Discrimination Free Schools Bill 2018 [2020] AUPJCHR 16 (5 February 2020)

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Purpose	This bill seeks to amend the Sex Discrimination Act 1984 and the Fair Work Act 2009 to remove exemptions from the prohibition on certain grounds of discrimination
Legislation Proponent	Senator Di Natale
Introduced	Senate, 16 October 2018, restored to the Notice Paper 4 July 2019
Rights	Equality and non-discrimination; freedom of religion
Status	Advice only

Removal of anti-discrimination exemptions for religious schools

Employment

1.219 Sections 14 and 16 of the Sex Discrimination Act make it unlawful for an employer (or principal) to discriminate against a person on the basis of 'sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities', in relation to a range of actions, including the offer or termination of employment or contract work.

1.220 These sections are currently subject to a number of exemptions. Paragraph 37(1)(d) of the Sex Discrimination Act provides an exemption for 'a body established for religious purposes' to discriminate against a person if the discriminatory act or practice 'conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.' Subsections 38(1) and 38(2) further provide a specific exemption for staff members (or contractors) of religious educational institutions to discriminate against another person in connection with their employment or work if they do so 'in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'.

1.221 The bill seeks to remove the exemptions contained in paragraph 37(1)(d) and section 38 of the Sex Discrimination Act that apply to educational institutions, with the result that such conduct would be subject to the broad prohibition on discrimination set out in sections 14 and 16.

1.222 The Fair Work Act also contains a number of provisions prohibiting discrimination in relation to a 'modern award';^[2] an 'enterprise agreement';^[3] 'adverse action';^[4] or 'termination'^[5] on the basis of an 'employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.'^[6] However, exemptions are provided for religious institutions if the conduct 'is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed in good faith; and to avoid injury to the religious susceptibilities of adherents of that religion or creed.'^[7]

1.223 The bill also seeks to amend the Fair Work Act, in order to insert a broad definition of educational institutions,^[8] and to exclude such institutions from these exemptions.

Education or training

1.224 Section 21 of the Sex Discrimination Act makes it unlawful for an educational authority to discriminate against a person on the basis of 'sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities', in relation to their admission, expulsion or other treatment as a student. Section 21 is currently subject to a number of exemptions provided under subsections 37(1) and 38(3) of the Sex Discrimination Act.

1.225 Paragraph 37(1)(d) provides a broad exemption for religious bodies to discriminate against a person if the discriminatory act or practice 'conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion', while paragraphs 37(1)(a)-(b) provide specific exemptions for the ordination, appointment, training, and education of religious leaders.^[9] Subsection 38(3) further provides a specific exemption for discrimination on the grounds of 'sexual orientation, gender identity, marital or relationship status or pregnancy':

1.226 The bill seeks to remove the exemptions contained in paragraph 37(1)(d) and section 38 of the Sex Discrimination Act with the result that such conduct would be subject to the broad prohibition on discrimination as set out in section 21. The specific exemptions in paragraphs 37(1)(a)-(c) would remain.

International human rights legal advice

Removing exemptions for religious schools in connection with employment

Freedom of religion, right to equality and non-discrimination

1.227 By seeking to limit existing exemptions from discrimination laws for religious educational institutions in relation to the employment of persons, or the offer or termination of contract work, this bill engages and appears to promote the right to equality and non-discrimination (as is noted in the statement of compatibility),^[10] and to promote non-discrimination in relation to the right to work.^[11] The bill may also engage and potentially limit the right to freedom of religion.

1.228 Article 18 of the International Covenant on Civil and Political Rights (ICCPR) protects the rights of all persons to think freely, and to entertain ideas and hold positions based on conscientious or religious or other beliefs.^[12] The right to freedom of religion not only requires that the state should not, through legislative or other measures, impair a person's freedom of religion, but that the state should also take steps to prevent others from coercing persons into having, or changing, religion.

1.229 The right to freedom of religion includes the right to demonstrate or manifest religious or other beliefs, by way of worship, observance, practice and teaching.^[13] The practice and teaching of religion or belief includes 'acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools'.^[14] However, while the right to hold a religious or other belief or opinion is an absolute right,^[15] the right to exercise one's belief can be limited given its potential impact on others. Article 18(3) of the ICCPR permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Such measures must also be rationally connected (that is, effective to achieve) and proportionate to one or more of these listed legitimate objectives.^[16] Such restrictions may not be imposed for a discriminatory purpose or applied in a discriminatory manner.^[17]

1.230 The exemptions provided under the Fair Work Act currently protect religious institutions from unlawful discrimination claims on a number of grounds, including religious belief. By removing these exemptions entirely, in so far as they apply to educational institutions, this bill would not allow discrimination by religious educational institutions in relation to the hiring of teachers or others on the grounds of religious belief.

