Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Link to this | Hansard source

In my contribution on Thursday, I made clear some of the concerns in the community about an unamended version of this bill and its implications. To quote Senator Keneally, in her contribution:

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.

I went through Christian Schools Australia—65,000 students plus the 15,000 from Adventist schools—and the Australian Association of Christian Schools—110 or so schools with 45,000 students. I also talked about the statements from members of the Australian Catholic Bishops Conference, who educate around 766,000 students in this country, and a number of others.

Even if we were to accept, despite the fact that those numbers tell a very, very different story, that there are no significant concerns or that it's only a minority, this goes to the very point about what religious freedom is and what freedom of religious belief is. It's not about whether there's a majority who have a particular view; it's about whether or not there is a right to express that view.

Dr Alex Deagon, of the Queensland University of Technology, states:

The idea of religious freedom is to protect religious belief and practice from any prevailing orthodoxy (e.g. equality) which might oppose it. The idea is 'worthless' if it is allowed only when it fits in with that particular orthodoxy.

  …   …   …

As Trigg powerfully observes, 'the essence of religious freedom is that people are allowed to follow their religion, even if it is a different one from that of the majority. The accommodation of minority beliefs is what distinguishes democracy from a totalitarian state'.

Choice in education, of course, means choice in education. There will be a range of providers who have different views on all sorts of things.

One of the great things in Australia is that parents have the opportunity to choose—based on their religious beliefs, in many cases—an institution which adheres to their beliefs, be they majority or minority beliefs. And so for that reason the government is proposing a number of amendments to ensure we protect genuine religious freedom in schools. The Labor bill as it stands 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 teaching 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, as it stands unamended, contrary to the basic human rights of freedom of thought, conscience and religion. As stated in 18(4) of the ICCPR most specifically when it comes to schools:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Therefore, it's completely reasonable and in line with the principle of freedom of religion to ensure religious institutions are able to uphold their ethos.

As I have mentioned, the government's position is that we don't want to see discrimination against students, but what we also don't want to see is the freedom of religion taken away through changes that are done in a hasty manner without considering the consequences. There are now a growing number of warnings about those consequences. Under the Sex Discrimination Act, 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, their sexual orientation—if the condition, requirement or practice has or is likely to have the effect of disadvantaging a person with that protected attribute.

Government amendments clarify the operation of section 7B of the act, which sets out criteria for determining whether a condition, requirement or practice is reasonable in the circumstances. The new provisions will clarify that religious educational institutions may continue to impose rules regarding student conduct consistent with the doctrines, tenets, beliefs or teachings of that institution. These amendments are necessary to provide certainty to the Australian public, particularly students, their parents and those attending or sending students to religious educational institutions, that no student should be discriminated against on the basis of their sexual orientation and that reasonable rules at that institution should be allowed so as to maintain that institution's religious ethos. A further amendment from the government protects the ability of religious educational institutions to teach in accordance with their faith, which is fundamental to their character as religious educational institutions. It is a modest, sensible amendment that clarifies that, if an educational institution is established for religious purposes, it does not contravene the Sex Discrimination Act by teaching in accordance with the doctrines, tenets, beliefs or teachings of that institution if that teaching is done in good faith.

The next elements of our amendment are also modest, sensible amendments to protect the ability of religious schools to impose reasonable rules in relation to behaviour and conduct. These amendments give certainty to Australian students and families by ensuring they are protected from discrimination on the grounds of sexual orientation, marital or relationship status or pregnancy and preserve the ability of religious educational institutions to impose reasonable rules in good faith that necessarily have regard to the best interests of the student.

Finally, item 1 of this bill is clearly out of step with Australian community expectations when it comes to religious bodies and flagrantly infringes the fundamental human right to freedom of religion. As Mark Fowler, adjunct associate professor at Sydney's Notre Dame law school, wrote in The Australian on the weekend: 'On a plain reading, this would capture the Sunday morning sermon, the Friday khutbah at the mosque, a Buddhist meditation course, the children's Sunday school, the midweek Bible study, the Friday night youth group talk. It is clear to both the preacher and the recipient in all of these exchanges that they are participating in an act of education that expands upon religious principles.' I ask senators: do they and we as a nation really want to go down this path? This item puts these institutions at risk of expensive litigation and threatens the very foundations of religious freedom. That is why we are proposing to remove that item so that churches, synagogues, mosques, prayer centres and seminaries are not compelled to admit students who clearly have no intention of upholding the ethos of the institution.

