Sex Discrimination Act amendments – crucial, but flawed

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By Adam Fletcher

Last month the Government introduced a Bill amending the Sex Discrimination Act 1984 (Cth) to prohibit discrimination on the basis of a person’s sexual orientation, gender identity and intersex status, as well as participation in a same‑sex relationship. It is currently the subject of a Parliamentary inquiry, the Castan Centre’s submission to which will be available here shortly.

These reforms were hived off from the broader draft Human Rights and Anti-discrimination Bill 2012 after the Government sent that project to consolidate the various anti‑discrimination laws into one Act back to the drawing board. The Minister said in his Second Reading speech that “[t]his reform is too important to suffer any further delay through its connection to the wider consolidation project.”

Putting aside disappointment at the Government’s apparent acquiescence to Opposition Senators on the consolidation project, which would have made many other important improvements to federal anti‑discrimination law, how do these Sex Discrimination Act amendments stack up on their own merit?

The good news is they extend the protection of the law to people who have long suffered discrimination without adequate redress; at least not in the federal sphere. Even the Opposition agrees this measure is required to fill an ‘obvious gap’ in the law.

The key terms in the Bill, including ‘sexual orientation,’ ‘gender identity’ and ‘de facto partner,’ are defined broadly – in some cases even more broadly than the 2012 draft consolidation Bill, which is in line with expert recommendations and good to see. There is some controversy over whether the definition of ‘sexual orientation’ should include heterosexuality (given its status as the dominant paradigm), but on the whole advocates of reform are likely to be pleased with the Bill’s inclusiveness.On the other side of the ledger, there are some aspects of the Bill which are open to criticism from a human rights perspective. One is an exemption clause which makes it clear that nothing in the Bill affects ‘anything done by a person in direct compliance with the Marriage Act 1961 (Cth)the Act which infamously defines marriage as being between a man and a woman. Since this is an obvious and very topical area of discrimination in federal law, the clause is unsurprising, but disappointing all the same. In attempting to justify this exemption, The Explanatory Memorandum to the Bill (in its Statement of Compatibility with Human Rights) explains:

The UN Human Rights Committee has stated that it does not consider a refusal to grant marriages between people of the same sex in and of itself to be a violation of the rights under the ICCPR, including Article 26. It is not contrary to the ICCPR for a State to refuse to do so, provided that the status of marriage does not give couples treatment that is more favourable than couples who are not married and have no possibility of being married because of the restriction on the basis of sexual orientation.

Presumably, the Government is referring to the case of Joslin v New Zealand, in which the UN Human Rights Committee did indeed conclude (albeit on the basis of article 23, which protects the right to marry, rather than 26, which prohibits discrimination) that States are not obliged to grant marriage rights to same‑sex couples. However, the Committed issued its Views on that communication in 2002. At that time, only the Netherlands had legalised same‑sex marriage, but in the intervening decade at least a dozen more have changed their laws; realising that prohibition is morally untenable (at least in a secular State). The latest legislature to get on board was New Zealand, which put on an inspiring display just last week.

Just because a court (or treaty body) has not yet said the Government must not discriminate against same-sex couples does not mean it should. As the Castan Centre’s submission on Marriage Equality Bills in 2012 put it:

In implementing human rights doctrines it is important to recognise that the task is not to reaffirm cultural and religious principles that have been drawn upon to construct human rights law, but rather to constantly strive to ensure that laws and practices support the principles of dignity, equality and justice.

The Government should reflect on whether its stance on marriage is consistent with this dictum, or even with its own policies on discrimination. Clearly, the soul-searching on this issue is already underway – only fear is holding us back.

Another problem with this Bill is that it extends the existing religious exception in the Act to make it clear that religious educational institutions may continue to discriminate as they wish – including against the groups who are otherwise protected under the new amendments. The exception, which potentially affects all staff in such institutions (regardless of whether they are responsible for teaching religious values), has already had a major deleterious effect on all kinds of employees – not just those in homosexual relationships, but also de facto couples, single mothers and others deemed to be living in sin.

The Parliamentary inquiry into the draft consolidation Bill recommended that religious institutions should not enjoy blanket exceptions from anti‑discrimination law when they are involved in (Government-funded) service delivery to the general community. Despite the morally self-evident  nature of this recommendation, it prompted only accusations of ‘undermining religious freedom’ from the religious groups. The Explanatory Memorandum to the current Bill notes meekly that ‘rights may be limited by other rights.’ Whilst this is true, it falls a long way short of justifying the sweeping religious exceptions in federal anti‑discrimination law.

Finally, the Bill fails to implement several recommendations from a 2008 Parliamentary Committee inquiry into the effectiveness of the Sex Discrimination Act, including recommendations to link the Act more closely with the international law on which it is based, and to improve its tests for direct and indirect discrimination. The Committee labelled these reforms as ‘urgent’ at the time – now five years ago.

Although the problems identified above are significant, the Bill represents a reform whose time has come, and ought to pass quickly with bipartisan support (which would probably not be possible if the exception/exemption clauses were left out). The Bill is an important step towards the wider reforms flagged during the consolidation project consultations, but I hope that Parliament sees it as just that – a step, rather than an alternative journey.

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