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2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
SEX DISCRIMINATION AMENDMENT
(REMOVING DISCRIMINATION AGAINST STUDENTS) BILL 2018
SUPPLEMENTARY EXPLANATORY MEMORANDUM RELATING TO AMENDMENT
SHEET KQ147
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE SEX DISCRIMINATION ACT 1984
(Government)
GENERAL OUTLINE
1. The Government amendment to the Sex Discrimination Amendment (Removing
Discrimination Against Students) Bill 2018 will remove the proposed amendment to
section 37 of the Sex Discrimination Act 1984 (SDA) in original item 1.
2. The proposed amendment to section 37 of the SDA is not required to meet the stated
intention of the Bill.
3. Subjecting bodies established for religious purposes (such as churches, mosques,
synagogues or theological colleges) to the requirements of Parts 1 and 2 of the SDA
is inconsistent with the protections granted to the right to freedom of thought,
conscience and religion in the international instruments that Australia has ratified.
FINANCIAL IMPACT
4. The amendments to the Bill will have no direct financial impact on consolidated
revenue.
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NOTES ON AMENDMENTS
Sex Discrimination Act 1984
Clause 1
1. Clause 1 amends item 1 of Schedule 1 on page 3 of the Sex Discrimination
Amendment (Removing Discrimination Against Students) Bill 2018, by removing
the proposed amendment to section 37 of the Sex Discrimination Act 1984 (SDA) in
its entirety.
2. Original item 1, which proposes to introduce an amendment to section 37 of the SDA
to limit the operation of paragraph 37(1)(d) in relation to the conduct of religious
educational institutions following removal of subsection 38(3), does not achieve its
stated aims and would introduce significant uncertainty into the legislation.
3. The existence of the more specific exemption for educational institutions conducted
in accordance with the doctrines, tenets, beliefs or teachings of a particular religion
or creed in section 38 of the SDA indicates that a 'body established for religious
purposes' under paragraph 37(1)(d) does not include a religious educational
institution. Further, maintenance of subsections 38(1) and (2) will continue to
provide an exemption for religious educational institutions' conduct in relation to
employment decisions.
4. The effect of the proposed amendment to section 37 is therefore unclear in its scope,
adds unnecessary complexity into the SDA, and is otherwise unnecessary.
5. Further, the proposed amendment would remove the ability of bodies established for
religious purposes to provide education that is consistent with their doctrines, tenets
or beliefs without the risk of engaging in conduct amounting to unlawful
discrimination. There is no limitation placed upon the scope of the term 'education'
within the amendment. It would take its ordinary meaning.
6. The activities of bodies established for religious purposes may include a wide range
of educational activities, including the teaching of the doctrines, tenets or beliefs of
the relevant religion or creed, both through their contribution to the wider community
and through the provision of education of adherents of their own religion. These
teachings may be provided in a wide-ranging array of circumstances: a sermon, a
bible study or a Buddhist meditation seminar. Education may also be provided by
bodies established for religious purposes in contexts such as a marriage course, in
relationship counselling, or in the course of community development, welfare and
youth work.
7. Further, the Bill provides that the limitation on section 37(1)(d) of the SDA does not
extend to an 'act or practice connected with the employment of persons to provide
that education'. The provisions have the effect that a body established for religious
purposes can determine the persons it employs to provide education, but cannot
determine that they may provide education in accordance with their religious
doctrines, tenets or beliefs.
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8. The result is that while a body established for religious purposes is able to engage
staff on the basis of their adherence to the teachings of a particular religion or creed,
it cannot guarantee that those staff will be able to teach the doctrines, tenets or beliefs
of that religion or creed without the risk of engaging in unlawful discrimination.
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SUPPLEMENTARY STATEMENT OF COMPATIBILITY WITH HUMAN
RIGHTS
9. The limitation on the ability of bodies established for religious purposes proposed by
item 1 of Schedule 1 on page 3 of the Sex Discrimination Amendment (Removing
Discrimination Against Students) Bill 2018 is inconsistent with the protections to
religious bodies in open and plural democratic societies. Further, the provision is
inconsistent with the protections granted in the international instruments that
Australia has ratified, including:
the International Covenant on Civil and Political Rights done at New York on
16 December 1966 ([1980] ATS 23), (ICCPR) including Articles 18 [freedom
of thought, conscience and religion], 19 [right to hold opinions without
interference] and 22 [freedom of association with others];
the International Convention on the Elimination of All Forms of Racial
Discrimination done at New York on 21 December 1965 ([1975] ATS 40),
including Article 5 [equality in respect of freedom of thought, conscience and
religion];
the International Covenant on Economic, Social and Cultural Rights done at
New York on 16 December 1966 ([1976] ATS 5), including Article 13 [the
right to education];
the Convention on the Rights of the Child done at New York on 20 November
1989 ([1991] ATS 4).
By removing the proposed amendment to section 37 of the Sex Discrimination Act
1984 (SDA) in its entirety this amendment maintains the protections to religious
freedom currently reflected in section 37, and enhances the right to freedom of
thought, conscience and religion in Art 18 of the ICCPR. In particular, it preserves
the freedom to manifest religion in teaching that is expressly preserved by Art 18(1)
of the ICCPR.
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