Irrational ACT law proposals expose all Canberrans to discrimination penalties

Why the attack on equitable law?


The Discrimination Law Reform being undertaken by the ACT is being justified based on the claim that ‘The ACT Government wants to modernise discrimination law to support best practice in promoting equal opportunity, respect for diversity and social inclusion’.

Unfortunately, this Exposure Draft Exposure Draft Discrimination Amendment Bill 2022 (ACT) (‘the ED Bill’) fails to meet this objective.

Clause 4 – Consumers of Goods, Services and Facilities

This clause inserts a new, unprecedented requirement on the way consumers or users of facilities make use of the relevant goods or facilities. It makes it unlawful for a consumer or user, which would encompass Christian schools, to ‘discriminate’ against the provider:

  • By refusing to accept the goods or services, or
  • In the terms on which they are accepted, or
  • In the way they are accepted or used.

This change is not even mentioned in the Fact Sheet circulated with the ED Bill, so how this will be applied is a little head scratching. The only example provided of conduct by a customer in the ‘Listening Report’ relates to sexual harassment, which is a much narrower, and more easily proscribed, form of conduct.

The lack of a rationale or clarity on a provision with potential impact on every individual and business in the ACT as a ‘consumer of goods or services’ or ‘user of facilities’ is alarming.

The Government, prior to allowing for a further round on consultation, needs to:

  • provide a clear rationale for this enormous potential widening of the scope of the Act to affect consumers and users of facilities, and
  • outline how this provision may work with clear examples of its operation across all of the protected attributes

Clause 5 – Organised Sport and Competitions

This clause inserts further expansions of coverage of the Act to cover ‘organised sport’ and ‘a competition’ unless they are ‘privately organised sport’ or a ‘privately organised competition’. None of these new terms are defined, and once again there is no discussion or justification of this expansion within the Fact Sheet. One facile example is provided of a woman in a singing competition being told she did not win because she was too old – is this really such a problem in the ACT that new legislation is required to prohibit such conduct? Has this ever happened in the ACT?

Without any clarity around what constitutes a ‘privately organised competition’ this would seem to open up a school trivia quiz fundraiser to a complaint if it consisted of questions only ‘Boomers’ would be able to answer.

What about a light-hearted ‘talent contest’ at a workplace Christmas Party – would that be a competition covered by this clause?

How about a three legged race at a church picnic? Is that an organised sport or competition?
Certainly, some of the side-show attractions at the Canberra Show are competitive and many are clearly designed to disadvantage those of particular physical characteristics, will they be liable to potential claims?

The Government, prior to allowing for a further round on consultation, needs to:

  • provide a rationale for these changes after identifying a clear harm needing to be addressed, and
  • outline how this provision may work with clear examples of its operation across all of the protected attributes

See also comments on clause 10 below.

Clause 8 – Voluntary Bodies

The existing section 31 of the Act provides a broad exemption in relation to voluntary bodies, those groups coming together with a shared interest or common purpose. This would include a school Parents and Friends group or a structured or organised prayer group.

The Fact Sheet claims that the ED Bill ‘expands the clubs and voluntary bodies exception’ – which is simply incorrect in relation to voluntary bodies and highly misleading.

The proposed section 31 would significantly narrow the existing exception for voluntary bodies and severely curtain freedom of association rights of residents of the ACT.

Under the proposed section only bodies ‘established to benefit people sharing a protected attribute’ would be eligible for protection, the school Parents and Friends group or a structured or organised prayer group along with many other interest groups would not be covered.

In addition, any action taken can only be ‘because the person does not have the protected attribute’ and can still be determined to be unlawful if a Tribunal determines that, in their view, the action was not ‘reasonable, proportionate and justifiable’.

The Government:

  • cannot proceed with any Bill until there is a further consultation period supported by comprehensive information that correctly outlines the impacts of the ED Bill, and
  • prior to allowing for a further round on consultation, also needs to provide a rationale for these changes which greatly curtail existing common law rights of freedom of association.

Clause 9 – Religious Bodies

The Fact Sheet is once again unhelpful and potentially misleading regarding the potential impact the proposed section 32.

The fact sheet indicates that the ED Bill will narrow the exception in relation to arranging religious observances, although describing this imprecisely as only applying where it is necessary to conform with the doctrines of the religious body.

