Amid political skirmishing about Australia’s religious discrimination laws, Prime Minister Scott Morrison claims Labor is responsible for legislation that allowed schools to expel students because of their sexual orientation.
The claim is misleading and omits some important context. In 2013, the Gillard Labor government gave religious schools an exemption from new legislation that banned discrimination on the basis of sexuality or gender identity.
Discrimination law experts say prior to the 2013 amendments, there were no federal laws protecting gay and trans students from being expelled. Therefore, Labor’s 2013 changes did not provide schools with new powers to expel students on the basis of their sexuality. Additionally, the 2013 changes were supported by the coalition opposition, which included Mr Morrison.
The prime minister made the claim at a press conference on February 7 while answering a question about the government’s Religious Discrimination Bill. Referring to current laws that allow religious educational providers to expel gay students, the prime minister said: “It was actually (Labor’s shadow attorney-general) Mark Dreyfus that put measures in the Sex Discrimination Act. Labor Party put measures in the Sex Discrimination Act, which meant that you could expel children because of their sexuality.”
The Sex Discrimination Act (SDA) was introduced by the Hawke government in 1984 to eliminate, “so far as is possible”, discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy across various areas of life including work and education.
However, under section 38(3) of the Act, religious education providers were exempt from the new rules so long as the discrimination was carried out “in good faith” and “in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed”.
In 2013, the Gillard government extended the scope of the SDA, adding ‘sexual orientation’, ‘gender identity’ and ‘intersex status’ to the list of protected attributes. As part of the 2013 changes, the exemptions provided to religious education institutions were also widened to include the new grounds of sexual orientation and gender identity. The 2013 amendments were overseen by Labor MP Mark Dreyfus, then serving as attorney-general.
Mr Morrison is correct to say that Mr Dreyfus is responsible for amending the SDA to specify that religious educational providers could discriminate on the basis of sexuality. However, three discrimination law experts have separately questioned the accuracy of the prime minister’s claim that the 2013 amendments “meant you could expel children because of their sexuality”.
Melbourne Law School professor Beth Gaze told AAP FactCheck that it is “inaccurate” to say Labor’s SDA changes in 2013 meant schools could expel children because of their sexuality because “you could do that anyway” before the law was changed.
“There was no protection in the SDA at all for gender identity or sexual orientation so any school, including a public school, could have expelled a student on the basis of gender identity or sexual orientation,” Prof Gaze said in a phone interview.
Professor Simon Rice, the Kim Santow Chair of Law and Social Justice at The University of Sydney Law School, told AAP FactCheck that it is true to say the 2013 amendments created a potential problem for gay students because Labor “simply whacked another attribute into the piece of legislation”.
“On the one hand they (Labor) added the protection (against discrimination on the basis of sexual orientation), on the other hand, they added that attribute to the exemptions from the protection,” he said in a phone interview.
However, Prof Rice said prior to the changes “there was no federal protection against discrimination on the grounds of sexual orientation, which means that before that amendment it was possible to discriminate”.
A third discrimination law expert, ANU emerita professor Margaret Thornton, said prior to 2013 the legality of expelling students on the basis of sexual orientation or gender identity was “somewhat murky”.
“Theoretically, students probably could be expelled on the basis of sexuality prior to 2013 as the SDA had nothing to say either in their support or in the support of a religious school,” Prof Thornton said in an email.
As such, the prime minister’s remark was “something of an overstatement”, she said.
All three experts said that in 2013, states and territories already had a patchwork of laws that offered some form of anti-discrimination protection for gay students.
In making his claim, the prime minister also omitted the fact that the 2013 anti-discrimination exemptions provided to religious educational providers were supported by the coalition opposition. At the time the legislation was passed, Mr Morrison was the coalition’s shadow minister for immigration and citizenship.
In October 2018, Mr Morrison committed to changing the SDA to remove the exemption allowing religious educational providers to discriminate against gay students, saying the government “does not support expulsion of students from religious non-state schools on the basis of their sexuality”.
On February 10, 2022, MPs voted to repeal section 38(3) of the SDA as part of a parliamentary debate about the Religious Discrimination Bill. The vote would have had the effect of banning religious educational providers from discriminating against students on the grounds of either sexuality or gender identity. However, the government moved later the same day to delay the introduction of the bill to the upper house, citing advice from the Australian Government Solicitor on potential impacts of the amendment, and effectively putting the Religious Discrimination Bill on hold until after the next election.
The prime minister’s office declined a request for a comment about the basis of his claim.
It is true the Gillard Labor government gave religious educational providers an exemption from new anti-discrimination rules in 2013, specifying they could legally discriminate against students on the basis of sexuality. However, prior to the 2013 changes, no Commonwealth laws existed that prohibited schools from such discrimination.
Therefore, while it is correct that Labor amended the Sex Discrimination Act in 2013, it is misleading to suggest those amendments created a situation whereby religious schools could discriminate on the basis of sexuality.
Additionally, the coalition supported the extended exemptions that were provided to religious educational providers in 2013.
Misleading -The claim is accurate in parts but information has also been presented incorrectly, out of context or omitted.