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Human Rights Legislation Amendment Bill 2021

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2019-2020-2021

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2021

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Hon Michaelia Cash)

 

               



 

HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2021

General Outline

Purpose and objective

1.                    The Human Rights Legislation Amendment Bill 2021 amends the Age Discrimination Act 2004 , Charities Act 2013 , Disability Discrimination Act 1992 , Marriage Act 1961 , Racial   Discrimination Act 1975 and the Sex Discrimination Act 1984 in order to better protect the right to freedom of religion within existing Commonwealth legislation. 

2.                    This Bill gives effect to three recommendations of the Report of the Expert Panel on Religious Freedom (Religious Freedom Review) (recommendations 3, 4 and 12).

3.                    A wide range of Commonwealth legislation touches upon issues of freedom of religion, and there is a need to ensure that any such legislation protects, or gives appropriate weight to, the right to freedom of religion. The Religious Freedom Review considered that there were opportunities to strengthen this existing legal framework in three areas of law in which government regulation most commonly interacts with the right to freedom of religion: anti-discrimination law, charities law and marriage law.

4.                    Firstly, the Review noted the importance of ensuring that the right to freedom of religion is given appropriate weight in situations where it is in tension with other public policy considerations, including other human rights.

5.                    Anti-discrimination law represents an area of law in which the rights to equality and non-discrimination frequently intersect with other rights, including the right to freedom of religion. However, the objects clauses in federal anti-discrimination law do not currently reflect the potential tensions between these rights. Accordingly, this Bill amends federal anti-discrimination legislation to ensure that each Act has an objects clause which recognises the indivisibility and universality of all human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights. These provisions recognise that anti-discrimination law should be interpreted in a manner which is consistent with all human rights, so far as is possible.

6.                    Secondly, the freedom to manifest religion or belief is a fundamental aspect of the right to freedom of religion. This includes manifestation through establishing and maintaining places of worship and appropriate charitable institutions. It is imperative that Australian laws do not unduly burden this freedom.

7.                    Accordingly, this Bill makes amendments to the Charities Act and the Marriage Act to clarify the application of aspects of those Acts. These amendments go directly to the ability of individuals and faith-based organisations to manifest their religious beliefs.

8.                    Faith-based charities play a vital role in Australian civil society. The amendments in this Bill recognise that the law must protect the reasonable ability for such faith-based charities to manifest their faith and express their religious beliefs, without threat to their charitable status.

9.                    The solemnisation of marriage has particular significance for people of faith and can be an important way in which faith is manifested. The amendments in this Bill recognise that religious educational institutions should not be compelled to provide goods, services or facilities in support of marriages which are not in accordance with their religious beliefs.

Background

Religious Freedom Review

10.                On 22 November 2017, the then Prime Minister, the Hon Malcolm Turnbull, announced a review into religious freedom in Australia.

11.                The review was conducted by an Expert Panel, chaired by the Hon Philip Ruddock and comprising Emeritus Professor Rosalind Croucher AM, the Hon Dr Annabelle Bennett AC SC, Father Frank Brennan SJ AO and Professor Nicholas Aroney.

12.                The Review was announced in response to proposals for legislative reform to protect freedom of religion during the debate on marriage equality, recognising that any legislative reforms to protect freedom of religion should be undertaken carefully to avoid the risk of unintended consequences. The terms of reference for the Review required the Expert Panel to examine and report on whether Australian law (Commonwealth, state, territory) adequately protects the human right to freedom of religion. In doing so, the Panel was required to consider the intersections between the enjoyment of the right to freedom of religion and other human rights.

13.                The Expert Panel’s final report was provided to the then Prime Minister on 18 May 2018. The report was the result of extensive public consultation, including consideration of over 15,500 submissions and 90 consultation meetings with a wide range of stakeholders in each state and territory.

14.                The Religious Freedom Review made 20 recommendations to enhance the protection of freedom of religion in Australia, both through legislative amendments to Commonwealth, state and territory laws, and through non-legislative measures.

15.                This Bill implements recommendations 3, 4 and 12.

Outline of the Bill

16.                Recommendation 3 of the Religious Freedom Review recommended that Commonwealth, state and territory governments should consider the use of objects, purposes or other interpretative clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.

17.                This recommendation is implemented by Items 1, 2, 4, 5, 7, 8 and 9 of this Bill, which amend existing objects clauses in the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act, and introduce an objects clause into the Racial   Discrimination Act, to provide that, in giving effect to the objects of each Act, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

18.                Recommendation 4 of the Religious Freedom Review recommended that the Commonwealth should amend section 11 of the Charities Act to clarify that advocacy of a view of marriage as the union of a man and a woman would not, of itself, amount to a ‘disqualifying purpose’.

