I believe in the ethos of live and let live. In my First Speech to the Senate, I said: ‘Long may we remember the credo “live and let live”’. I am strongly committed to freedom of speech, worship, conscience and thought.
The Ruddock Review of Religious Freedom in Australia summarised my position:
The human right to freedom of thought, conscience and religion belongs to all - the religious, the non religious and those moving towards, away from or between religions. The right protects freedom of thought, conscience and religion, not religion as such. The atheist and the agnostic receive the same protection as the religious adherent. Each is free to hold their beliefs and to live free of coercion to adopt some different set of beliefs.
Ruddock's review found there was a high degree of religious freedom in Australia. It also found very few examples of religious freedom being imperilled. It said that the review panel ‘did not accept the argument, put by some, that religious freedom is in imminent peril’.
The Ruddock Review recommended a new Act which would establish clear anti-discrimination laws for religious belief. Recommendation 15 stated:
The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
That policy was taken to the election by the government and it is an entirely reasonable position and a policy which I support. I believe Australians should be able to practice their faith without facing any form of discrimination of any form. Freedom of religious belief, thought and conscience are fundamental tenets of a liberal democracy like Australia.
Professor Aroney, a member of the Review Panel says: ‘The Bill implements this recommendation. It renders it unlawful for a person to discriminate on the basis of a person’s religious belief or activity’.
In Parts 3 and 4 of the Religious Discrimination Bill, discrimination on account of religion is prohibited in a series of uniform, regular anti-discrimination provisions which reflect the approach taken in equivalent laws, such as the Sex Discrimination Act.
The Law Council of Australia describes these provisions as ‘generally orthodox’. These orthodox provisions protect people of faith and deserve the support of the Parliament. It is about time that people of faith enjoyed the same anti-discrimination protection as applies to age, sex, disability and race.
The more the bill can resemble the other anti-discrimination laws of the Commonwealth, the better. This orthodox position is supported by numerous groups, including the Australian Muslim Advocacy Network, Hindu Council and Buddhist Council of New South Wales.
Equally we must protect people who are not religious. Protections for religious freedom apply neutrally to people of all faiths, and none. A law which only benefits people who hold a religious belief, or people who belong to a major religious organisation, would not be appropriate.
Ensuring the equal application of this law would also reflect the expectations and interests of the wider Australian community.
According to the latest available census data (collected in 2016) 30.1% of Australians reported having no religion. In 2011 that figure was 12.9%, and in 1966 it was 0.8%. 38.7% of Australians aged 18-34 professed no religion.
Polling data tells a similar story. According to Roy Morgan Research, in 2020 53.4% of Australians could identify a religion to which they belonged. In 2003, 73.2% could. The proportion of Australians describing themselves as nonreligious stood at 45.5% in that same survey, up from 26.0% in 2003.
The Rationalist Society of Australia reports:
When expressly asked if they belong to their religious organisation, a majority (62%) of Australians say they don’t, including 24% of Catholics, 44% of Anglicans, 27% of minor Christian denominations, and 45% of non-Christian denominations…Seven in ten Australians (71%) say that religion is not personally important, including around have of Catholics (49%) and non-Christian denominations (48%), nearly two thirds (64%) of Anglicans, and around one in four of minor Christian denominations (39%).
While there is a trend away from organised religion, Australia’s religious bodies play an outsized role in providing employment and social services, including to individuals outside their respective faith communities.
The Northern Territory Government has noted in their submission that throughout regional and remote Australia, religious organisations are often the sole providers of particular social services.
I have engaged heavily with communities of faith during my time in the Senate and I have seen the enormous contribution religious institutions make to our society through education and service provision. We are indebted to these organisations for their contribution to Australia. I am a product of a Catholic education and a Catholic university college.
That’s why I am committed to working to ensure discrimination is intolerable in our society on religious grounds.
I welcome the Religious Discrimination Bill’s stated objective in s4 which ‘makes it unlawful to discriminate against a person on the ground of religious belief or activity in a range of areas of public life’. I strongly support this objective, notwithstanding my reservations about a number of specific provisions.
Unfortunately the Bill departs from orthodox anti-discrimination law by including a ‘statement of belief’. There are significant issues with inclusion of this provision which has been canvassed in the majority report and in these additional comments. I note that the majority report does a fine job in cataloguing the problems with the statement of belief. These comments are designed to supplement the majority report’s extensive commentary and recommendations.