The proposed section 32, however, adds a precondition to not only arranging religious observances but to the appointment of clergy, the training of clergy and the selection of people to exercise functions in religious observances. This precondition is that the actions are only permissible if the action ‘conforms to the doctrines, tenets or belief of the body’s religion’. This new precondition has been introduced without any evidence being provided that religious bodies are acting outside their beliefs in these areas. While religious bodies are clearly going to be acting in accordance with their beliefs in these areas, this new precondition introduces an unnecessary evidentiary burden to prove to the applicable legal standard the necessary connection between the actions and beliefs and exposes them to claims that will simply be burdensome to defend and unlikely to succeed.

Tribunals and Courts are ill-equipped to determine matters of theology and whether actions taken regarding the appointment of clergy, the training of clergy and the selection of people to exercise functions in religious observances are consistent with the applicable ‘doctrines, tenets or beliefs’.

The Fact Sheet is at least more transparent in relation to other acts done by religious bodies which conform ‘to the doctrines, tenets or beliefs of that religion’ and are ‘necessary to avoid injury to the religious susceptibilities of adherents of that religion’, noting here that ‘necessary’ sets an already high bar for these actions.

The ED Bill proposes an additional test, that a Tribunal or Court determines that the actions are ‘reasonable, proportionate and justifiable in the circumstances’. The example provided in the Fact Sheet relating to how a religious bodies conducts its worship services.

On what basis would a Tribunal or Court determine that the actions are ‘reasonable, proportionate and justifiable in the circumstances’? Such an analysis can only be properly undertaken in light of the applicable ‘doctrines, tenets or beliefs’ and fall outside the sphere of competence of a Tribunal or Court.

The Government, prior to allowing for a further round on consultation, needs to:

  • provide a clear rationale for the significant constraint on religious belief and activity imposed by these provisions, and
  • outline how these provisions may work with clear examples of its operation across all of the protected attributes, and
  • release advice as to how these provisions meet the requirement to protect the ‘freedom to demonstrate … religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private’ protected by section 14(1(b) of the Human Rights Act 2004 (ACT).

The proposed section 32 in the ED Bill also further limits the ability of religious bodies to act in accordance with their religious beliefs:

  • In relation to the provision of goods services or facilities if the actions are claimed to be on grounds other than religious convictions,
  • When ‘performing a function of a public nature’
  • If their sole or main purpose is a commercial purpose

No rationale or justification for these further restrictions is provided in the Fact Sheet, although once again the Fact Sheet is misleading.

In discussing the limitation where a religious body is ‘performing a function of a public nature’ it talks about ‘where religious bodies are receiving public funding to exercise functions of a public nature’, although the receipt of public funding is not an essential characteristic of ‘functions of a public nature’ as defined in section 40A of the Human Rights Act 2004 (ACT).

Further, the Fact Sheet goes on to clearly indicate that the scope of application is ‘excluding education’, however this is not excluded by the definition of ‘function of a public nature’ inserted by clause 25 which simply refers to section 40A of the Human Rights Act 2004 (ACT). This section does not limit the types of functions which can be determined to be ‘of a public nature’.

This narrowing of the exemption seems to reflect a similar approach to that taken in the recent Religious Discrimination Bill 2022 (Cth) which provided a more limited scope of protections for a religious body in the course of:

  • establishing, directing, controlling or administering a hospital or aged care facility; or
  • if the religious body solely or primarily provides accommodation—the provision of accommodation; or
  • establishing, directing, controlling or administering a camp or conference site that provides accommodation; or
  • if the religious body solely or primarily provides services to people with disability—the provision of the services.

If this is the policy intent, which

If this is the policy intent, the Government, prior to allowing for a further round on consultation, needs to:

  • clearly specify the functions or activities where it proposes that religious bodies would not be permitted to act in accordance with their beliefs,
  • provide a clear policy rationale for each of these areas, and
  • outline how these provisions may work with clear examples of its operation across all of the protected attributes.

Clause 10 – Sport and Genuine Occupational Qualifications

Existing targeted and clear exemptions for actions within sport taken on the basis of sex, section 41, disability, section 57, and age, section 57M, would be removed, clauses 15 and 20, and replaced by the proposed section 33B.

