Introduction
1.1
On 13 November 2018, the Senate referred the following matter to the
Legal and Constitutional Affairs References Committee for inquiry and report by
26 November 2018:
Legislative exemptions that allow faith-based educational
institutions to discriminate against students, teachers and staff, including on
the basis of sexual orientation and gender identity and other attributes
covered by the Sex Discrimination Act 1984, with particular reference to
proposals for amendments to current legislation, and any related matters.[1]
Conduct of this inquiry
1.2
Details of this inquiry were advertised on the committee's website,
including a call for submissions. The committee wrote directly to a range of
organisations inviting them to make submissions. The committee received 180
submissions, of which 13 were received in camera. The submissions are
listed at Appendix 1 of this report.
1.3
The committee held a public hearing in Melbourne on 19 November 2018.
A list of witnesses who appeared at the hearing is available at Appendix 2.
1.4
The committee thanks all those who made submissions or gave evidence at
its public hearing.
Structure of this report
1.5
There are two chapters in this report:
-
This chapter provides background and outlines the administrative
details of the inquiry.
-
Chapter 2 presents the key issues raised in evidence and the
committee's view.
Background
Religious Freedom Review
1.6
The recent public debate on the matters being considered in this inquiry
has been prompted, in the most immediate sense, by the disclosure of certain
recommendations in a review on religious freedom commissioned by the
government. This part of the chapter briefly summarises that review and the
recommendations in question.
1.7
On 22 November 2017, the then Prime Minister,
the Hon Malcolm Turnbull MP, announced the appointment of
an Expert Panel (the Panel) to examine whether Australian law adequately
protects the human right to freedom of religion. The Panel, which was supported
by a secretariat in the Department of the Prime Minister and Cabinet, was comprised
of:
-
The Hon Philip Ruddock (Chair)
-
Emeritus Professor Rosalind Croucher AM
-
The Hon Dr Annabelle Bennett AO SC
-
Father Frank Brennan SJ AO, and
-
Professor Dr Nicholas Aroney.[2]
1.8
The work conducted by the Panel is known as the Religious Freedom Review
(the Review) or the Ruddock Review. The Terms of Reference for the Review were
announced on 14 December 2017. The objective, scope and timing of the
review were set out as follows:
Objective
The Panel shall examine and report on whether Australian law
(Commonwealth, State and Territory) adequately protects the human right to
freedom of religion.
Scope
In undertaking this Review, the Panel should:
-
Consider the intersections between the enjoyment of the freedom
of religion and other human rights.
-
Have regard to any previous or ongoing reviews or inquiries that
it considers relevant.
-
Consult as widely as it considers necessary.
...
Timing
Following the Prime Minister’s agreement to an extension of
its reporting date, the Panel will report its findings to the Prime Minister by
18 May 2018.[3]
1.9
The Panel received over 15,500 submissions, some of which have been
published on the website of the Department of the Prime Minister and Cabinet.[4]
The Panel delivered its report to the Prime Minister on
18 May 2018, and released a statement that day summarising its
process:
This Report is the culmination of a nationwide consultation
process, including a public submission process and face-to-face meetings in
every State and Territory.
The Report reflects the input that the Panel received
throughout the life of this process, research undertaken and the individual
expertise of the Panel members.[5]
1.10
The Attorney-General's Department was provided with a copy of the report
on 21 May 2018.[6]
The Panel's report has not been published by the government. Indeed, on
10 October 2018, the Prime Minister,
the Hon Scott Morrison MP, said that the report had not yet
been considered by Cabinet.[7]
1.11
However, what were reported to be leaked sections of the report appeared
in the media on 9 October 2018.[8]
On 12 October 2018, Fairfax Media published what it claimed
was a copy of all 20 recommendations of the Review.[9]
1.12
The Panel's recommendations, as published by Fairfax Media,
include the following recommendations of particular relevance to the
committee's current inquiry:
Recommendation 5
The Commonwealth should amend the Sex Discrimination Act 1984
to provide that religious schools can discriminate in relation to the
employment of staff, and the engagement of contractors, on the basis of sexual
orientation, gender identity or relationship status provided that:
-
The discrimination is founded in the precepts of the religion.
-
The school has a publicly available policy outlining its position
in relation to the matter and explaining how the policy will be enforced.
