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 KQ149
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 7F into the
Sex Discrimination Act 1984 (SDA).
2. 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 teach in accordance with
the doctrines, tenets, beliefs or teachings of their faith.
3. This is consistent 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 1B
1. Clause 1B amends the Sex Discrimination Amendment (Removing Discrimination
Against Students) Bill 2018 to introduce a proposed new section 7F into the Sex
Discrimination Act 1984 (SDA), after proposed new section 7E.
2. New section 7F provides that nothing in the SDA renders it unlawful to engage in
teaching activities if that activity:
a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of
a particular religion or creed, and
b) is done by, or with the authority of, an educational institution that is conducted
in accordance with the doctrines, tenets, beliefs or teachings.
3. During public discussions on the issue of religious exemptions in the SDA, religious
schools throughout Australia have clearly stated that they do not rely upon the
existing exemption in subsection 38(3) to expel students solely on the basis of their
sexual orientation. However, many faith-based schools have raised concerns that the
removal of this exemption entirely may challenge their ability to teach in accordance
with their religious beliefs or ethos.
4. An inherent aspect of the right to freedom of religion is the right to manifest one's
religion or belief through practice or teaching. The Government amendment to insert
new section 7F will clarify that educational institutions established for religious
purposes are able to maintain teaching activities that are in good faith in accordance
with the doctrines, tenets, beliefs or teachings of a particular religion or creed.
5. This amendment will ensure that religious educational institutions will be able to
maintain their religious ethos and teach in accordance with their religious values. It
will also provide clarity to students and their parents about the permissibility of
particular religious teachings at religious schools.
6. This provision is not intended to allow a religious educational institution to expel a
student.
Example - Teaching on matters of morality or social institutions
A school that is conducted in accordance with the doctrines, tenets, beliefs or teachings of
a particular religion or creed teaches that its doctrines, tenets, beliefs or teachings
prescribe a particular view on a moral matter, or a particular understanding of social
institutions. The teaching is provided in good faith. The school complies with section 7F.
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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.
4
5. In particular, the right to manifest religious belief at Article 18(3) may only be
limited to the extent that it is 'necessary' in order to 'protect ... the fundamental
rights and freedoms of others'.
6. Critical to these rights is the ability to articulate, to deliberate upon and to discuss
religious doctrines, tenets and belief. The ability to do so is necessary for a
religious institution to pass on its religious beliefs from one generation to another.
The amendment gives proper recognition to these rights.
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