Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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 KQ148
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 introduce new section 7E into the
Sex Discrimination Act 1984 (SDA).
2. The Government amendment to introduce new section7E of the SDA will ensure 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.
FINANCIAL IMPACT
3. The amendments to the Bill will have no direct financial impact on consolidated
revenue.
2
NOTES ON AMENDMENTS
Sex Discrimination Act 1984
Clause 1A
1. Clause 1A amends the Sex Discrimination Amendment (Removing Discrimination
Against Students) Bill 2018 to introduce proposed new section 7E into the SDA,
after current section 7D. This amendment will ensure 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 impose
reasonable rules in relation to student conduct.
2. Subsection 7B(1) of the SDA currently provides that a person does not discriminate
against another person by imposing a condition, requirement or practice that has a
disadvantageous effect on persons with a particular attribute if the condition,
requirement or practice is reasonable in the circumstances. Subsection 7B(2) lists
factors to be taken into account in determining whether a condition, requirement or
practice is reasonable, including the nature and extent of the disadvantage; the
feasibility of overcoming or mitigating the disadvantage; and whether the
disadvantage is proportionate to the result being sought. This list is not exhaustive
and other relevant matters may be taken into account.
3. New subsection 7E(1) will provide three separate criteria to determine whether, for
the purposes of subsection 7B(1), a condition, requirement or practice imposed in
relation to a student by an educational institution conducted in accordance with the
doctrines, tenets, beliefs or teachings of a particular religion or creed is reasonable:
a) whether the condition, requirement or practice is imposed in good faith in
order to avoid injury to the religious susceptibilities of adherents of that
religion or creed
b) whether the condition, requirement or practice is imposed, or proposed to be
imposed, in a manner that is consistent with a policy of the educational
institution, and
c) if the student is a child--in imposing, or proposing to impose, the condition,
requirement or practice, the educational institution has regard to the best
interests of the child.
4. New subsection 7E(1) will clarify that religious educational institutions are permitted
to impose or enforce reasonable rules regarding student conduct consistent with their
particular religious ethos.
5. New subsection 7E(2) imposes a policy requirement on educational institutions
proposing to impose a condition, requirement or practice under new
subsection 7E(1).
6. This new subsection will clarify that a policy of a religious educational institution
must:
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a) be in writing
b) be publicly available
c) sets out the educational institution's policy in relation to adherence to its
doctrines, tenets, beliefs or teachings; and
d) comply with any other requirements prescribed by the regulations.
7. Inclusion of this subsection will ensure that the practices and policies of religious
educational institutions are open and transparent. The amendments will ensure
greater certainty for students and their parents about the role and reach of religious
educational institutions.
8. By requiring that religious educational institutions can only rely upon the provision
where they impose conditions in good faith, in a manner consistent with a public
policy, and in the best interests of the child, the new section balances the rights of
students with the right of the religious educational institution and associated religious
believers.
9. While providing certainty and transparency for students and their families, the new
section also provides religious believers certainty that they can continue to establish
and maintain educational institutions in accordance with their religious beliefs and
offer education provided by those institutions to the public. It allows religious
educational institutions to continue to offer the unique form of religious education
that many Australian parents (both religious and non-religious) wish to provide their
children. In order to provide that unique form of education, a school must be able to
continue to maintain the particular distinct religious ethos of the school.
Example 1 - Attendance at Weekly Chapel Service
A school that is conducted in accordance with the doctrines, tenets, beliefs or teachings of
a particular religion or creed informs students and prospective students that it is a
requirement of attendance at the school that the students attend the weekly chapel service.
The school has adopted the policy in good faith to avoid injury to the religious
susceptibilities of adherents of its religion or creed. The school makes the policy publicly
available in writing and requires conformity with the policy in good faith. The school
makes the policy publicly available in writing and requires conformity with the policy in
good faith. The school is satisfied that the policy is in the best interests of each of its
students, as it is clear, provided publicly and ensures the maintenance of the religious
ethos of the school.
The policy complies with any other requirements prescribed by the regulations. In
imposing or proposing to impose the policy, the school is acting reasonably pursuant to
section 7E.
Example 2 - Adherence to Teachings in Uniform and Facility Use
A school is conducted in accordance with the doctrines, tenets, beliefs or teachings of a
particular religion or creed. It adopts a policy that requires students to adhere to certain
standards of dress, language and conduct in the use of school facilities. The requirement
is applied uniformly to all students.
