Thursday, 29 November 2018
Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018; Second Reading
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)
Let me share a heartbreaking story with you. I came out as a lesbian to myself, my closest friends and family members in 2010. At the time, I was working in a Christian school—I'd been there since 2005. Keeping my orientation a secret, whilst living my private life with my girlfriend, was very stressful. Hiding who I was, I ended up in hospital with cardiac issues later realising it was stress and anxiety. I worried I would be found out and sacked, given I knew I'd signed documentation stating that I'd be living my life in accordance with the Christian ethos and being gay was not allowed.
I chose to resign with no work to go to. I feared never finding work again. Months went by—and nothing. I was so desperate I went back to the faith based school to do some contract relief teaching, CRT. They were still unaware of my sexuality and happy to have me back. They even offered me a short-term contract which I accepted because financially I couldn't afford not to. The day before I commenced my contract, I was doing a day of CRT. After period 1, I was summoned to the vice principal's office. He had a very one-sided conversation with me where he stated that he had been made aware of my choice of sexuality and that I could no longer work there as what kind of message would that be sending to the school community? Then they essentially marched me off the premises. The most dehumanising experience I have ever experienced was to be told I couldn't work somewhere just because of who I am.
This devastating story, which has been shared with me, is the human cost of allowing religious schools to discriminate against lesbian, gay, bisexual, transgender and intersex teachers and staff. It's unacceptable, it's wrong, it cannot be allowed to continue.
For LGBTQ Australians and our families, the last month or so has been a bit of a replay of this time last year. We were in the midst of the marriage equality postal survey. It has been a replay of the national debate, playing out again with politicians, media, commentators and lobbyists debating the rights of LGBTQ people in this country. It has been a replay in the worst possible way, in that once again who we are is being debated, who we are is being criticised, and who we are determines whether or not we deserve to live our lives free from discrimination.
Here we are again, almost exactly a year later, debating whether young LGBTQ people deserve to be safe and respected and debating whether young LGBTQ people deserve not to be expelled from their schools, separated from their friends, taken out of their studies and school community, simply for being who they are. And here we are again with the vast majority of Australians opposing this discrimination. An opinion poll showed that 74 per cent of voters oppose these laws that allow religious schools to select students and teachers on the basis of their sexual orientation, their gender identity or their relationship status.
The Greens support Senator Wong's bill before us today, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, to remove the ability of religious schools to discriminate against LGBTQ students. This is an absolutely essential and long-overdue reform. What's proposed in this bill parallels some of the measures to remove discrimination that were included in our Discrimination Free Schools Bill 2018, which we debated just a month ago. But this bill does not protect lesbian, gay, bisexual, transgender and queer teachers and other staff in school communities.
The Greens have circulated amendments that would remove the provisions in Senator Wong's bill that allow for the continuation of discrimination against teachers and other staff in the provision of education on the basis of their sex, their sexual orientation, their gender identity, their marital or relationship status or their pregnancy status.
As senators know, we have just considered these issues in our inquiry into the legislative exemptions that allow faith based educational institutions to discriminate against students, teachers and staff. In their submission to the inquiry, both the Public Interest Advocacy Centre and the Human Rights Law Centre made it crystal clear how simple the changes can be. First, the provisions in sections 38(1) and 38(2) of the Sex Discrimination Act 1984 need to be repealed. These sections act as a specific carve-out to allow discrimination in the employment of staff and contractors by educational institutions as long as that discrimination is in accordance with the doctrines, tenets, beliefs or teachings of a religion or is done in good faith to avoid injury to the religious susceptibilities of adherents of that religion.
Senator Wong's bill acknowledges that section 38(3), relating to exemptions for educational institutions in the provision of education or training, needs to be repealed to remove discrimination against students. We are simply proposing the same for staff and contractors.
Secondly, we are proposing to remove the new carve-out that Senator Wong is proposing in the proposed new section 37(3)(b). This provision highlights how legislatively simple it actually is to remove discrimination. Labor in fact have had to add a new provision into their bill that explicitly allows discrimination against teachers and staff. Labor's bill adds a new provision that explicitly allows discrimination against teachers and staff. By removing the ability of bodies established for religious purposes to discriminate in the provision of education, as Senator Wong does in proposed section 37(3)(a), these bodies would also no longer be allowed to discriminate against staff. It's only by adding in 37(3)(b), a clause that limits 37(3)(a), that bodies established for religious purposes will be able to discriminate if the act or practice is connected with the employment of persons to provide that education. Labor is adding discrimination in, allowing discrimination, not because people are failing in their jobs as teachers but simply because of who they are.
The Greens' amendments propose to remove this unnecessary, harmful and discriminatory clause. The changes we are proposing are minimal. They actually simplify the bill by removing the carve-out for discrimination in employment related to the provision of education. They are straightforward. They mirror the language and the mechanisms proposed by Senator Wong, and I call on this chamber to support them.
