Click on the icon to download the major report in pdf format (80kb)

Background

Scope of the Anti Discrimination Act –Response to the Recommendations

Extension of Employment/Work Environment

Marital Status

Exceptions and Exemptions

Superannuation

Other Recommendations

DRAFT ANTI-DISCRIMINATION BILL 1999

Conclusion

MAJOR REPORT - April 2000

The NSW Anti-Discrimination Act

PART B - The Scope of the Anti-Discrimination Act –
Response to the Recommendations

5. Exceptions and Exemptions

5.1. Underlying Principle

The approach to exceptions and exemptions should be guided by the general underlying rationale of antidiscrimination law which, as recognised in the proposed preamble, is to advance substantive equality between societal groups. GLRL generally supports the move towards narrowing those exceptions which are anachronistic and tend to undermine the effectiveness of the Act while retaining exceptions that promote substantive rather than formal equality. Where an exception can be justified, its scope should be limited by reference to the underlying rationale for the existence of the exception.

We provide specific comment on those likely to have the most impact on lesbians and gay men below.

5.2. Statutory Authority

We support the repeal of the general exception for acts done under statutory authority as (widely) defined in the Act so that in future laws will only be exempt if a clear decision has been made that they should be exempt [Recommendation 43]. This is a far more principled and logical approach than the current ad hoc approach whereby all acts, regulations and other delegated legislation prevail over the ADA, even where no conscious decision has been made on the part of the drafter or legislature that anti-discrimination principles should be overridden.

However, we also note that as a matter of statutory interpretation, acts that are passed in future will prevail over the ADA. Thus the recommendation that all new legislation should be scrutinised to ensure compliance with the ADA is also necessary to give effect to the principle and is welcomed [Recommendation 44]. Parliament will, of course, continue to be able to override the ADA when necessary.

5.3. Special Measures

We support the need for special measures in both the situations identified by the Report, that is,
where a group requires remedial measures of a temporary kind to redress disadvantage and in order
to allow the maintenance of a distinctive culture or social identity of a particular minority group
[Recommendations 49 and 52].

5.4. Religious Bodies

5.4.1. Current Anomoly

Section 56 of the ADA currently provides an exception in the following terms:
Nothing in this Act affects -

(a) the ordination or appointment of priests, ministers of religion or members of any religious order;

(b) the training or education of persons seeking ordination or appointment as priests,
ministers of religion or members of a religious order;

(c) the appointment of any other person in any capacity by a body established to propagate religion; or

(d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.

GLRL accepts that sections 56(a) and (b) of the Act guarantee the right of religious groups to practice their beliefs, and to that extent should be retained in the context of the new Anti-Discrimination Bill [pars.6.70-71]. This does not mean that we support discrimination by religious bodies but we accept that the retention of sections 56 (a) and (b) (or clauses to like effect) is necessary in the Bill.

The present general exception for religious bodies contained in section 56 of the Act is too wide, however.

As acknowledged in the Report it goes far beyond allowing religious bodies to appoint whoever they chose as priests, ministers, rabbis and the like which are dealt with in sections 56 (a) and (b).

Under section 56 as currently drafted, once a body is established to propagate religion it may discriminate in the appointment of any person in any capacity. Even more broadly, all discrimination which can be said to conform to the doctrines of the religion or to prevent injury to the susceptibilities of its adherents are exempt from the Act. In the case of employment this includes the appointment of personnel whose function is completely unrelated to religious practice. In many cases, churches and other religious institutions, employ large numbers of staff in circumstances in which the status of the employer as a religious institution is not relevant to the employment relationship. For example, churches which possess large gardens will need someone to cut the grass and maintain the garden. Their position in this regard is no different from other bodies which must employ someone to fulfill these functions and the job will be done equally well whether the employee submits to all the tenets of the religion or not.

5.4.2. Religious Bodies not Exempt if Non-religious Function

While it is apparent that many religious organisations would like to maintain their special position vis-à-vis antidiscrimination law, there is no compelling reason why they should be treated differently and as outside the law. We offer the following summary of some of the compelling reasons why religious organisations should come within the general law relating to the appointment of persons to perform non-religious functions:

• The current exception is so wide that it allows religious bodies to operate effectively outside the law relating to discrimination and without regard to it.
  
• The current situation violates the general principle that everyone should be equal before the law.
  