There are two outstanding issues. First, I take issue with the statement of belief provisions in their entirety. Second, as the bill provides further exemptions for religious bodies to (rightly) discriminate to maintain the religious ethos of schools, it should remove the outdated Sex Discrimination Act provisions which allow sex-based discrimination. These issues should be addressed before the bill is considered by the Senate.
Statement of belief
Freedom of speech is a core tenet of our society and I want to see people of faith express their religiosity. The bill provides significant new protections for this to occur in workplaces, shops and in public.
There is an additional clause known as the statement of belief. This provision proposes an exception from anti-discrimination laws, including state and territory anti-discrimination laws, for statements of belief, insofar as the statement is not ‘malicious’ of ‘would threaten, intimidate, harass or vilify a person or group’.
The Bill makes it unlawful for qualifying bodies to impose conduct rules which would restrict or prevent a person from making such statements.
The Bill says a statement of belief is a statement ‘of a belief that person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion’ or ‘of a belief that the person genuinely considers to relate to the fact of not holding a religious belief’. The statement must have a relationship to religious belief.
Strong evidence has been provided to the committee that the statement of belief is unworkable and undesirable. Numerous employers, religious organisations, anti-discrimination groups and legal experts are against it.
Many groups told the committee it was not something they asked for and is not a primary concern. The Uniting Church describes the statement of belief as ‘overreach’ as it is concerned with the harm that could be caused by overriding other attributes.
The Anglican Church of Australia said they were ‘greatly concerned’ on ‘the way statements of belief override other anti-discrimination legislation’ and that it ‘should be removed and operation of other anti-discrimination laws preserved’.
In other words, a religious organisation is asking the Parliament not to preference religion in Australian law. This view was echoed by other religious organisations. The Executive Council of Australian Jewry stated ‘It was not a primary concern of our community. It was not something that we specifically requested be included’.
I can see no clear case for the statement of belief clause. Few witnesses and submissions to the committee made the case for why there needs to be this provision. What is the evidence of persecution of people of faith that justifies this proposal? The Ruddock Review did not recommend any such statement of belief and it does not appear in any public commitments.
There are five issues with the statement of belief provisions. Preference given to religion over other attributes, employment issues (adverse action), overriding of state law, Constitutional issues and the question of costs.
Preferencing of religion
Put simply, the bill proposes to privilege religion over other attributes in our laws. The purpose of the law is to enable statements to be made which would otherwise be discriminatory in a broad sense, overturn the Tasmanian Anti-Discrimination Act and federal anti-discrimination laws.
The statement of belief provisions prioritise only one aspect of the aforementioned freedoms, and the remainder are not currently protected in Australian law.
Without expressing a view on the merits of either position, it is worth noting that this makes Australia an outlier in the democratic world. Further, as Professor George Williams submitted:
These freedoms are inseparable, but the Bill fails to reflect this. Statements of belief in the Bill only encompass statements relating to a religious belief or a belief relation to the fact of not holding a religious belief. In other words, it only protects statements connected to religious belief…This is inconsistent with article 18 of the International Covenant on Civil and Political Rights.
The Australian Human Rights Commission is concerned ‘clause 12 will permit discriminatory statements of belief to be made, whether they amount to racial discrimination, sex discrimination, discrimination on the ground of disability or on any other ground prohibited by law’.
The Commission also states it considers:
the explicit overriding of all other Australian discrimination laws is not warranted, sets an alarming precedent and is inconsistent with the stated objects of the Bill, which recognise the indivisibility and universality of human rights.
Williams told the committee: ‘There is no justification for conferring religious speech with special legal protection over and above that provided to other forms of speech’.
Further, the Equality Rights Alliance told the committee:
Religious speech and other manifestations of speech should not be protected at the cost of the human rights of others…the bill removes existing protections for discriminatory behaviour in the form of statements of belief and makes no provision for balancing the freedom of religion against rights to non discrimination.
I don’t believe religion should be placed above age, sex, disability or race in federal law or any other protected attribute at state law.
However there is a need to balance the competing anti-discrimination provisions assuming the orthodox provisions of the bill are enacted by the Parliament. This has been flagged in evidence to the committee.
