Wednesday, 9 February 2022
Human Rights Legislation Amendment Bill 2021; Consideration in Detail
I move Centre Alliance amendment (2):
(2) Schedule 1, page 6 (after line 10), at the end of the Schedule, add:
10 At the end of section 37
(3) Paragraph (1)(d) does not apply to an act or practice of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed if the act or practice is in connection with employment, education or training provided by the educational institution.
11 Section 38
Repeal the section.
I am pleased to see that amendments to sections 37 and 38 of the Sex Discrimination Act have been put forward by the government and the opposition. However, I would argue that those amendments do not go far enough. We should not cherrypick and provide protections for students while the teachers who teach those children are left with no protection from sexual discrimination. What message does that send to the students if they see that their teacher is dismissed because of their sexuality, gender or marital status? Think about it. The young people see the hypocrisy here—protection for some and not for others.
We need to ensure that teachers and contract workers in educational settings are protected from sexual discrimination in their employment. We need to make sure that students are protected. So this amendment will rightly protect students and teachers and contract workers in religious schools from being subjected to discrimination on the grounds of their sexual orientation, gender identity, marital or relationship status or indeed pregnancy status by amending section 37 and removing section 38 in its entirety.
I understand this is the first of two amendments that the member for Mayo is moving. This one, the one we are going to deal with first, would repeal the whole of section 38 of the Sex Discrimination Act. I have to indicate that Labor is opposed to the repeal of the whole of section 38, although we are in favour of the repeal of section 38(3), which is what the next amendment deals with. I want to explain Labor's reasons for that position.
Before the last election the Prime Minister promised to make it unlawful to discriminate against all students. He should deliver on that promise and he should deliver on the promise now, in the early hours of 10 February. If Labor is successful at the next election, Labor will change the law to protect teachers or school staff from being sacked because of who they are too—because they're divorced or pregnant or gay, or because of their gender or similar. Most religious schools don't sack teachers or other staff because of who they are, and they never want to, but Labor absolutely recognises that religious schools have a right to give preference to hiring school staff of their own faith. Because the two rights that I just referred to interact in a complex way, we believe this issue should not be addressed in the way that is proposed here, with the greatest of respect to the member for Mayo, but rather will need to be considered carefully by the Australian Law Reform Commission. This issue should already have been considered by the Australian Law Reform Commission. The Law Reform Commission was commissioned by this government in March 2019 and was due to hand its report to the parliament in March 2020, but the government, regrettably, has on multiple occasions extended the reporting date. We intend to continue to consult with schools, teachers, legal experts and religious organisations while waiting for the Law Reform Commission to report back on this complex matter and the balancing of competing rights that it requires.
If Labor are successful at the next election we will address these important issues, but this sweeping amendment is not the right way of doing it. There needs to be consideration of the very complex interaction between the Fair Work Act, the Sex Discrimination Act and, if these bills become law, the religious discrimination legislation. For that reason, it shouldn't proceed in this rushed way but, rather, should await consideration by the Australian Law Reform Commission. As I've indicated, Labor opposes this amendment, which would repeal the whole of section 38.
I inform the House that the government does not support these amendments, which would have the effect of removing existing exemptions under section 38 of the Sex Discrimination Act for religious educational institutions to discriminate against employees, contract workers and students in good faith and in accordance with their religious doctrines. These amendments would also mean that section 37 of that act, which provides exceptions for religious bodies, as opposed to religious educational institutions, to provide that the exception does not apply to the conduct of religious educational institutions in relation to employment, education and training.
I make it clear that the government believes that discrimination against students in education is unacceptable in all of its forms. Issues relating to the employment of staff at religious schools are more complex than issues relating to students, and raised particular legal issues. They require careful consideration of the interaction between the Sex Discrimination Act and other relevant legislation, including the Fair Work Act, as has been recognised by a number of stakeholders, including the Australian Human Rights Commission. I make the point that the government's proposed amendments, which I trust I'll move shortly, give effect to our commitment to ensure that no child is expelled from his or her school due to his or her sexual orientation.
