Overview of the bill and circulated amendments
Current legal framework
2.1
Commonwealth anti-discrimination law, including the Sex
Discrimination Act 1984 (SDA), provide protection against discrimination. The
SDA gives effect to Australia's international human rights obligations and
protects individuals from discrimination and unfair treatment on the basis of
one of the protected attributes.[1]
2.2
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 education.[2]
2.3
The SDA currently contains a number of exemptions that provide that in
certain circumstances some forms of discrimination are not unlawful. For
example, sections 37 and 38 of the SDA set out the circumstances in which it is
not unlawful for 'religious bodies' and 'educational institutions established
for religious purposes' to discriminate against a person on the basis of an
attribute protected by the SDA.[3]
2.4
Section 37 contains general exemptions regarding the activities of
religious bodies. Specifically, subsection 37(1)(d) provides that nothing in
Division 1 or 2 of the SDA affects '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'.[4]
2.5
The concept of 'a body established for religious purposes' is not
defined in the SDA, an approach consistent with other terms relating to
religion (such as 'religious order') which are similarly not defined.[5]
2.6
Through an exemption from section 21 of the SDA, subsection 38(3) of the
SDA permits educational institutions established for religious purposes to
discriminate against students in connection with the provision of education or
training on the grounds of sexual orientation, gender identity, marital or
relationship status, or pregnancy. This exemption does not apply to
discrimination on the basis of sex, intersex status, potential pregnancy or
breastfeeding.[6]
2.7
Specifically, subsection 38(3) permits conduct by religious educational
institutions that would otherwise constitute unlawful discrimination under
section 21 of the SDA in relation to:
-
the admission of new students;
-
denying or limiting a student's access to benefits;
-
the expulsion of a current student; and
-
subjecting a student to any other detriment.[7]
2.8
In order for the discrimination to be permitted under subsection 38(3),
the educational institution must be conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed, and the conduct
must be in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed.[8]
2.9
An 'educational institution' is defined in section 4 of the SDA to
include a school, college, university or other institution at which education
or training is provided.[9]
2.10
States and territories also have anti-discrimination laws in place. The
grounds for and degrees of protection offered to individuals vary across each
jurisdiction.[10]
The bill
2.11
The Sex Discrimination Amendment (Removing Discrimination Against
Students) Bill 2018 (the bill) was introduced into the Senate on 29 November
2018 by Senator the Hon. Penny Wong.[11]
2.12
The bill seeks to amend the SDA to prevent schools from discriminating
against students on the basis of sexual orientation, gender identity or
intersex status.[12]
2.13
Senator Wong noted when speaking on the bill:
The bill does one thing, and one thing only; that is, to
ensure that every Australian child, no matter their gender or sexual
orientation, is treated equally. It will make this country a more equal place,
nothing more.[13]
2.14
The explanatory memorandum for the bill outlined the parameters of the
proposed changes to the SDA:
This bill would not affect the operation of the indirect
discrimination provisions in the SDA, which will continue to operate in a
manner that allows faith-based institutions to impose reasonable conditions,
requirements or practices on students in accordance with the doctrines, tenets,
beliefs or teachings of their particular religion or creed.[14]
2.15
Item 1 of the bill is an amendment to section 37 of the SDA. Through
introducing a new subsection 37(3), it will limit the effect of the exemption
contained in paragraph 37(1)(d) by providing that the exemption does not apply
to an act or practice of a body established for religious purposes if:
- the act or practice is connected with the provision, by
the body, of education; and
- the act or practice is not connected with the employment
of persons to provide that education.[15]
2.16
It will remove the capacity of bodies established for religious purposes
that provide education to directly discriminate against students on the basis
of their sexual orientation, gender identity or intersex status.[16]
2.17
Item 2 of the bill repeals subsection 38(3) of the SDA. It removes the
exemption from the protections against discrimination in section 21 of the SDA.
As the explanatory memorandum noted:
Item 2 is required to give effect to this bill's intention
because subsection 38(3) would otherwise permit direct discrimination on
the grounds of sexual orientation or gender identity in connection with the
provision of education or training by an educational institution (where that
education or training is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed, if that discrimination
is carried out in good faith in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed).[17]
2.18
The bill does not seek to amend the SDA to address the issue of
discrimination against staff employed by religious schools.[18]
Circulated amendments to the bill
Government amendments
2.19
The Government circulated five proposed amendments to the bill: KQ147, KQ148,
KQ149, KQ150, and KQ151.