-
The school provides a copy of the policy in writing to employees
and contractors and prospective employees and contractors.
Recommendation 6
Jurisdictions should abolish any exceptions to
anti-discrimination laws that provide for discrimination by religious schools
in employment on the basis of race, disability, pregnancy or intersex status.
Further, jurisdictions should ensure that any exceptions for religious schools
do not permit discrimination against an existing employee solely on the basis
that the employee has entered into a marriage.
Recommendation 7
The Commonwealth should amend the Sex Discrimination Act 1984
to provide that religious schools may discriminate in relation to students on
the basis of sexual orientation, gender identity or relationship status
provided that:
-
The discrimination is founded in the precepts of the religion.
-
The school has a publicly available policy outlining its position
in relation to the matter.
-
The school provides a copy of the policy in writing to
prospective students and their parents at the time of enrolment and to existing
students and their parents at any time the policy is updated.
-
The school has regard to the best interests of the child as the
primary consideration in its conduct.
Recommendation 8
Jurisdictions should abolish any exceptions to
anti-discrimination laws that provide for discrimination by religious schools
with respect to students on the basis of race, disability, pregnancy or
intersex status.[10]
Proposed amendments to the Sex
Discrimination Act 1984
1.13
The leak of the recommendations of the Ruddock Review prompted
significant public debate regarding the rights of LGBTIQ+ (lesbian, gay,
bisexual, transgender/gender diverse, intersex and queer) students and
teachers. Much of the debate focussed on existing exemptions in the Sex
Discrimination Act 1984 (SDA) that allow faith-based educational
institutions to discriminate against students, teachers and staff on the basis
of various attributes including sexual orientation and gender identity.
1.14
Some evidence to the committee indicated that, in large measure, the
Australian public was broadly unaware that these exemptions existed until
sections of the Review were leaked.[11]
1.15
Subsequent to reports about the Review's recommendations, both the
government and Opposition expressed support for changing the law to ensure that
students cannot be discriminated against on the basis of their sexuality.
1.16
On 12 October, the Opposition Leader,
the Hon Bill Shorten MP, indicated that the Opposition
would be supportive of repealing those discrimination law exemptions that allow
religious educational institutions 'to turn away and expel gay students'.[12]
1.17
On 13 October, the Prime Minister, the Hon Scott Morrison MP, released a
statement in which he advised that the government would:
...be taking action to ensure
amendments are introduced as soon as practicable to make it clear that no
student of a non-state school should be expelled on the basis of their
sexuality. I believe this view is shared across the Parliament and we should
use the next fortnight to ensure this matter is addressed.[13]
1.18
The Prime Minister also stated that he had directed the Attorney-General
to prepare amendments and consult with the Opposition to achieve this end.[14]
1.19
The proposed legislation was not introduced into Parliament before the
end of the sitting fortnight ending 25 October, nor during the Senate‑only
sitting week ending 15 November. However, the government reportedly
presented draft legislation to the Opposition for consideration on 24 October.
1.20
The Attorney-General, the Hon Christian Porter MP, indicated at the end
of the most recent sitting fortnight (not including the Senate‑only
sitting) that negotiations with the Opposition had been conducted in good
faith. Mr Porter stated that one of the issues arising from removing the
clause about LGBTIQ+ students was the potential to remove the ability of
faith-based educational institutions to put in place their own rules, such as
requiring students to attend chapel or undertake religion lessons. Mr Porter
further indicated that he hoped an agreed bill could be introduced in the final
sitting fortnight of the year, starting on 26 November.[15]
Legislative changes proposed by the
Australian Greens
1.21
Separate to the consultations between the government and the Opposition
on this matter, on 17 October Senator Richard Di Natale introduced the
Discrimination Free Schools Bill 2018 into the Senate, which would remove the
exemption for faith‑based educational institutions to discriminate
against students and teachers. Specifically, the bill seeks to amend:
-
the SDA to remove the exemption for religious educational
institutions to discriminate against students and teachers on the basis of
gender, sexual orientation, gender identification, marital or relationship
status or pregnancy; and
-
the Fair Work Act 2009 (FWA) to ensure that religious
exemptions from anti-discrimination provisions do not extend to educational
institutions.[16]
Responses to proposed legislative
changes
1.22
On 25 October 2018, the heads of 34 Sydney Anglican schools wrote to the
Minister for Education, the Hon Dan Tehan MP, requesting that the exemptions in
the SDA that allow 'schools to maintain their ethos and values with regard to
core issues of faith' be maintained.[17]
1.23
One gay teacher at a Christian school discussed the personal effect of
this letter:
My Principal has made the same judgement call on behalf of our
staff inferring that LGBTIQ teachers are not welcome and is fighting for the
right to continue to discriminate against me and others like me within
religious schools.
