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 KQ150
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 an amendment to
subsection 7B(2) of the Sex Discrimination Act 1984 (SDA).
2. The Government amendment to subsection 7B(2) of the SDA will provide additional
factors that must be taken into account when determining whether a condition,
requirement or practice is reasonable where the condition, requirement or practice is
imposed by a religious educational institution in relation to a student.
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 1C
1. Clause 1C amends the Sex Discrimination Amendment (Removing Discrimination
Against Students) Bill 2018, to introduce a proposed amendment to subsection 7B(2)
of the SDA.
2. The proposed Government amendment will introduce new paragraph 7B(2)(d) into
subsection 7B(2) of the SDA. This amendment will provide additional factors that
must be taken into account when determining whether a condition, requirement or
practice is reasonable where the condition, requirement or practice is imposed by a
religious educational institution in relation to a student.
3. Under the SDA, it is unlawful to discriminate against another person by imposing, or
proposing to impose, a condition, requirement or practice that has, or is likely to
have, a disadvantageous effect on persons with a particular attribute.
4. Subsection 7B(1) of the SDA 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.
5. The amendment will provide greater certainty for religious educational institutions
and provide additional safeguards for students by making clear that in determining
whether a condition, requirement or practice imposed by a religious educational
institution in relation to a student is reasonable, it is also relevant to consider whether
imposing the condition, requirement or practice is done in good faith in order to
avoid injury to the religious susceptibilities of adherents of that religion or creed; and
whether the educational institution has regard to the best interests of the student in
imposing the condition, requirement or practice. The list of factors in
subsection 7B(2) is not exhaustive and other relevant matters may be taken into
account.
6. The additional criteria reflect the fact that religious educational institutions may be
permitted to impose or enforce rules regarding student conduct consistent with the
doctrines, tenets, beliefs or teachings of that institution, provided those rules are
reasonable in all the circumstances. The amendments will provide greater certainty to
the public about the role and reach of religious educational institutions, while
ensuring an appropriate balance between freedom of religion and the rights of
students to be free from discrimination.
7. By requiring that religious educational institutions can only rely upon subsection
7B(2)(d) where they impose conditions in good faith, having regard to the best
3
interests of the child, the Bill balances the rights of students with the right of the
religious educational institution and associated religious believers.
8. While providing greater safeguards for students, the Bill 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.
9. The amendment applies to educational institutions conducted in accordance with the
doctrines, tenets, beliefs or teachings of a particular religion or creed. This includes
tertiary educational institutions. Such bodies provide a wide range of educational
courses that are provided on a religious basis, such as vocational training,
philosophy, business, chaplaincy, counselling, community services, teaching, music,
youth work, community development and not-for-profit studies. They are a
significant component of Australia's tertiary education sector and make an important
contribution to diversity within the Australian workforce.
Example 1 - Attendance at Weekly Chapel Service
A decision-maker is asked to consider whether a new policy adopted by a school
constitutes indirect discrimination prohibited by the Sex Discrimination Act 1984. The
school in question is conducted in accordance with the doctrines, tenets, beliefs or
teachings of a particular religion or creed. It adopts a policy requiring students to
attend the school's weekly chapel service.
The school has adopted the policy in good faith in adherence to its doctrines, tenets,
beliefs or teachings to avoid injury to the religious susceptibilities of adherents of its
religion or creed. In imposing the policy, the school has regard to the best interests of
its students
The decision-maker takes these factors into account, together with the religious ethos
of the school, and determines that the policy is reasonable in the circumstances.
Example 2 - Adherence to Teachings in Uniform and Facility Use
A decision-maker is asked to consider whether a new policy adopted by a school
constitutes indirect discrimination prohibited by the Sex Discrimination Act 1984.
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. In imposing the policy, the school
has regard to the best interests of its students.
The decision-maker takes these factors into account, together with the religious ethos
of the school, and determines that the policy is reasonable in the circumstances.
Example 3 - Advocacy inconsistent with ethos of educational institution
A decision-maker is asked to consider whether a new policy adopted by an
educational institution constitutes indirect discrimination prohibited by the Sex
Discrimination Act 1984.
The educational institution is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed. The institution adopts a policy
that students must not actively advocate against its doctrines, tenets, beliefs or
teachings. The educational institution has adopted this requirement in good faith to
avoid injury to the religious susceptibilities of adherents of its religion or creed. In
imposing the policy, the educational institution has regard to the best interests of its
students.
The decision-maker takes these factors into account, together with the religious ethos
of the institution, and determines that the policy is reasonable in all the circumstances.
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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, 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. 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 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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