The Greens amendments will give every child and teacher in Australia the comfort to know that they will be respected and loved and treated equally, simply because of who they are, not because of some outdated legislation that sends a message, not just to them but to all people, that somehow the way they are is wrong or different. The Greens are here to ensure that this parliament does the right thing and ends discrimination once and for all in our schools—discrimination against LGBTQ students, discrimination against LGBTQ teachers and discrimination against other LGBTQ staff. We don't need any further consideration before removing discrimination. Schools should be discrimination-free zones for all LGBTQ people, regardless of whether they are students or teachers.
This is very simple. Our schools should be teaching our kids about respect and equality, not that LGBTQ people can be expelled or fired because of who they are. No school should be able to tell a young person who may be trans or gay or lesbian or bi, or still figuring out their sexuality or gender identity, that they're not welcome. There's no place for a school to tell a teacher who might be in a same-sex relationship or going through a gender transition, 'We're firing you from the job you love because of who you are.' It's not acceptable in our schools; it's not acceptable in any area of our community. Discrimination against LGBTQ people has no place in our society, full stop—no ifs, no buts.
This push to enable a school to discriminate on the basis of their religious ethos is nothing but discrimination wrapped up in a more acceptable word. We support religious schools' ability to teach in accordance with their religious beliefs, but to discriminate against people on the basis of their sexuality or their gender identity—yes, their very identity—is not religious ethos; it's discrimination. We don't want, 'don't ask, don't tell' in our schools. Underlying this desire to continue discriminating against LGBTQ people is the belief that same-sex-attracted and gender diverse people are broken and need fixing and that, at the very least, they must repress or deny their sexuality or gender identity if they are to continue being part of the school community.
I found evidence to us as part of our inquiry from Christian Schools Australia particularly chilling. They said:
We have got staff in our schools who have indicated to the school leadership that they're same-sex attracted, but they take the view that it's not what God's best plan is for them. It's a struggle they have, but they don't accept it, they don't try to live it out, they don't try to be or identify as gay. They're struggling with same-sex attraction.
… … …
And we'd say, for those staff—
who are same-sex attracted—
that there are lots of other schools that they can seek employment in.
In other words, they have to deny their sexuality or their gender identity. They have to deny things about them that are intrinsic to who they are.
As anyone who's read the recent report of the Human Rights Law Centre and La Trobe University into LGBT conversion therapy and associated ideology in religious institutions and communities knows, attempts to convert people who are sexuality and gender diverse just don't work. These harmful attitudes, made acceptable to some in the guise of religious ethos, effectively destroy LGBTQ lives. I call upon these churches to recognise this, to acknowledge that they actually have devout people in their churches who are same-sex-attracted and gender diverse and to let them know that they are loved for who they are—not tolerated at best, and rejected at worst, and told there are lots of other schools they can seek employment in. The simple fact is that no student should be expelled and no teacher or other staff member fired just because of who they are. Freedom of religion should not be a licence to discriminate against LGBTQ people.
If we look to other countries that have similar legal systems and similar values and cultures, what do we find? We have Canada, Ireland, the United Kingdom and New Zealand. None of these countries have such broad based exemptions that allow religious schools the egregious ability to expel LGBTQ students, to fire LGBTQ teachers and staff or to tell lesbian, gay, bisexual, trans and queer people in their community that they are not okay, not welcome, not worthy of respect. Lo and behold, the sky in New Zealand hasn't fallen in. Canadian churches have not collapsed because they cannot tell LGBTQ people that they are not worthy of respect. Oh, and guess what? In Tasmania, their state laws mean that these exemptions actually don't apply, and faith based schools are coping just fine with not being able to expel LGBTQ students and fire LGBTQ teachers. There is no issue there.
The Greens have fought for year to change our laws and end this damaging discrimination. It's hard to believe that it has even been suggested that these discriminations have any basis for being upheld. Right now, these exemptions to Australia's anti-discrimination laws serve only to harm and to threaten LGBTQ people who attend and work at religious schools or who wish to do so. Labor's bill, as it stands, would condemn LGBTQ teachers and staff to continued, unnecessary and harmful discrimination.
Time and time again, LGBTIQ Australians have been treated like political footballs by conservative politicians and their supporters, who have put us in the firing line in order to shore up their conservative base. Well, I'm sick of hearing my community being talked about as if we're some kind of 'other'. I'm sick of my community being told that we are not worthy of respect, that we don't deserve to live our lives without discrimination. We can make this country a better and more inclusive place right now, but only if we work together to remove discrimination in our schools against all LGBTIQ people, whether student, teacher or other staff member.
