A 10-point test for fair anti-discrimination law reform

There are reports the Albanese Government has developed legislation implementing two of its major policy commitments on anti-discrimination reform:

• a Commonwealth Religious Discrimination Bill, and
• Sex Discrimination Act amendments to protect LGBTQ students and teachers in religious schools against discrimination.

In principle, these changes should be positive. People of faith, and those of no faith, should be able to go about their day-to-day lives free from the fear of discrimination based on their beliefs. While all people, including LGBTQ Australians, deserve the right to learn and work without mistreatment because of who they are.

But, as we saw with the Morrison Government’s deeply flawed 2022 Religious Discrimination Bill, the devil is in the detail. These reforms only deserve support from the community if they provide fair and appropriate protections, for everyone.

Here is the ten-point test we will be using to determine if the Government’s proposal gets our backing:

1. Is the Religious Discrimination Bill consistent with established anti-discrimination laws, or does it include unconventional or unnecessary clauses that will create uncertainty and/or privilege religious organisations (such as with special rights to discriminate against others)?
2. Does the Religious Discrimination Bill attempt to override state and territory anti-discrimination protections, or undermine protections offered by existing Commonwealth anti-discrimination laws?
3. If there are exceptions that would allow religious organisations to legally discriminate, are they reasonable and proportionate? It is essential we avoid provisions like the extremely wide ‘one other person’ test included in the Morrison Bill that allowed organisations to discriminate if ‘a person of the same religion as the religious body’ reasonably considered it acceptable.
4. Does the Religious Discrimination Bill grant exceptions for ‘statements of belief’, privileging religious statements over protecting others from discrimination, including people of minority faiths?
5. Are LGBTQ students in religious schools clearly protected against discrimination by amendments to the Sex Discrimination Act (SDA)? Or are religious schools still able to treat them differently to their peers?
6. Do the SDA changes clearly protect LGBTQ teachers and other workers in religious schools? Or do other changes give religious schools special powers that could be used to target them?
7. Has the Government removed other religious exceptions in the SDA that allow discrimination by religious organisations (including large, taxpayer-funded providers) in the provision of social services and in employment? Can people in need of care access health care, NDIS services, housing and other community services without discrimination? Can publicly-funded faith-based aged care providers still discriminate against LGBTQ workers?
8. Noting the Government has promised to prohibit religious vilification (which is expected to be included in their Religious Discrimination Bill), will they introduce equivalent bans on anti-LGBTIQ vilification to address the rise in right-wing extremism against these communities?
9. Will the Government finally create and appoint a stand-alone Commissioner at the Australian Human Rights Commission with responsibility for issues affecting LGBTIQ Australians? Or will this continue to be an ad hoc, part-time responsibility of the Sex Discrimination Commissioner?
10. Finally, will the Government use this opportunity to update the protected attribute of ‘intersex status’ to ‘sex characteristics’ across the SDA and Fair Work Act, as it promised to do in November 2022 in response to calls by intersex organisations?

People of faith and LGBTIQ people (including many people who fall within both categories) deserve adequate protection against discrimination and vilification in the places where they live their lives: schools and universities, workplaces, community services, and public spaces.

This is truly a once-in-a-generation opportunity to reform Commonwealth anti-discrimination laws for the benefit of everyone.

It’s essential the Albanese Government seizes this chance.

By Alastair Lawrie, Director of Policy and Advocacy at the Public Interest Advocacy Centre