In conclusion, schools must be allowed to uphold their ethos, not only through what they teach but in all aspects. This is fundamental to freedom of religion, and this bill, if left unamended, does put that at significant risk. I would urge senators to consider this matter seriously. I think it is unfortunate that this debate is being curtailed in the way that it is being. But in the time—

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Then why did you do it?

Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Link to this | Hansard source

Well, we didn't vote for this particular motion.

Senator Jacinta Collins interjecting—

No, that's not true. I'm getting interjections from the senator. We didn't vote to gag debate on this bill.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

You gagged the inquiry instead.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Link to this | Hansard source

Well, we're having a debate about something which we would all agree is pretty fundamental and important. And there is going to be about three-and-a-bit hours of debate on this bill, which could have profound implications for religious schools and religious bodies in this country. But in the short time available to consider in this debate, I would urge senators to consider this matter seriously, to look at the implications of the bill, to listen to religious leaders and teachers who foresee a future where religious education is put under serious threat.

I spoke on Thursday about the concerns held by the Catholic sector, the Anglicans, Christian Schools Australia, the Association of Christian Schools and the Islamic Schools Association. Between them, they represent a huge majority of faith based schools in Australia and they've all raised serious concerns. And this goes to the nub of it. We're all in agreement that no-one wants to see a student expelled for being gay. The government supports moves in that direction. No-one wants to see that and that's not what occurs now.

Deborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | Link to this | Hansard source

It hasn't happened. This is a political crisis of your own making.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Link to this | Hansard source

The senator interjects, and seems to argue against her own case. The point I'm making is that we're all in agreement on that. And that's right—it doesn't happen. But to avoid doubt, we're happy to change pieces of legislation, but without actually having any sort of positive protection for religious institutions in this country, any sort of positive protection for religious institutions in this country—

Senator O'Neill interjecting—

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Order! Senator O'Neill.

Zed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | Link to this | Hansard source

Thank you, Deputy President. So we agree with that. But the bill, as it stands, unamended, would go much further than that. And Labor appears intent, unfortunately, on following the Greens down a path of persecuting religious schools or for pursuing a majority test for religious freedom.

Our amendments clarify that faith based schools and other educational institutions should still be allowed to teach in accordance with their faith, by ensuring they can hire people according to their ethos and allowing them to put in place reasonable rules of conduct to preserve their religious character. I firmly believe that reasonable senators here support freedom of religion and the freedom of schools to teach their values. And if you support those fundamental rights and freedoms, I would urge you to support the government amendments to this bill, which will ensure there is no unjust discrimination but will protect the rights of faith based schools. I commend those amendments to the Senate.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

And perhaps at the outset, to assist Senator Macdonald here, I should explain that this is an opposition bill rather than a Greens bill. This bill deals with, as indicated in its title, removing discrimination against students, and does not deal with the issues associated with staff as covered by the Sex Discrimination Act. The reason for that, as I'll come to it, is because this process has been an absolute shambles. But what we are doing here is holding the Prime Minister to account, the Prime Minister who said we would see the Ruddock review within weeks back in May and the Prime Minister who said we would deal with the issues around discrimination and students this year. That is what we're dealing with now—the issues around discrimination and students.

I think it behoves the chamber to reflect on what a shambles this overall process has been, which adds to the growing list of matters that this government has completely messed up. Talk about confusion, talk about rushed consultation and rushed processes, talk about changed positions and confusing rhetoric: if we in this parliament are confused, then what can the Australian community possibly make of this shambles? We know the Australian community are keenly interested in this issue, the issue of religious freedom and the issue of discrimination against children in schools. We know this because of the substantial number of submissions to the Ruddock inquiry and to the Senate committee inquiry. Despite that, the Australian government has snubbed the Australian people, rushing through a committee process that did not need to be rushed and, not surprisingly, here we are now.

I will give one example of how confused people are about the processes occurring before this parliament. A senior member of a religious community said to me that the Senate committee asked them for further information, but it reported before it was even possible to receive such. So that everyone can be clear, that was because of the time frame this government and the Australian Greens put on that inquiry. I've made these points previously in a discussion on a matter of public interest and I've made the comments I'm making now in the discussion on the Greens bill, but I should reiterate the rush here was of the government's own making. But, even worse than that, in the absence of Senator Macdonald they colluded with the Greens to create a farcical time frame that could only lead us to where we are now. Whether they were creating subterfuge to do nothing, who knows? The motivations of this government are very hard to understand.