Australia's schools should be no place for discrimination. The Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 is a proud step forward in making Australia a nation of equality, a nation of fairness, a nation that accepts and celebrates differences and diversity in our nation. In 1984 Labor introduced the Sex Discrimination Act, and we strengthened those protections back in 2013 by including sexual orientation, gender identity and intersex characteristics. I note that religious exemptions have existed ever since 1984. But legislation must keep pace with community sentiment and expectations. This is why we must look at the place of religious exemptions in all our legislation and how they apply today. We've done this before. We've wound back religious exemptions before. Back in 2013, when we introduced LGBTI attributes, we also wound back religious exemptions that applied to faith based aged-care facilities because we didn't want LGBTI Australians in aged care to experience discrimination when all they wanted was appropriate care. The sky did not fall in, nor will it do so with this bill today.
As we know, the catalyst for this conversation and change in this legislation was the Ruddock review into religious freedoms, with over 15,000 submissions from lots of different sides of the debate. That report was handed to the government back in May. There was such a voracious public debate about those leaked recommendations that it sparked our Senate inquiry. It was that public discussion around religious exemptions that highlighted the fact that people were not aware of the extensive discrimination in our legislation. Indeed, much hurt was caused by recommendation 7: 'Religious schools should be able to discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status.' The recommendation also talked about sex discrimination enabling religious schools to discriminate in the employment of staff. There was a massive community reaction to those statements, and the response to that community debate was that this nation's Prime Minister, Scott Morrison, promised to ensure that faith based schools would not discriminate against LGBTI students. He went so far as to say that these laws were not necessary in this day and age. Our Prime Minister said:
Our government does not support the expulsion of students from religious non-state schools on the basis of their sexuality. I also know this view is widely shared by religious schools and communities across the country.
I implore the government not to turn its back on these students for the sake of its own internal dysfunction and division. Please do not forget this commitment to those for whom you govern.
We haven't seen any movement from the Liberal Party to remove this discrimination against children. I'm pleased and proud that Senator Wong has introduced this bill today. We in the Senate inquiry confirmed that, overwhelmingly, faith based schools talked about not wanting to discriminate against lesbian and gay students. One of the principals from a Christian school gave us evidence that he felt that, once a school enrolled a student, it was making a commitment to that child forever. That's really comforting to me, because we know that the relationship a child has with their teachers and their school community is among the most significant and influential relationships they will have growing up. It is indeed unfortunate that some Australians and some Australian children have had to experience discrimination in schools prior to us arriving at this place in time where, hopefully, this parliament is prepared to do something about it.
Some of the stories that were submitted to the Senate inquiry were from Rainbow Families, and I thank them very much for their ongoing visibility and positive contributions to debates on behalf of LGBTI parents and children. One of the examples given was about a child at a private school:
I worry about the impact on my eldest son as he is in a private school that is currently supportive of us as queer parents and him a queer child. If the principle or school council changes it may not be the case.
Another story, from the Victorian Gay and Lesbian Rights Lobby, highlighted the situation for teachers. May—not her real name—a lesbian woman, was employed by a Christian welfare agency for two years. Before that she was involved as a volunteer, and she attended church in connection with the welfare group. She said:
I was asked to resign due to my relationship with my partner. I was directly told they were concerned with my involvement with primary and secondary school aged children. I resigned and fell apart after having served that community for four years. The fall out also meant I had to leave my church community. All of this resulted in mental health challenges, isolation, loss of faith, friends, purpose … I can't express the devastating impact being asked to resign due to my sexuality had on my life. I lost everything—my vocation, faith, community—and had to rebuild myself from a very broken place.
We need to make sure that this kind of discrimination is removed and stopped. Labor supports the removal of discrimination against teachers. While we note that this bill does not address the issue of discrimination against teachers and staff by religious schools, Labor is committed to removing exemptions which relate to LGBTI staff at religious schools. Our leader, Mr Shorten, has made that commitment to the Australian people.
We do believe that it's important to balance all rights in our nation, which means working with communities to protect religious freedom too. Isn't it ironic that, in our nation, religious freedom is largely protected by these exemptions—exemptions that give you a right to discriminate against someone else but do not give you protection in your own right. It is extraordinary that that is the state of the laws in our nation.
So we do believe that we must stop discrimination against teachers, but we know that protecting students is something that this place can do today, because the rights of our young people shouldn't have to be balanced against complicated other rights. All our children deserve our protection. The right to practice religion and to teach religious doctrines is, indeed, important to many Australians, but I know, from talking to people from Christian schools, that they don't feel as though the right to practice their religion should come at the expensive cost of discrimination against others.
This is really quite simple in nature, and it is, frankly, beyond me why some on the hard right in the coalition have sought to complicate this debate in this way. I state again that, in their evidence before our committee, faith based schools didn't consider that they wanted to be places of discrimination. They overwhelmingly said they did not want to discriminate against LGBTI students or pregnant students or to discriminate on any other attribute in the Sex Discrimination Act.
