In earlier Briefing we indicated that the ACT Government has released a Discussion Paper as the next step in its process to reform the current Discrimination Act 1991 (ACT) and provided a copy of our submission in response to that Paper. This was followed by the publication of a 'Listening Report' outlining the feedback and input from the consultation on discrimination law reform in the ACT.
Earlier today the Human Rights Minister, Tara Cheyne, released an Exposure Draft Bill and accompanying 'Fact Sheet' for consultation and feedback by 1 July.
As indicated in our Media Release, the Bill represents a significant missed opportunity to actually modernise and adopt best practice in the legislation.
The major target of the grab bag of amendments in this Bill are religious bodies. The second example on the second page of the Fact Sheet is illustrative of what teh Government is seeking to achieve as it discussed the narrowed exemption allowing religious bodies to 'discriminate' on the grounds of their religious belief –
‘Example: Under the proposed amendment, a religious body relying on this exception to justify excluding a same-sex couple from worship services would have to consider the human rights of the couple and demonstrate the discrimination was reasonable, proportionate and justifiable. What constitutes reasonable, proportionate and justifiable will depend on the circumstances of each matter.’
While the language of 'reasonable, proportionate and justifiable' aims to minimise the perceived impact, how could anybody want to take actions that are not 'reasonable, proportionate and justifiable', it is important to step back and reflect on what this example is actually suggesting. This example would put a Court or Tribunal in the position of being able to determine what a church can lawfully do when undertaking a worship service.
Historically Courts have sought to avoid making determinations of doctrine and belief, recognising that they are ill equipped and poorly positioned to do so, yet this law would potentially put them at the very heart of religious observance.
Of more direct concern to schools is the limitation of the exemptions for actions on the basis of religious conviction to 'religious educational institutions', which is defined in the Bill as 'an educational institution associated with a religious body that does not have a commercial purpose as its sole or main purpose'. While there is no evidence that any educational institution in the Territory has a commercial purpose, so that element is simply unnecessary redundancy, the concern is that the educational institution must be 'associated with a religious body'. Religious body being defined in fairly standard terms as 'a body established for religious purposes'.
Once again, this amendment seems to introduce unnecessary redundancy as any exempted actions must be taken by an institution 'conducted in accordance with the doctrines, tenets, beliefs or teaching of a particular religion or creed' - so the need for a connection with established doctrines, tenets, beliefs or teachings is already established. The amendment merely serves to add an additional hurdle that must be met to rely upon the exemption. While we are confident that member schools can meet the test, the question is why should it be necessary?
We are continuing to liaise with other groups in responding to the Bill and have informed a number of churches regarding the potential impact. We will be making a further submission by the 1 July deadline and will keep schools informed.
Download Exposure Draft Bill
Download Fact Sheet