ACT Government Justice and Community Safety Directorate

Via: civilconsultation@act.gov.au

Sunday 30 January 2022

To the consultation team

Submission in response to ‘Inclusive, Progressive, Equal: Discrimination Law Reform’ Discussion Paper

Thank you for the opportunity to provide this submission in response to the Discussion Paper ‘Inclusive, Progressive, Equal: Discrimination Law Reform’ released in October 2021.

I do so in my personal capacity as a long-standing advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

This includes ongoing community education about, and campaigning for improvements to, LGBTI anti-discrimination laws across Australia, through my website www.alastairlawrie.net

In this submission I will focus on two areas of particular relevance to the LGBTI community, namely:

• Consideration of a ‘general limitation’ defence, and
• Reforms to religious exceptions in the Discrimination Act 1991 (ACT).

‘General limitation’ defence

Question 3: Should the exceptions in the Discrimination Act:

a. be removed and replaced with a general limitation / single justification defence that applies where discriminatory conduct is reasonably justified, or

b. be refined to make them simpler, stronger, and better aligned with our human rights framework?

I do not support the introduction of a general limitations clause as recommended by the ACT Law Reform Advisory Council in its 2015 Report (Recommendation 18).

While this type of provision may hold some attraction in principle, it would lead to a number of serious problems in practice.

Several of these are articulated in the Discussion Paper itself, including that ‘it may make the law more uncertain for users’ (page 15).

I would add that this uncertainty is more likely to benefit those users who have significant financial resources, for example encouraging large respondents to contest discrimination complaints. Whereas the uncertainty may mean that victims of discrimination are not able to easily understand whether they are protected under the Act or not, and may therefore be discouraged from bringing complaints because of a perceived risk of failure.

I also agree with the argument, articulated on page 15, that ‘it may lessen protections against discrimination because the defence would be arguable in all cases’.

This threat has become even more pronounced through the expanding ‘religious freedom’ agenda in recent years, including the Commonwealth Government’s proposed Religious Discrimination Bill 2021, which seeks to override state and territory anti-discrimination laws to provide legal protection to religiously-motivated comments that offend, humiliate, insult or ridicule others on the basis of who they are.

Even if that legislation is (hopefully) defeated, the introduction of a ‘general limitation’ defence in the ACT Discrimination Act would likely see religious fundamentalists exploit this provision to undermine the ability of women, LGBT people, people with disability and even people of minority faiths to live their lives free from discrimination.

Finally, I oppose the general limitation defence because of the possible adverse impact on the ACT Government’s long-overdue reforms to protect LGBT students, teachers and other workers in religious schools against discrimination, which were passed in late 2018.

Again, as outlined on page 15:

‘Such a provision may also weaken protections under existing exceptions, for example exceptions that allow discrimination by religious schools but only on certain grounds and subject to a range of conditions. A single justification defence would remove these clear restrictions and potentially allow discrimination in a broader range of circumstances, which may negatively impact LGBTIQ+ students and staff.’

It would be cruel and unusual to grant anti-discrimination protections to these students and staff, allowing them to finally learn and teach without the threat of mistreatment or abuse, only to take that away from them just four years later.

For all of these reasons I support the alternative approach, which is to refine the existing exceptions in the Act, and especially to narrow the religious exceptions which it contains.

Religious Exceptions

As indicated in the above answer, I strongly support the changes to religious exceptions made by the ACT Government in 2018, to protect LGBT students, teachers and other workers in religious schools against discrimination.

However, in my view, the job is only half-done, with a similarly-urgent need to protect LGBT employees of, and people accessing services from, other religious organisations operating across health, welfare and community services.

Therefore, I welcome this Discussion Paper’s focus on this out-standing reform to religious exceptions.

In principle, I support the approach to this subject in the Tasmanian Anti-Discrimination Act 1998, which:

• Only allows religious organisations to discriminate on the ground of religious belief and activity, and not against other attributes such as sexual orientation or gender identity
• Allows discrimination in relation to participation in religious observance (section 52)
• Does not allow general discrimination in service delivery, and
• Allows discrimination in employment, but only where it is an inherent requirement of the position (section 51(1): ‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment’).

These positions inform my responses to the Discussion Paper’s specific questions in relation to religious exceptions, as follows:

Question 7: Should the exception protecting religious observances (eg appointment of ministers etc) be refined so that discrimination is only permitted where necessary to conform with the doctrines of the relevant religion?

Provided that the circumstances in which this discrimination is permitted are narrowly defined (including ordaining or appointing priests, ministers of religion or members of a religious order etc), I am agnostic about whether the test to determine whether such discrimination is allowed needs to be changed.

Question 8: Should the religious bodies exception be changed so that religious bodies cannot lawfully discriminate when conducting commercial (for-profit) activities?

Yes. I can see no justification for providing religious organisations conducting commercial/for-profit activities with special privileges allowing them to discriminate where it would otherwise be unlawful.

Question 9: Should the religious bodies exception be changed so that religious bodies cannot lawfully discriminate when providing goods or services to members of the public?

Yes. Again, I can so no justification for providing religious organisations that provide goods and services to members of the public with special privileges allowing them to discriminate where it would otherwise be unlawful.

Question 10: Should religious health care providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?

Question 11: Should any other religious service providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?

Question 12: Are there any other circumstances in which religious bodies should be permitted to discriminate in employment decisions?

(Answered together)

As discussed earlier, I endorse the approach to these issues which is adopted in section 51(1) of the Tasmanian Anti-Discrimination Act 1998, namely that:

‘A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the teaching, observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.’

This would allow religious belief to be considered where it is intrinsic to the role in question (such as a hospital chaplain), and to be excluded from consideration where it is irrelevant.

Question 13: Should some sectors or types of organisations be prevented from relying on the general religious bodies exception? For example, organisations that receive a certain proportion of public funding?

Provided that the above positions are adopted (that religious organisations can only discriminate on the basis of religious belief and not on the basis of other protected attributes, that they cannot discriminate in general service delivery, and can only discriminate in employment where it is a genuine occupational requirement), then this type of further limitation may be unnecessary.

There is also a danger in drawing this kind of distinction, whereby those organisations which are not in receipt of government funding seek broader exceptions to discriminate in both employment and service delivery, including on the basis of sexual orientation and gender identity (see, for example, the recently-passed Victorian Equal Opportunity (Religious Exceptions) Amendment Act 2021 which disappointingly retained the special privileges allowing non-government funded religious organisations to discriminate in service delivery on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status and gender identity).

Question 14: Should religious bodies only be permitted to discriminate against members of the public on some grounds, and not others? If so, which grounds should be permissible?

Yes, as articulated earlier, I support the approach in the Tasmanian Anti-Discrimination Act 1998 – and the Discrimination Act 1991’s existing approach in relation to religious schools – which is to permit discrimination on the basis of religious belief only, and not on the basis of other attributes like sexual orientation and gender identity.

Thank you in advance for taking this submission into consideration.

Please do not hesitate to contact me, at the details provided, should you require clarification or additional information.

Sincerely

Alastair Lawrie