It is simple, but it means a lot. I'll tell you what it means to young people. Colin Pettit, who is our wonderful children's commissioner in Western Australia, engaged with young Western Australians, and one told him this:
Having the religious exemptions in place gives a message that LGBT people are second class citizens. It makes people feel like a freak—it tells a kid they're an outsider and don't belong there.
Where I live, the only school that offered ATAR subjects was the religious school, so you had to go there if you wanted to go on to university. … if you were excluded there, you couldn't go on and continue your education and achieve your goals.
So let's be clear: this bill does not affect the rights of faith based schools to impose reasonable conditions, requirements or practices on students in accordance with the school's religious tenets, beliefs, doctrines or teachings.
I highlight that, while it would be great to have enough time to balance rights in relation to school ethos and teachers, it is important that, while we have the opportunity, we get this job done for students. I highlight that the issues for teachers are very real. Mr Odgers from the Independent Education Union made an excellent contribution to the inquiry, and he said this:
All staff and students in schools deserve safe workplaces and learning environments. Staff and students shouldn't be discriminated against on the basis of their private expression of their sexuality. In our view, faith based schools have both the capacity and resilience to continue to operate in the absence of discrimination exemptions.
Let me be very clear about the evidence that Mr Odgers gave. This is the union that represents independent schools. They are the industry body, if you like, that represents the staff in such a fantastic diversity of schools. The last thing that union wants to see is things that undermine that diversity. Everyone might as well be in state education if that's the case. The Independent Education Union understands very well the importance of school ethos and the individual culture and diversity of the teachers and the schools. They are very clear about the fact that ethos and upholding ethos can be separated from direct discrimination against people who happen to have a particular attribute covered in the Sex Discrimination Act.
So it is time in this chamber today to really ask ourselves what kind of nation we want to be and what kind of schools we want our children to go to. They should be places of equality, participation, inclusion and fairness. If you're bullied or discriminated against at school, it impacts on your education. The stories that I've heard over many, many, years, including from people in my own family, have highlighted to me how homophobic bullying and discrimination has caused young people to leave school and not finish their education.
Finally, in closing my remarks today, I want to remind this place about the nature of the debate we were having. The postal survey was a very hard time for a great many LGBTI Australians. I certainly felt that way about it myself. When this place debates these issues, you need to remember that there are young people who might be gay, lesbian or trans and are at school, in a state school or a religious school, and haven't yet told anyone about who they are or what they are struggling with in terms of their sexuality or gender. Equally, there will be a girl at a religious school who has found out today that she is pregnant and has to work out how to tell that school and work out with that school community whether she has a right to continue her education. So please, I implore you, consider the needs of the most vulnerable in our society, the needs of all the students in our nation's schools, be they religious or not.
When I think about some of the most important principles that motivate me to contribute in this place, I think of freedom, strong institutions and fairness for all. Then I look at this bill, and it's devastating. It represents the biggest single blow to religious freedom this nation has seen in all of its history. Of course there has been, through the quite aggressive use of existing discrimination laws, a chipping away at freedom of speech, freedom of association and freedom of religion in recent years. But in a sense that was slow. This bill works fast. Labor will tell you that this bill just makes sure that gay kids don't get discriminated against. That's a profound mistruth. Everyone in this chamber thinks gay kids shouldn't get expelled simply for being gay. The PM is on the record saying just that. But this bill does so much more. By removing all protections that previously existed in the Sex Discrimination Act for religious schools to operate according to their ethos, the bill will hollow out the religious school sector to being nothing more than privately funded schools with the same values as public ones. In doing so, we deny parents a real choice about how their children are educated.
Why do parents send their children to a faith based school?
Well, there are many parents who want a schooling for their child that reflects their personal faith and the values by which that family has chosen to live. So, if we take away a school's right to shape its own culture according to the values of the faith that family has chosen, we take away its character. We take away the different offering it can give to that which is available in the public sector. Now, of course, that's precisely what those opposite would like. Not only would they happily squeeze every person of faith out of the public sphere; they also want to squeeze it out of our institutions until all that is left is a big government which is more easily directed to adopt the tenets of political correctness and the causes of the Left.
So, let's step away from the politics and talk principle. What are the principles that should underpin the way we look at the balance between ensuring freedom of religion in this nation and ensuring that all students, no matter their attributes, are treated fairly? Let's start at the fundamental rights of Australians. Article 18 of the International Covenant on Civil and Political Rights, the gold standard of human rights law, expressly protects freedom of thought, conscience and religion. It's a right of the highest order—core to what makes a human human. I don't trivialise the other rights we protect in international law—rights like equality and freedom from discrimination—but the problem with this amendment is that it doesn't engage in a balancing exercise of those rights. It simply extinguishes religious freedom, and that's never been how competing rights are meant to be managed.