19.                This recommendation is implemented by Item 3 of this Bill which amend the Charities Act to clarify that engaging in, or promoting, activities that support marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, will not, of itself, amount to a disqualifying purpose.

20.                Recommendation 12 of the Religious Freedom Review recommended that the Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal:

·          conforms to the doctrines, tenets or beliefs of the religion of the body, or

·          is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

21.                This recommendation is implemented by Item 6 of this Bill which amends the Marriage Act to extend the existing exemption for bodies established for religious purposes to refuse to provide goods, services and facilities in relation to the solemnisation of a marriage in accordance with their religious beliefs to religious educational institutions.

FINANCIAL IMPACT

22.                This Bill will have nil or an insignificant financial impact on Commonwealth Government departments, agencies and the Commission.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Human Rights Legislation Amendment Bill 2021

1.                 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.                 The Human Rights Legislation Amendment Bill 2021 (the Bill) amends the Age Discrimination Act 2004 , Charities Act 2013 , Disability Discrimination Act 1992 , Marriage   Act 1961 , Racial Discrimination Act 1975 and the Sex   Discrimination Act 1984 to better protect and to ensure the equal status of all human rights in existing Commonwealth laws.

3.                 The Bill implements three of the recommendations of the Report of the Expert Panel into Religious Freedom (the Religious Freedom Review). The Religious Freedom Review expressly considered balancing the right to freedom of religion with other human rights in making its recommendations.

4.                 The Bill contains measures to:

a.        amend the existing objects clauses in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act   to ensure these clauses recognise the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights (Schedule 1, Items 1, 2, 4, 5, 8 and 9)

b.       insert a new objects clause into the Racial Discrimination Act to outline the principles underpinning that Act and to recognise the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights (Schedule   1, Item 7)

c.        amend the Charities Act to codify that otherwise charitable entities that engage in lawful activities promoting a traditional view of marriage are undertaking those activities for the public benefit and not contrary to public policy (Schedule 1, Item 3), and

d.       insert a provision into the Marriage Act   to allow religious educational institutions to refuse to provide facilities, goods or services in relation to the solemnisation of a marriage in accordance with their religious beliefs (Schedule 1, Item 6).

Human rights implications

5.       The Bill primarily engages the rights to:

a.        freedom of religion, and

b.       equality and non-discrimination.

Amendments to the existing objects clauses in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act (Schedule 1, Items 1, 2, 4, 5, 8 and 9)

6.                 The amendments to the objects clauses in existing anti-discrimination legislation require that, in giving effect to the objects of each Act, appropriate regard is to be had to the indivisibility and universality of all human rights, and their equal status in international law, and to the principle that every person is free and equal in dignity and rights. As the amendments are alike in wording and effect, their human rights implications are analysed together.

7.                 The reference to the indivisibility and universality of all human rights, and their equal status in international law in these amendments echoes the well-established international human rights law principle that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. This principle promotes the idea that the improvement of one right facilitates advancement of other rights, and alternatively, the deprivation of one right adversely affects other rights. The Preambles of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) refer to the importance of the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’.

8.                 This principle also reflects the existing duty of the Australian Human Rights Commission to ensure that its functions, under the Australian Human Rights Commission Act 1986 (AHRC Act) or any other Act, are performed with regard to the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

9.                 The effect of these amendments is to ensure that in interpreting these Acts, regard is had to all relevant human rights. This may include, for example, freedom of movement, freedom of expression and freedom of religion. The amendments, by requiring the consideration and balancing of all relevant rights against one another, promote and protect all human rights.

Rights to equality and non-discrimination

10.             Articles 2 and 26 of the ICCPR provide the rights to equality and non-discrimination. This right is also recognised in Article 2(2) of the ICESCR and all other core human rights treaties to which Australia is a party (Articles 1, 2, 4 and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 2 of the Convention on the Rights of the Child (CRC), Articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities (CRPD)).

11.             The rights to equality and non-discrimination provide that all people are equal before the law and entitled to the equal protection of the law, including in benefiting from the rights guaranteed in international human rights law. As a result, laws shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

12.             The list of grounds in Article 26 is not exhaustive and the United Nations Human Rights Committee has suggested that a clearly definable group of people linked by their common status is likely to fall within the definition of ‘other status’. The Committee has expressed the view that ‘other status’ includes age, sexual orientation and marital status, and Australia supports this view.

13.             The existing objects clauses in the three anti-discrimination Acts focus on eliminating discrimination on the grounds of the relevant protected attribute (age, disability, sex, sexual orientation, intersex status, gender identity, pregnancy or potential pregnancy, marital or relationship status, breastfeeding and family responsibilities) and promoting equality before the law.