• An increasing number of public services are performed by non-government services which receive large government grants to perform these services. These services are not religious in nature. The exemptions as they currently operate mean that this movement to the non-government sector is accompanied by a parallel movement away from anti-discrimination principles.
  
• Governments continue to have a responsibility when services are delegated in this manner and this includes a responsibility to ensure that, in general, employment and the delivery of services are performed in a lawful and non-discriminatory manner.
  
• Churches and other religious bodies are large employers, thus the practical protection of the ADA, is unnecessarily denied to large numbers of employees and potential employees, seriously undermining the reach of the Act.
  
• The exception allows for abuse as it can be used to justify discrimination which is completely unjustified in terms of the particular religious belief. Indeed as currently framed, once it is established that a body is established to propagate religion it may act in accordance with individual prejudices in the appointment of personnel even if these prejudices are quite at odds with the principles and doctrines of the religion.
  
• Similarly, once it is established that a body is established to propagate religion any act that conforms to the doctrines of the religion is outside the ADA. As pointed out by the Anti-Discrimination Board this is overly broad, a "body established to propagate religion" [par.6.67] is not further defined in the Act and could include “a body of people who practised a religion with doctrines that support the superiority of particular races or the sexual harassment of women”.
  
• Discrimination and discriminatory attitudes are legitimated. In effect the law as it stands says that it’s OK to discriminate.

The current exception is much wider than the exceptions in other jurisdictions, including Tasmania, Victoria, Queensland, Western Australia, the ACT and South Australia, which are limited to the selection and appointment for performing functions related to religious observance or practice. Religious bodies continue to function without difficulty in all of these jurisdictions.

Perhaps most importantly, the scope of all exceptions should be tailored to meet the need which they are addressing. Presumably, the rationale for the exception relating to religious bodies is to ensure freedom of belief. It is impossible to see how an exception that allows religious bodies to discriminate in the appointment of persons in any capacity - regardless of whether this relates to the performance of religious duties and regardless of whether a particular practice, attribute or religious belief is a genuine occupational qualification - could be said to be related to the freedom of belief. Other States have not found it to be necessary.

We therefore strongly support the thrust of the discussion of the general exemption that it should be retained to the extent that it allows freedom of religious belief but that “this protection should not be something which religious groups are allowed to hide behind. Religion should not be able to be used as an excuse for unlawful conduct.” [par.6.71].

We generally support Recommendation 46 which proposes to narrow the exemption for religious bodies to cover positions requiring commitment to the tenets of a particular religion. This support is subject to our submissions below which outline in detail other limitations which should apply to the exemption of religious belief and the exceptions relating to religious bodies.

5.4.3. Specific Exceptions Relating to Religious Bodies and Religious Beliefs

The positive changes proposed in relation to the general exemption for religious bodies are somewhat undermined by specific exceptions which are inconsistent with the thrust of discrimination law and the need to confine exceptions according to the rationale for the exception.

Recommendation 84 has the effect of creating an exception to discrimination on the ground of religion on the basis of genuine occupational qualification. However, clauses 28(5) and (6) of the draft Bill, which purports to put this recommendation into effect does so somewhat imperfectly. Clause 28(5) which allows discrimination on the basis of religious belief, sex, pregnancy, sexuality, domestic status and transgender status allows discrimination on these grounds only where is necessary to comply with the doctrines, tenets or beliefs of a particular religion. However, clause 28(6) provides that:

“The exceptions in subsections (1)-(5) are satisfied only if the offeror acted on a bona fide belief that it was necessary to so act.”

It is the experience of GLRL that people frequently act, or claim to act, in the honest belief that their discrimination against gay men and lesbians is justified, even necessary or good. Discrimination is usually based on ignorance and/or prejudice and frequently manifests in stereotyping. Prejudices may be honestly held.

An obvious example of a stereotype that may result in discrimination is the genuinely held belief that gay men are all paedophiles. This myth persists in the face of all evidence that child sexual abuse is overwhelmingly perpetrated by heterosexual male family members. Yet if true it would make gay men (and lesbians when they are tarred with the same brush) unsuitable for a wide range of occupations. This would include not only those directly working with children but any occupation in which they were likely to come into contact with children.