While I can see no case for the inclusion of this provision, it would be reasonable for the Parliament and the AHRC to turn its mind as to how the multiple anti-discrimination laws of the Commonwealth operate with one another.
Employer issues
It is clear that employers do not support the statement of belief. I do not want to make it harder to run a business in Australia. We should not be increasing burdens on employers more than necessary.
The Australian Industry Group (AIG) says the statement of belief should be deleted for two reasons. Firstly, they don’t want this law to override the other anti-discrimination laws. Secondly, the exclusions set a very high bar which in their view, exposes Australians to discrimination.
The AIG said the burden placed on employers by the operation of the Religious Discrimination Bill was unreasonable, stating:
We do not consider that the current exceptions and exemptions in the Bill are adequate for employers who are trying to create a productive and harmonious workplace by accommodating employees holding a diverse range of religious and non-religious beliefs.
As an example, AIG claimed that employers would not be able to act if a co-worker left religious pamphlets on an employee’s desk every day, or a co-worker who makes constant unwelcome attempts to convince an employee to follow their religion. AIG considers that the Bill should be amended to provide for reasonable management action, similar provisions of the Fair Work Act which deal with bullying in the workplace.
The Australian Chamber of Commerce and Industry, in their submission, expressed concern the complexity of the proposed exemptions to unlawful discrimination in 39(2) of the Religious Discrimination Bill.
ACCI further noted ‘confusion over the scope and application of requirements can lead to paralysis, avoidance or non-compliance, directly contrary to the overall legislative intent and purpose’. It is vital that this complexity is avoided, given that the Bill would apply to employers of all sectors and sizes. Otherwise, small businesses could face an unreasonable addition to their already significant compliance burdens.
Both AIG and ACCI submitted that the statement of belief provisions could be amended to be made more practical in a workplace context.
Impact of the loss of state law
Clause 12 overrides state anti-discrimination law, including laws which already protect religion in many Australian states. The 1998 Tasmanian Act is a broad ranging anti-discrimination law which already states that discrimination on the grounds of religious belief is prohibited.
The State Government of Tasmania says their view is ‘the Religious Discrimination package as drafted would diminish the ability of the Tasmanian Anti-Discrimination Tribunal to deal with certain complains, and that, as a government, we continue to strongly advocate for no weakening of our anti-discrimination laws’.
Their concern and the concern of the Tasmanian civil society groups who appeared at the hearings is that this Bill would remove the ability of Tasmanians to bring actions under the state law. They are also concerned that it would push citizens into the federal system, to which I return to below under point four, ‘costs’.
Section 17(1) prohibits conduct ‘which offends, humiliates, intimidates, insults or ridicules another person on the basis of a specific attribute in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, insulted or ridiculed’.
In general, I have reservations about laws which contain the word ‘offend’ but I believe there is a strong case for stronger actions such as ‘incite’ and ‘intimidate’. I have long felt that federal laws which contain the word ‘offend’ such as 18C of the Racial Discrimination Act should be removed.
Incitement and intimidation are a different story, and my home state of New South Wales has enacted a law which shields citizens from incitement. The NSW Attorney General Mark Speakman SC said when announcing these amendments in 2018 that: ‘We’re not saying people can’t have opinions or express their views, but if they cross the line into threatening and inciting violence they will not go unpunished’.
Ultimately these are the laws of the states and as a federalist, I do not see a case for the federal Parliament to seek to amend these particular laws. That is the preserve of the state Parliament.
The states and territories currently maintain a suite of anti-discrimination laws which generally also protect against religious discrimination. In response to my question on notice, the Attorney General’s department set this out:
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ACT
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Discrimination Act 1991 (ACT)
Religious conviction includes:
having a religious conviction, belief, opinion or affiliation; and
engaging in religious activity; and
the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander people; and
engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples; and
not having a religious conviction, belief, opinion or affiliation; and
not engaging in religious activity.
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NSW
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Anti-Discrimination Act 1977 (NSW)
Race includes ethno-religious origin.