Human rights law stipulates that strict conditions must be satisfied in order for the manifestation of freedom of religion or belief to be limited. It is a well-known principle of international law that not every differentiation of treatment will constitute discrimination, if the criteria for that differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate. In this context, the right to manifest religious belief at article 18.3 of the ICCPR may be limited only to the extent that it is necessary in order to protect the fundamental rights and freedoms of others. As now set out, the bill completely fails to comply with this requirement. It is in no sense proportionate.
The Siracusa principles—that is, the principles by which we resolve the conflict between competing rights at international law—also state that, in applying a limitation, we should 'use no more restrictive means than are required for the achievement of the purpose of the limitation'. The complete removal of the religious freedom of a school in how it deals with students is clearly more restrictive than is required in order to progress the right to equality. In fact, the bill actually discriminates against religious believers as it imposes a burden upon them that they alone encounter on the basis of their religious conviction.
For this parliament to determine that religious educational institutions have no claim to act according to their beliefs in relation to, for instance, sexuality, gender and relationships is to carve out an area of religious conviction and to say that religious schools can no longer lawfully manifest those convictions. It raises the very real concern that religious institutions and believers are being subjected to detrimental actions solely on the basis of their religious belief, and that's in contravention of their right to equality. It's a strange irony.
There is also a hypocrisy in the parliament trying to apply standards of anti-discrimination that they'd never apply to themselves. As the Institute of Civil Society, one of the submitters to the recent committee inquiry on this issue, so clearly explained it:
Our society would not expect the ALP, the Liberal Party, or the Greens (also voluntary associations), to have to employ and retain persons who consistently spoke or acted against core party policy. So why should a law force a religious school to justify to a human rights commission or a tribunal—
why it should have to accommodate people who consistently spoke or behaved in a manner that defies the core values of that religion? And they make a good point. Adjunct Associate Professor Fowler from the University of Notre Dame put it this way:
Why should believers—be they Islamic, Jewish, Protestant, Hindu or any other faith—be prevented from coming together with their fellow believers to act upon the dictates of their faith that encourage humanitarian concern? No similar limitation is proposed for persons who are motivated to humanitarian acts absent religious compulsion. It's a bizarre conclusion, and it represents a form of discrimination on the basis of religious belief.
Now, you might say to me, 'This bill doesn't prevent religious people from forming a religious organisation, like a school.' Well, that's true in a superficial sense. But look a little deeper and you'll see that the bill guts schools of the ability to operate according to their ethos. And if schools can't operate according to the values, to the ethos, that is reflected in their faith, then why have them at all? For what reason would parents select a religious school if it is not permitted to teach and expect compliance with the tenets of that faith? How will the school develop or maintain the culture that flows from the values of that faith? And why would parents who have children in these schools continue to subsidise the cost to the public of the provision of education—as they do—when they wouldn't be getting anything different for their money?
The Australian Bureau of Statistics notes that nearly a third of Australians, 30 per cent, reported in the census that they had no religion in 2016. It's a statistic often cited by those who say this exemption has to go because we're a secular society. However, such calls for a secular society often overlook the logical extension of the subsidy argument—that the 70 per cent of people who profess a form of religious belief are also subsidising non-religious persons through the proportion of the taxation they provide that is applied to public schools for all. There's nothing wrong with that, but they should be entitled to get what they pay for. It should go without saying that a truly neutral, democratic and pluralistic society would seek to most accurately reflect both the religious and non-religious sentiments that are exhibited within a society. In this context, this is most properly acquitted through the ongoing presence of both public schools and private religious schools in their true and meaningful sense.
You might also say, as I've heard a number of the senators who have spoken on this bill so far do, 'Religious schools don't use these exemptions much.' Again, in a superficial sense, that's true. But, contrary to the way it's been painted by those opposite, that doesn't mean they're not needed and that they aren't wanted by many in the education sector. It is the fact of the existence of clarity in the legislation about the exemption for religious schools that is the reason there is so little litigation in this area. Take the exemption away and that changes dramatically. It's a little bit like saying, 'No-one has drowned in our swimming pool, so we don't need the fence anymore.' It just doesn't work.
That's the reason why so many submitters—the Australian Association of Christian Schools, the Institute of Civil Society, Christian Schools Australia; I could go on—all pleaded for the retention of this exemption. Yet all submitters were at pains to explain how pastorally, how caringly, they approach the issue of helping students who are same-sex attracted or who struggle with their gender, how these students are cared for and included within the framework of the world view of that religion. But each retained their concern that, if the exemption were removed, they'd have no way to deal with the situation of activist students or activist parents who, with absolutely no intention of attempting to live according to the values of the faith of the school they have asked to be a part of, demand that the faith change to accommodate them. These are faiths that are thousands of years in the making, and we could, in this place, with less than four hours of debate, take away the ability of a school to deal with those who do not want to be a part of the value system of that religion.
