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 KQ151
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 in relation to a student by an educational institution that is a primary school
or secondary school and that is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed.
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 1D
1. Clause 1D amends the Sex Discrimination Amendment (Removing Discrimination
Against Students) Bill 2018, to introduce a proposed amendment to subsection 7B(2)
of the Sex Discrimination Act 1984 (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 in
relation to a student by an educational institution that is a primary school or
secondary school and that is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed.
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 to subsection 7B(2) of the SDA 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 in relation to a student by an educational institution that is a primary school
or secondary school and that is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed 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 that are
primary schools or secondary schools 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.
3
7. By requiring that religious educational institutions that are primary schools or
secondary schools can only rely upon subsection 7B(2)(d) where they impose
conditions in good faith, having regard to 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.
8. While providing greater safeguards for students, the Bill also provides religious
believers certainty that they can continue to establish and maintain religious
educational institutions that are primary schools or secondary schools in accordance
with their religious beliefs and offer education provided by those institutions to the
public. It allows religious such 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 decision-maker is asked to consider whether a new policy adopted by a secondary
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 secondary 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 secondary 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 primary
school constitutes indirect discrimination prohibited by the Sex Discrimination Act
1984.
A primary 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.
The primary 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 primary school has regard to the best interests of its students.
4
The decision-maker takes these factors into account, together with the religious ethos
of the primary school, and determines that the policy is reasonable in the
circumstances.
Example 3 - Advocacy inconsistent with the religious ethos of a secondary school
A decision-maker is asked to consider whether a new policy adopted by a secondary
school constitutes indirect discrimination prohibited by the Sex Discrimination Act
1984.
The secondary school is conducted in accordance with the doctrines, tenets, beliefs or
teachings of a particular religion or creed. The school adopts a policy that students
must not actively advocate against its doctrines, tenets, beliefs or teachings. The
secondary school adopts this requirement in good faith to avoid injury to the religious
susceptibilities of adherents of its religion or creed. In imposing the policy, the
secondary 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 secondary school, and determines that the policy is reasonable in all the
circumstances.
5
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 religious
educational institutions that are primary schools or secondary schools.
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. This nation advocated for the importance of freedom of expression when
Australia was seeking a position on the United Nations Human Rights Council,
and subsequently having been elected to that body, we should be very cognizant
of the importance of recognizing freedom of religion.
6. International human rights law stipulates that strict conditions must be satisfied in
order for the manifestation of the freedom of religion or belief to be limited. In
this context, 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'.
7. 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
9. By requiring that religious educational institutions that are primary schools or
secondary schools 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.
7
Index]
[Search]
[Download]
[Bill]
[Help]