2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

DISCRIMINATION FREE SCHOOLS BILL 2018

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

                                                                                                     

 

 

 

 

(Circulated by authority of Senator Richard Di Natale)

 

 

 

 

 

 

 

 

 

DISCRIMINATION FREE SCHOOLS BILL 2018

 

 

OUTLINE

 

This Bill amends the Sex Discrimination Act 1984 (the Act), removing the current exemption for religious schools to discriminate against students and teachers on the basis of sexual orientation or gender identification.

 

Currently, the objects of the Act include to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation , gender identity , intersex status , marital or relationship status , pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation , education, the provision of goods, facilities and services , the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs.

 

There are a number of exemptions found within this Act, one of which exempts religious educational institutions from discriminating based on the above mentioned qualities, when such qualities are at odds with doctrines, tenets and beliefs of a particular religion or the religious susceptibilities of that religion’s adherents. 

 

This Bill removes the exemption provided to religious educational institutions to discriminate based on sexual orientation, gender identification, marital status or pregnancy; applying to both the employment of persons who provide education and the students of such institutions.

 

The Bill also amends the Fair Work Act 2009 to ensure that religious exemptions from anti-discrimination provisions do not extend to educational institutions.

 

 

NOTES ON CLAUSES

Clause 1: Short Title

1.       This clause provides for the bill, when enacted, to be cited as the Discrimination Free Schools Act 2018.

Clause 2: Commencement

2.       This clause provides that the main provisions of the bill commence on the day after the Act receives the Royal Assent.

Clause 3: Schedule

3.       Clause 3 is an ‘activating’ clause which provides that legislation that is specified in a Schedule to the Bill is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.

 

Schedule 1—Amendments

Part 1—Amendment of the Sex Discrimination Act 1984

Item 1

4.       Item 1 amends section 37 of the Sex Discrimination Act 1984 to alter the exemption provided for bodies established for religious purposes. New subsection 37(3) states that the exemption does not apply if the body is an educational institution, or when an act or practice of a body established for religious purposes relates to the provision of education or training by that body, or is connected with the employment of persons to provide that education or training.

 

5.       The concept of ‘persons to provide that education or training’ in new paragraph 37(3)(c) is not intended to be limited to teachers but to any employee of either an educational institution or other body established for religious purposes involved in the provision of education or training, including support workers, administrators and other non-teaching staff or contract workers.

Item 2

6.       Item 2 repeals section 38 of the Act, which contains the explicit exemptions for religious educational institutions from anti-discrimination provisions on the grounds of sex, sexual orientation, gender identity, marital status or pregnancy in relation to the employment of staff and contract workers and in connection with the provision of education or training.

 

Part 2—Amendment of the Fair Work Act 2009

7.       Part 2 makes consequential amendments to the Fair Work Act 2009 to ensure that educational institutions cannot discriminate in employment in a manner that would no longer be permissible under the Sex Discrimination Act.

Item 3

8.       Item 3 inserts a definition of educational institution into the dictionary in the Fair Work Act; educational institution means a school, college, university or other institution at which education or training is provided.

Items 4 and 5

9.       Items 4 and 5 clarify that terms for modern awards and enterprise agreements made in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed can be discriminatory in relation to educational institutions, even when taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Items 6 and 7

10.   Items 6 and 7 clarify that adverse actions and terminations taken in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed can be discriminatory when they are actions of educational institutions, even when taken in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Statement of Compatibility with Human Rights

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

 

DISCRIMINATION FREE SCHOOLS BILL 2018

 

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

The bill amends the Sex Discrimination Act 1984 and the Fair Work Act 2009 to ensure that religious educational institutions are not exempt from the prohibitions on discrimination outlined in the Sex Discrimination Act 1984 . 

 

Human rights implications

The rights to equality and non-discrimination are contained in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) and article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).   The rights to equality and non-discrimination are also contained in the 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 , article 2 of the Convention on the Rights of the Child , articles 2, 3, 4 and 15 of the Convention on the Elimination of All Forms of Discrimination Against Women and articles 3, 4, 5 and 12 of the Convention on the Rights of Persons with Disabilities).

The rights to equality and non-discrimination provide that all persons are equal before the law and entitled, without any discrimination, to the equal protection of the 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’.

Conclusion

This bill promotes various human rights recognised in the international instruments referred to in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Senator Di Natale