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.
To start with the controversial amendment: the Prime Minister has said on a number of occasions that students should not be expelled from faith-based schools on the grounds of sexual orientation alone. The circulated government amendment to the Human Rights Legislation Amendment Bill 2021 (part of the originally introduced package of bills) amends s 38 of the Sex Discrimination Act 1984 (Cth). That provision is a “balancing clause” recognising the freedom of religious schools to operate in accordance with their faith, and to apply conduct rules and other principles based on their faith to their dealings with staff and students. The new provision, s 38(4), operates in that context. It may be helpful to set s 38(3) and (4) out together:
(3) Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that 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.
(4) Notwithstanding subsection (3), it is unlawful for a person to discriminate against a student on the ground of the student’s sexual orientation by expelling the student on that ground.
The new section (highlighted above) puts a specific and targeted limit on the broad discretion given under s 38(3). Action on religious grounds cannot result in the expulsion of a student from the school on the sole basis that the student experiences same-sex attraction. It should be noted that, as far as I am aware, no faith-based school in Australia has ever expelled a student on this basis. But the amendment will make it clear that this practice should continue.
- amendments to clarify the content of publicly available policies which will allow religious groups to prefer to engage staff who agree with their religious views (and to remove the power of the Minister to prescribe such policies)- see amendments (2)-(6), (13)-(16) picking up concerns that had been flagged by the Parliamentary Joint Committee on Human Rights (“PJCHR”), in recommendation 8 of its report;
- amendments to remove doubts about the Constitutional validity of clauses 11 and 12, in the way that they operate to over-ride State laws- see amendments (7)-(9), picking up recommendation 1 made by the Senate Legal and Constitutional Affairs Legislation Committee;
- an amendment to provide that, in an indirect discrimination claim under cl 14, where a condition etc may be justified if it is “reasonable”, the onus of proving that it is such lies on the alleged discriminator- see amendment (10), reflecting recommendation 1 of the PJCHR;
- an amendment, number (12), qualifying the general prohibition on workplace discrimination by adding an exemption where the discrimination amounts to “reasonable management action: (a) carried out to comply with legal obligations under Australian law; or (b) authorised under Australian law”- new cl 19(3). This seems designed to reflect recommendation 3 of the PJCHR, although that only called for a “legislative note” and not a substantive clause. This is the one proposed amendment I am concerned about, as it has the potential to “water down” the law on religious discrimination if read to include “industry practice”, for example. There is already an exemption from having to disobey other laws, under cl 37; it is not clear what new s 19(3) will add to that;
- amendments (17)-(20), clarifying how the Australian Human Rights Commission may provide an “exemption” from the operation of the Act, and removing the power of the Minister to grant such an exemption (see PJCHR, recommendations 4-6);
- two amendments, (21) and (22), further clarifying the way that the Bill may over-ride State law.
The debate will continue, it seems, in the House, and depending on support from other parties, may reach the Senate soon. I hope the package passes through the Parliament quickly.