*Note religion is not, of itself, a ground of unlawful discrimination under the Act*
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NT
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Anti-discrimination Act (NT)
Religious belief or activity includes Aboriginal spiritual belief or activity [but the terms are otherwise undefined]
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Qld
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Anti-Discrimination Act 1991 (Qld)
Religious activity means engaging in, not engaging in or refusing to engage in a lawful religious activity.
Religious belief means holding or not holding a religious belief.
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SA
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Equal Opportunity Act 1984 (SA)
Religious appearance or dress
*Note solely protects religious appearance or dress, and not religious belief or activity generally. Terms not further defined in legislation*
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Tas
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Anti-Discrimination Act 1998 (Tas)
Religious belief or affiliation means holding or not holding a religious belief or view
Religious activity means engaging in, not engaging in, or refusing to engage in, religious activity
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Vic
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Equal Opportunity Act 2010 (Vic)
Religious belief or activity means:
holding or not holding a lawful religious belief or view;
engaging in, not engaging in or refusing to engage in a lawful religious activity
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WA
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Equal Opportunity Act 1984 (WA)
Religious conviction includes a lack or absence of religious conviction [but is otherwise undefined]
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The Tasmanian law already protects against discrimination on religious grounds. There have been cases taken to the Tasmanian tribunal by people of faith seeking to protect their religious belief. Equally, people of faith have been forced to defend certain statements under the same laws which are very broad as canvassed above.
On the other end of the spectrum, NSW is an outlier, in that it does not expressly protect religion but the state government has flagged that it will move once the Commonwealth legislation is settled. The point is, these are state laws and should be maintained by the state Parliaments. The Commonwealth should not become the arbiter of state laws. It is not our role.
Costs and access to tribunals
The tribunal system of anti-discrimination law in the states is generally a free service. The proposed law would likely push Australians into the federal jurisdiction which is a “costs” jurisdiction and is therefore more expensive to access.
The High Court has held that state tribunals cannot hear federal matters. The statement of belief provision is novel, broadly defined and would likely push Australians into a federal court.
At present, a complaint under a state or territory anti-discrimination law is handled primarily as an administrative matter. Complainants lodge with the relevant government agency at no cost, with no requirement for legal representation.
Agencies can conduct conciliation in an informal and accessible manner, allowing parties to reach a just, quick, and cheap settlement. If the complaint is not resolved, a person can lodge the complaint with a tribunal. Legal representation is optional, and costs (such as filing fees, hearing fees and conciliation fees) are minimal.
Section 12 of the Religious Discrimination Bill would give complaints and defendants the opportunity to raise a defence under federal law, which state agencies and tribunals are constitutionally barred from adjudicating on. This means that these matters will most likely be determined in Court.
This presents significant additional costs for both complainants and defendants alike, in addition to any costs of determining the matter at the administrative level. Unlike at the agency or tribunal level, legal representation will likely be highly desirable. This includes, but is not limited to:
Court fees: if current fee exceptions for human rights matters apply the cost will be a minimum of $55. It is not clear that this is the case, if not, costs can run at $835 per hearing day.
Legal representation: a junior barrister can charge $1500 a day.
Costs of the other side for the losing party, subject to court discretion.
I note that the above costs would apply in the event a defence is raised. That is, in the event a party before a state tribunal claims that the discrimination was a statement of belief, then the matter would be immediately outside the jurisdiction of that tribunal, irrespective of the merits of that defence.
Constitutional issues
The constitutional issues have been well and truly flagged by various submitters and are canvassed in the majority report. It is clear that the statement of belief proposal in the Bill as drafted would not achieve its stated aims.
I note two positions canvassed by constitutional experts who submitted to, and appeared before, the committee. First, that the Bill may not be valid under the external affairs power as implementing the International Covenant on Civil and Political Rights. Second, that the override of state and territory laws is invalid as drafted.
I recommend the statement of belief be excluded from the legislation. I could not support any proposition that a law confers a special privilege as this entertains.
This particular provision seems unworkable. Some may argue that the removal of this provision would stop Australians from making a religious statement with legal protection. This is untrue.
If a person of faith manifests their religion in the workplace or school, for example, they will be protected by clauses 19 and 24 respectively. These clauses, and others covering accommodation, services and other areas, protects a person if they suffer any detriment from having a religious belief or engaging in their religious activities.
The primary clauses of this Bill go further than protect mere statements of belief. They protect statements, dress, prayer, rituals and other manifestations of religion against discrimination in many areas of Australian life.