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The school has adopted this requirement in good faith to avoid injury to the religious
susceptibilities of adherents of its religion or creed. The school makes the policy publicly
available in writing and requires conformity with the policy in good faith. The school is
satisfied that the policy is in the best interests of each of its students, as it is clear,
provided publicly and ensures the maintenance of the religious ethos of the school.
The policy complies with any other requirements prescribed by the regulations. In
imposing or proposing to impose the policy, the school is acting reasonably pursuant to
section 7E.
Example 3 - Advocacy inconsistent with ethos of school
A school has a policy that students must not actively advocate against the doctrines,
tenets, beliefs or teachings of the school. The school has adopted this requirement in good
faith to avoid injury to the religious susceptibilities of adherents of its religion or creed.
The school makes the policy publicly available in writing and requires conformity with
the policy in good faith. The school makes the policy publicly available in writing and
requires conformity with the policy in good faith. The school is satisfied that the policy is
in the best interests of each of its students, as it is clear, provided publicly and ensures the
maintenance of the religious ethos of the school.
The policy complies with any other requirements prescribed by the regulations. In
imposing or proposing to impose the policy, the school is acting reasonably pursuant to
section 7E.
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SUPPLEMENTARY STATEMENT OF COMPATIBILITY WITH HUMAN
RIGHTS
1. The primary protection to religious freedom which Australia has ratified is
contained in Article 18 of the International Covenant on Civil and Political
Rights 1966 (ICCPR), which protects freedom of thought, conscience and
religion. That protection extends to institutions.1 The UN General Assembly,
Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief (the Religious Declaration), which has been used by
the United Nations Human Rights Committee for the purpose of interpreting
Article 18,2 enfolds within that protection the right to 'to establish and maintain
appropriate charitable or humanitarian institutions'.3 This includes educational
institutions.
2. With particular regard to the position of faith-based schools, Article 18(4) of the
ICCPR provides:
The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious
and moral education of their children in conformity with their own
convictions.
This Convention right protects the right to establish private religious schools.4
3. The United Nations Human Rights Committee has acknowledged:
not every differentiation of treatment will constitute discrimination, if the
criteria for such differentiation are reasonable and objective and if the aim is
to achieve a purpose which is legitimate under the [ICCPR].5
4. The ability of independent religious schools to maintain their distinct religious
ethos is based on criteria which are reasonable and objective, and which achieve a
purpose which is legitimate under the ICCPR, namely the preservation of
democratic society, the freedom of individuals and the ability to think in
directions not 'decided by the political majority of the Parliament.'6
1
Human Rights Committee, General Comment No 22: Article 18, 48th sess, (20 July 1993), [8].
2
See for example, Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third
Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka, Communication No. 1249/2004, U.N.
Doc. CCPR/C/85/D/1249/2004 (2005).
3
UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55, Article 6.
4
Manfred Nowak, CCPR Commentary, 2nd revised edition (Kehl: N P Engel, 2006), 443.
5
UN Human Rights Committee (HRC), CCPR General Comment No. 18: Non-discrimination, 10
November 1989, available at: http://www.refworld.org/docid/453883fa8.html.
6
UN Human Rights Committee (HRC), CCPR General Comment No. 18: Non-discrimination, 10
November 1989, available at: http://www.refworld.org/docid/453883fa8.html.
6
5. In particular, Article 18(3) of the ICCPR recognises that the right to manifest
religious belief may only be limited to the extent that it is 'necessary' in order to
'protect ... the fundamental rights and freedoms of others'.
6. In its submission to the Senate Legal and Constitutional Affairs References
Committee Inquiry into legislative exemptions that allow faith-based educational
institutions to discriminate against students, teachers and staff, the Australian
Human Rights Commission recognised that the exemptions for religious schools
exist to 'balance' religious freedom with non-discrimination:
Certain exemptions from federal anti-discrimination legislation for religious
bodies and educational institutions established for religious purposes also seek
to protect freedom of religion by balancing that right with the right to non-
discrimination.7
7. By requiring that religious educational institutions can only rely upon the
provisions introduced by this amendment where they impose conditions in good
faith, in a manner consistent with a publicly available policy, and in the best
interests of the child, the Bill balances the rights of students with the right of the
religious educational institution and associated religious believers to maintain
educational institutions that are in conformity with their religious doctrines,
tenets, beliefs or teachings.
7
Australian Human Rights Commission, Submission 5, 20.
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