Section 10: Exemptions - Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report (2011)

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Addressing sexual orientation

and sex and/or

gender identity

discrimination

Consultation Report

2011

Section 10: Exemptions

10.1 Exemptions from state and territory laws prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity
10.2 Exemptions from state and territory laws that are relevant to vilification
10.3 Exemptions from federal law prohibiting discrimination on the basis of sexual orientation and sex and/or gender identity
- (a) Arguments against exemptions
- (b) Arguments in favour of exemptions

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.

10.1 Exemptions 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.

10.2 Exemptions 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]

10.3 Exemptions 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^[226]
no exemptions for organisations that receive public
funding^[227]
no blanket exemptions, but that exemptions should be allowed on a case by
case basis^[228]
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]

(b) Arguments in favour of exemptions

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]

^[222] Some State and

Territory anti-discrimination statutes use the terminology of exemptions and

exceptions, whilst other statutes refer solely to exceptions. This discussion

paper adopts the terminology of exemptions alone. Note that these exemptions are

not generally applicable in relation to allegations of sexual

harassment.

^[223] New South

Wales v Amery (2006) 230 CLR 174, [138] (Kirby J); Qantas Airways

Limited v Christie (1998) 193 CLR 280, [152] (Kirby

J).

^[224] Anti-Discrimination Act 1977 (NSW), ss 38S(2), 49ZT(2); Anti-Discrimination Act 1991 (Qld), s 124A(2); Discrimination Act

1991 (ACT), s 66(2); Anti-Discrimination Act 1998 (Tas), s 55. Note

that the Anti-Discrimination Act 1998 (Tas) does not contain a

reasonableness requirement and the Anti-Discrimination Act 1977 (NSW)

additionally refers to the purposes of religious instruction and

discussion.

^[225] See, for

example, Christian Schools Australia, Comment 24; Anglican Public Affairs

Commission, Comment 36; Anglican Church Diocese of Sydney, Comments 76 and 108;

Name withheld, Comment 127; New Hope Baptist Church, Comment 129; Catholic

Commission for Employment Relations, Comment

150.

^[226] See, for example,

{Also} Foundation, Comment 84; Tasmanian Council for Sexual and Gender Diverse

People, Comment 33; Inner City Legal Centre, Comment 142; Victorian Child Safety

Commissioner, Comment 138; Name withheld, Comment 136; WA Gender Project,

Comment 125; Women’s Legal Services NSW, Comment 116; A Gender Agenda,

Comment 107; Freedom! Gender Identity Association, Comment 90; Name withheld,

Comment 8.

^[227] See, for

example, Kingsford Legal Centre, Comment 149; Erinyes Autonomous Activist

Lesbians, Comment 143; Women’s Legal Services NSW, Comment 116; National

LGBTI Health Alliance, Comment 112; ACON, Comment 109; A Gender Agenda, Comment

107; Hawkesbury Nepean Community Legal Centre, Comment

97.

^[228] See, for example, Job

Watch, Comment 95a; WayOut, Comment 72; Kingsford Legal Centre, Comment 149;

Australian GLBTIQ Multicultural Council, Comment 113; Women’s Legal Centre

(ACT & Region), Comment 106; WayOut, Comment 103; Hawkesbury Nepean

Community Legal Centre, Comment 97; NSW Gay & Lesbian Rights Lobby, Comment

94; Name withheld, Comment 92; A Gender Agenda, Comment

107.

^[229] Redfern Legal

Centre, Comment 91; Victorian Bar, Comment 148; WA Equal Opportunity Commission,

Comment 137; ACON, Comment 109; Anti-Discrimination Commission Queensland,

Comment 131.

^[230] Tasmanian

Gay and Lesbian Rights Group, Comment 153, p

^[231] Tasmanian Council for

Sexual and Gender Diverse People, Comment 33; Tasmanian Gay and Lesbian Rights

Group, Comment 153; Freedom! Gender Identity Association, Comment

90.

^[232] Freedom! Gender

Identity Association, Comment 90, p

^[233] Victorian Bar, Comment

148, p 6.

^[234] Name withheld,

Comment 96; {Also} Foundation, Comment 84; Tasmanian Council for Sexual and

Gender Diverse People, Comment 33; Inner City Legal Centre, Comment 142;

Victorian Child Safety Commissioner, Comment 138; Name withheld, Comment 136; WA

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