Anti-discrimination laws: What's wrong

Every state and territory has legislation making various types of discrimination illegal. Some but not all jurisdictions provide exemptions for certain operators or employers allowing them to discriminate without it being unlawful.

Media commentary to date has concentrated exclusively on faith based or religious schools and on the issue of staff and student sexuality. There is much more to the issue than just these things.

Firstly, the various legislation (Commonwealth, New South Wales and Australian Capital Territory) establishes the laws which operate, and which are to be obeyed. The concept of 'the rule of law' means that everyone is held accountable to the same laws. It is very unusual to establish laws but to identify organisations which are not required to abide by those laws. This is what exemptions provide.

Without canvassing whether it is fair or reasonable to allow certain individuals or groups to not follow the rules that others are required to follow, it would seem logical that to be granted such a privilege would require a rigorous and exacting test. The general exemptions currently contained in the laws of some states and territories apply no such test.

The NSW Anti-Discrimination Act 1977 contains the broadest set of exemptions. These exemptions apply to 'private education authorities', they are not restricted to those schools operating within a particular faith or creed nor are they restricted to schools. They were clearly not designed to provide for freedom of religion.

The 40 year old NSW Act provides these 'private education authorities' with exemptions in regard to marital status, sex, sexuality and disability. Our belief is that the Act and the exemptions do not reflect community standards and are long overdue for review.

A number of established religions which operate schools (including the Catholic Church) have gone on the public record to say they did not seek and do not use these exemptions. If the NSW Government has the courage to establish an independent review of the Act and the existing provisions the Union looks forward to those churches supporting the removal of the exemptions.

While the Commonwealth and the recently amended ACT legislation do not provide such general exemptions they do exclude some employers from parts of the Acts.

The recent and unfortunate public letter from leaders in most NSW Anglican schools made a number of bizarre and in places incoherent claims. The letter pointed to the Commonwealth Sex Discrimination Act 1984 as “the only significant legal protections available to schools to maintain their ethos and values”. Every one of these schools enjoy the blanket exemptions from the NSW Anti-Discrimination Act so this is hardly true.

They indicate that although they have the right to discriminate and to “dismiss gay staff members” there is “little evidence that this occurs”. I interpret this to mean they don’t use or very rarely use those privileges.

The open letter draws parallels with the corporate world arguing that staff who do not personally identify with the faith of the school “are still expected to support the overarching mission and ethos of the school. This is not inconsistent with the practice of most employers and their corporate goals”.

Absolutely correct. Woolworths probably don’t care where their employees’ shop and I’m sure they don’t pry to find out but if a Woolworth’s employee was advising customers to shop at Coles or Aldi they would likely be subject to disciplinary processes or even dismissal. Woolworths do not need exemptions from legislation and if the employee claims they were unfairly dismissed they have access to the Fair Work Commission where both sides can argue their case.

Finally, I do not accept that independent schools, including faith based schools, are so fragile that they need to be exempt from the law. Nor do I believe that enrolments would suffer or the ethos be undermined. As indicated earlier some states do not provide exemptions for religious schools and in those places religion schools are flourishing and enrolments continue to grow.

In most cases staff, especially teachers, self select where they apply for employment. A teacher with an abhorrence of all things sporting is highly unlikely to apply for a position in a specialist sports high school.

The IEU welcomes the public debate and discussion of these issues and looks forward to a review of all relevant legislation where we, along with every other interested party, can make a submission.

John Quessy