Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Hansard source

The Labor bill before us, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, completely removes the ability of religious educational institutions to maintain their ethos through what they teach and through the rules of conduct they impose on students. This is because such teachings and rules of conduct will now expose the religious schools to litigation under the Sex Discrimination Act, to which they were previously not exposed. Labor's bill is thus contrary to the basic human rights to freedom of thought, conscience and religion.

Labor's bill opens up religious education institutions to claims of discrimination merely because they teach religious doctrine. For example, teaching passages in the Bible might be argued to subject certain students to detriment, which is the basis for a claim under section 21 of the SDA. Labor's bill opens up religious schools to claims of discrimination merely because they impose reasonable school rules. For example, a student might now claim to be discriminated against because of a school rule that requires the student to attend chapel where the service may subject certain students to 'detriment'.

Labor's bill would require churches, synagogues, mosques, monasteries, prayer centres, theological colleges and seminaries, if they were engaged in education activities, to admit activist students who have no intention of upholding the ethos of the body. If they refuse to admit the student, these bodies would be subjected to expensive litigation. Labor's bill would also require churches, synagogues, mosques, monasteries, prayer centres, theological colleges and seminaries to permit student behaviour that is diametrically opposed to relevant religion. Again, if they did not permit this behaviour, they are opening themselves up to being subjected to expensive litigation.

On 26 November I presented the dissenting report of the Legal and Constitutional Affairs References Committee. That reference included consideration of the very issues that are included in the bill presented by Labor. Our report particularly focuses on certain distinct considerations which arise in respect of students within faith based schools. This was summed up in evidence by Christian Schools. As presented in the dissenting report, they:

… have no desire to expel students on the grounds of sexuality orientation or gender identity. However, in the absence of exemptions, schools have no adequate legal protection to:

1. Teach in accordance with widely held Christian beliefs regarding sexuality, gender and relationships;

2. Manage the school community and student behaviour in ways that are appropriate to the faith of the school; and

3. Employ only people who share their beliefs and manifest those beliefs in their own lives.

I have to state that current public discussion has been built on a lie. Faith based schools have made it very clear that students are not being expelled simply on the basis of their sexual orientation. Again, this was made very, very clear in the committee inquiry.

The same reasons that underpin the dissenting report which I presented are directly relevant to Labor's bill. First and foremost, the Senate committee report demonstrates the need for positive and standalone protection of religious freedom in Australia. To do otherwise puts us in direct contravention of international law. This bill that we're considering today is confined to the applicable rights of equality and nondiscrimination, and does not recognise the equally applicable right to religious freedom. Unless we legislate to equate these rights, as is required by international law, we will continue to fail in balancing appropriate equality of rights.

The explanatory memorandum to this bill wrongly states that an overwhelming majority of schools told our Senate committee inquiry that they do not use these exemptions and do not want them. This is not only wrong but a total misrepresentation of the evidence provided. As we noted in our dissenting report:

… witnesses were asked to provide examples of cases in which the legislative exemptions 'have been involved or invoked'. Due to the sensitive nature of the matters, several submitters provided confidential examples.

The majority report wrongly concluded:

… if it is the case that the exemptions are not being used against students, there is no reason to maintain them.

However, the report itself acknowledges that examples were provided in camera by schools where reliance was placed on those exemptions.

Without disclosing the particular circumstances, several submitters opposed the passage of that bill on the basis of various practical circumstances that they said would arise were the bill to pass into law. Time precludes an examination of those circumstances, but there are real and viable examples that raise complex and difficult questions that need to be considered. As the dissenting report says:

In concluding that as 'the exemptions are not being used against students, there is no reason to maintain them', the majority report appears to misunderstand that, in certain circumstances, even the mere making of a request that a student or staff member respect the school's values could be an action that requires reliance on the exemptions to be lawful (at least on the law as it currently stands). In light of the foregoing examples, it cannot be said that the 'committee did not hear any satisfactory examples of cases in which a school might need these exemptions in order to uphold its religious ethos.'