So here I am in an impossible situation. I am in a position
of leadership within a school I love, but where I know I am not welcome. Where
many people, if they knew my true self, would want to see me exiled. Do I stay
silent and continue to pretend I am someone else? Or do I challenge the
school’s stance and ask questions, leaving myself open for suspicion?
I know you’re wondering why I don’t just leave and teach at a
school where I am welcome. At the end of the day I am still a Christian and I
want to be here. My Christianity is a choice, my sexuality is not.[18]
1.24
It has been reported that up to three of these schools have since
apologised to their staff and students for signing the letter.[19]
For example, the Head of Barker College, Mr Phillip Heath, reportedly stated in
correspondence to a former student:
The advice I received was that it
would help support the parliamentary debate into religious freedom. It is now
clear the letter has generated unintended hurt and division.[20]
The current legal framework
1.25
Commonwealth anti-discrimination law, including the SDA, makes it
unlawful to discriminate against a person on the basis of a person’s personal
attributes, including their sexual orientation, gender identity and intersex
status, in areas of public life. However, there are a number of exceptions for
religious institutions, including educational institutions established for
religious purposes. This exception is also reflected in state and territory
anti-discrimination legislation.
1.26
Although each state varies with respect to how it can treat these
students, only Tasmania prohibits religious schools from discriminating against
prospective or current lesbian, gay, bisexual and transgender (LGBT) teachers.
That state also prohibits religious schools from discriminating against
students on the grounds of sexual orientation, gender identity and intersex status—a
religious school may, however, make use of the exception in the
anti-discrimination legislation if it can argue that its discrimination was
based on the grounds of religious belief. Importantly, in the Tasmanian regime
'it is the religious belief, affiliation or religious activity of the person
against whom the discrimination is directed' that is relevant, rather than the religious
belief of the discriminator.[21]
1.27
The prohibition on religious schools discriminating against LGBT
students also applies in Queensland. In contrast, in New South Wales, 'private
educational authorities' may discriminate against students and teachers on the
grounds of homosexuality.
1.28
The remainder of this chapter examines the legal framework in the
Commonwealth, state and territory jurisdictions and the power of religious
educational institutions to discriminate against LGBT students and teachers.
Commonwealth laws
Australian Constitution
1.29
Freedom of religion is protected in the Australian Constitution.
However, the Constitution does not create a personal or individual right to
religious freedom.
1.30
Section 116 of the Australian Constitution provides for the protection
of freedom of religion, as follows:
The Commonwealth shall not make any
law for establishing any religion, or for imposing any religious observance, or
for prohibiting the free exercise of any religion, and no religious test shall
be required as a qualification for any office or public trust under the
Commonwealth.[22]
1.31
As Professor George Williams AO identified in his submission to the
Australian Government's Religious Freedoms Inquiry, the Constitution 'offers no
direct protection in respect of religion or belief at the State level. This
means that States may pass laws that restrict religious freedom or belief'.[23]
1.32
Chapter 2 provides further discussion about constitutional power,
namely, the Parliament's power to legislate over non‑government schools
with respect to the SDA.
Commonwealth legislation
1.33
There are two federal legislative instruments that are relevant to this
inquiry: the SDA and the FWA.
1.34
Although this legislation sets out the framework within which faith-based
educational institutions may discriminate against students in schools as well as
against teachers of contractors in the workplace, state and territory laws are
also applicable: the SDA and corresponding state and territory laws generally
overlap with respect to discrimination on the basis of sexual orientation,
gender identity and intersex status.
1.35
However, as each jurisdiction operates in slightly different ways, some
gaps exist in the protection against discrimination between states, territories
and the Commonwealth. The protections offered under state and territory
anti-discrimination laws are set out further below.
