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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Sex Discrimination Amendment
(Removing Discrimination Against Students) Bill 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Wong)
Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018
OUTLINE
In 2013, Labor introduced reforms to the Commonwealth Sex Discrimination Act 1984
(SDA) which expanded the protections that Act provided to also include sexual orientation
and gender identity.
Since its introduction in 1984, the SDA has included exemptions for religious schools. With
the expansion of protected attributes in 2013 these existing exemptions were extended to also
apply to the newly protected attributes of sexual orientation and gender identity, essentially as
consequential amendments to the expansion of protected attributes under the SDA.
These changes to Australia's anti-discrimination laws under the SDA were broadly welcomed
by the Australian community at the time they were enacted in 2013.
However, over recent years there has been growing concern in the community about the
ongoing appropriateness of and the need for the exemptions from the SDA conferred on
religious schools in relation to the sexual orientation, gender identity or intersex status of
students. The leaking of parts of the Ruddock Review into Religious Freedoms in October
2018 led to a significant increase in community discussion about the need to remove these
exemptions from the SDA because of their potential to impact students attending religious
schools.
In October 2018 the Morrison Government, the Labor Opposition, the Australian Greens and
a number of cross-bench MPs committed to amend the SDA to prevent schools from
discriminating against students on the basis of sexual orientation, gender identity or intersex
status. This Bill will achieve that outcome.
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 education 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.
This Bill does not address the issue of discrimination against staff employed by religious
schools, or the operation of the SDA in this context.
FINANCIAL IMPACT
The Bill will have no financial impact.
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NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 sets out how the new Act is to be cited, that is, as the Sex Discrimination
Amendment (Removing Discrimination Against Students) Act 2018.
Clause 2 - Commencement
Clause 2 provides that the new Act will commence on 1 January 2019.
Clause 3 - Schedules
Clause 3 provides that Legislation that is specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in a
Schedule to the Act has effect according to its terms.
SCHEDULE 1
Sex Discrimination Act 1984
Item 1 - Amendment to section 37
Item 1 will limit the operation of paragraph 37(1)(d) of the Sex Discrimination Act 1984,
which provides that none of the protections in Division 1 and 2 of that Act 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."
Item 1 will limit the effect of the exemption contained in paragraph 37(1)(d) of the SDA by
providing that the exemption does not apply to an act or practice of a body established for
religious purposes if:
(a) the act or practice is connected with the provision, by the body, of education; and
(b) the act or practice is not connected with the employment of persons to provide that
education.
The effect of Item 1 will be to 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.
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Item 2 - Amendment to subsection 38(3)
Item 2 removes the exemption from the protections against discrimination in section 21.
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).
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill will amend the Sex Discrimination Act 1984 (SDA) to remove the legislative
exemptions that allow faith-based educational institutions to discriminate against students on
the basis of various attributes covered by the SDA, including sexual orientation and gender
identity.
Human rights implications
By amending the SDA to prohibit discrimination against the students of faith-based
educational institutions on the grounds of the protected attributes in the SDA, the Bill
primarily engages:
the right to equality and non-discrimination;
the right to freedom of thought, conscience and religion or belief; and
other relevant rights such as those under the Convention on the Rights of the Child.
Right to equality and non-discrimination
The rights to equality and non-discrimination are contained in articles 2 and 26 of the
International Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights to
equality and non-discrimination are also contained in the other core human rights treaties to
which Australia is a party, including article 2 of the Convention on the Rights of the Child.
The rights to equality and non-discrimination provide that all persons - including children -
are equal before the law and entitled, without any discrimination, to the equal protection of
the law. As a result, laws shall prohibit discrimination and guarantee to all persons equal and
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effective protection against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or 'other status'.
The Bill promotes the right to equality and non-discrimination by amending the SDA to
prohibit discrimination against the students of faith-based educational institutions on the
grounds of the protected attributes in the SDA, including sexual orientation and gender
identity.
The right to freedom of thought, conscience and religion or belief
Article 18(1) of the ICCPR provides:
Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
This right extends to the freedom of religious bodies, including faith-based educational
institutions.
The Bill will remove the exemption that currently allows a faith-based educational institution
to discriminate against a student on the basis of sexual orientation and gender identity.
However, the Bill will not amend section 7B of the SDA and so will not prevent a faith-based
education institution from imposing reasonable conditions, requirements or practices on
students in accordance with the doctrines, tenets, beliefs or teachings of a particular religion
or creed.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights,
particularly the right to equality and non-discrimination. To the extent that it may limit rights,
those limitations are reasonable, necessary and proportionate.
Senator the Hon Penny Wong
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