Peak legal organisations and trade unions have joined calls to reform aspects of Queensland’s anti-discrimination laws, including scrapping a clause used by some religious groups to justify contracts that suggest they could sack openly gay, transgender or unmarried people.
The controversial “genuine occupational requirement” clause in the Queensland Anti-Discrimination act allows religious bodies to discriminate in circumstances where a person “openly acts in a way that the person knows or ought reasonably to know is contrary to the employer’s religious beliefs”.
Some school and church employment contracts have used wording which reflects the clause, such as at Citipointe Christian College, which warned explicitly that teachers could be sacked for behaving in a way incompatible with the religious beliefs of the college, including “in relation to the expression of human sexuality through heterosexual, monogamous relationships, expressed intimately through marriage.” The school said last month that the contract was “under review” and that “new wording is awaiting approval”. Guardian Australia has seen similar contracts for teachers at other Queensland schools.
The Human Rights Commission Queensland is undertaking a review of state anti-discrimination laws, and submissions include discussion about the “genuine occupational requirement” clause.
In a submission to the review, the Australian Christian Lobby and several Christian schools organisations argued religious freedom measures should be strengthened.
“Religious organisations should be able to ensure that any employment decision they make is in accordance with the doctrines, tenets and beliefs of the organisation,” the ACL’s national director, Wendy Francis, wrote.
Legal groups, including the Queensland Law Society and the Australian Lawyers’ Alliance, argued the “genuine occupational requirement” clause should be reformed, in line with the Tasmanian model which allows religious schools to hire and retain staff of their same faith, but not discriminate against them on other grounds, such as relationship status, gender identity or sexuality.
The Queensland Council of Unions said it backed the repeal of the exemption “in a contemporary society” in line with a submission from the union representing non-government school teachers.
The Independent Education Union, in its submission, said the entire section of the legislation should be deleted, describing the exemptions as “inherently unfair” and out of step with modern community expectations.
“A permanent and relatively unfettered legislative exemption to allow faith-based educational institutions to discriminate in employment overrides the rights of many, without proper justification,” the union’s submission says.
“The provision is generally thought to have a disproportionate impact on lesbian, gay, bisexual, transgender and intersex (LGBTI) workers, but the effect of the exemption is much more broad reaching.
“An unmarried pregnant woman, or a divorced person, or a person with a child to someone they are not married to, is a lawful participant of society and is widely accepted as not infringing on community standards. However, the … exemption may be used to justify a decision to terminate that person’s employment.”
Harmful effects
Many of the submissions to the review detailed examples of the harmful effects of discrimination at different schools across the state.
The Sikh Nishkam Society of Australia said Sikh students were “bullied” and called names in school playgrounds, and asked to cut their hair to comply with school uniform policies.
“If they don’t cut their hair, their enrolments are not accepted,” the submission says.
The Queensland Council for LGBTI Health detailed dozens of examples from people who spoke about shared anonymous stories of abuse, discrimination and other forms of prejudice.
“My child who identifies as gender fluid was not able to express their gender fluidity at their school,” one person said.
“It was made clear that no concessions would be made to accept my child’s preferred name, pronouns or amenities needs.”
Taking on more responsibility
The Human Rights Commission’s discussion paper asked for feedback on the idea of “positive duties” – which are effectively responsibilities on employers and organisations to prevent discrimination and harassment.
The Queensland rugby league submission details stakeholder feedback, including a survey of officials, local clubs and volunteers that found 82% supported the idea that the law should impose a positive duty on organisations, and that their compliance should be monitored.
The ACL opposed the notion of a positive duty.
“Positive duties to eradicate discrimination will unfairly prejudice religious organisations and schools,” the Christian lobby’s submission said.
“Not-for-profit religious organisations will be taken away from their core mission, have their resources unduly stretched, and in some cases may be forced to compromise on their deeply held conviction.”
The ACL opposed expanded regulatory powers for the Human Rights Commission and complained that the anti-discrimination act should not be used as a “vehicle for progressive ideology”.
It said the discussion paper focused on “contestable and ideological concepts”, such as the concept of equality as a right, and the idea that discrimination is systemic.
“Discrimination law is no place for such ideology”.
