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Discrimination and Religious Exemptions

Several pieces of legislation, both in federal and state law, prohibit discrimination in Australia. Federal legislation includes the Age Discrimination Act 2004, the Australian Human Rights Commission Act 1986 the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. State legislation about discrimination also exists and these pieces of legislation sometimes overlap with federal legislation. Collectively they prohibit discrimination on grounds including race, gender, sexual orientation, age, pregnancy, disability, religious practice or believe, marital status and breastfeeding. However, in some circumstances, religious exemptions exist in respect of anti-discrimination legislation. This article deals with the situations in which such an exemption can be claimed.

State anti-discrimination legislation

State legislation prohibiting discrimination includes:

Although freedom from discrimination is valued in Australia, another freedom is also valued. This is religious freedom. Sometimes the right to practise religious freedom conflicts with the right not to be subjected to discrimination. For this reason, in some situations, religious institutions are exempt from compliance with laws prohibiting discrimination for some circumstances.

Religious exemptions in the Age Discrimination Act

Section 35 of the Age Discrimination Act states that the Act’s protections do not apply to religious organisations that conform to the beliefs and doctrines of their particular faith or where discrimination is necessary to protect the religious sensitivities of the faith’s followers.

Religious exemptions in the Sex Discrimination Act

Sections 37 and 38 of the Sex Discrimination Act contain exemptions for religious bodies. Section 37 is specific and guarantees exemptions for the following circumstances:

  • Where priests, members or ministers of the religion are being ordained;
  • Where priests, members or ministers of the religion are being trained;
  • Where people are being selected for duties or functions related to religious practice or observance;
  • Where a religious body is carrying out any other practice or activity following the beliefs of that religion

Section 38 is less specific and allows for more discretion. This section states that it is not unlawful for an educational institution that is established for a religious purpose to discriminate on various bases against contractors and employees where the following applies:

  • The educational institution is conducted following the teaching, beliefs and doctrines of a particular faith; and
  • The relevant discrimination is carried out in good faith to avoid injury to followers of that faith due to religious sensitivities.

The effect of this and similar exemptions is that a religious school could choose not to employ a person who is in a same-sex relationship or an unmarried woman who is pregnant where other non-religious educational institutions could not. Religious schools could also discriminate against students who are same-sex attracted or transgender.

Review of religious exemptions

In recent times the ability of religious institutions to practice discrimination under religious exemptions has been criticised, and the law in this area is being reviewed. The federal government has asked the Australian Law Reform Commission to examine whether the exemptions based on the freedom to practise religion could be limited or taken out of legislation altogether.

How religious exemptions apply to schools has been the aspect of the exemption that has been most criticised. This is because religious schools receive significant government funding. The criticism is that religious schools effectively have substantial power through religious exemptions to impose their views and values on the community.

Other reasons for criticism of the current religious exemptions to laws prohibiting discrimination include:

  • The religious exemptions do not have to be justified but apply automatically;
  • Religious organisations have no requirement to show how they promote equality within the confines of the doctrines of their religion;
  • That the religious exemption often creates inconsistencies with obligations that Australia has under international law. One example of this is the obligation Australia has to eliminate practices that elevate one gender over another or place women and men in traditional stereotypical roles. This obligation comes from the Convention for the Elimination of all Forms of Discrimination Against Women;
  • The term “good faith” in section 38 of the Sex Discrimination Act is too subjective and provides religious organisations with too much scope to engage in unnecessary discriminatory practices.

What if you have been discriminated against by a religious organisation?

Suppose you are an employee or were an employee of a body that operates per the practice of a particular faith and feel you have suffered from discrimination. In that case, you can still make a claim or complaint about this discrimination. However, it may be that the discrimination you experience will not be found to be unlawful if the religious institution can make out that one of the religious exemptions to discrimination applies.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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