Of course no-one has to be religious. You don't have to have a faith or to choose to go to a religious school. Indeed, there are plenty of independent private schools that are not faith based, and there are even more public schools that willingly and happily accommodate these qualities in a student. But that's not enough for the activists. They demand that all bend to their preferences. It's not enough that the public school or the grammar school or the non-religious private school would happily give them a great education. No; they require that even religious schools be deprived of the ability to teach and live the values that underpin that faith.
Let's talk about what we need to do to fairly balance the rights of students who are homosexual or transgender with the rights of parents and students who want the benefits of a religious school and the approach to education and values that it provides. Here are four ideas that would help a great deal in getting the balance right—and I suggest they form the basis of quality amendments to the bill that is before this chamber. The first is that we need to make it very clear that religious educational institutions need to be able to both act in accordance with and teach their beliefs in respect of students. That needs to continue to be lawful in a way that means that it can't constitute either direct or indirect discrimination. To say to a religious school that the faith they have had for thousands of years can no longer be passed on to the children of that flock because, within the last decade, we've decided that it contravenes modern principles of antidiscrimination, is absolutely contrary to the idea of religious freedom.
Here's a second principle we should apply. We should be acting in the best interests of the child at all times and we should require schools, in their approach to dealing with students who struggle with these issues, to have regard at all times to the best interests of the child. It is the school and the parents involved who understand that student best. They are the institutions, rather than, say, the courts, that are best placed to decide what is in the best interests, in terms of welfare and education, of an individual student. But, when we consider the best interests of the child, we should consider those matters in the context in which that student lies. That means we need to have regard to the obligations of the school to other students. We should have regard to the maintenance of the religious ethos of the school as a component of the educational offering that's provided, and there should be regard to any relevant professional advice that has been provided to assist that student.
Here's another principle we should use to try and get the balance right in dealing with these matters. These amendments should extend beyond primary and secondary schools and should include tertiary institutions. To fail to do so would mean that tertiary faith based institutions, with the exception of Bible colleges, which are a different category under the act, wouldn't be able to teach or act in accordance with the applicable doctrines. One thing I noticed that's interesting about the bill that is currently before this chamber is that, in item 1, the provision of education is framed in the broadest of terms. That means that it doesn't just encompass primary school and secondary school; it also encompasses kindergarten and faith based playgroups. 'Education' would also encompass the Sunday sermon or youth group of a religious organisation. If you're going to tell a church that they can no longer give a sermon or offer a youth group that operates according to the tenets of their faith, then you might as well shut it down altogether.
Another principle we should have in mind is that, as we take away the exemptions in section 38(3), as I think most in this chamber would want to do, there needs to be explicit permission given to religious educational institutions that they can act in accordance with their beliefs regarding marriage, gender identity being biologically determined, and the proper expression of sexuality, including through the ways that it is taught in those schools. If we do anything less than those four principles, we will have irrevocably changed the nature of faith based education in this country in a way that unduly, unfairly and rather undemocratically will shut down religious freedom in this country.
In conclusion, let me reiterate: the expression of all these views doesn't detract from the fact that of course we need to be kind and inclusive and helpful to people who are same-sex attracted or people who have transgender notions. Of course we need to be compassionate, but our desire to offer them compassion cannot come at the expense of all other students in a religious school, it cannot come at the expense of faiths that have been thousands of years in the making and are deeply held in the hearts of so many Australians, and it cannot come at the expense of the value that these institutions provide to our community as a whole as they educate so many students around this country. It's for that reason that I oppose the bill in its current form and hope that there will be amendments of this nature brought before this chamber.
I rise to speak in support of the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, as moved by Senator Wong. This legislation is very straightforward. The amendment would remove exemptions for religious schools in the Sex Discrimination Act. Those exemptions did, of course, allow religious schools to discriminate with regard to student admission on the basis of sexual orientation, gender identity and intersex status.
The legislation is not only straightforward but is, or at least it should be, uncontroversial. The leader of the Labor Party, Mr Shorten, and the Leader of the Opposition in the Senate, Senator Wong, support the amendment and pledge the Labor Party's support. The leader of the Greens, Senator Di Natale, is on the record supporting the removal of these exemptions, and several Green senators, such as Senator Rice, who just spoke in this debate, also have expressed their support for these amendments. The leader of the government, the Prime Minister, Mr Morrison, said before the Wentworth by-election that he supports removing the exemptions that permit religious schools to discriminate against students. Here's what Mr Morrison said on 13 October 2018, a week before the Wentworth by-election:
Our Government does not support expulsion of students from religious non-state schools on the basis of their sexuality.
That is an unambiguous statement from the Prime Minister. He is very clear: 'Our government does not support expulsion of students from religious non-state schools on the basis of their sexuality.' The Prime Minister went on to say:
I will be taking action to ensure amendments are introduced as soon as practicable to make it clear that no student of a non-state school should be expelled on the basis of their sexuality.