The Sex Discrimination Act 1984
1.36
The SDA is one of a number of federal anti-discrimination laws that
provide protections against discrimination. As with the other federal
anti-discrimination laws, the SDA 'gives effect to Australia's international
human rights obligations and protects individuals from discrimination and
unfair treatment', and 'affirms that every individual is equal before and under
the law, and has the right to the equal protection and benefit of the law,
without discrimination'.[24]
The international obligations relevant to this inquiry will be discussed in
chapter 2.
1.37
When the SDA was first introduced, the Hon Senator Susan Ryan outlined
in the Second Reading Speech for the bill that its purpose was to:
...give effect to certain provisions of the U.N. Convention on
the Elimination of All Forms of Discrimination Against Women which the
Government plans to ratify in the near future; to eliminate discrimination on
the ground of sex, marital status or pregnancy in the areas of employment,
education, accommodation, the provision of goods, facilities and service, the
disposal of land, the activities of clubs and the administration of
Commonwealth laws and programs, and discrimination involving sexual harassment
in the workplace and in educational institutions; and to promote recognition
and acceptance within the community of the principle of the equality of men and
women.[25]
1.38
In 2013 the Parliament legislated to expand the grounds on which
discrimination is unlawful to include new protections against discrimination on
the basis of a person’s sexual orientation, gender identity and intersex
status. These amendments to the SDA by the Sex Discrimination Amendment
(Sexual Orientation, Gender Identity and Intersex Status) Act 2013 also extended
the existing ground of ‘marital status’ to ‘marital or relationship status’ in
order to provide protection from discrimination for same-sex de facto couples,
and made consequential amendments to the SDA and the Migration Act 1958.
1.39
These changes were advanced by the then Labor Government on the
following basis:
There is substantial evidence demonstrating that
discrimination against lesbian, gay, bisexual, transgender and intersex (LGBTI)
people occurs in the community. This discrimination occurs in a range of areas
of public life, including work, accommodation and the provision of goods and
services. This range of conduct is highly detrimental to LGBTI people,
manifesting in barriers to how they carry out their day-to-day lives.
The purpose of the Bill is to foster a more inclusive society
by prohibiting unlawful discrimination against LGBTI people and promoting
attitudinal change in Australia.[26]
1.40
These changes to the SDA for the purpose of protecting LGBTI people also
inherited the existing exemptions that have applied to other groups in the SDA
since it was first passed in 1984.
1.41
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity
and Intersex Status) Act 2013 also inserted a qualification on the
religious exemptions for the provision of Commonwealth-funded aged care
services, such that 'aged care services run by religious organisations will no
longer be exempt from the prohibition of discrimination'.[27]
The Supplementary Explanatory Memorandum set out the details of the removal of
this exemption:
The Amendments will only apply in the context of service
provision. That is, an aged-care provider can still make employment decisions
which conform to the doctrines or tenets of the religion or are necessary to
avoid injury to religious sensitivities of adherents of that religion.[28]
1.42
In its current form, the SDA:
...makes it unlawful to discriminate against a person on the
basis of their sex, sexual orientation, gender identity, intersex status,
marital or relationship status, pregnancy or potential pregnancy, breastfeeding
or family responsibilities in certain areas of public life including work and
education.[29]
1.43
The SDA sets out that discrimination may occur where:
...a person is treated less favourably on the basis of one of
the protected attributes in comparison with how a person that does not possess
that attribute would be treated in the same or similar circumstances.
Discrimination may be direct in nature, for example where an employer refuses a
promotion to an employee after the employee discloses that they identify as
bisexual. Discrimination may also be indirect in nature, such as in
circumstances where a rule or policy that applies consistently to everyone has
an unfair effect on persons that possess a particular attribute.[30]
1.44
Discrimination for a 'protected attribute' includes discrimination on
the grounds of sexual orientation,[31]
gender identity[32]
and intersex status.[33]
1.45
Where a condition, requirement or practice is imposed on a person who
has one of these protected attributes, it will not reach the threshold of indirect
discrimination 'if the condition, requirement or practice is reasonable in the
circumstances', which will be determined by reference to factors including:
- the nature and extent of the disadvantage resulting from
the imposition, or proposed imposition, of the condition, requirement or
practice; and
- the feasibility of overcoming or mitigating the
disadvantage; and
- whether the disadvantage is proportionate to the result
sought by the person who imposes, or proposes to impose, the condition,
requirement or practice.[34]
1.46
The SDA provides that it is unlawful for an educational authority to
discriminate against a person on the ground of the person’s sex, sexual
orientation, gender identity, intersex status, marital or relationship status,
pregnancy or potential pregnancy, or breastfeeding in respect of:
-
the application or admission of a student to school;[35]
or
-
by denying the student access, or limiting the student’s access,
to any benefit provided by the educational authority; expelling the student; or
subjecting a student to another form of detriment.[36]
1.47
The SDA defines 'educational authority' as 'a body or person
administering an educational institution',[37]
which extends the application of the SDA beyond schools to include, for
example, universities.