14.             The amended objects clauses provide that in giving effect to the existing objects of the Acts (which focus on ensuring equality and non-discrimination), regard is to be had to the indivisibility and universality of all human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

Conclusion

15.             The amended objects clauses in the Age Discrimination Act, Disability Discrimination Act, and Sex Discrimination Act promote human rights by ensuring regard is had to the universal and indivisible nature of human rights, their equal status in international law, and the principle that every person is free and equal in dignity and rights when giving effect to the objects of these Acts.

Amendment inserting an objects clause into the Racial Discrimination Act (Schedule 1, Item 7)

16.             Item 7 inserts an objects clause into the Racial Discrimination Act to outline the principles underpinning that Act. The new objects clause is consistent with the amended objects clauses in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act.

17.             The new objects clause lists the objects of the Act as giving effect to certain provisions of the ICERD, eliminating discrimination on the basis of race, eliminating certain behaviour based on racial hatred, and ensuring everyone has the same rights to equality before the law. The objects clause also provides that in giving effect to the objects of the Act (which focus on ensuring equality and non-discrimination), regard is to be had to the indivisibility and universality of all human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

18.             New subsection 2A(2) mandates the consideration of all human rights when giving effect to the objects of the Racial Discrimination Act.

19.             The wording in this new subsection reflects the wording inserted into the objects clauses of the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act by Items 1, 2, 4, 5, 8 and 9. As with those amendments, subsection 2A(2) promotes and protects all rights enshrined in the human rights treaties to which Australia is a party, by ensuring that other rights are also considered.

Rights to equality and non-discrimination

20.             Articles 1, 2, 4 and 5 of the CERD enshrine the rights to equality and freedom from discrimination on the basis of race, colour, descent, or national or ethnic origin. New paragraph 2A(1)(a) explicitly lists as an object of the Racial Discrimination Act the giving effect to certain provisions of CERD. Paragraphs 2A(1)(b) and (c) also list the Act’s objects of eliminating discrimination on the grounds of race, colour, descent, national or ethnic origin or immigrant status in a range of areas of public life, eliminating certain behaviour based on racial hatred (enshrined in CERD Article 4), and promoting equality before the law (enshrined in CERD Article 5).

21.             Articles 2 and 26 of the ICCPR also establish the general rights to equality and non-discrimination. The rights to equality and non-discrimination provide that all people are equal before the law and entitled to the equal protection of the law, including in benefiting from the rights guaranteed in international human rights law. As a result, laws shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or ‘other status’.

22.             New paragraph 2A(1)(b) directly promotes the rights to equality and non-discrimination by explicitly providing that an object of the Act is to eliminate discrimination on the grounds of race, colour, descent, national or ethnic origin or immigrant status in a range of areas of public life.

23.             New subsection 2A(2) provides that in giving effect to the objects in new subsection 2A(1), regard is to be given to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights. This subsection reflects the amendments made by the Bill to the objects clauses of the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act. Similarly, this subsection prevents an exclusive focus on the rights to equality and non-discrimination, without consideration of the other human rights which Australia is obliged to promote and protect. It recognises that there may need to be a balancing of rights when the rights to equality and non-discrimination conflict with one or more other human rights.

Conclusion

24.             The new objects clause in the Racial Discrimination Act promotes the rights to equality and non-discrimination (particularly on the basis of race, colour, descent, national or ethnic origin or immigrant status) by making it clear that promoting these rights is an explicit purpose of the Act.

25.             The amendment also promotes human rights generally by ensuring regard is given to the universal and indivisible nature of human rights, their equal status in international law and the principle that every person is free and equal in dignity and rights when giving effect to the objects of the Act.

Amendments to the Charities Act (Schedule 1, Item 3)

26.             This amendment codifies that otherwise charitable entities that engage in lawful activities promoting a traditional view of marriage are undertaking those activities for the public benefit and not contrary to public policy (Schedule 1, Item 3).

27.             Individuals and organisations should generally be able to present and promote their beliefs honestly and in appropriate forums, even when such beliefs may be contrary to Government policy. This includes religious charities being able to manifest their faith publicly, lawfully, and without threat to their charitable status. This provision is not intended to displace or affect the current operation of the tests contained within the Charities Act. Instead, the amendment applies a presumption that the activities are for the public benefit and not contrary to public policy while avoiding any change to the general tests contained within Charities Act.