1.231 By prohibiting discrimination by religious educational institutions on grounds that include religious belief, including institutions established to educate religious leaders (such as seminaries training priests), these measures may engage and limit the right to freedom of religion.

1.232 The statement of compatibility does not acknowledge that the bill engages the right to freedom of religion, but it does state that the bill promotes the right to equality and non-discrimination. As noted at paragraph [1.9] above, the protection of the fundamental rights and freedoms of others is considered to be a legitimate objective under article 18(3) of the ICCPR. This bill, in expanding the operation of discrimination laws, does appear to engage and promote the right to equality and non-discrimination. As such, it is necessary to consider the balance between this right and the right to freedom of religion.

1.233 The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law. Discrimination under articles 2 and 26 of the ICCPR encompasses a distinction based on a personal attribute (such as sex, marital status, or sexual orientation)^[18] which has either the purpose ('direct' discrimination), or the effect ('indirect' discrimination), of adversely affecting human rights.^[19]

1.234 In removing the legislative exemptions that currently prevent people from taking unlawful discrimination complaints against persons who discriminate against them in the context of their employment by, or contract work for, religious educational institutions, this bill appears to promote the right to equality and

non-discrimination. As such, the measures do appear to be rationally connected to the achievement of the legitimate objective of promoting human rights.

1.235 However, it is less clear that the measure is proportionate to the achievement of this objective, in that there may be less rights restrictive means available to achieve this objective. The definition of 'educational institution' that this bill proposes to insert into section 12 of the Fair Work Act is so broad as to potentially include places of education for religious leaders or members of a religious order, as it applies to any 'school, college, university or other institution at which education or training is provided'.^[20] This may make the measures inconsistent with the specific exemption provided under paragraph 37(1)(b) of the Sex Discrimination Act (and which this bill does not seek to amend) for the 'training or education of persons seeking ordination or appointment as priests, ministers of religion or members of a religious order' (religious leaders). It may be that a more appropriate balance between the right to freedom of religion and the right to equality and

non-discrimination could be achieved by providing a higher level of protection to freedom of religion in relation to the training or education of religious leaders. As such, it may be appropriate that the proposed definition of 'educational institution' in the Fair Work Act be narrowed to ensure that institutions, when providing training or education of religious leaders, remain exempt from the anti-discrimination requirements of the Fair Work Act.

Removing exemptions for religious schools in connection with education or training

Rights to equality and non-discrimination, and freedom of religion

1.236 As acknowledged in the statement of compatibility, this bill, in expanding the operation of discrimination laws, does appear to engage and promote the right to equality and non-discrimination, and to promote non-discrimination in relation to the right to education.^[21] The right to equality and non-discrimination is set out in paragraph [1.13] above.

1.237 By removing the legislative exemptions that currently prevent students from taking unlawful discrimination complaints against persons who discriminate against them on the grounds of sexual orientation, gender identity, marital or relationship status or pregnancy in the context of the provision of education by religious educational institutions, this bill may engage the right to freedom of religion. It is not clear, however, whether this would constitute a limitation on that right.

1.238 The right to freedom of religion is set out in paragraphs [1.8] and [1.9] above, and protects the rights of all persons to manifest their religion or belief through a range of activities.^[22] While this might allow religious schools to discriminate so as to accept only students who practise the same religion, it is unclear that this extends to the practice of discriminating against students on the grounds of inherent characteristics such as sexual orientation, gender identity, marital or relationship status or pregnancy. Furthermore, the freedom to have or to adopt a religion or belief protected under article 18(2) of the ICCPR applies equally to holders of all beliefs of a non-religious nature, and bars any coercion that might compel non-believers to adhere to religious beliefs.^[23] This includes policies or practices that restrict access to education or employment.^[24]

1.239 Nonetheless, if the measure were to be construed as a limit, it would need to conform to article 18(3) of the ICCPR, which permits restrictions on the freedom to manifest religion or belief only if the limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. Such measures must also be rationally connected (that is, effective to achieve) and proportionate to one or more of these listed legitimate objectives.

1.240 The statement of compatibility explains that the objective of these measures is to promote the right to equality and non-discrimination.^[25] As such, by protecting the fundamental rights and freedoms of others, these measures would appear to promote a legitimate objective for the purposes of international law and be rationally connected to that objective.

1.241 In terms of proportionality, it is relevant that, unlike the measures that apply to the Fair Work Act (discussed above at paragraphs [1.5] to [1.18]), these measures do not affect the capacity of educational institutions to discriminate on the basis of religion (for example, a catholic school could continue to require that new students subscribed to the tenets of the catholic faith). Nor do they affect the current exemptions in paragraphs 37(1)(a) and 37(1)(b) of the Sex Discrimination Act which allow religious educational institutions to discriminate in relation to the ordination, appointment, training, and education of religious leaders. As such, if they were to be construed as a limitation on the right to freedom of religion, these measures would appear to be a proportionate limitation on that right, given these safeguards.

