Proposed Amendments to the Sex Discrimination Act Explained

UPDATED: Now reflecting situation as at the adjournment of Parliament – 6 December 2018

This post seeks to provide a brief overview of the current situation regarding debates in the Commonwealth Parliament to amend the Sex Discrimination Act 1984 (Cth).  These proposals are currently being considered by the Senate.

The law currently

At present the Sex Discrimination Act 1984 (Cth) (“SDA”) makes discrimination, widely defined, based on a range of attributes unlawful across a range of areas, including the provision of education.  It applies to actions taken because of, or loosely connected with –

  • Sex
  • Sexual orientation
  • Gender identity
  • Intersex status
  • Marital or relationship status
  • Pregnancy or potential pregnancy
  • Breastfeeding
  • Family Responsibilities

Acknowledging the need to balance these broad protections there are a range of exemptions, including some for religious bodies (section 37) and religious schools (section 38).

When the SDA prohibits discrimination in relation to education it not only deals with the admission and expulsion of students but also covers ‘subjecting the student to any other detriment’ connected to one of the attributes outlined above.

The Opposition’s proposal

The Opposition introduced into the Senate last Thursday the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.  This Bill was introduced as an urgent bill with limited debate allowed and a vote schedule at 1:50 yesterday, Monday 3 December.

It removes the exemption in section 38(3) relating to the provision of education by religious schools and modifies the exemption for religious bodies, section 37, to remove the exemption in relation to the provision of education by such bodies.

Claims have been made by LGBT activists that teaching a historical, [Biblical] view of marriage, sexuality and sexual conduct is harmful for LGBT students. Given the broad scope of ‘any other detriment’ our advice is that teaching such a view in line with religious beliefs in religious schools may be unlawful if the exemption is removed.

For churches and other religious bodies, the removal of the exemption in relation to ‘education’ becomes a potentially chilling assault on free speech.  Once again it potentially becomes unlawful to teach or preach consistent with religious beliefs if it can be argued to be harmful to a personal because of the connection to one of the attributes above.

The Government’s amendments

The Government introduced three amendments to the Oppositions Bill –

  • KQ147 – which reinstates the exemptions for religious bodies, allowing them to continue to teach in accordance with their beliefs
  • KQ148 – which introduces a requirement for Court to consider the religious context of actions when considering a defence of ‘reasonableness’ for some discrimination claims
  • KQ149 – which provides an explicit protection for teaching by religious schools

On the basis that these very modest protections for religious freedom could be incorporated we were prepared to accept the Opposition proposal with Government amendments as a reasonable compromise.

See more details in our earlier post here.

The current situation

Given the very limited time to consider the Opposition’s proposals and Government amendments, less than four hours of debate, some Senate cross bencher voted with the Government to delay the vote.  The cross benchers indicated that they did not necessarily oppose the Opposition’s proposals and supported the Government amendments – simply that they needed more time.  This outcome was achieved off the back of sustained contact with their offices.

In the normal consideration of a Bill, following the vote earlier today, we would expect that the Opposition’s Bill would be unlikely to be considered in the remaining sitting days this week. Senator Wong, however, has other plans.  She tabled another motion yesterday afternoon which calls for a further 30 minutes of debate on the Bill on Wednesday 5 December before it is put to the vote at 12:35pm. This motion was passed in the Senate in a slightly amended form.  There was to be debate in the Senate on this Bill and amendments from 11:00am until a vote at 12:35pm on Wednesday 5 December.

Less than 30 minutes before debate was scheduled to commence the Opposition withdrew their Bill in the Senate.  Within 10 minutes of that occurring the Prime Minister and Attorney-General announced that they had a Government bill ready to table in the House and seeking bi-partisan support on the bill.  If the Opposition would not support the bill as a party the Prime Minister offered to allow a conscience vote amongst the Coalition if the Opposition did likewise.

Within a couple of hours the Opposition Leader rejected these offers claiming that the Government was ‘weaponising‘ the debate.  The Greens leader Richard Di Natale made it very clear in a subsequent press conference when he, referring to our deeply held religious beliefs on sexuality and sexual conduct, that we ‘shouldn’t be allowed to teach that rubbish‘.  As indicated in response and reported in the Fairfax media “they don’t want us to be able to teach our faith, values and beliefs in religious schools, and that’s pretty frightening, pretty chilling to religious faith bodies”.  Earlier in the day a number of faith leaders wrote an open letter calling for these protections.

That concluded Wednesday 5 December – the second last sitting day of the year.

While debate shifted to other topics on the final sitting day, late on 6 December the Senate referred the Opposition’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 and all associated amendment to a Senate Committee for review, see here.

What is needed next

All of those involved in this discussion are calling for the release of the report from the Expert Panel on Religious Freedom to inform consideration of these issues.

The Government’s bill is a sensible and moderate proposal what goes a long way towards addressing the concerns of faith based groups while still addressing concerns about protecting LGBT students.

As Paul Kelly indicates writing in The Australian yesterday what we are left with at the end of the Parliamentary session is ‘that both religious schools in Australia have their mission at risk and gay schoolkids do not have the protection promised by Scott Morrison…‘.  It is worth quoting extensively from his insightful piece –

Striking an optimistic note, Shorten said he believed the goals of religious faith and removing gay discrimination were not irreconcilable. But he said: “I don’t think the parliament at this point has been able to come across a mechanism which sufficiently reassures religious schools about how to teach faith and their ability, in fact, to teach faith without actually ¬reintroducing the same discrimination sought to be removed.”

 Just reflect on that statement — it is a catch-22 crisis. Is the problem a dispute between lawyers? It is, to an extent. Is the problem a dispute between conflicting secular and religious world views within Western democracy? It is, to a much larger extent.

This really is at the heart of the issue.

We will be having this debate next year, possibly in the context of an election campaign.  Once again let me quote from Paul Kelly’s article –

‘The Liberal and Labor parties are deeply divided over the pivotal question of religious protection. This conflict, obvious for a long time, is now completely undisguised and sits on the doorstep of the parliament.

Labor’s priorities are obvious: while professing concern about ¬religious freedom Shorten says that “discrimination against kids” is the No 1 issue. The entire ¬religious sector in Australia has been put on notice by Labor deputy and education spokeswoman Tanya Plibersek, who ¬attributed the deadlock to “a very nasty campaign being run by the right-wing of the Liberal Party” — a pure denial of the issue.

With the parliament in deadlock it is past time for a dose of ¬realism: the country faces a deep and complex problem.’

Paul’s follow up article is also worth reading as he expands on some of these points.

This is a deep and complex problem.  It will take much wisdom, and work, to try and find a way forward.  We need to continue to pray for this issue and indeed our nation.

It is our hope and prayer that we will get a good policy outcome and that the horse-trading over human rights will cease.