The Discussion Paper released as part of this review process identified as a principle that changes help to make the Act, ‘clear, simple and user-friendly’, something that this proposal dramatically fails to do. Existing provisions with clear criteria relevant to the particular attribute would be replaced with a vague, ill-defined test that:

  • ‘the discrimination is necessary for fair, safe and effective competition; and’
  • ‘the outcome of the discrimination is reasonable, justifiable and proportionate’.

This unique test is inconsistent with the exemptions in section 42 of the Sex Discrimination Act (Cth) and section 28 of the Disability Discrimination Act 1992 (Cth) creating unnecessary complexity and uncertainty for both participants and administrators alike.

The scant details in the Fact Sheet provide no basis for changes and no real details on how the proposed test might work. It should be noted though that to be accepted by a Tribunal or Court as ‘necessary for fair, safe and effective competition’ introduces a very high bar that would need to be met. This potentially excludes situations where it could be clearly established under the existing provisions and the Sex Discrimination Act (Cth) that ‘the strength, stamina or physique of competitors is relevant’.

More generally, given the significant public concerns around ensuring participation of women in sport, the recent release of updated guidelines by FINA and media reports of other sporting bodies considering similar moves, it may be timely for stronger protections on women’s sport to be introduced. If the aim is to ‘modernise’ the Act, inclusion of amendments along the lines proposed in the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (Cth) may ensure clarity for sporting participants and administrators.

The Government should abandon these proposed changes and:

  • reinstate the ‘clear, simple and user-friendly’ existing exemptions, while also
  • considering the inclusion of further amendments to clarify protections for women’s sport.

Similarly, existing targeted and clear exemptions for work-related actions taken on the basis of sex, section 34, race, section 42, disability, section 48 and age, section 57A, would be removed, clauses 11, 15 and 20, and replaced by the proposed section 33C.

In so doing the ‘clear, simple and user-friendly’ explicit examples of situations where actions should not be considered discrimination in sections 34(2) and 42(2) would be lost. The broader examples in paragraphs (a) – (c) in sections 48 and 57A would also be lost.

If the Government is to proceed with this change, section 33C should be expanded to capture these examples to retain existing clarity and certainty.

Clause 16 – Religious Workers

Currently the exemption in section 44 for educational institutions, whether religious or not, and religious bodies operating hospitals, to discriminate on the basis of religious conviction where the role requires ‘the participation by the employee or worker in the teaching, observance or practice of the relevant religion’.

The proposed replacement section 44 as outlined in the ED Bill would exclude educational institutions and religious bodies which have a sole or main commercial purpose, but otherwise allow discrimination on the basis of religious conviction where:

  • conformity with the doctrines, tenets or principles of the religion is a genuine occupational qualification for the position; and
  • the discrimination is reasonable, proportionate and justifiable in the circumstances.

On the basis of the Fact Sheet this is clearly intended to provide the basis for religious bodies to be able to employ staff, and once again seeks to constrain religious freedom.

As indicated above, Tribunals and Courts are ill-equipped to determine matters of theology and whether it is a genuine occupational qualification for a position that the holder confirms to ‘the doctrines, tenets or principles of the religion’. This is fundamental a question of theology and reflective of the view of faith formation and gospel witness adopted by that faith community.

Once again, as indicated above, on what basis would a Tribunal or Court determine that the actions of a religious body in relation to the employment of staff in these circumstances are ‘reasonable, proportionate and justifiable in the circumstances’? Such an analysis can only be properly undertaken in light of the applicable ‘doctrines, tenets or beliefs’ and fall outside the sphere of competence of a Tribunal or Court.

By way of contrast, emphasising the very targeted and inconsistent approach taking in this ED Bill, there is no equivalent constraint in the exemption for political workers provided for in the very next section 45 of the Act. Political conviction does not need to be demonstrated to be ‘a genuine occupational qualification for the position’ and nor do the actions of political parties need to be ‘reasonable, proportionate and justifiable in the circumstances’.

The Government, once again and prior to allowing for a further round on consultation, needs to:

  • provide a clear rationale for the significant constraint on religious belief and activity imposed by these provisions, and
  • outline how these provisions may work with clear examples of its operation across all of the protected attributes, and
  • release advice as to how these provisions meet the requirement to protect the ‘freedom to demonstrate … religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private’ protected by section 14(1(b) of the Human Rights Act 2004 (ACT).