1.48
The SDA also provides that it is unlawful for an employer to
discriminate against a person on the ground of the person’s sex, sexual
orientation, gender identity, intersex status, marital or relationship status,
pregnancy or potential pregnancy, breastfeeding or family responsibilities in
respect of the offer of employment,[38]
or during the course of employment.[39]
1.49
Despite these protections that exist in the SDA for students and
teachers, section 38(3) of the SDA exempts educational institutions established
for religious purposes from these prohibitions on unlawful discrimination,
providing that such treatment is not unlawful if it is:
...conducted in accordance with the
doctrines, tenets, beliefs or teachings of a particular religion or creed, if
the first‑mentioned
person so discriminates in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed.[40]
1.50
The SDA defines 'educational institution' as 'a school, college,
university or other institution at which education or training is provided'.[41]
This, too, extends the application of the SDA beyond schools to include universities.
1.51
Further, although making no direct reference to educational
institutions, section 37 of the SDA provides a complete exemption from divisions
1 and 2 of the SDA—which address discrimination in work (division 1) and
discrimination in other areas (division 2, including with respect to
education)—in relation to all protected attributes covered by the SDA and in
connection with all areas of public for conduct by religious bodies, including:
...any other act or practice of a body established for
religious purposes, being an act or practice that conforms to the doctrines,
tenets or beliefs of that religion or is necessary to avoid injury to the
religious susceptibilities of adherents of that religion.[42]
1.52
In its submission, the Attorney-General's Department discussed the
implications of removing the exemptions operating in section 38 of the SDA, including
the effect this would have on the meaning of direct and indirect
discrimination, and implications for the statutory construction of section 37
of the SDA.[43]
Specifically, the Attorney-General's Department stated that:
While the interaction between sections 37 and 38 is not
entirely clear, it is arguable that a body established for religious purposes
under paragraph 37(1)(d) of the SDA does not include a religious educational
institution due to the inclusion of a specific exemption for religious
educational institutions in section 38 of the SDA. Should section 38 of the SDA
be removed, consideration would need to be given to the application and
operation of the exemption in paragraph 37(1)(d) of the SDA to ensure there are
no unintended consequences in relation to the interpretation of its scope in
the absence of a specific exemption for religious educational institutions.[44]
1.53
In its submission, the Law Council of Australia recommended that 'section
37 should be amended to clarify that paragraph 37(1)(d) does not apply to the
treatment of students by religious schools'.[45]
The Fair Work Act
1.54
The FWA sets out limited protection from discrimination in the area of
employment on the grounds of religion. The FWA provides that a term of modern
award does not discriminate against an employee:
...merely because it discriminates, in relation to employment
of the employee as a member of the staff of an institution that is conducted in
accordance with the doctrines, tenets, beliefs or teachings of a particular
religion or creed:
- in good faith; and
-
to avoid injury to the religious
susceptibilities of adherents of that religion or creed.[46]
1.55
Similar exceptions apply throughout the FWA in respect of discriminatory
terms in enterprise agreements,[47]
adverse action where discrimination is also unlawful under the state or territory
law of the place where the action is taken,[48]
and termination of employment.[49]
1.56
In its submission to the inquiry, the Public Interest Advocacy Centre (PIAC)
recommended amending these sections 'to ensure that religious educational
institutions are only allowed to discriminate on the basis of religious belief
in employment, and not on the basis of other protected attributes like sexual
orientation and gender identity'.[50]
1.57
Further, PIAC noted that 'trans, gender diverse and intersex people are
currently not protected against adverse treatment, or unfair dismissal' in the
FWA and also recommended that the FWA 'be amended to add the protected
attributes of gender identity and sex characteristics to ss 153, 195, 351, 772
and 578'.[51]
1.58
In practice, these exemptions do not apply to action that is not
unlawful under federal anti-discrimination law, such that 'there is that direct
relationship between the Fair Work Act and antidiscrimination laws'.[52]
States and Territories
1.59
As discussed above, anti-discrimination laws vary across each state and
territory, protecting people from discrimination on various grounds and to
differing degrees, including students and teachers from discrimination by
religious educational institutions. This section sets out the anti-discrimination
laws that apply in each state and territory.