This is in addition to the protections provided in state and territory law. The Attorney-General’s Department confirmed this in my question on notice:
Senator Andrew Bragg asked the following question:
If the Religious Discrimination Bill was enacted with its orthodox anti-discrimination provisions and without the statement of belief provisions, could people bring a complaint to a federal tribunal? If so, which tribunal and how would that operate?
Under existing federal anti-discrimination law, a person may make a complaint to the Australian Human Rights Commission about unlawful sex, race, disability or age discrimination. If the Religious Discrimination Bill 2021 is enacted, it will also be possible to make complaints to the Commission about direct discrimination (under clause 13) or indirect discrimination (under clause 14) on the ground of religious belief or activity.
The Attorney-General’s Department’s advice is clear. The primary elements of the Bill protect religious activity and guarantee access to the AHRC. Accordingly, removing the statement of belief, whilst proceeding with the primary elements of the Bill, is the prudent approach.
Once enacted, if the primary elements do not eliminate instances of religious discrimination in Australia, only then should the statement of belief be considered. So far, the case has not been made.
However, if the Parliament was minded to enact some form of this proposal in the immediate term, the statement of belief could be improved through two amendments.
First, the explicit override of state and territory laws should be removed from the Bill. Second, additional checks and balances should be provided in the Bill which would prevent abuse of these provisions in work contexts.
I note the numerous proposals for improving the statement of belief provisions which were received by this committee which are set out below.
Override provisions in respect of state and territory laws
Clause 12(1)(a) (vi)-(xii), clause 12(1)(b) and clause 12(1)(c) should be removed from the Bill. This alternative drafting position was put forward by the Australian Discrimination Law Experts Group. The effect would be to only apply Clause 12 to federal discrimination laws, and to override state laws only to the extent of an inconsistency.
Removing the override clauses would address, in some measure, the very significant constitutional issues with clause 12, most notably those raised by Prof. Anne Twomey:
It is not within the Commonwealth Parliament’s power to legislate to control the legal operation of a State law…How can a Commonwealth law dictate the interpretation of what amounts to discrimination under a state law? It cannot do so. It cannot amend or alter a State law or instruct a court as to how to interpret a State law…It is confounding to contemplate why these provisions of a highly contentious Bill would be drafted in such a provocative manner.
This position would not remove the capacity of a statement of belief to override Commonwealth anti-discrimination provisions. It would, however, retain the proposed privileged position for religious activity and remains undesirable in a pluralist society like Australia.
Additional workplace protections
It is clear that the legislation does not adequately take account of the burdens placed on employers, especially small and medium enterprises, and those who provide essential services such as health and social care.
The ACCI and AIG want a new clause, or a new defence to allow employers to stop unreasonable religious activity in the workplace. This could be based on the anti-bullying provisions in the Fair Work Act.
ACCI proposes that an exception is created to vicarious liability for employers to take reasonable steps to avoid discriminatory conduct. This would be a more flexible standard that the defence provided at cl 71 of the Bill, which requires ‘reasonable precautions and exercised due diligence’. It would also mirror existing provisions in Victoria, South Australia, and Queensland.
ACCI also proposes stronger protections for employers against unreasonable conduct by employees. ACCI proposes expanding the list of factors provided in 14(2) to protect the ability of employers to prevent unreasonable, unsafe, or capricious conduct within their organisation.
I note that these provisions are especially important businesses of certain sectors and sizes. For instance, a small private medical practice would need to ensure that reception or support staff are professional in their interactions with patients and uses of patient information.
It is possible to imagine circumstances where the statement of belief provisions would prevent staff from being disciplined for unprofessional or inappropriate activity which hinders the provision of essential services.
I note the amendments proposed by AIG and the ACCI, and think that they are worthy of further consideration. Another option would be to introduce specific carve-outs for businesses below a certain revenue or employment threshold, or for businesses within particular sectors (such as medical or legal practices).
It is clear that these provisions would increase the burden on employers. It is also clear that this burden would not increase evenly, but rather affect employers of different sectors and sizes to different degrees. I do not believe that it is appropriate that the Bill applies to employers of all sectors and sizes.