2.20
Some of the amendments are mutually exclusive and cannot be adopted
concurrently.[19]
2.21
In introducing the amendments, Senator the Hon. Michaelia Cash, Minister
for Small and Family Business, Skills and Vocational Education stated:
These are modest and sensible amendments, and they protect
the ability of religious schools to impose reasonable rules in relation to the
behaviour and conduct of the entire school. These amendments would give
certainty to Australian students and families by ensuring that they are
protected from discrimination on the grounds of sexual orientation, gender
identity, marital or relationship status, or pregnancy, whilst at the same time
preserving the ability of religious educational institutions – and, again,
we're talking about religious educational institutions–, to impose nothing more
and nothing less than reasonable rules, and these rules must be imposed in good
faith and also have regard to the best interests of the student.[20]
2.22
Amendment KQ147 removes Item 1 of the bill on the grounds that the item
is not required to meet the stated intention of the bill and adds unnecessary
complexity into the SDA.[21]
2.23
Amendment KQ148 introduces a new section 7E into the SDA. It ensures
that the repeal of the exemption for religious educational institutions to
discriminate against students under subsection 38(3) does not undermine the
ability of religious educational institutions to make reasonable rules in
relation to student conduct, if done in accordance with a publicly available
policy.[22]
2.24
Amendment KQ149 introduces a new section 7F into the SDA. It ensures
that the repeal of the exemption for religious educational institutions to
discriminate against students under subsection 38(3) does not undermine the
ability of religious educational institutions to teach in accordance with the
doctrines, tenets, beliefs or teachings of their faith.[23]
2.25
Amendment KQ150 introduces an amendment to subsection 7B(2) of the SDA.
It provides that additional factors must be taken into account when determining
whether a condition, requirement or practice is reasonable, where the
condition, requirement or practice is imposed by a religious educational
institution in relation to a student.[24]
2.26
Amendment KQ151 also introduces an amendment to subsection 7B(2) of the
SDA. It provides that additional factors must be taken into account when
determining whether a condition, requirement or practice is reasonable where
the condition, requirement or practice is imposed in relation to a student by
an educational institution that is a primary school or secondary school, and
that is conducted in accordance with the doctrines, tenets, beliefs or teachings
of a particular religion or creed. [25]
2.27
Amendments KQ150 and KQ151 provide alternative amendments to each other,
as well as to KQ148.[26]
Senator Cash outlined the Government's intentions for these amendments:
In the event that particular amendment, on sheet KQ149 – the
amendment to clarify that religious educational institutions may engage in
teaching activities – does not get up, the coalition then proposes to move an
additional amendment [KQ150], and that amendment will seek to clarify the
reasonableness test for religious educational institutions. In the event that
amendment [KQ150] does not get up, then we will seek to move a further
amendment [KQ151] to clarify the reasonable test for primary and secondary
religious schools.[27]
Australian Greens amendment
2.28
The Australian Greens circulated an amendment to the bill, contained in
Sheet 8601. It seeks to reword new subsection 37(3) and repeal section 38 in
its entirety, and would remove the existing exemptions in the SDA relating to
discrimination by faith‑based educational institutions in respect of
staff or contractors.[28]
2.29
Senator Janet Rice detailed the intention of the amendment as follows:
Senator Wong's bill acknowledges that section 38(3) [of the
SDA], relating to exemptions for educational institutions in the provision of
education or training, needs to be repealed to remove discrimination against
students. We are simply proposing the same for staff and contractors.
Secondly, we are proposing to remove the new carve-out that
Senator Wong is proposing in the proposed new section 37(3)(b)....By removing the
ability of bodies established for religious purposes to discriminate in the
provision of education, as Senator Wong does in proposed section 37(3)(a),
these bodies would also no longer be allowed to discriminate against staff.
It's only by adding in 37(3)(b), a clause that limits 37(3)(a), that bodies
established for religious purposes will be able to discriminate if the act or
practice is connected with the employment of persons to provide that education...The
Greens' amendments propose to remove this unnecessary, harmful and
discriminatory clause [29]
Centre Alliance amendment
2.30
The Centre Alliance circulated an amendment to the bill, contained in
Sheet 8614. It seeks to narrow the scope of the bill's proposed subsection 37(3)
by replacing references to 'a body' to 'an educational institution'.[30]
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