Committee view

Employment

1.242 The committee notes that the bill seeks to remove the current exemptions from the discrimination provisions in the Sex Discrimination Act 1984 and the Fair Work Act 2009 which allow religious schools to discriminate in an employment context. The committee notes that the legal advice suggests that this measure may engage and promote the rights to equality and non-discrimination, but may engage and limit the right to freedom of religion. The committee considers that in determining the proportionality of the measures, it is necessary to consider the balance between these rights.

1.243 The committee notes, that as currently drafted, this bill would appear to prohibit religious educational institutions from engaging in discriminatory employment practices, even where those institutions are training or educating persons seeking ordination or appointment as priests, ministers of religion or members of a religious order (religious leaders), and even where the discrimination was on the grounds of religious belief. This is of considerable concern. In this respect, the committee considers that these measures are not a proportionate limitation on the right to freedom of religion.

1.244 The committee considers it may be appropriate to amend the proposed definition of 'educational institution'^[26] to ensure that institutions that train or educate religious leaders are able to discriminate on the grounds of religious belief in relation to the employment of teachers.

Education or training

1.245 The committee notes that the bill seeks to remove the current exemptions from the discrimination provisions in the Sex Discrimination Act 1984 which allow religious schools to discriminate in an educational context. The committee notes the legal advice that this measure engages and promotes the rights to equality and non-discrimination.

1.246 The committee also notes the legal advice that this measure may engage the right to freedom of religion, and that if the measure were construed to be a limitation on the right to freedom of religion, this would be a permissible limitation in so far as it promotes the rights to equality and non-discrimination, noting the safeguards that would remain in the Sex Discrimination Act.

1.247 As such the committee makes no further comment in relation to this matter.

[9] Section 37(1)(c) of the Sex Discrimination Act 1984 also provides an exemption for 'the selection or appointment of persons to perform duties or functions for the purposes of or in connection with, or otherwise to participate in, any religious observance or practice'.

[11] The rights to work, and to just and favourable conditions of work are protected by articles 6(1), 7 and 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Articles 2(1) and 2(2) of the ICESCR protect the non-discriminatory application of these rights. See UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005). By providing access to a remedy for any breach of the right to equality and non-discrimination, the bill also appears to engage and promote the right to an effective remedy (International Covenant on Civil and Political Rights (ICCPR), article 2(3)).

[12] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [1].

[13] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [4].

[14] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion [4].

[15] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [1].

[16] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [8]. See also, Leyla Sahin v Turkey, European Court of Human Rights (Grand Chamber) Application No. 44774/98 (2005); Al-Adsani v United Kingdom, European Court of Human Rights (Grand Chamber) Application No. 35763/97 (2001) [53] - [55]; Manoussakis and Others v Greece, European Court of Human Rights, Application No. 18748/91 (1996) [36] - [53]. See also the reasoning applied by the High Court of Australia with respect to the proportionality test in Lange v Australian Broadcasting Corporation [1997] HCA 25.

[17] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [8].

[18] The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[21] Statement of compatibility, p. 3. The right to education is protected by article 13 of the ICESCR. Articles 2(1) and 2(2) of the ICESCR protect the non-discriminatory application of these rights. The bill also appears to engage and promote the right of the child, including the right of the child to have his or her best interests taken as a primary consideration (Convention on the Rights of the Child (CRC), article 3(1)); UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013)). By providing access to a remedy for any breach of the right to equality and non-discrimination, the bill also appears to engage and promote the right to an effective remedy (ICCPR, article 2(3)).

[22] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [4].

[23] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [5].

[24] UN Human Rights Committee, General Comment No 22: Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion (1993) [5].

[25] Discrimination under articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) encompasses a distinction based on a personal attribute (such as on the basis of sex, marital status, or sexual orientation) which has either the purpose ('direct' discrimination), or the effect ('indirect' discrimination), of adversely affecting human rights.

Australian Parliamentary Joint Committee on Human Rights

Discrimination Free Schools Bill 2018 [2020] AUPJCHR 16 (5 February 2020)

Discrimination Free Schools Bill 2018[1]

Removal of anti-discrimination exemptions for religious schools

Employment

Education or training

International human rights legal advice

Removing exemptions for religious schools in connection with employment

Freedom of religion, right to equality and non-discrimination

Removing exemptions for religious schools in connection with education or training

Rights to equality and non-discrimination, and freedom of religion

Committee view

Employment

Education or training

Discrimination Free Schools Bill 2018^[1]