I say this because of the comments that were made by Senator Wong in her speech. Clearly the evidence before that committee totally contradicts what Senator Wong had to say.

Both Christian Schools Australia and the Australian Association of Christian Schools, in our inquiry, set forward four broad principles for legislative reform—which we cite in our dissenting report—that they assert would reflect the notion of a positive right of religious freedom and would find the appropriate balance that we need in this circumstance:

1. The ability of religious educational institutions to both act in accordance with and teach their beliefs in respect of students should continue to be lawful, and thus should apply to both direct and indirect discrimination.

2. If the requirement that the school act in the 'best interests of the child' is to be employed, the legislation should acknowledge that the school, having regard to the appropriate factors, is the institution that is best placed to make the determination of what is in the child's best educational interest. Those factors may include the obligations of the school to other students, the maintenance of the religious ethos of the school as a component of the educational offering provided and the relevant professional advice.

3. The amendments should extend beyond primary and secondary schools to tertiary institutions. To fail to do so would mean that tertiary faith-based institutions (with the exception of bible colleges exempt under section 37 of the SDA) would not be able to teach or act in accordance with the applicable doctrines.

4. Explicit permission should be given to religious educational institutions to act in accordance with their beliefs regarding marriage, gender identity being biologically determined, and the proper expression of sexuality (including through the form of teaching provided by such schools).

Our dissenting report said:

CSA also emphasised the need to ensure teaching within faith-based schools can continue to conform to the relevant belief systems: 'The changes that have been proposed would also make it unclear whether a school could teach a historic, Biblical view of sexuality and relationships.'

97. Contrary to the recommendations of the majority, these four principles may indeed provide a suitable framework for reform. However these are matters that require detailed consideration … The committee's processes have made it abundantly clear that there is a pressing need for protection of the right of individuals to have the freedom to practice their faith, including when they come together to form schools and other religiously-based organisations. It has brought into the fore the desirability of legislation that protects this right, along with the need for several Commonwealth acts to be amended consequentially.

Our dissenting report said:

We reject the majority committee report, for the reasons outlined above, and instead recommend that the Government give further consideration to legislation that would enshrine and protect the right of religious freedom that would make it clear that religious schools and religious universities are permitted to operate in accordance with the doctrines, tenets and beliefs of their particular faith. To do any less would have the practical effect of depriving religious institutions of the ability to teach their beliefs and operate consistently with their ethos. It would also assist for there to be a nationally consistent approach to the issue of discrimination of this kind.

99. The existing exemptions for schools in the SDA should not be eroded unless adequate protections for religious freedom are afforded in their place.

These are rights that go alongside each other, and therefore it is vitally important that they be recognised. Clearly, something as complex as this needs to be the subject of serious and intense consultations with schools, religious leaders, parents and teachers and all other stakeholders, and it just cannot be adequately dealt with in a piecemeal fashion. Our dissenting report recognised that the coverage and the leaks from the Ruddock review, or purporting to be from the Ruddock review, caused considerable concern in the community. Our committee inquiry made it very clear that, in practical terms, schools have been focused on the pastoral support of all students irrespective of their gender and sexual orientation. Our focus as a Senate and as a parliament must be to ensure that we set the appropriate conditions and parameters that will ensure that schools remain able to do so in accordance with their religious ethos. As I said, further consideration of positive legislative protections of the right to religious freedom would assist with achieving this objective.

