 'complex and fruitless arguments about what
is and is not required by the doctrines of the religion or a group within a
religious tradition'.[40]
UnitingJustice Australia submitted that such concepts are often unhelpful
in law:
This language is contested even within religious communities
themselves, and so to require participants in court proceedings to present and
decide on a definitive definition of any of these terms is problematic.[41]
5.37
The Australian Association of Christian Schools argued that the courts
'must not be called on to arbitrate on what is, or is not, a Christian
community's doctrine, tenet, belief or teaching...[They] will almost always lack
the competence to do so'.[42]
Limited exception for
Commonwealth-funded aged care services
5.38
The committee received extensive commentary on the issue of the
limitation on religious exceptions in relation to Commonwealth-funded aged care
services, in subclause 33(3). Many stakeholders opposed the introduction of
these limitations, while others expressed strong support for their inclusion.
Arguments supporting the inclusion
of subclause 33(3)
5.39
A number of submitters and witnesses applauded the limitations provided
in the Draft Bill in relation to Commonwealth-funded aged care provision.[43]
COTA Australia submitted that it was supportive of the approach of the Draft
Bill in ensuring that 'the particular needs of older [LGBTI][44]
people are recognised and that aged care facilities will not be able to take
advantage of the religious exceptions'.[45]
5.40
The National LGBTI Health Alliance argued:
Health service delivery in Australia is a universal good, and
the provisions in the exposure draft will provide helpful relief to older LGBTI
people when their overall health and well-being is beginning to decline.
Admission to an aged care facility can be stressful in the best of
circumstances, and thus this limit on exemptions is welcome.[46]
5.41
Associate Professor Mark Hughes told the committee that discriminatory
conduct against LGBTI individuals in aged care settings is a significant
problem, and cited the findings of a research survey of LGBTI persons in aged
care in Queensland. Results from the survey show that 'approximately 40 per
cent of those who had received aged-care services reported a negative
experience in relation to the treatment of their sexual orientation or gender
identity':[47]
[T]he evidence from my own and others' research both Australian
and international indicates that LGBTI seniors do experience discrimination
accessing and receiving health and aged care services. I have had relayed to me
stories of discrimination including physical abuse by residential care staff,
hospital staff failing to involve same-sex partners in decision-making and
counsellors and social workers making inappropriate assumptions about people's
lifestyle...Just as significant, though, as people's experience of actual
discrimination is their fear or expectation of discrimination and the
consequent harm this produces. LGBTI seniors, as we know, grew up in an era
when homosexuality was criminalised and mythologised, and this message that
discrimination of LGBTI people is acceptable has been reinforced by the longstanding
exemptions for religious bodies in our anti-discriminatory laws.[48]
5.42
Dr Jo Harrison, a researcher into LGBTI aged care issues, agreed that it
is essential for these groups to be protected from discrimination in the area
of aged care:
Those currently requiring aged care support at a formal
level, or approaching this point, must be protected completely from any form of
discrimination so that despite the likelihood that they may be 'invisible' by
virtue of lifetimes of hiding and fear, their safety and human rights are
guaranteed.
