Australia’s anti-discrimination regime is enshrined in both federal and state and territory law. At federal level, the legislation that governs anti-discrimination law is the Age Discrimination Act (ADA), the Australian Human Rights Commission Act, the Disability Discrimination Act (DDA), the Sex Discrimination Act (SDA) and the Racial Discrimination Act (RDA). Both the ADA and the SDA contain religious exemptions in relation to acts and practices by ‘a body established for religious purposes.’ These exemptions apply to all the grounds of discrimination covered by the legislation. In effect, this means that religious bodies are exempt from having to comply with the principles of non-discrimination. However, the degree to which they are exempt depends on the provisions of the particular legislation.
Religious exemptions to Sex Discrimination Act
The religious exemptions in the Sex Discrimination Act are contained in Sections 37 and 38. Section 37 of the SADA extends exemptions to religious bodies insofar as the following is affected:
- The ordination of priests, ministers or members;
- The training of priests, ministers or members;
- The selection or appointment of persons to perform duties or functions in connection with religious observance or practice.
- Any other act or practice of a body established for religious purposes that conforms to the beliefs of that religion.
While the first three situations do not require the organisation’s decision to conform to the doctrines, beliefs or tenets of the religion, the fourth is a ‘catch-all’ provision designed to cover any other situation where discrimination may be deemed necessary in the interests of upholding religious values.
Section 38 of the Sex Discrimination Act contains religious exemptions for educational institutions in relation to the employment of staff and the provision of education and training. Religious schools are allowed to discriminate on a range of grounds, including sex, marital status, gender identity and sexual orientation in their employment decisions as well as in relation to education and training.
Religious exemptions to Age Discrimination Act
The religious exemption in the ADR is contained in Section 35, which provides that the act’s protections do not apply to acts or practices by religious bodies that conform to the doctrines, tenets or beliefs of that religion or are necessary to avoid injury to the religious sensitivities of followers of that religion.
The remainder of federal anti-discrimination legislation does not contain any religious exemptions.
Criticisms of the exemptions
The most controversial of the religious exemptions discussed above is the one relating to religious schools. While many of the religious exemptions that exist, such as the exemption relating to the ordination of priests and ministers, are limited in their scope, the religious schools exemption is relatively broad and is capable of having a significant impact on the general community. Religious schools make up a sizable proportion of the education sector in Australia and receive government funding. Critics of the exemption of religious schools from discrimination law, argue that this gives the church the power to impose its values on the community and significantly limit employment opportunities for teachers who identify as LGBTIQ, are pregnant or are unmarried mothers.
The Section 38 exemption in the SDA also allows religious schools to discriminate against students who identify as LBGTIQ or who are same-sex attracted. For these reasons, human rights groups have lobbied for the exemption to be lifted in order to provide better protections for affected young people as well as for adults working in the education sector.
Other criticisms of the religious exemptions in discrimination law include the following:
- That the exemptions apply automatically to religious organisations, without any requirement that they be justified;
- That there is no requirement for such organisations to demonstrate how they are promoting equality within the parameters of their religious doctrines;
- That they are inconsistent with international law obligations. Specifically, the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) requires signatories to take all steps to eliminate practices based on the superiority of either sex or of stereotypical roles for men and women;
- That the concept of ‘good faith’ is subjective and allows organisations too much leeway where discriminatory practices are not genuinely necessary.
The existence of religious exemptions in discrimination law is based on the principle that the right to religious freedom must be balanced and co-exist with other human rights.
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