I welcome this statement from the Prime Minister. The community welcomed this statement from the Prime Minister. I dare say even the voters of Wentworth, although they did not vote for Mr Morrison's Liberal candidate, nonetheless welcomed the Prime Minister's commitment and took him at his word.
The Labor Party has sought to work with the government to progress these amendments that the Prime Minister himself said he wanted to introduce as soon as practicable. We are willing to work with the government. We would welcome the opportunity to work with the government on this legislative change, but we will not wait for the government. Before us today are straightforward, clear, unambiguous and uncomplicated amendments that achieve the very legislative change the Prime Minister says he wants and will support, and this is the opportunity for the parliament to make this change.
Here in the Senate, we all know that the community supports and wants this change. We know this because the previous Prime Minister, Mr Turnbull, ordered a review into religious freedom, which was conducted by former Liberal Attorney-General Philip Ruddock. A distinguished panel of Australians assisted in that work. That review took some 15,000 submissions and conducted dozens of face-to-face meetings. Despite the fact that that report was handed to the government in May, the government has not yet released it. However, that doesn't mean the Ruddock report isn't already prompting change. It's precisely because somebody leaked sections of the Ruddock report to the media that the community became widely aware that these exemptions that allow discrimination against students on the basis of their very identity still exist in Australian law. In 2018, these exemptions are no longer accepted by the Australian community. The significant and welcome shift in our understanding and acceptance of all Australians, regardless of their gender identity, sexuality or intersex status, was cemented in Australian law just a year ago when the community overwhelmingly voted yes in the marriage equality plebiscite, and this parliament followed suit by passing amendments to the Marriage Act to legalise marriage equality.
We also know that the overwhelming majority of religious schools do not want or see the need for these exemptions. We know this as a result of the recent Senate inquiry, where Catholic and other religious school systems gave evidence that these exemptions are not used or relied upon. We know this because the Prime Minister, Mr Morrison, told us so—again on 13 October, before the Wentworth by-election. When speaking of his government's support for the removal of these exemptions, the Prime Minister said:
I also know this view is widely shared by religious schools and communities across the country
As the mother of two children educated in and now graduated from the Catholic high school system, I know that modern Catholic schools teach their students that everyone is created in God's image and that what sits at the core of the Gospel is a call to love one another as God has loved us. So I agree with the Prime Minister when he says his government doesn't support these exemptions. I agree when he says that religious schools don't support these exemptions. I welcome the religious schools having spoken out in this debate in support of removing these exemptions, and I am pleased that Labor is putting forward this amendment. This legislation can and should have bipartisan support. This legislation can and should be passed by the parliament by the end of this year.
I note that Labor also believes that no employee at a religious school should face discrimination on the basis of their gender identity, relationship status or intersex status. The time has come to remove these exemptions. Relationship status, sexuality and intersex status have no place when it comes to employment law in relation to religious schools. However, Labor also accepts that teachers and staff are employees. They are adults, not children. Additional complexity exists for them where it does not for students—for example, potentially in relation to the Fair Work Act or other areas that cover employment.
Labor respects the decision taken by thousands of Australian parents who, like my husband and me, chose a religious school for their children. Labor also supports religious freedom and supports religious schools in their expectation that their staff will act in ways that uphold the values and ethos of the school and its faith and not act in ways that undermine it.
If I may say so, in listening to some of the Liberal senators who have participated in this debate so far, I have heard them say that no student should be discriminated against because they are same-sex attracted, gay or lesbian, yet they seem to mistake the difference between identity and action. That is, while they give lip-service in this debate to the notion that nobody, of course, should face that discrimination, they then go on and make assertions that this change that is before us will somehow 'gut schools' ability to teach according to their ethos' or 'no longer allow schools to teach according to the tenets of their faith'. They seem to somehow misunderstand the difference between identity and actions.
What Labor is arguing here is that no school should have the basis to discriminate against a student based on their identity. We also believe that no school should have the ability to discriminate against teachers or staff on the basis of their identity. But we understand that religiously affiliated schools need to have the clarity that they are able to require their staff to act in ways that uphold the values and the ethos and the tenets of the faith and not to act in ways that undermine it. It is the distinction between identity and action.
When it comes to students, I listened very carefully to Senator Stoker. What she seems to misunderstand is that right now, today, religious schools, when they enrol a student, have the ability to ask parents to sign up to a set of values and expectations and rules. Already today religious schools can ask parents to agree that their children will attend chapel or that their children will take religious instruction whether they are part of that faith or not, and, in choosing to enrol their child in that school, the parents have to agree to accept that. I feel that Senator Stoker's speech misunderstood the very nature of the debate that we are having.