Existing discrimination against students and teachers
It is unconscionable that same sex attracted students and teachers are being excluded from schools just because they are gay. I do not believe that Parliament should resile from addressing this issue. Rather, the passage of these Bills provides both the urgency and the opportunity to ensure that anti-discrimination law is not misused in such a malicious and inappropriate manner.
Testimony and submissions were received from all major religious organisations, comprising the vast majority of religious educational institutions in Australia. Each of these institutions affirmed that LGBT students and staff are active and supported members of their respective communities, not subjected to discrimination on account of their sexual orientation. As will be detailed below.
Students
There is a consensus that the exemptions for religious organisations in the Sex Discrimination Act are too broad, including among religious organisations.
The National Catholic Education Commission told the committee that same sex attracted students are supported. Therefore they do not need a law that allows a gay teacher to be sacked. The Anglican Church Diocese of Sydney also do not want to remove same sex attracted students from their schools.
Dr Michael Stead, the Bishop of South Sydney and Chair of the Religious Freedom Reference Group at the Anglican Church Diocese of Sydney captured it perfectly:
None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender; what we are arguing for is the right to discriminate on the basis of religious belief…That’s what’s wrong with s38 of the Sex Discrimination Act, it’s an exemption that’s way too broad.
Jewish groups said, no student would be removed from a Jewish school for being same sex attracted. Peter Wertheim of the ECAJ stated that LGBT students and teachers in Jewish schools are:
treated the same as everybody else. To my knowledge, there have been teachers and even principles of orthodox Jewish schools - and certainly students - who reflect the full diversity of contemporary Australia in every respect.
The National Catholic Education Commission confirmed that there were gay teachers in Catholic schools who teach in accordance with the ethos of Catholicism and the school. It was also confirmed that students who are gay are not removed from Catholic schools:
All people in our school systems - students and staff - are to be considered, and are considered, equally for the bases of employment and enrolment. As the bishop said earlier, ours is an inclusive posture, not an exclusive posture.
Teachers
Too many teachers have been sacked just for being gay. The committee heard evidence that numerous teachers have been retrenched from teachers including Karen Pack, Nathan Zamprogno and Steph Lentz. These are brave Australians who have chosen to tell their stories. I thank them.
Councillor Zamprogno said:
Christian schools can and do sack teachers because of their sexuality…when I was challenged about my sexuality I when I answered honestly I was told there was no place for me at the school the following year. The connection is crystal clear.
The particular trigger [for her sacking] was an email that the college received from a member of the wider Baptist community saying I have just discovered that Karen Pack is a lesbian that is disgusting and sick and you need to publicly denounce her because she is demonic.
These are deeply upsetting case studies, including from a member of my own party. As the committee heard, this is the tip of the iceberg. Pastor Pack estimates that hundreds of people are not prepared to tell their stories. Pack told us, ‘I've been approached by literally hundreds of people teachers and students who've been forced to remain closeted...[and] have been excluded from their jobs because of their gender identity or sexuality’.
This is an issue of working in a workplace, not a moral code.
I do not accept the argument that teachers who teach in accordance with the school’s ethos, but are gay, should be excluded from their workplace.
To do otherwise, extends the ability of the school to take into account personal factors which have nothing to do with the job at hand. Some educational organisations suggest that this right should be maintained, and that the institution should be allowed to sack teachers for being gay. Yet this is not a uniform position.
The National Catholic Education Commission said that within Catholic schools gay teachers are employed who teach in accordance with the religious ethos of the school. The Jewish groups said they employ gay teachers and a gay teacher would not be sacked for being gay.
This is a position I agree with, yet that is not always happening in practice. I checked this exact point during the hearings in Canberra:
SENATOR BRAGG: For the avoidance of doubt and being conscious of time, I want to get on record whether you taught against the theology and the ethos of the school?
NATHAN ZAMPROGNO: The answer is clearly no, my ability to teach technology had nothing to do with my own views.
KAREN PACK: No. Very much not. Knowing that I was a gay woman I was asked to teach courses on ethics and faith. Even when I was asked directly about same sex relationships ... I never undermined the position of the college.
The amendments to the Sex Discrimination Act to protect teachers against discrimination who are same sex attracted, are simple. They should be brought forward as amendments to this bill.
