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Government Bill needs to clearly protect students from discrimination



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Media Release Human Rights Law Centre | For immediate release: Thursday 25 October 2018

Government Bill needs to clearly protect students from discrimination

Today's leaked copy of the Government’s bill to protect students from discrimination has raised concerns and a push for more consultation with the community.

Co-Chair of the Equality Campaign and Director of Legal Advocacy and the Human Rights Law Centre, Anna Brown, said that all was needed was to strike out section 38(3) of the Sex Discrimination Act 1984 to remove discrimination against children in school.

“The most straight forward way to remove discrimination is to remove the exemption that allows religious schools to discriminate against kids. It’s that simple,” said Anna Brown.

"The Government should table the bill so we can properly explore any risks or problems with the proposed drafting and make sure all students are protected in school," added Ms Brown.

The Government bill would remove all direct discrimination against students currently permitted under federal law (e.g. expelling a student because they are gay). However, the bill allows for religious sensitivities and the best interests of students to be considered when assessing a claim for indirect discrimination (see further background below).

“The test for indirect discrimination is already very broad and allows a school to defend a claim when their conduct is reasonable in the circumstances,” said Ms Brown.

“These provisions are unnecessary and need to be carefully considered for risks or unintended consequences. It's worrying to see the best interests of the child are not the "primary consideration", for example, which is out of step with Phillip Ruddock's recommendations,” added Ms Brown

The Government bill is also out of step with the leaked extract of the report from the Religious Freedom Review which recommended school policies be published.

“It’s only fair that you can make informed decisions about the risk of discrimination before you enrol your child in a school or apply for a teaching job. The current law allows religious schools to rely on discriminatory policies when it suits them, which is inherently unfair," added Ms Brown.

FURTHER BACKGROUND

On 25 October 2018, a copy of the Sex Discrimination Amendment (Protecting Students) Bill 2018 was published in the media.

The bill would remove all direct discrimination against students currently permitted under federal law (e.g. expelling a student because they are gay).

Anti-discrimination law also prohibits indirect discrimination. Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute (e.g. a policy that requires all students to pass a strength test would tend to disadvantage girls).

Currently section 7B of the Sex Discrimination Act provides for a defence of ‘reasonableness’ to a claim of indirect discrimination. This involves taking into account (a) the nature and extent of the disadvantage, (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

The bill would amend the Sex Discrimination Act to introduce to two further ‘matters’ to be taken into account when assessing whether conduct is reasonable.

(a) whether the condition, requirement, or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed; and

(b) whether, in imposing, or proposing to impose, the condition, requirement or practice, the educational institution has regard to the best interests of the student.

The burden of proof will be on the school to provide evidence to satisfy the Court that the conduct was ‘reasonable’ in the circumstances.

The Religious Freedom Review report recommended that the best interests of the student be the ‘primary consideration’ but the Government bill only requires the educational institution to ‘have regard to’ the best interests of the child. The Religious Freedom Review report also recommended that schools be required to publish policies in relation to the matter in question. This requirement is absent from the bill.

The bill does not clarify that religious schools will not be able to continue to take advantage of the broad exemption available to ‘bodies established for religious purposes’ in section 37.

The bill does not protect students from discrimination in circumstances where they are refused enrolment or otherwise discriminated against because their parent or carer is gay, unmarried or

a single parent.

For interviews please call:

Michelle Bennett, Director of Communications, Human Rights Law Centre, 0419 100 519

Human Rights Law Centre

Level 17, 461 Bourke Street

Melbourne VIC 3000

ABN: 31 117 719 267

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