...Arguments relating to the matters of 'sensitivity of other
residents' in a residential facility or 'protecting religious freedoms by
denying same sex couples shared facilities' are not sensible, given evidence
that residents of aged care facilities have been shown to have responded
positively to sensitive processes of education and communication in relation to
fellow LGBTI residents.[49]
5.43
Associate Professor Hughes argued that taxpayer-funded aged care
services must be provided on a non-discriminatory basis:
If we do not want discrimination happening in age care
settings then I think we need to make that very clear to all providers. If
people are prepared to completely fund their own care and if...organisations were
prepared to raise funding in other ways that would be fine but the concern for
a lot of people, myself included, is that taxpayers' money will be used to
actively discriminate against older, vulnerable people solely on the basis of
their sexual orientation or gender identity. I think most Australians would be
quite shocked if they realised that was the case.[50]
Arguments opposing the inclusion of
subclause 33(3)
5.44
In contrast, many submitters and witnesses expressed the view that the
limitations to the exception for religious bodies in respect of Commonwealth-funded
aged care in subclause 33(3) should be removed. The Australian Catholic
Bishops Conference submitted:
People considering a move into a church aged care residential
facility have an expectation that the particular ethos of that church will be
upheld at the facility. If a resident is not prepared to abide by that ethos,
the Church aged care facility should have the freedom to refuse to accept that
person. To deny this is to deny religious freedom and, among other matters,
would require religious communities whose charism is to live in communion with
the aged and share a home with them to act contrary to their callings.[51]
5.45
Catholic Health Australia (CHA) argued that it should be lawful for
religious aged care providers to decline to provide a specific service where to
do so would contravene religious beliefs. It argued that making this unlawful
may breach Australia's obligations under the ICCPR and expose the Draft Bill to
possible legal challenge on these grounds. CHA proposed that subclause 33(3)
could be amended rather than removed entirely to provide that the section not
apply when a decision of an aged care provider is made 'reasonably and in good
faith'.[52]
5.46
Mr David Martin from HammondCare, a non-denominational Christian aged
care service provider, told the committee that while HammondCare itself does
not discriminate on any grounds in the provision of services:
[F]aith-based organisations should continue to operate under
internationally recognised religious freedoms to run services and employ staff
in alignment with the openly and honestly held views of the organisation...[T]his
will ensure that faith based organisations can continue to freely make the best
possible care based decisions for their people and for the people in need whom
they care for.[53]
Removing of religious exceptions in
relation to the provision of services
5.47
The committee heard evidence from many stakeholders that the limitations
imposed on religious exceptions in relation to aged care should be extended to
other areas.[54]
For example, Dr Justin Koonin of the NSW Gay and Lesbian Rights Lobby told
the committee:
Over the past few weeks we have heard hundreds of stories...of
bullying, vilification, physical assault and harassment on the basis of sexual
orientation and gender identity from teachers, cafe workers, patients seeking
health care, schoolchildren and members of the Australian community accessing
essential services funded by the government, often in organisations that would
be exempt from the law under the current exposure draft. It is difficult to see
how this kind of treatment can be justified by the rhetoric of avoiding injury
to religious sensibility. Moreover, it is difficult to see how LGBTI people
accessing these services could feel safe if employees are subject to
discriminatory practices and policies. Therefore, limitations need to apply to
employment in these areas as well.[55]
5.48
In relation to educational institutions, Dr Tiffany Jones noted research
findings showing significant levels of discrimination, bullying and harassment
against individuals on the basis of sexual orientation and gender identity in
religious educational institutions in Australia. Accordingly, Dr Jones argued
that it is inappropriate for these institutions to retain broad exceptions from
anti-discrimination provisions.[56]
5.49
The Discrimination Law Experts Group applauded the limitation on the
religious exception in subclause 33(3) in relation to Commonwealth‑funded
aged care, but argued:
[A]s a matter of principle...public funding should not be spent
on any activities that are discriminatory. Allowing religious-based
discrimination in publicly funded schools has the potential to undermine
community harmony by allowing children to be isolated from the experiences of
other groups in society, and confined to a narrower range of experiences. This
is not an effective way for a society to prepare the next generation to work
together harmoniously with people who have different customs and beliefs. A
religious group that operates an organisation or school with public funding
should not be excused from complying with a basic human rights guarantee of
non-discrimination. The same argument is made for public funding of services
generally, and for health services in particular.[57]
5.50
The Discrimination Law Experts Group recommended that the exclusion of
