Month: February 2022

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Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.

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Government amendments to Religious Discrimination bills

Debate in the House of Representatives in the Federal Parliament resumed today on the package of bills dealing with religious discrimination. (For general background, see my initial post on the bills here, and recent update on committee reports, here.) The second reading debate continues on Wednesday, I think, but the government has now released two sets of amendments it will be making to the bills. The most controversial will be the amendment to s 38 of the Sex Discrimination Act 1984; the other amendments to the main Religious Discrimination Bill will mostly be uncontroversial and reflect the recommendations of the two Parliamentary committees which recently reported. While the need for the s 38 amendment will continue to be debated, in my view it is targeted at the specific problem previously identified, and will if read in that context not unduly interfere with the operations of religious schools.

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Parliamentary reports recommend passage of Religious Discrimination Bills

Two committees of the Australian Federal Parliament examining proposed legislation on religious discrimination handed down their reports on Friday 4 February, 2022. Both committees recommended that the Bills introduced in November 2021 be passed by the Parliament, with some minor amendments. The report of the Parliamentary Joint Committee on Human Rights (“PJCHR”) can be found here, and that of the Senate Legal and Constitutional Affairs Legislation Committee can be found here.

While each report mentions a number of objections to the legislative package, it is significant that these cross-party committees both end up by recommending the enactment of the laws in substantially their current form. In my view this is an encouraging sign, that may signal that the legislation might find sufficient support to pass the Parliament before an election is called this year.

(There were “additional comments” made by ALP members of both Committees, but they did not formally dissent from the majority recommendations. There was a formal dissent from the Greens Senator Janet Rice to both reports, joined in the Senate Committee by fellow Green Senator Lidia Thorpe. Liberal Senator Andrew Bragg provided “additional comments” to the Senate Committee report without formally dissenting.)

In this post I will briefly summarise the recommended amendments put forward by the committees, and some other issues that have been raised this week following events at Citipointe college which I discussed in a previous post.

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Religious school tells parents it will apply its religious beliefs

The above heading doesn’t sound very exciting, does it? Isn’t that what one would expect, that a school set up to educate students in a particular religious view would apply those beliefs in its practices? But the press in Australia sees it differently, apparently. “School rules: Brisbane college expects students to denounce homosexuality” is the way that the Sydney Morning Herald puts it (Jan 31). Citipointe Christian College has sent a letter to parents spelling out its views on a number of issues, letting them know that the College expects students and parents to be aware of these views if students are to be sent there. Here I will comment on whether the College is legally justified in so doing.

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