The government has referred an inquiry to the Australian Law Reform Commission to consider the current framework of religious exemptions in Commonwealth, state and territory antidiscrimination law, including the Sex Discrimination Act. We think that is the better way to address these matters.
I move amendment (3), standing in my name:
(3) Schedule 1, page 6 (after line 10), at the end of the Schedule, add:
10 At the end of section 37
(3) Notwithstanding paragraph (1)(d), it is unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed to discriminate against a student or prospective student on the ground of the student's or prospective student's sexual orientation, gender identity, marital or relationship status or pregnancy.
11 Subsection 38(3)
Repeal the subsection.
From listening to the speeches in this place today and yesterday, I know there are many members who are deeply concerned about the wellbeing of LGBTQIA student. LGBTQIA students experience far higher rates of bullying and depression than their peers, and are significantly more likely to attempt suicide as young adults. Research has found that faith based schools that discourage the disclosure of sexual diversity and which fail to establish safe and inclusive learning environments for students with diverse sexualities exacerbate these statistics.
This amendment repeals subsection 38(3) of the Sex Discrimination Act. Repealing subsection 38 (3) will remove the exception that allows religious educational institutions to discriminate in connection with the provision of education or training. This is a small amendment in size but is an incredibly important amendment. It will go some way towards protecting LGBTQIA students from sex and gender discrimination in religious educational institutions.
I urge all members in this place to consider this amendment thoughtfully, and I seek their support for vulnerable children and young people.
I thank the member for Mayo for moving this important amendment. I indicate that Labor will be supporting this amendment.
The Prime Minister said to me that there's no place in our education system for any form of discrimination against a student on the basis of their sexuality or gender identity when he wrote to me in December, asking me to support the basis of this legislation. This amendment fulfils the spirit of that legislation.
Of course, this was also a promise that was made during the Wentworth by-election in 2018 and was something I'm sure that the various candidates for Wentworth will remind the current member of in the coming period. The truth is that no student should be discriminated against because of who they are. Labor will protect all students, here in this chamber, in the Senate and, if need be, after the next election. We are absolutely committed to this. What we will do in government, if we're not successful here—but we would prefer for this to be carried—is for religious schools to be prohibited from discriminating against students on the basis of sexual orientation, gender identity, relationship or marital status, or pregnancy.
No child should be discriminated against. Overwhelmingly, Australians of faith would agree with this too. Australian families are going to wake up in a few hours and look on, with sadness and anger, if this does not occur. This is something that should unite the parliament, and the entire parliament should support this amendment.
The government does not support this amendment. The government's proposed amendments, which I will move shortly, give effect to our commitment to ensure that no child is expelled from their school due to their sexual orientation. In considering the ongoing appropriateness of other existing religious exemptions, it's necessary to balance the rights of all people to be free from discrimination in education with the rights of religious institutions to conduct their affairs in a way which is consistent with their religious ethos. Such a task is complex and requires consultation across all sections of the community. In particular, we must protect against unintended consequences to ensure that religious single-sex schools are able to operate in accordance with their purpose and their religious ethos. Practical matters, such as appropriate facilities and pastoral care must also be considered.
This is why the government has referred an inquiry to the Australian Law Reform Commission to consider the current framework of religious exemptions in Commonwealth, state and territory anti-discrimination law, including the Sex Discrimination Act. In the government's view that is the appropriate forum in which to consider these important matters.
Members might recall late last year when members had to swap sides. This is a fairly unusual occurrence, but this is what happens in these instances. The reason for that, of course, is that a decision against a proposal to disagree to a motion is not the same as a decision in favour of a motion. So I'll put the next question. The question is that the amendment moved by the member for Mayo be agreed to.
To assist the House, I circulated a number of amendments that covered some similar areas to those moved by the member for Mayo. Given that we've just had resolution of those questions, I won't be proceeding with those amendments.
For the convenience of the House, like the member for Melbourne, I had circulated an amendment in identical terms to the amendment that has just succeeded, as moved by the member for Mayo. As a consequence, it being identical, we are not moving it.