publicly funded aged care from religious exceptions should be extended to apply
to 'all Commonwealth‑funded services in the educational, health, social,
community, commercial and other sectors'.[58]
This position was supported by other submitters to the inquiry, such as the
Human Rights Council of Australia:
[A]ny religious exception [should] not apply to any activity
which is partially or wholly funded by public funds. In such cases no question
of expression of religious freedom arises. Rather it is reasonable for the
State to require public funds to be expended and applied wholly in accordance
with principles of non-discrimination.[59]
5.51
Dr Koonin from the NSW Gay and Lesbian Rights Lobby argued that a clear
distinction should be drawn between an organisation's religious functions and
other service it provides on behalf of the government:
There is an important distinction between functions of an
organisation that are inherently religion, such as the selection of priests,
and those where the organisation is essentially acting as an extension of
government in the provision of goods and services, particularly where they are
funded by the government to do so. Internationally, anti-discrimination law in
countries including the UK, South Africa and New Zealand makes this distinction
clear.[60]
Maintaining the integrity of
religious organisations
5.52
Mr Dominic Cudmore, a legal adviser to HammondCare, raised concerns that
limiting the exceptions for religious organisations in receipt of public funds
in areas other than aged care could result in unacceptable government
interference in such organisations:
The government can dictate the mission, the values, the
principles that a private entity, be it faith based or not, [if] receipt of
public subsidies is to follow. A number of years ago the Human Rights
Commission, under its previous name, issued guidelines on employment for faith
based organisations in receipt of government subsidies, and there was a
significant public debate and eventually those guidelines were withdrawn
because of public concern about the government's attempt, at least in respect
of the guidelines, to dictate to private organisations how they were to run and
what their mission was to be. So that is a problem for us.[61]
5.53
The Reverend Lucas from the Australian Catholic Bishops Conference made
a similar point about whether religious educational institutions should retain
their current ability to discriminate in relation to whom they provide
education. The Reverend Lucas argued that, as a matter of principle,
religious schools should be allowed to determine their own enrolment policies
to uphold the ethos of the school, even if this may favour applicants of a
particular religious background, or exclude applicants on other specified grounds.[62]
Facilitating choice between
different service providers
5.54
Religious groups emphasised that enabling choice between service
providers in areas such as education is crucial. The Reverend Lucas contended
that in a multicultural society such as Australia, the need for diversity in
the types of service providers available should be upheld:
The default position...in Australian society is not secularism;
the default position is pluralism. So, when the government contracts for
services, it does it within the context of a plurality of applicants, who will
express a range of different cultural and ethical positions. Likewise, when
organisations tender for those services, they do so clearly on the basis of
what they will and not do, and it will be only on the rarest of occasions that
services that cannot be provided because of some religious position of an
organisation are unavailable from some other organisation.[63]
5.55
Mr Corey Irlam from the Victorian Gay and Lesbian Rights Lobby told the
committee that this is not always practical for same-sex couples, and that in
many areas there are only limited options for access to services from non faith-based
providers:
Given that, for example, in Alice Springs in the Northern
Territory, 100 per cent of aged care services are run by a religious
organisation, given that a number of public hospitals are run as a public
hospital by a faith based organisation in regional and rural areas around Australia
and given the multitude of billions of dollars put into government funded
services, this is a distinct problem not only from a geographical area but also
from a capacity area, where you may not be able to access anybody other than a
faith based service.[64]
Tasmanian model for limited
religious exceptions
5.56
Several stakeholders raised the example of the current
anti-discrimination regime in Tasmania, where religious exceptions are much
narrower than those proposed in the Draft Bill. Under the Anti-Discrimination
Act 1998 (Tasmania), the legislative exceptions for religious organisations
extend only to the protected grounds of 'religious belief or affiliation' and
'religious activity', and not to other attributes such as 'sexual orientation'
or 'gender identity'.[65]
Ms Robin Banks, the Tasmanian Anti‑Discrimination Commissioner, informed
the committee that this legislative model has operated in Tasmania for over a
decade with few problems:
Tasmania does have exceptions, but they are the narrowest of
any state or territory. They have been in place for the entirety of the
legislation's history—12 years of legislation. I am not aware of complaints
during my period as commissioner—and I deal with all of the complaints—where a
religious body has sought to rely on one of those exceptions...In the main,
what I see are organisations, including religious bodies, relying on an
argument that in fact what they did was not discriminatory...