Australian Capital Territory
1.60
The Discrimination Act 1991 (ACT) prohibits discrimination[53]
on the ground of any of the following attributes: accommodation status; age;
association (whether as a relative or otherwise) with a person who is
identified by reference to another protected attribute; breastfeeding;
disability; employment status; gender identity; genetic information;
immigration status; industrial activity; intersex status; irrelevant criminal
record; parent, family, carer or kinship responsibilities; physical features;
political conviction; pregnancy; profession, trade, occupation or calling;
race; record of a person’s sex having been altered under the Births, Deaths
and Marriages Registration Act 1997 (ACT) or a law of another jurisdiction
that corresponds, or substantially, corresponds, to the Act; relationship
status; religious conviction; sex; sexuality; and subjection to domestic or
family violence.[54]
1.61
The Act also prohibits sexual harassment and vilification on the basis
of race, sexuality, gender identity or HIV/AIDS status.
1.62
Of relevance to this inquiry, the Discrimination Act 1991 (ACT)
prohibits discrimination against an applicant for employment and an employee,
specifically providing that this includes instances where 'an employer
discriminates against an employee if the employer denies the employee access to
a benefit associated with employment because the employee is in a same-sex
relationship'.[55]
1.63
This exemption does not apply if the employment is in an educational
institution which:
...is conducted in accordance with
the doctrines, tenets, beliefs or teachings of a particular religion or creed,
and the first person so discriminates in good faith to avoid injury to the
religious susceptibilities of adherents of that religion or creed.[56]
1.64
This Act also prohibits discrimination against prospective and existing
students.[57]
However, this exemption does not apply in respect of an educational institution
which:
...is conducted in accordance with
the doctrines, tenets, beliefs or teachings of a particular religion or creed,
and the first person so discriminates in good faith to avoid injury to the
religious susceptibilities of adherents of that religion or creed.[58]
1.65
In addition to this protection against discrimination in the Discrimination
Act 1991 (ACT), the Human Rights Act 2004 (ACT) has recognised
freedom from discrimination as a fundamental right.[59]
The Act also protects religious freedom.[60]
1.66
The Human Rights Act expressly sets out core human rights, but does not
exclude, limit or downgrade any rights or freedoms not included in the Act. The
Act expressly states that the rights recognised therein are not exhaustive of
an individual’s human rights.[61]
1.67
Reasonable limitations may be placed on a human right where this
limitation 'can be demonstrably justified in a free and democratic society'.[62]
New South Wales
1.68
The Anti-Discrimination Act 1977 (NSW) prohibits discrimination
on the basis of race, including colour, nationality, descent and ethnic,
ethno-religious or national origin; sex, including pregnancy and breastfeeding;
marital or domestic status; disability; homosexuality; age; transgender status;
and carer responsibilities.
1.69
The Act also prohibits sexual harassment and vilification on the basis
of race, homosexuality, transgender status or HIV/AIDS status.
1.70
In relation to this inquiry, the Anti-Discrimination Act 1977
(NSW) prohibits discrimination against work applicants or employees on the
grounds of homosexuality.[63]
The discrimination against a prospective or current student on the grounds of
homosexuality is also prohibited under the Act.[64]
1.71
These provisions do not apply to private educational authorities.[65]
However, homosexual vilification is unlawful and not subject to this exemption.[66]
Northern Territory
1.72
The Anti-Discrimination Act 1996 (NT) prohibits discrimination on
the grounds of race; sex; sexuality; age; marital status; pregnancy;
parenthood; breastfeeding; impairment; trade union or employer association
activity; religious belief or activity; political opinion, affiliation or
activity; irrelevant medical record; irrelevant criminal record; the person's
details being published under section 66M of the Fines and Penalties
(Recovery) Act (NT); and association with a person who has, or is believed
to have, one of the above attributes.[67]
1.73
The Act also prohibits sexual harassment.