Any changes to the SDA should await the release of the Ruddock review and the government's response. To do otherwise now would not do justice to what is a very complex issue with both national and international considerations. Any amendments to the SDA would need to ensure that the act is fit for purpose and strengthens the current protections for students against discrimination from religious educational institutions. That is accepted. Currently, section 38(3) provides a complete exemption from section 21 of the SDA for religious educational institutions to discriminate against students in connection with the provisions of education and training on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy. The only limitation on discrimination under section 38(3) is that the conduct is in good faith in order to avoid injury to the religious susceptibilities of adherents of the religion. Therefore, any repeal of section 38(3) in its entirety must be balanced by preserving the freedom for religious institutions to teach according to their doctrines, tenets and beliefs and for educational institutions to maintain reasonable rules of conduct that protect their ethos. In this way, the fundamental right of freedom of religion that is enshrined in article 18 of the International Covenant on Civil and Political Rights would be preserved. We would also need to ensure that religious educational institutions are able to impose reasonable rules of conduct on students. Again, this would protect the ability of the religious educational institutions to impose rules in relation to the conduct of students.

Under the SDA, unless it is reasonable in the circumstances, a condition, requirement or practice will unlawfully discriminate against a person on the basis of a protected attribute—for example, sexual orientation—if the condition, requirement or practice has or is likely to have the effect of disadvantaging a person with that protected attribute. A clarification of the operation of section 7B of the act could set out criteria for determining whether a condition, requirement or practice is reasonable in the circumstances and clarify that religious educational institutions may continue to impose rules regarding student conduct consistent with the doctrines, tenets, beliefs or teachings of that institution. The reasonableness of a condition, requirement or practice imposed in relation to a student by a primary or secondary school that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed is to be determined in accordance with existing criteria in section 7B of the SDA, and its parameters would need to be set out. Given the evidence before the Senate committee last week, this would include elements going to ensuring that these parameters are imposed in good faith and are consistent with the policy of the educational institution, and possibly that these parameters and the religious educational institution have regard to the best interests of the child and the children in the school community.

It is important to provide certainty to the Australian public, particularly students and their parents, and those attending or sending students to institutions, that no student should be discriminated against on the basis of their sexual orientation. We heard that in the evidence to the committee last week. But, obviously, providing the appropriate legislative framework goes very much that one step further. It is vital that an educational institution, if is established for religious purposes, does not contravene the SDA in relation to various parameters if, as I have said, that teaching is done in good faith. At the same time, it's important that the SDA does not prevent religious schools and universities from teaching in accordance with their religion.

We have to ensure that, when the Human Rights Commission and courts decide whether a rule imposed by a school or religious or tertiary institution is reasonable and therefore legal, they have regard to the religious nature of the institution. Of course, the reasonableness of a condition or a parameter that is imposed should be, and continue to be, determined in accordance with the existing criteria of section 7B of the SDA. We need sensible changes that, as I said, protect the ability of religious schools to impose reasonable rules in relation to behaviour and conduct.

We also, of course, would need to remove item 1 of Labor's bill which would add the new provision to section 37 of the SDA. That item of the bill would extend to all bodies established for religious purposes such as churches, synagogues, mosques, monasteries, prayer centres, theological colleges or seminaries. That item of the bill would require these institutions, if they are engaged in education activities, to admit activist students, as I've said before, and to otherwise do so would potentially subject them to expensive litigation.

Can I just conclude by saying that the removal of section 38(3) will remove religious freedom protections for the provision of education and it will have a far broader impact than has been claimed. As I said, section 21 of the SDA includes imposing any other detriment within the scope of prohibited actions, and claims have been made that teaching a traditional, biblical view of marriage, sexuality and sexual conduct could potentially impose, and has been said that this could impose, a detriment on LGBTI students. Therefore, removing the protections of section 38(3) will remove the protection for faith based schools to teach in accordance with the beliefs; and the courts have made it clear that the distinction between direct and indirect discrimination is not as clear as is claimed and the reasonableness of a school's action may be irrelevant. Therefore, removing the protections of section 38(3) will remove the protection for faith based schools to act in a reasonable way in accordance with their beliefs in managing, for example, transgender students.

International law, to which Australia is a signatory, recognises religious freedom as a fundamental human right and accords it its highest possible protection, not just holding— (Time expired)