Clauses 17, 18 and 19 – Religious Educational Institutions

These clauses in the ED Bill replace ‘educational institution’ with ‘religious educational institution’, in section 46 of the Act, which is superfluous and, as defined in the manner proposed in clause 19, may be overly restrictive.

Section s46(2)(a) of the Act already requires that a body seeking an exemption is an institution ‘conducted in accordance with the doctrines, tenets, beliefs or teaching of a particular religion or creed’, very clearly limiting the applicability of the balancing provisions in this section.

Faith-based schools, those ‘conducted in accordance with the doctrines, tenets, beliefs or teaching of a particular religion or creed’, whether associated with a particular denomination or not, would generally be able to demonstrate that they meet the legal tests for classification as a religious body. This addition seems rather superfluous and unnecessary, indeed merely duplication which adds a further potential layer of complexity and uncertainty.

Media reports indicate that the Government proposes to withdraw these provisions as they were a ‘drafting error’.

The Government should issue an updated Exposure Draft Bill and provide further time for consultation before a final bill is tabled in the assembly.

Clause 21 – Positive Duties

A very wide-ranging amendment is contained in the proposed Part 9 requiring, from 3 years after the amendments commence, anybody or organisation required not to discriminate to:

  • ‘make adjustments for people with a protected attribute that are reasonable, proportionate

and justifiable in the circumstances’, and

  • ‘take steps to eliminate discrimination, sexual harassment and unlawful vilification that are reasonable, proportionate and justifiable in the circumstances’.

As noted in the Discussion Paper, only one other jurisdiction in Australia has similar broad provisions, most positive duty requirements are more targeted. These wide-ranging proposals are also given a scant three sentences of explanation in the Fact Sheet.

To avoid uncertainty, and give effect to the aim of creating a ‘clear, simple, and user-friendly’ Act, it should be made clear in this part that the duties it creates are subject to the same exceptions as the remainder of the Act. In other words, if an exception applies in a particular circumstance there can be no duty to make adjustments or take steps to eliminate ‘discrimination’.

The Government should amend the ED Bill proposals in relation to Part 9 to explicitly recognise the impact of exceptions within the Act.

Clause 25 – Dictionary

The impact of the definition of ‘function of a public nature’ and the problems it potential creates are

discussed above in relation to Clause 9.

Whether the definition of ‘religious body’ is retained following reports noted in relation to clause 17, 18 and 19 above is unclear. The value of the definition as it stands is equally unclear.

Other Comments

It is disappointing that the ED Bill does not include the positive proposals for modernisation of the Act contained in our submission. These best practice recommendations included drafting of:

  • Amendments to the objects as recommended by the Expert Panel on Religious Freedom,
    • Inclusion of interpretative principles as recommended by the Expert Panel on Religious Freedom and as proposed by a NSW Parliamentary Committee,
    • An updated definition of discrimination reflecting the language of the United National Human Rights Committee,
    • A range of balancing provisions clarifying the coverage of the Act and balancing of human rights in accordance with Australia’s responsibilities under the International Covenant on Civil and Political Rights.

The Government should reconsider and amend the ED Bill to incorporate the proposals for modernisation included in the CSA submission prior to allowing a further period of consultation.

There has also been considerable disappointment expressed in relation to the ‘consultation’ process adopted prior to the release of the ED Bill. The ‘Listening Report’ released on 7 April 2022 provided no substantive responses to submissions following the release of the Discussion Paper. The ‘Fact Sheet’ released with the ED Bill similarly had little in the way of policy rationale or engagement with the

important policy principles underlying human rights law. These failings should be addressed, and a further period of genuine consultation undertaken.

The Government should:

  • Prepare and release a substantive and reasoned response to all the submissions made to the discussion paper, and
  • Distribute an updated ED Bill taking into account feedback on this initial attempt, along with more comprehensive explanatory and supporting materials, and
  • Allow a further period of consultation and feedback before any Bill is introduced to the Assembly.

Initial public feedback to the draft bill closed on July 1.
Valued Voices will keep you updated as more information comes to light.