Right to freedom of religion

28.             Article 18 of the ICCPR provides the right to freedom of thought, conscience and religion. Article 18 guarantees to every person:

·          the freedom to have or to adopt a religion or belief of his choice; and

·          freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

29.             The use of ‘his’ in the ICCPR refers to all humans, regardless of sex or gender.

30.             Certain religious institutions hold and manifest, through worship, observance, practice and teaching, the belief that marriage is a union between a man and a woman. The Religious Freedom Review found that many faith-based charities were concerned about whether there was a risk that advocating for a ‘traditional view of marriage’ could result in the loss of charitable status. By codifying that otherwise charitable entities that advance, express or support a traditional view of marriage are undertaking those activities for the public benefit and not contrary to public policy under the Charities Act, the amendment protects the right to freedom of religion by ensuring that individuals and religious institutions are free to manifest their religious beliefs in worship, observance, practice and teaching.

31.             The amendment directly promotes and protects the right to freedom of religion, by ensuring that religious educational institutions are able to manifest their religious beliefs regarding traditional marriage through lawful worship, observance, practice and teaching.

Amendment to the Marriage Act (Schedule 1, Item 6)

32.             Item 6 inserts new section 47C into the Marriage Act to allow religious educational institutions to refuse to provide facilities, goods or services in relation to the solemnisation of a marriage in accordance with their religious beliefs. Such a refusal must conform to the doctrines, tenets or beliefs of the institution, or be necessary to avoid injury to the religious susceptibilities of adherents of that religion. The exemption applies to facilities, goods or services provided on both a commercial and non-commercial basis (subsection 47C(2)).

33.             This provision ensures that religious educational institutions are able to maintain their own religious practices and observances in relation to marriage.

Right to freedom of religion

34.             Article 18 of the ICCPR provides the right to freedom of thought, conscience and religion.

35.             The importance of the right to freedom of religion is currently recognised in section 47B of the Marriage Act, which allows a body established for religious purposes to refuse to provide facilities, goods or services in relation to the solemnisation of a marriage consistent with their religious beliefs. This section provides an exemption for religious bodies from the operation of the prohibitions of discrimination in federal anti-discrimination law.

36.             The Religious Freedom Review noted possible ambiguity around whether the existing protection in section 47B of the Marriage Act applied to religious educational institutions. Many religious educational institutions maintain their own places of worship, such as chapels or synagogues, or other buildings, which they may choose to make available for use by the public for religious ceremonies, weddings or other celebrations.

37.             This provision therefore promotes the right to freedom of religion by allowing religious educational institutions to refuse to provide facilities, goods and services for the solemnisation of a marriage which conflicts with the doctrines, tenets, beliefs or teachings of that religion.

Rights to equality and non-discrimination

38.             Articles 2 and 26 of the ICCPR provide the rights to equality and non-discrimination. These rights are also recognised in Article 2(2) of the ICESCR, and all other core human rights treaties to which Australia is a party.

39.             Proposed section 47C limits the rights to equality and non-discrimination as it makes it lawful for religious educational institutions to refuse to provide facilities, goods or services to some persons for the solemnisation of their marriage, or for reasonably incidental purposes (subsection 47C(5)). Such differential treatment could be made on the basis of certain characteristics of the individuals within that couple.

Legitimate differential treatment

40.              Discrimination is impermissible differential treatment between persons or groups resulting in a person or a group being treated less favourably than others, based on one of the prohibited grounds of discrimination. However, the international human rights law principle of ‘legitimate differential treatment’ enables particular groups of people to be treated differently in certain circumstances. This differential treatment must be prescribed by law, aimed at achieving a legitimate objective, be rationally connected to its objective, and be proportionate to the objective to be achieved.

41.             The limitation on the rights to equality and non-discrimination is prescribed in legislation . Proposed section 47C clearly authorises educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings or a particular religion to refuse to provide goods, services and facilities in relation to the solemnisation of marriage in accordance with their religious beliefs (subsection 47C(1)).

42.             The limitation is sufficiently precise, clearly stipulating the type of educational institutions it applies to, as well as the scope of facilities, goods or services to which it relates. Subsection 47C(1) specifically applies solely to facilities, goods or services provided for the solemnisation of marriage or for ‘purposes reasonably incidental to the solemnisation’, with purposes reasonably incidental to the solemnisation given meaning by subsection 47C(5). In addition, new subsection 47C(4) clarifies that, for the avoidance of doubt, a reference to an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion in this section has the same meaning as in section 38 the Sex Discrimination Act. As such, the educational institutions covered for the purposes of this section include schools, colleges, universities and other institutions in which education or training is provided and which are conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. Accordingly, an individual could objectively ascertain the circumstances in which an institution would be covered by section 47C.

