ACT discrimination law changes 'could be model for Commonwealth'

Changes to the ACT’s discrimination laws fall short of protecting the LGBTI community from religious discrimination in hospitals and aged care facilities, analysis from the Public Interest Advocacy Centre indicates.

ACT Chief Minister Andrew Barr and Justice Minister Shane Rattenbury introduced a bill to strengthen protections for students and staff in religious schools last week.

Andrew Barr says his draft laws will protect gay students and teachers by eliminating a "legal loophole". Photo: Rohan Thomson

Andrew Barr says his draft laws will protect gay students and teachers by eliminating a "legal loophole". Photo: Rohan Thomson

Under the draft legislation, Canberra's schools will still be able to discriminate on the basis of their religion so long as they publish a policy proclaiming they plan to so do first.

Public Interest Advocacy Centre chief executive Jonathon Hunyor said while the amendments did a good job balancing religious freedom with the right of students and employees of religious schools to live free of discrimination on the basis of sexuality or gender identity, there was room for improvement.

“These amendments don’t go as far as they could to protect LGBTI people from discrimination by religious organisations, but they are a good start. They should be welcomed as another step forward in the protection of the human rights of people in the ACT,” Mr Hunyor said.

“However, the bill falls short of protecting the LGBTI community from discrimination by religious organisations in other contexts like community services, including hospitals and aged care facilities. Unlike the Tasmanian Act, the ACT bill only applies to religious schools.

“This is a big omission that means big religious service providers will continue to be allowed to discriminate against LGBTI Canberrans outside of educational institutions.”

However Mr Hunyor said the bill represented a major step forward in protecting LGBTI students and staff in religious schools against discrimination and offers a possible model for the Commonwealth Parliament to consider as it addresses the same challenges in coming weeks.

An ACT government spokeswoman said discrimination protections in other religious settings would be looked at next year.

"The Discrimination Amendment Bill was developed to address a particular issue of public concern regarding exceptions that could potentially allow discrimination on the grounds of sexuality and relationship status in the context of religious education. It was important to act quickly to reassure the community that discrimination on this basis is not consistent with our progressive and inclusive values and will not be permitted in our ACT schools," she said.

However Christian Schools Australia executive policy officer Mark Spencer hit out at the lack of consultation with religious schools and the "intemperate" language from the chief minister when speaking about the bill.

Mr Spencer was also concerned about the "unnecessary rush" in introducing the bill, given "the clear evidence that there is no genuine problem, only a contrived and confected crisis" and the ongoing Commonwealth consideration of these issues.

"[There's a] need to provide greater certainty around the ability of religious schools to continue to teach a Christian view of sexuality and sexual conduct and enforce general behavioural standards on those and other issues consistent with our faith," Mr Spencer said.

"Comments in the explanatory statement to this effect have little value and need to be strengthened by the inclusion of examples in the legislation itself."

Mr Spencer also said there was a need to include further criteria for determination of reasonable indirect discrimination along the lines of the Commonwealth proposals, in the context of religious schools.

However the government spokeswoman said the bill gave "appropriate weight" to religious freedom while improving protections for children and young people.

"The bill respects the right of religious schools to discriminate in employment on the grounds of the religious conviction of the teacher or staff member, provided that this approach is made clear to employees and prospective employees in publicly available policies," she said.

"However, under the new law, a religious school would not be entitled to treat a staff member unfavourably because of their sexuality or other protected attributes."