I could make a tongue-in-cheek observation that, as a female who attended a Catholic school from year 1 through to graduate school, I note that my mere presence in the place did not stop that patriarchal faith that I am a part of from teaching specific gendered identity around women and what our roles could and couldn't be in the church. It's a tongue-in-cheek observation, but my point is this: when we hear claims that removing these exemptions will gut the ability of religiously affiliated schools to teach their faith, there is no evidence that that is the case. There is no evidence that supports this. There is nothing in this legislation that would bar schools from continuing to teach the tenets of their faith to the students who enrol in them.
Labor will work with religious schools and the LGBTIQ community in order to ensure that, when it comes to teachers and staff, we get the balance right to remove those discriminations in employment based on who people are but ensure that the religious values of a school are upheld and protected. But, given the lack of sitting days available to us in this year, we must prioritise what we can achieve legislatively, and we prioritise children.
It is clear that many in the community want to consider how we progress removing exemptions from discrimination that exists for teachers and staff in religious schools. Not only do we know this from the public reaction to the Ruddock review but we know it from evidence given at the recent Senate hearings. We know there is more work to do, and we call on the government to release the Ruddock report. It would aid in this next phase of discussions when it comes to religious schools and the Sex Discrimination Act.
But today we can and we should, as a parliament, make a clear and unambiguous decision. We can and we should take a decision—which enjoys widespread support—that no child in an Australian school, be it a public institution or a religiously affiliated school, should face discrimination based on who he or she is. The public expects us to do this. The government and the opposition have both said they support this. The Greens support it. It is time for all of us in here to keep faith with the community and pass this legislation.
I'm pleased to contribute to this debate on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. In doing so, I might begin by responding briefly to some of the claims that were made by Senator Keneally in her contribution. In relation to what Senator Stoker had to say, Senator Keneally made a pretty dishonest contribution in claiming Senator Stoker somehow didn't understand these issues. Senator Stoker's contribution showed a much greater understanding than Senator Keneally or anyone else in this debate. But I'd go to Senator Keneally's claim that all of the schools are on board and that they don't see any issue with this. That is simply not true. I'll go through the senior leadership of some of our biggest school providers who have said, time and time again, that they don't expel students simply because they're gay. They've said that, despite the clumsiness of some of these exemptions—in fact, that's the exact words that Anglican leadership used—they said:
The current exemptions, however clumsy, in the Sex Discrimination Act 1984 are really the only significant legal protections available to schools to maintain their ethos and values with regards to core issues of faith.
So Senator Keneally can dismiss the Anglicans, and she can dismiss the Catholics, but just yesterday Peter Comensoli, on behalf of the Australian Catholic Bishops Conference, said:
Catholic schools do not use these exemptions to expel students simply on the grounds of sexual orientation or gender identity.
… … …
… schools want to maintain the capacity to teach a Christian understanding of sexual ethics and marriage according to our faith tradition. Our right to continue to teach Catholic beliefs is threatened by proposals to repeal existing faith-based exemptions for religious schools and institutions.
We've got senior Anglican leaders, we've got senior Catholic leaders, and we've got Islamic leaders. Adel Salman of the Islamic Schools Association of Australia makes a similar point, saying:
… with students, the association is not calling for students to be discriminated against or in fact to be expelled from the school because of their particular sexuality, but by the same token the students and their families need to understand that the school will be teaching the particular values and principles of the religion.
There were a number of other contributions, including from the Australian Association of Christian Schools. They said:
Proposals to remove the ability to access exemptions is effectively the removal of the ability of the institution to define its character, goals and imperatives. It is the removal of the ability to control the unique voice of the institution to the wider society. It is actually the removal of the identity of the institution.
Proposals to remove exemptions from educational institutions gives rise to some chilling possibilities.
Christian Schools Australia, another large faith-based educator in this country, also apparently dismissed by Senator Keneally and the Labor Party as not knowing anything about schooling, said:
We are concerned that if changes are made to the Sex Discrimination Act 1984 … without creating adequate positive protections for our schools—
that's the important point—
the effect would be to profoundly compromise the ability of our schools to act in accordance with their beliefs and convictions.
… … …
… no changes should be made to legislation affecting our schools, until there is also adequate protection in place for schools to maintain their beliefs and character as faith-based schools.
Christian schools need legislation that gives us much clearer assurance that schools can continue to:
In further testimony, the Australian Association of Christian Schools said:
… if they are removed and adequate protection isn't given to schools to hold a commonly held biblical view of sexuality and relationships in what is taught and in managing school life and in who the school employs, you'll be carving out an area of faith and deeming it impermissible. You'll be deciding that those long-held beliefs of many Christians can't be expressed in education at all—and that's a serious step for a government to take.
They are concerned that, without adequate protection, schools could be forced—
…to teach in ways that contradict what they genuinely believe, to act against their conscience and beliefs in the way they handle behaviour, and to employ staff who don't share in and meaningfully uphold the beliefs of the school.