43.             In order to promote the right to freedom of religion, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 provided an exemption to bodies established for religious purposes, allowing them to refuse to provide goods, services or facilities in relation to the solemnisation of marriage where that refusal conforms to the doctrines, tenets or beliefs of the religion, or is necessary to avoid injury to the religious susceptibilities of adherents to that religion.

44.             The Religious Freedom Review also identified concerns that were relevant to religious educational institutions. This amendment replicates the existing exemption in section 47B for religious educational institutions. In this way, it is rationally connected to the legitimate aim of protecting freedom to manifest one’s religious beliefs, by ensuring that religious educational institutions are able to maintain their own religious practices and observances in relation to marriage.

45.             The limitation is also proportionate to achieving its legitimate objective of protecting freedom of religion. It is necessary to protect the right to freedom of religion as without this provision, federal anti-discrimination law may require religious educational institutions to provide facilities, goods or services for the solemnisation of marriages which conflict with the beliefs and values for which the institution was established. This could be seen as requiring the implicit endorsement of conduct that does not conform to the institution’s religious belief, thereby interfering with the ability for individuals to manifest their religion.

46.             The amendment is reasonable as it provides only a narrow scope of activities to which this exemption applies. Under proposed section 47C(1), religious educational institutions may only refuse to provide goods, services or facilities in relation to the solemnisation of marriage if the refusal conforms to the doctrines, tenets, beliefs or teachings of that institution, or if the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion. In addition, religious educational institutions are only authorised to refuse to provide goods, services or facilities for the solemnisation of marriage, or for ‘purposes reasonably incidental to the solemnisation’. New subsection 47C(5) provides that for the purposes of subsection 47C(1), a purpose is reasonably incidental to the solemnisation of marriage if is intrinsic to, or directly associated with, the solemnisation of marriage.

47.             This provision requires a close nexus between the facilities, goods or services and the solemnisation of marriage. This ensures that people are not unfairly discriminated against where there is only a distant or tenuous connection between the facilities, goods or services, and the solemnisation of marriage.

Conclusion

48.             The amendment directly promotes and protects the right to freedom of religion, by ensuring that religious educational institutions are able to maintain their own religious practices, teachings and observances in relation to marriage.

Conclusion

49.             The Bill is compatible with human rights because it advances the protection of human rights, particularly the rights to equality and non-discrimination, and the right to freedom of thought, conscience and religion or belief. It also promotes respect for human rights more generally, by requiring that regard is had to the universality and indivisibility of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights when giving effect to the objects of Commonwealth anti-discrimination legislation. To the extent that the Bill may also limit the rights to equality and non-discrimination, those limitations are reasonable, necessary and proportionate.

 



NOTES ON CLAUSES

List of abbreviations

Age Discrimination Act

Age Discrimination Act 2004

AHRC Act

Australian Human Rights Commission Act 1986

Commission

Australian Human Rights Commission

Charities Act

Charities Act 2013

Disability Discrimination Act

Disability Discrimination Act 1992

Marriage Act

Marriage Act 1961

Racial Discrimination Act

Racial Discrimination Act 1975

Religious Discrimination Bill

Religious Discrimination Bill 2021

Religious Freedom Review

Report of the Expert Panel into Religious Freedom

Sex Discrimination Act

Sex Discrimination Act 1984

 



 

Preliminary

Clause 1          Short title

23.                This clause provides for the short title of the Act to be the Human Rights Legislation Amendment Act 2021 .

Clause 2          Commencement

24.                This clause provides for the commencement of each provision in the Bill, as set out in the table at subclause 2(1).

25.                Item 1 in the table provides that the whole of this Act will commence on the day on which the Act receives the Royal Assent.

26.                Subclause 2(2) specifies that information in column 3 of the table at subclause 2(1) is not a part of the Act, and information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3          Schedules

27.                This clause enables legislation that is specified in a Schedule to this Act to be amended or repealed as set out in the applicable items in the Schedule concerned, and specifies that any other item in a Schedule to this Act has effect according to its terms.

 



Schedule 1 - Amendments

Age Discrimination Act 2004

Item 1             Section 3

28.                Item 1 converts existing section 3 of the Age Discrimination Act into new subsection 3(1). This reflects the insertion of new subsection 3(2) by Item 2.

Item 2                         At the end of section 3

29.                Item 2 inserts a new subsection into section 3 of the Age Discrimination Act which provides that, in giving effect to the objects of that Act, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

30.                This item implements recommendation 3 of the Religious Freedom Review.

31.                The Religious Freedom Review found that the objects clauses of anti-discrimination legislation referred to objects related to the promotion of the right to equality or equality of opportunity, but made no express reference to other human rights, such as the right to freedom of religion.