It should be noted that employers are currently allowed to take into account relevant factors. Clause 9 of the draft Bill which defines direct discrimination excludes from its ambit relevant distinctions that may be made by an employer or other respondent:

4) For the purposes of subsection (1), the first person does not discriminate against a second person by relying on or taking into account an attribute commonly imputed to persons having a particular irrelevant characteristic if:

(a) the second person in fact has the attribute, and
(b) the attribute is a relevant consideration in the circumstances, and
(c) the first person acts in good faith on a reasonably held belief that the first person had the attribute.

Example. Dishonesty may be generally imputed to a particular group. Where honesty is relevant in the choice of an employee for a particular position, the employer may reject a member of the group, not because of a stereotyping assumption, but because the employer knows of a conviction of the member for an offence of dishonesty.

This is sufficient to put Recommendation 84 into effect and is consistent with the need to allow relevant distinctions to be made between individuals. For example, it allows factors such as dishonesty to be taken into account to preclude a person from employment as in the example cited in the draft Bill. The employer can do this even if the employee happens to be a member of a group, such as a racial group, that is frequently assumed to conform to a stereotype which includes dishonesty. But he or she can only do this if the individual is in fact dishonest and if the employer has a reasonable belief that she or his is dishonest. It does not allow employers or others to act on the basis of personal prejudices or stereotypes. It does not, for example, allow or encourage employers to refuse employment to Aboriginal people on the basis of a commonly held belief, based on stereotyping, that Aboriginal people are lazy or dishonest. Furthermore, it does not allow employers or others to take into account the attributes of any individual which are irrelevant. What is does do is allow the employer to take into account actual laziness or dishonesty in all (potential) employees, Aboriginal and non Aboriginal. Similarly, an employer would be able to take into account a history of child sexual abuse in potential employees regardless of their sexuality but would not be able to refuse employment to all gay men because of his or her personal prejudice, no matter how genuinely held. Due to the drafting of clause 28, the outcome may be otherwise if employer happened to be a religious institution.

5.4.4. Need for Reasonableness

The proposed provisions relating to religious belief which do not require any belief to be reasonable but only that the person honestly holds the belief. It allows religious employers to act on the basis of stereotyping and personal prejudice. This undermines the whole approach of anti-discrimination law and the ADA which is that personal prejudice is not an acceptable basis for treating persons less favourably. We recommend that clause 28 be removed from the draft Bill as it is unnecessary in the light of clause 9 which allows genuine occupational qualifications to be taken into account and the retention of those parts of section 56 which allow for an exception in relation to the employment of religious personnel. This would be the best option to ensure that religious institutions retain their right to employ those best suited to the job without unduly restricting or undermining anti-discrimination legislation particularly by allowing personal prejudice to be taken into account.

Additionally, they could seek an exemption from the Act from the President in appropriate cases.

Alternatively, clause 28 should be redrafted so as to properly implement Recommendation 84.

Recommendation 85 proposes an exception to discrimination on the ground of religion in relation to admission to educational institutions established for particular religious groups. The Report contains little discussion of this recommendation or its rationale and states:

“The Commission accepted that they should be where the school is established and operated wholly or mainly for students of a particular religion. A religious school may also seek to discriminate on other grounds to avoid conflict with the tenets of the religion. A number of submissions to the Commission from religious organisations supported the view that religious schools should continue to remain exempt from the ADA on specified grounds” [par.6.434].

The exception goes beyond that which is needed in order for the schools to continue to exist for members of particular religions which in any case would be covered in many cases by the special measures exception. Generally special measures exceptions operate only to allow limited discrimination on the basis of the attribute of the group for which the measure is established.

We submit that in order to protect cultural identity and religious belief it is necessary only that discrimination on the basis of religion be allowed. The majority of private schools are religious, at least nominally. The real problem is the message it sends to these schools and their students. The exception allows exclusion which is reasonably necessary to comply with the doctrines, tenets or beliefs of the religion. Many schools in applying the exclusion will see it as justifying (and may use it to justify) prejudicial treatment including harassment and vilification of students falling into discriminated groups such as lesbian and gay students. Many NSW students at these schools will thereby be denied any effective protection from discrimination. Many young lesbians and gays already enrolled in these schools and are already at risk of bullying, harassment (including from teachers), schoolyard violence and the low self esteem, educational disadvantage and suicide risk that can follow.

We recommend that this anomalous clause be removed in light of the serious risks it poses to young gays and lesbians. However, we note that there is no equivalent to clause 28(6) and therefore discrimination must be “reasonably necessary”. This further underlines the anomaly in clause 28.