During the consultation, the Commission received a number of comments regarding exemptions from potential federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. Many participants who supported new protections from discrimination argued that there should either be narrow or no exemptions at all. Some participants, particularly those affiliated with faith-based organisations, argued that there should be some exemptions in order to protect the human rights of freedom of religion and belief and freedom of expression.
10.1Exemptions from state and territory laws prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity
Each state and territory anti-discrimination statute contains a number of exemptions that might be raised by an employer or other respondent to justify discriminatory conduct.222 It is not unlawful to discriminate if an exemption applies.
Anti-discrimination legislation is remedial in character, and is designed to achieve the public purpose of redressing discrimination and upholding equal opportunity. Accordingly, the courts interpret exemptions narrowly.223
The range of exemptions, and their wording, varies considerably between states and territories. For example, whilst the Victorian Act contains numerous exemptions, the Tasmanian Act contains relatively few exemptions relating to sexual orientation or gender identity.
10.2Exemptions from state and territory laws that are relevant to vilification
State and territory prohibitions on vilification have their own separate set of exemptions. These exemptions are consistent across the laws that prohibit vilification. The three exemptions are:
the conduct was a ‘fair report’ of a public act
the conduct would be covered by the defence of absolute privilege in a proceeding for defamation
the conduct was ‘done reasonably’ and in good faith, for academic, artistic, scientific or research purposes or for other purposes ‘in the public interest’.224
10.3Exemptions from federal law prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity
The Commission received a wide range of comments about whether potential federal protections from discrimination on the basis of sexual orientation and sex and/or gender identity should include exemptions or exceptions.
The majority of the participants who commented on the issue opposed exemptions. However a small number of participants argued that exemptions should be provided, allowing all faith-based organisations the freedom to practice and teach their beliefs.225
Those who opposed the inclusion of exemptions held a range of positions on the issue, including that there should be:
no exemptions for organisations that receive public funding227
no blanket exemptions, but that exemptions should be allowed on a case by case basis228
only narrow exemptions if any exemptions are contained in federal anti-discrimination legislation.229
(a)Arguments against exemptions
A number of participants identified the Tasmanian Anti-Discrimination Act as a model for framing exemptions. The Tasmanian Gay & Lesbian Rights Group reported:
There are no exemptions in the Tasmanian Anti-Discrimination Act in regard to sexual orientation, including no exemptions for faith-based schools or charities. There are some general exemptions. There are also exemptions in regard to discrimination on the grounds of religious belief and practice, but it is quite clear in law [and] in relevant second-reading speeches that these do not apply to sexual orientation.230
Some organisations argued that national legislation should not fall below the standard in Tasmanian laws.231 For example, the Freedom! Gender Identity Association commented:
If exemptions are deemed to be necessary, they should be on the basis of case-by-case applications. These must be minimal, temporary (with a requirement to reapply), reviewable, public and transparent (a requirement to proactively declare them).232
The Victorian Bar also argued that exemptions on the basis of religion should be narrow. Their comment argued that:
[R]eligious exemptions which allow religious bodies or individuals to treat people less favourably on the basis of sexual orientation in the areas of employment, education, provisions of goods, services and accommodation when available to the general public or a section of the general public should not be introduced.233
Some comments suggested the removal of current faith-based exemptions in state anti-discrimination law.234 For example:
[T]here is a gap in the law that permits discrimination against GLBTI individuals by certain institutions that needs to be addressed. It is unjust that religious institutions, in many ways the last network of institutions that can actively and legally discriminate against GLBTI individuals, remain immune to these laws.235
A significant number of participants argued that there should be no exemptions from federal discrimination protections regarding sexual orientation and sex and/or gender identity for organisations that receive public funding. For example:
[Women’s Legal Services NSW] are particularly concerned that many religious organisations that receive public funding to provide services such as family relationships services, counselling services, adoption services and housing services are then able to discriminate against LGBTI people in employment and service provision. WLS NSW submits that the objective of any anti-discrimination legislation should be the elimination of all forms of discrimination against members of the minority groups to be protected. We believe that allowing people to lawfully discriminate under exemptions or exceptions would undermine the ability of the legislation to fulfil this purpose.236
Where services are provided to the ‘public’ with government funding (the state contracting out its responsibility to NGOs), we regard it as especially crucial that exemptions must be limited to ‘special measures’ to empower/target marginalised groups, such as LGBTI people (cf. the UK model). For example, an elderly gay man receiving in-home cleaning services from a faith-based organisation contracted by the government to supply such services was absolutely terrified that if they were aware of his sexual orientation that he would be harassed or lose the services on which he depends. The organisation has no statement on its website or in its publicly-available policies to reassure this man or make him aware of his rights.237
A number of faith-based organisations argued that there should be exemptions or exceptions for religious organisations and activities.238 For example:
Current exemptions should be maintained in order to ensure that faith communities can continue to exercise their rights to freedom of religion, consistent with both Australian and international law. It is almost of equal importance that these exemptions are not as burdensome or overbearing and provide a clear and simple mechanism for religious bodies including Christian schools to operate in accordance with their faith, values and beliefs. The existing and long standing form of exemption used in section 38 of the Sex Discrimination Act 1984 (Cth) provides such a form of exemption. We would expect that an identically worded exemption would be included in any future legislation.239
The definition of a public authority in legislation should provide an exemption for religious bodies acting in conformity with their religious doctrines, beliefs or principles. Section 38 (4) and (5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provide an appropriate model of such an exemption.240