32.                The existing objects clause in section 3 of the Age Discrimination Act provides that the objects of that Act are to:

·          eliminate discrimination on the ground of age in a range of areas of public life

·          ensure that everyone has the same rights to equality before the law, regardless of age

·          allow appropriate benefits and other assistance to be given to people of a particular age

·          promote recognition and acceptance of the principle that people of all ages have the same fundamental rights, and

·          respond to demographic change by removing barriers to participation and changing negative stereotypes.

33.                New subsection 3(2) into the Act ensures that in giving effect to these objects, which focus on the rights to equality and non-discrimination, appropriate regard must be had to all human rights. This may include, where relevant, the right to freedom of religion.

34.                The principles listed in new paragraphs 3(2)(a) and (b) broadly reflect the existing duty of the Commission to ensure that its functions, under the AHRC Act or any other Act, are performed with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

35.                The principles listed in paragraph 3(2)(a) reflect the well-established and foundational principle of international human rights law that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. These principles clarify the relationship between human rights and recognise that all rights are interconnected and interdependent, and that there is no hierarchy of rights at international law.

36.                To ensure consistency across anti-discrimination law, Items 5 and 9 insert the same subsection into the existing objects clauses of the Disability Discrimination Act and the Sex Discrimination Act respectively. Item 7 inserts a new objects clause into the Racial Discrimination Act, which includes this subsection. 

Charities Act 2013

Item 3                         Section 19

37.                Item 3 inserts new section 19 into the Charities Act to ensure that without further Parliamentary amendment that, in determining whether an entity is a charity, if that entity engages in or promotes activities advancing, expressing or supporting a view of marriage as a union of a man and a woman, or encourages others to engage in or promote activities that advance, express or support such a view, their engagement in or promotion of such activities is for the public benefit and not contrary to public policy.

38.                This item implements recommendation 4 of the Religious Freedom Review.  

39.                A fundamental aspect of the right to freedom of religion is the freedom to manifest one’s religion, including through establishing and maintaining appropriate charitable institutions. Faith-based charitable institutions continue to make a significant contribution to all aspects of Australian civic life. This amendment reflects the existing legal position that such charities will not be disadvantaged for, in and of itself, advocating for a view of marriage as being the union between a man and a woman.  This amendment ensure this existing position will not change without further Parliamentary enactment.

40.                The definition of ‘charity’ in section 5 of the Charities Act requires that none of the purposes of the entity are ‘disqualifying purposes’. Section 11 provides that a disqualifying purpose means the purpose of engaging in, or promoting, activities that are unlawful or contrary to public policy or the purpose of promoting or opposing a political party or a candidate for political office.

41.                The Religious Freedom Review noted possible ambiguity around whether, following the debate on marriage equality, advocacy of a ‘traditional view of marriage’ (referring to marriage as defined by the Marriage Act 1961 prior to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 ) could constitute a disqualifying purpose.

42.                Individuals and organisations should generally be able to present and promote their beliefs honestly and in appropriate forums, even when such beliefs may be contrary to Government policy. This includes religious charities being able to manifest their faith publicly, lawfully, and without threat to their charitable status. This provision is not intended to displace, alter or affect the current operation of the tests contained within the Charities Act. Instead, the amendment applies a presumption that the activities are for the public benefit and not contrary to public policy while avoiding any change to the general tests contained within Charities Act.

43.                Nothing in this amendment renders the purpose of engaging in or promoting activities that support a view of marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, a new, standalone charitable purpose for the purposes of section 12 of the Charities Act. The amendments simply seek to avoid any doubt that such activities, done so lawfully, is not a disqualifying purpose. 

44.                This amendment has arisen in a particular context, as outlined above in relation to the Religious Freedom Review, and is not intended to do anything other than codify the policy position under the Charities Act for the avoidance of doubt. It does not purport to alter the current operation of the Charities Act in relation to other forms of advocacy.

Disability Discrimination Act 1992

Item 4             Section 3

45.                Item 4 converts existing section 3 of the Disability Discrimination Act into new subsection 3(1). This reflects the insertion of new subsection 3(2) by Item 5.

Item 5                         At the end of section 3

46.                Item 5 inserts a new subsection into section 3 of the Disability Discrimination Act which provides that, in giving effect to the objects of that Act, regard is to be had to the indivisibility and universality of human rights and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

47.                This item implements recommendation 3 of the Religious Freedom Review.

48.                The Religious Freedom Review found that the objects clauses of anti-discrimination legislation referred to objects related to the promotion of the right to equality or equality of opportunity, but made no express reference to other human rights, such as the right to freedom of religion.