1.74
In respect of this inquiry, an exemption applies to the ground of discrimination
on the basis of sexuality in respect of prospective students:
An educational authority that operates, or proposes
to operate, an educational institution in accordance with the
doctrine of a particular religion may exclude applicants who are
not of that religion.[68]
1.75
An exemption also applies with respect to working in religious
educational institutions:
An educational authority that operates or proposes
to operate an educational institution in accordance with the
doctrine of a particular religion may discriminate against a person in
the area of work in the institution if the discrimination:
- is on the grounds of:
- religious belief or activity; or
- sexuality;
and
- is in good faith to avoid
offending the religious sensitivities of people of the particular religion.[69]
1.76
The Northern Territory Anti-Discrimination Commission has advised the
committee that the Anti-Discrimination Act 1996 (NT) is currently under
review, an area under consideration 'is the appropriateness of the exemption in
the legislation that currently provides for exclusion of staff on the basis of
sexuality or religious belief or activity'.[70]
Queensland
1.77
The Anti-Discrimination Act 1991 (Qld) prohibits discrimination
on the basis of sex; relationship status; pregnancy; parental status;
breastfeeding; age; race; impairment; religious belief or religious activity;
political belief or activity; trade union activity; lawful sexual activity;
gender identity; sexuality; family responsibilities; and association with, or
relation to, a person identified on the basis of any of the above attributes.[71]
1.78
The Act also prohibits sexual harassment and vilification on the basis
of race, religion, sexuality or gender identity.
1.79
Discrimination is prohibited in a specified 'area', which includes
education[72]
and work.[73]
1.80
In respect of education, a school or other educational institution may
discriminate by excluding students who are not of the particular religion[74]—religious
discrimination is not allowed against LGBT students.
1.81
In respect of the workplace, a school may discriminate against a
potential or actual employee if:
-
it is a genuine occupational requirement that workers act in a
way that is consistent with the religious beliefs of the school or educational
institution; and
-
the worker or applicant openly acts in a way that is inconsistent
with those religious beliefs during the course of work or doing something
connected with work; and
-
the discrimination action is not unreasonable.[75]
South Australia
1.82
The Equal Opportunity Act 1984 (SA) prohibits discrimination on
the grounds of age; association with a child, including breastfeeding; caring
responsibilities; disability; gender identity; intersex status; marital status;
pregnancy; race; religious dress; sex; sexual orientation and a spouse or
partner's identity.
1.83
The Act also prohibits sexual harassment.
1.84
In relation to this inquiry, discrimination is prohibited on the grounds
of sexual orientation or gender identity in the workplace in respect to the
offer and conditions of employment.[76]
1.85
However, the prohibition does not apply in circumstances or engagement
of employment for the purposes of an educational institution if:
- the educational institution is administered in accordance
with the precepts of a particular religion and the discrimination is founded on
the precepts of that religion; and
- the educational authority administering the institution
has a written policy stating its position in relation to the matter; and
- a copy of the policy is given to a person who is to be
interviewed for or offered employment with the authority or a teacher who is to
be offered engagement as a contractor by the authority; and
- a copy of the policy is provided on request, free of charge—
- to employees and contractors
and prospective employees and contractors of the authority to whom it relates
or may relate; and
- to students, prospective
students and parents and guardians of students and prospective students of the
institution; and
- to other members of the
public.[77]
1.86
The Act also prohibits discrimination by educational authorities of
prospective and current students on the basis of sexual orientation and gender
identity.[78]
Religious bodies are exempt from this prohibition in relation to:
...any other practice of a body [other than that listed in the
preceding paragraphs] established for religious purposes that conforms with the
precepts of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.[79]
Tasmania
1.87
The Anti-Discrimination Act 1998 (TAS) prohibits discrimination[80]
on the grounds of the following attributes: race; age; sexual orientation;
lawful sexual activity; gender; gender identity; intersex; marital status;
relationship status; pregnancy; breastfeeding; parental status; family
responsibilities; disability; industrial activity; political belief or
affiliation; political activity; religious belief or affiliation; religious
activity; irrelevant criminal record; irrelevant medical record; and
association with a person who has, or is believed to have, any of these
attributes.[81]
1.88
The Act also prohibits sexual harassment and the incitement of hatred on
the basis of race, disability, sexual orientation, lawful sexual activity, or
religious belief, affiliation or activity.