I think that what it has meant in Tasmania is that religious
bodies have perhaps turned their minds in different ways to how they ensure
that their religious practice does respect the rights of others to the greatest
extent possible without interfering with their doctrinal approach. They have
done that, and I think they have done that very effectively. I know that I have
had very open and honest conversations with religious bodies in Tasmania about
some issues for schools, and those are very respectful conversations...I think
that we are proof that you can do it; you can have very constrained exceptions,
and that can work for the faith based organisations.[66]
Transparency in the operation of exceptions for religious service providers
5.57
Several stakeholders also argued that, if religious exceptions are to be
maintained in the Draft Bill, greater transparency is required in the way those
exceptions are exercised by organisations. For example, Dr Koonin from the NSW
Gay and Lesbian Rights Lobby told the committee:
Where it is proposed that exemptions be relied upon, they
need to be transparent and publicly available, as members of the public are
entitled to know that there is a risk of discrimination if they engage with the
organisation in any capacity.[67]
5.58
The Discrimination Law Experts Group suggested that religious
organisations intending to rely on the exceptions in clause 33 should be
required to notify prospective employees and students of that intention in
writing prior to employment or enrolment:
Without a notice provision, individuals may choose an
employer or school with no knowledge or warning that they are thereby
sacrificing their right to protection from discrimination. This can be a
serious matter for a teacher choosing in which education system to pursue their
career, or a student making a choice of school and hence education system.[68]
5.59
Academics from the University of Adelaide Law School argued that
religious exceptions in the Draft Bill should operate in a similar manner to
those found in the South Australian Equal Opportunity Act 1984. Under
that legislation, religious educational institutions must have a written policy
regarding any discrimination practices, and must give a copy to any prospective
employees as well as any other members of the public who request it.[69]
5.60
The Human Rights Law Centre agreed that religious institutions should be
required to provide notice of discriminatory practices, and suggested that, in
addition, or as an alternative, a religious organisation relying on the
exceptions in the Draft Bill should be required to lodge a notice with the Australian
Human Rights Commission (AHRC) which specifies the exempted policy or practice:
[T]his requirement for notice would ensure accountability to
the wider community. When the body that wishes to discriminate receives public
funds or where the discrimination in question has some other public impact,
there exists a greater need for accountability.
Such a requirement may also encourage religious bodies to
assess whether the discrimination is necessary and appropriate in each case.[70]
5.61
In this regard, the AHRC informed the committee that it does not support
any mechanism 'requiring religious organisations to apply to the [AHRC] for
temporary exemptions or other certification, having regard in particular to the
regulatory impacts of such an approach'.[71]
5.62
The Reverend Lucas noted that, in relation to Catholic health and aged
care services, there are already publicly available materials outlining the
services that will be provided by Catholic operators:
[T]he code of ethical standards for Catholic health and aged
care services is a publicly available document. It runs to 81 pages and goes
into a great deal of detail as to what services are and are not provided in
Catholic health and aged care...The whole world knows that there are certain
services that are not available at [a Catholic] hospital and to suggest that
that hospital in order to be a publicly funded public hospital should provide
those services cuts right across one of those fundamental issues of religious
freedom. But on the question of transparency that was referred to, that
document on ethical standards is freely available.[72]
5.63
Mr Robert Johnston from the Australian Association of Christian Schools told
the committee that his organisation would be comfortable for the publication of
notices by schools regarding discrimination policies if the Draft Bill went
further to protect religious freedom:
[I]n the objects of association of each of our organisations,
nearly all of our schools would have a statement of faith and in that statement
of faith they would identify the authority on which they rely for making such
discriminations or judgements or choices. I am certainly not opposed to nor do
I think our schools would be opposed to the need for clarification, if the law
required it, to declare those bases upon which they were making discriminations
or judgements of choice...If you [amend the Draft Bill] with religious freedom
being declared upfront, then it actually takes away the need for exceptions and
exemptions. In that context, I think it would be quite reasonable for us to
then actually require our schools to declare those bases upon which they were
making choices and judgements so that people could be well-informed.[73]
Departmental response
5.64
In a supplementary submission to the committee, the Department noted
that throughout the consultation process the government had stated its intent
not to alter the current religious exceptions, apart from considering how they
may apply to discrimination on the new grounds of sexual orientation and gender
identity. The Department explained that the Draft Bill therefore 'replicates
the wording of the existing exceptions in the [Sex Discrimination Act] and [the
Age Discrimination Act] and applies to the attributes covered in those Acts
(with the addition of sexual orientation and gender identity)'.[74]
5.65
In relation to Commonwealth-funded aged care services, the Department
noted that a range of views were presented during the consultation process, and
that three options were considered in the Regulatory Impact Statement to the Draft
Bill, namely: maintaining the status quo (option one); stating that religious
exceptions do not apply to religious organisations providing aged care services
with Commonwealth funding (option two); and stating that exceptions do not
apply to religious organisations providing any services with Commonwealth
funding, but permitting discrimination in employment (option three):
The Government chose Option Two given the need to ensure
people are not discriminated against in the receipt of aged care paid for, at
least in part, by Commonwealth funding. In this case, the benefits to older
[LGBTI] people of improved wellbeing and emotional support by living as a
same-sex couple outweighed any cost to aged-care institutions. As set out in
the Regulation Impact Statement, this would better balance the rights to
freedom of religion and freedom from discrimination and provide greater
accountability and transparency for the use of Commonwealth funding.[75]
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