The ACT Government tabled the Discrimination Amendment Bill 2022 with debate to resume in the new year.
Although there are still many areas of concerns in the final version of Bill, there are some positive changes that have been adopted in response to our advocacy efforts. For example, the proposed new definition of ‘religious educational institutions’ contained in the Exposure Draft has been removed - AACS pushed strongly for its removal as it was problematic for Christian Schools that were not attached to a particular church denomination.
Positive Duties (Part 9) provisions have been clarified by the addition of a new Section 76 to make clear that they do not apply when an exception applies - AACS also pushed strongly for this clarification - the Explanatory Memorandum (page 14) explains that “For example, religious schools are permitted to lawfully discriminate on the grounds of religious conviction under section 46. Consequently a Catholic school would not be required to take steps to encourage greater religious diversity within its school community but may have a positive duty to eliminate discrimination concerning other protected attributes. These exceptions and exemptions recognise that there are circumstances where it is reasonable to treat people differently in pursuit of a legitimate purpose such as to promote human rights.”
Sporting Activities (s23A) has been reworked to apply to ‘formally organised sporting activity’ with some specific examples given eg a basketball competition organised by a private school would be considered a formally organised sporting competition but a backyard cricket match between friends would not.
Religious Bodies (s32): in a positive step, the ‘reasonable, proportionate and justifiable in the circumstances’ overriding requirement has been removed, however, balancing this is the need for these bodies to publish a policy on how it may discriminate in providing good, services or facilities to the public or in employment.
Religious Workers (s44): the ‘reasonable, proportionate and justifiable in the circumstances’ overriding requirement has been removed, as recommended by faith groups, and the existing wording has been retained subject to the removal of the word ‘observance, so it now only applies to ‘teaching or practice of the relevant religion’ which still seems reasonably broad.
Voluntary Bodies: the protections remain curtailed and must be ‘reasonable, proportionate and justifiable in the circumstances’.
The ACT Government has also assured AACS that: “The proposed reforms are not intended to change the operation of existing exceptions in the Discrimination Act relating to enrolment of students and employment of staff in religious schools. These exceptions had been reviewed and amended relatively recently, to better protect equality of rights of students and staff while respecting the right to freedom of religion, conscience and belief."
The Listening Report on the Exposure Draft consultation reports that 1,148 submissions were received on the Exposure Draft, far more than the 25 submission and 17 surveys completed in the initial consultation, with ‘the majority being from religious organisations and people of faith’. The Report details that 1,032 were from the ACL email campaign (488 of those outside ACT) also noting that 51 responses came through the ValuEd Voices email campaign. This is disappointing but reflects that these changes were predominantly not directed at Christian schools.
The Bill as presented and associated Explanatory Statement can be found at https://www.legislation.act.gov.au/b/db_66962/
You can read our submission on the ACT Government's Disucssion Paper HERE