49.                The existing objects clause in section 3 of the Disability Discrimination Act provides that the objects of that Act are to:

·          eliminate discrimination on the ground of disability in a range of areas of public life

·          ensure that people with disability have the same rights to equality before the law as the rest of the community, and

·          promote recognition and acceptance of the principle that people with disability have the same fundamental rights as the rest of the community.

50.                New subsection 3(2) ensures that in giving effect to these objects, which focus on the rights to equality and non-discrimination, appropriate regard must be had to all human rights. This may include, where relevant, the right to freedom of religion.

51.                The principles listed in new paragraphs 3(2)(a) and (b) broadly reflect the existing duty of the Commission to ensure that its functions, under the AHRC Act or any other Act, are performed with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

52.                The principles listed in paragraph 3(2)(a) reflect the well-established and foundational principle of international human rights law that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. These principles clarify the relationship between human rights and recognise that all rights are interconnected and interdependent, and that there is no hierarchy of rights at international law.

53.                To ensure consistency across anti-discrimination law, Items 2 and 9 insert the same subsection into the existing objects clauses of the Age Discrimination Act and the Sex Discrimination Act respectively. Item 7 inserts a new objects clause into the Racial Discrimination Act, which includes this subsection. 

Marriage Act 1961

Item 6             After section 47B

54.                Item 6 inserts new section 47C into the Marriage Act to allow religious educational institutions to refuse to provide facilities, goods or services in relation to the solemnisation of a marriage in accordance with their religious beliefs. 

55.                This item implements recommendation 12 of the Religious Freedom Review.

56.                The Religious Freedom Review noted possible ambiguity around whether the existing protection in section 47B of the Marriage Act, which allows a body established for religious purposes to refuse to provide facilities, goods or services in relation to the solemnisation of a marriage consistent with their religious beliefs, applied to religious educational institutions. The Review concluded that religious educational institutions should be afforded the same protections as bodies established for religious purposes in relation to the solemnisation of marriages and should therefore not be required to provide facilities, goods or services for marriages to which they objected on religious grounds.

57.                Accordingly, new section 47C replicates existing section 47B of the Marriage Act for educational institutions conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion.

58.                New subsection 47C(1) provides that a religious educational institution may refuse to provide goods or services, or make a facility available, for the purposes of the solemnisation of a marriage if the refusal:

·          conforms to the doctrines, tenets or beliefs of the religion of the educational institution (paragraph 47C(1)(a)); or

·          is necessary to avoid injury to the religious susceptibilities of adherents of that religion (paragraph 47C(1)(b)).

59.                New subsection 47C(2) clarifies that this exemption applies to facilities, goods or services provided on both a commercial and non-commercial basis. Therefore it is not relevant whether the institution requires payment to access such facilities, goods or services.

60.                New subsection 47C(3) clarifies that this section does not limit the lawful grounds for a religious educational institution to refuse to provide goods, services or facilities in relation to the solemnisation of a marriage. For example, a religious educational institution may still refuse to provide goods, services or facilities due to a lack of availability or double bookings.

61.                New subsection 47C(4) clarifies that, for the avoidance of doubt, a reference to an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion in this section has the same meaning as in section 38 of the Sex Discrimination Act. As such, a religious educational institution for the purposes of this section includes schools, colleges, universities and other institutions in which education or training is provided. This subsection ensures that there is consistency between the exemptions in the Marriage Act and the Sex Discrimination Act as it provides that only those religious educational institutions which may currently rely upon the exemptions in section 38 of the Sex Discrimination Act may rely upon this exemption.

62.                New subsection 47C(1) provides that this exemption applies to the provision of facilities, goods or services for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage. New subsection 47C(5) provides that, for the purposes of subsection 47C(1), a purpose is reasonably incidental to the solemnisation of marriage if is intrinsic to, or directly associated with, the solemnisation of marriage.

63.                This provision requires a close nexus between the facilities, goods or services and the solemnisation of marriage. This ensures that people are not unfairly discriminated against where there is only a distant or tenuous connection between the facilities, goods or services and the solemnisation of marriage.

Racial Discrimination Act 1975

Item 7             After section 2

64.                Item 7 inserts new section 2A into the Racial Discrimination Act which provides for the objects of that Act.

65.                This item implements recommendation 3 of the Religious Freedom Review.

66.                The Racial Discrimination Act is the only federal anti-discrimination law that does not contain an objects clause. This item will insert an objects clause which is a clear statement of the principles underpinning the Racial Discrimination Act and reflects the existing objects clauses in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act. The insertion of new section 2A will ensure consistency across federal anti-discrimination legislation.