1.89
In the context of the current inquiry, the Act provides for the
following exception for employment based on religion:
A person may discriminate against another person on the
ground of religious belief or affiliation or religious activity in relation to
employment in an educational institution that is or is to be conducted in
accordance with the tenets, beliefs, teachings, principles or practices of a
particular religion if the discrimination is in order to enable, or better
enable, the educational institution to be conducted in accordance with those
tenets, beliefs, teachings, principles or practices.[82]
1.90
The Act also provides the following exception for admission of a person
as a student based on religion:
- A person may discriminate against another person on the
ground of religious belief or affiliation or religious activity in relation to
admission of that other person as a student to an educational institution that
is or is to be conducted in accordance with the tenets, beliefs, teachings,
principles or practices of a particular religion.
- Subsection (1) does not apply to a person who is
enrolled as a student at the educational institution referred to in that
subsection.
- Subsection (1) does not permit discrimination on any
grounds referred to in section 16 other than those specified in that
subsection.
- A person may, on a ground specified in subsection (1),
discriminate against another person in relation to the admission of the other
person as a student to an educational institution, if the educational
institution's policy for the admission of students demonstrates that the
criteria for admission relates to the religious belief or affiliation, or
religious activity, of the other person, the other person's parents or the
other person's grandparents.[83]
1.91
As in Queensland, Tasmania does not allow religious schools to
discriminate against LGBT students. However, unlike in Queensland, Tasmania
also extends this protection to teachers.
Victoria
1.92
The Equal Opportunity Act 2010 (VIC) prohibits discrimination on
the basis of age; breastfeeding; employment activity; gender identity;
impairment; industrial activity; lawful sexual activity; marital status;
parental status or status as a carer; physical features; political belief or
activity; pregnancy; race; religious belief or activity; sex; sexual
orientation; personal association (whether as a relative or otherwise) with a
person who is identified by reference to any of the above attributes.[84]
1.93
This Act also prohibits sexual harassment. Further, the Racial and
Religious Tolerance Act 2001 (VIC) prohibits vilification on the basis of
race or religion.
1.94
In respect of this inquiry, religious schools—which include 'a religious
body, that establishes, directs, controls, administers or is an educational
institution that is, or is to be, conducted in accordance with religious
doctrines, beliefs or principles'—are exempt from discrimination the above
attributes where the discrimination is done so:
...in the course of establishing, directing, controlling or
administering the educational institution that:—
- conforms with the doctrines, beliefs or principles of
the religion; or
- is reasonably necessary to avoid injury to the religious
sensitivities of adherents of the religion.'[85]
1.95
In addition to this anti-discrimination legislation, Victoria also has a
Charter of Human Rights and Responsibilities Act 2006 (VIC), which sets
out the basic rights, freedoms and responsibilities of all people in Victoria
including the right to recognition and equality before the law.[86]
The Charter also includes protection for religious freedom.[87]
1.96
Although the Charter does not create a new right to begin legal action
for a breach of human rights, it does allow a person to raise a human rights
argument along with existing remedies or legal proceedings.
Western Australia
1.97
The Equal Opportunity Act 1984 (WA) prohibits discrimination on
the grounds of age; breastfeeding; family responsibility; family status;
publication of a person's details on the Fines Enforcement Registrar’s website;
gender history; impairment; marital status; political conviction; pregnancy;
race; racial harassment; religious conviction; sex; sexual harassment; sexual
orientation.
1.98
The Act also prohibits sexual harassment and racial harassment. Further,
the Spent Convictions Act 1988 (WA) prohibits discrimination on the
basis of having a spent conviction.
1.99
In respect of this inquiry, Western Australian legislation therefore
prohibits discrimination against applicants and employees on the
grounds of sexual orientation,[88]
as well as discrimination against a prospective or current student on the
grounds of sexual orientation.[89]
1.100 The Act makes an
exception for educational institutions established for religious purposes in
respect of employment and in the provision of education or training if this
discrimination is done so:
...in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion or creed, if the first-mentioned person so
discriminates in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed.[90]
Acknowledgements
1.101
The committee thanks all individuals and organisations that provided
evidence, whether at the hearing or in written submissions. The committee particularly
appreciates the efforts made by inquiry participants to provide evidence within
necessarily tight timeframes.
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