Ultimately, religious organisations should be allowed to discriminate on religious grounds to retain the religiosity of their institution. But there should not be discrimination on the basis of sexual preference or orientation.
The religious organisations which appeared before the committee stated that they needed the ability to run their organisation in accordance with their religious ethos.
The Religious Discrimination Bill and accompanying Bills, achieve that by rendering it unlawful to discriminate on the basis of religion, and creating a general exception to that principle for religious organisations, such as schools and care facilities.
However, the ability to create and foster a religious ethos should not require the unrestricted authority to exclude staff and students on the basis of their sexual orientation or gender.
It is important to draw a distinction between these two interests. Representatives of religious organisations who appeared before the committee agreed with this view. Bishop Stead noted:
None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief…Religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any other protected attributes…We are not seeking exemptions. That’s what’s wrong with s38…[of the Sex Discrimination Act]. It is an exemption that is way too broad. (Emphasis mine.)
If the bill is passed into law and achieves its stated objectives, religious institutions will have the ability to run their organisations, including admission and oversight of staff, students, and wider community in accordance with their religious beliefs.
This is provided for in Part 2, Clause 7 of the Act, which provides exceptions for religious bodies (including educational institutions) from the requirements of the Act. Clause 11 would also provide religious educational institutions with the ability to preference on the basis of religion in the running of educational institutions, notwithstanding the operation of a state and territory law which is prescribed by the Minister.
Further, s37 of the Sex Discrimination Act provides religious bodies with an exemption for religious acts or if necessary to avoid injury to religious adherents. This should be preserved with the appropriate safeguards.
These provisions should provide religious educational institutions with sufficient scope to preference on the basis solely of religious belief. To that effect, existing exemptions under s38 of the Sex Discrimination Act to be at best redundant, and at worst a licence to harass, ostracise, and bully LGBT members of these communities solely on the basis of their identity, and not on the basis of religiosity.
Put simply, the Religious Discrimination Bills allow management of organisations in accordance with religious ethos. The need for Sex Discrimination Act exemptions are therefore redundant.
To that effect, the Religious Discrimination (Consequential Amendments) Bill 2021 should provide for amendments which bring the exemptions in the Sex Discrimination Act into alignment with the Religious Discrimination Act. This would ensure that no individual would be excluded from educational institutions purely on the basis of their gender or sexual orientation.
Amendments to the Sex Discrimination Act should clarify the following three principles for members of religious organisations, particularly educational institutions. first, that same-sex attracted students cannot be excluded from Australian schools on those grounds alone; second, that same-sex attracted teachers cannot be excluded from teaching solely on these grounds; third, that in providing these assurances, religious organisations can still have confidence in their ability to lawfully include or exclude on the basis of religiosity.
Three sections of the Sex Discrimination Act are relevant to achieving this. s23(2)(b), which provides exemptions for accommodation provided by religious bodies; s37(1)(d) which provides a general exemption for religious bodies; and s38 which provides a general exemption from certain requirements of the act for religious educational institutions.
Section 23(2)(b) and s37(1)(d) should be amended to ensure that these provisions do not provide a general exemption to discriminate against LGBT students and teachers. Further, s38 should be removed in its entirety.
The ability to benefit from an exemption should be founded solely on the need for an organisation to maintain its religious ethos. It is right that religious organisations can preference practicing members of their own faith. It is equally not right that religious organisations can discriminate against LGBT persons.
Removing the generalised exemptions in the Sex Discrimination Act provides that such discrimination must be founded in the specific needs of faith communities. The passage of orthodox anti-discrimination provisions in the Religious Discrimination Bill, alongside the preserved exemptions provided in s37(1)(a)(b)(c) and (d) (notwithstanding qualifications) would ensure that faith communities can run themselves in accordance with religious beliefs unimpeded.
Considering the new protections afforded to religious organisations, there is no justification for generalised exemptions, other than for the purposes of discriminating on the basis of sex or sexuality alone. Therefore, I believe that the Religious Discrimination (Consequential Amendments) Bill should include amendments to Sex Discrimination Act of the aforementioned effect.
Recommendation
Remove the Statement of Belief in its entirety.
Recommendation
Amend the Sex Discrimination Act 1984 to end discrimination against students and teachers.
Senator Andrew Bragg
Liberal Senator for NSW