67.                New subsection 2A(1) provides the objects of the Racial Discrimination Act. The objects in this subsection are based on the objects in the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act, appropriately adapted to the Racial Discrimination Act.

68.                New paragraph 2A(1)(a) recognises that the Racial Discrimination Act directly implements certain provisions of the International Convention on the Elimination of All Forms of Racial Discrimination .

69.                New paragraph 2A(1)(b) provides that an object of the Racial Discrimination Act is to eliminate, as far as possible, discrimination on the grounds of race, colour, descent, national or ethnic origin or immigrant status in the areas of public life set out in Part II of the Racial Discrimination Act. The existing objects clauses in the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act each contain a similar provision.

70.                New paragraph 2A(1)(b) provides that an object of the Racial Discrimination Act is to eliminate, as far as possible, certain behaviour based on racial hatred. This paragraph reflects the prohibition of offensive behaviour based on racial hatred in Part IIB of the Racial Discrimination Act.

71.                New paragraph 2A(1)(d) provides that an object of the Racial Discrimination Act is to ensure that everyone has the same rights to equality before the law, regardless of their race, colour or national or ethnic origin. This paragraph reflects the core human right that all people have the same right to equality before the law, which is reflected in section 10 of the Racial Discrimination Act, and is consistent with existing anti-discrimination objects clauses.

72.                As section 15AA of the Acts Interpretation Act 1901 provides that statutes should be interpreted in accordance with their objects, all the other provisions of the Racial Discrimination Act are to be read as being designed to carry out these objects as far as is possible.

73.                New subsection 2A(2) provides that, in giving effect to the objects in new subsection 2A(1), regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

74.                New subsection 2A(2) ensures that in giving effect to these objects, which focus on the rights to equality and non-discrimination, appropriate regard must be had to all human rights. This may include, where relevant, the right to freedom of religion.

75.                The principles listed in new paragraphs 2A(2)(a) and (b) broadly reflect the existing duty of the Commission to ensure that its functions, under the AHRC Act or any other Act, are performed with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

76.                The principles listed in paragraph 2A(2)(a) reflect the well-established and foundational principle of international human rights law that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. These principles clarify the relationship between human rights and recognise that all rights are interconnected and interdependent, and that there is no hierarchy of rights at international law.

77.                To ensure consistency across anti-discrimination law, Items 2, 5 and 9 insert the same subsection into the existing objects clauses of the Age Discrimination Act, Disability Discrimination Act and the Sex Discrimination Act respectively.

Sex Discrimination Act 1984

Item 8             Section 3

78.                Item 8 converts existing section 3 into new subsection 3(1). This reflects the insertion of new subsection 3(2) by Item 9.

Item 9 At the end of section 3

79.                Item 9 inserts a new subsection into section 3 of the Sex Discrimination Act, which provides that, in giving effect to the objects of that Act, regard is to be had to the indivisibility and universality of human rights, and their equal status in international law, and the principle that every person is free and equal in dignity and rights.

80.                This item implements recommendation 3 of the Religious Freedom Review.

81.                The Religious Freedom Review found that the objects clauses of anti-discrimination legislation referred to objects related to the promotion of the right to equality or equality of opportunity, but made no express reference to other human rights, such as the right to freedom of religion.

82.                The existing objects clause in section 3 of the Sex Discrimination Act provides that the objects of that Act are to:

·          give effect to certain international instruments

·          eliminate discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in a range of areas of public life

·          eliminate discrimination on the ground of family responsibilities in work

·          eliminate discrimination involving sexual harassment in a range of areas of public life, and

·          promote recognition and acceptance of the principle of the equality of men and women.  

83.                New subsection 3(2) ensures that in giving effect to these objects, which focus on the rights to equality and non-discrimination, appropriate regard must be had to all human rights. This may include, where relevant, the right to freedom of religion.

84.                The principles listed in new paragraphs 3(2)(a) and (b) reflect the existing duty of the Commission to ensure that its functions, under the AHRC Act or any other Act, are performed with regard for the indivisibility and universality of human rights and the principle that every person is free and equal in dignity and rights (paragraph 10A(1)(a) of the AHRC Act).

85.                The principles listed in paragraph 3(2)(a) reflect the well-established and foundational principle of international human rights law that all rights must be treated with equal importance, and no right should be prioritised at the expense of any other. These principles clarify the relationship between human rights and recognise that all rights are interconnected and interdependent, and that there is no hierarchy of rights at international law.

86.                To ensure consistency across anti-discrimination law, Items 2 and 5 insert the same subsection into the existing objects clauses of the Age Discrimination Act and the Disability Discrimination Act respectively. Item 7 inserts a new objects clause into the Racial Discrimination Act, which includes this subsection.