Let's look at the government's bona fides on this issue, because close examination shows how dishonest and insincere they have been from the very beginning. Firstly, we have the Prime Minister today accusing Labor of acting in bad faith. Who would have thought any responsible government or governing party of the day would act in this way? It is outrageous. At this point, a brief history lesson is required. It was in mid-November last year, in the midst of the parliamentary debate about same-sex marriage, that we started discussions around the important issues of religious freedom. It was then that Prime Minister Malcolm Turnbull kicked the can down the road. On establishing a positive right to religious freedom he kicked the can down the road and took with him whatever numbers there might have been from the government side to support amendments, and we had to wait longer to address those issues. Announcing that Mr Ruddock would head an expert panel and conduct an inquiry had the result that government senators lost sufficient support for their amendments. So nothing happened way back then, and it was not other senators' doing that generated this. It was that of the government of the day and the Prime Minister of the day.

So then we had the much publicised Ruddock review, with its panel of experts, its public hearings up and down the country and its more than 15,500 submissions received. So where is that? Where is the campaign to establish a positive right for religious freedom? It's stuck with that Ruddock review, because what the Ruddock review did was fix an immediate problem for the Prime Minister of the day. For Malcolm Turnbull, it peeled government senators off amendments that might have been successful at that point, and it has stagnated ever since.

A report on SBS News on 18 May—the day that the Ruddock report was handed down to the government—stated:

The Prime Minister's office confirmed it may be 'weeks' before the Ruddock review is released to the public, giving the government time to consider its response.

That was 'weeks' back in May. Clearly, the government is getting its weeks and months confused, because we've now been waiting more than six months. And, just so anyone listening understands, six months is a standard time for government to respond to parliamentary committee reports. This has been longer than that six months.

It's under a cloud of vagueness and lack of clear evidence and information that Labor has called for a Senate inquiry to look closely at religious freedom to inform a way forward to address competing demands. But, again, the government showed its sleight of hand by colluding with the Greens to have a short reporting date, meaning that the committee was rushed in its effort to carefully scrutinise the Greens bill and other proposals and give adequate time to stakeholders to articulate and argue their positions.

I'd like to speak briefly about stakeholders in this debate, particularly Christian schools and communities. It's not surprising that stakeholders would have preferred that the debate were conducted in a more consultative and collaborative environment. In fact, stakeholders were hoping there might even be a bipartisan approach on an amended bill that could pass through parliament—as were we. Labor also hoped that this might be possible, but not with a government that is so is deceitful in its approach to dealing with such sensitive matters.

Moving now to Labor's position on the amendments that are before us, our position is as follows: with amendment KQ149, I foreshadow a second reading amendment that will cover those issues. I think it should now have been circulated in the chamber. With respect to government amendment KQ148, Labor believes it's already covered off these issues in the explanatory memorandum. In relation to other outstanding matters concerning students, Labor's position is that these issues can be dealt with in the further discussions and consultations to be had in relation to dealing with teachers, as well as in terms of developing a positive statement in response to the Ruddock review.

And this is the difference here. This is where Labor is not posturing, like those on the other side. The Labor Party has a longstanding commitment, very clear in our platform and subject to further discussion at our next national conference, supporting religious freedom and creating positive rights in that respect. That's the difference between this side and the other. Our bona fides are established here. What religious communities hear from the other side is somewhat very confusing, contrived posturing rather than substantive proposals.

I should say on that note, in relation to the amendments, that it's also important to indicate Labor has legal advice that says section 7B covers off on the concerns in amendments KQ148 and KQ149. But to give extra reassurance, we're putting our position in the explanatory memorandum of this bill and we're also moving this second reading amendment. We don't need to put clumsy provisions into an act where they sit uncomfortably and create the same types of problems in terms of public regard that exemptions do, as we've seen in the case of the leaking of the Ruddock review and the exemptions with respect to students.

Labor knows that most schools—religious, non-religious, government and non-government—have the best interests of their students front and centre. We know this. We have an established policy position to protect religious freedom and we're getting very impatient waiting for this government to get its act together in this regard.

So much uncertainty has lingered and grown since the parliament passed the same-sex legislation. This government lacks any bona fides on this important matter. This culminated today with the comments by the Prime Minister accusing Labor of bad faith. Again, this is an outrageous, disgraceful comment—irresponsible for a Prime Minister of the day. We cannot have confidence with the government proceeding with these issues. The public concern around the leaking of the Ruddock review recommendations and the government's failure to respond to calls for that report to be released in relation to religious freedom bring us to where we are now.

We believe that our amendments, and our statements in the explanatory memorandum, respond to much of what the religious community has raised in relation to moving forward, with regards to students. We are open to addressing any outstanding matters as we move forward with other matters around discrimination, but, most importantly, the Labor Party is keen to progress the issues around a positive affirmation of religious freedom. We will not wait for this confused, distracted government for that to happen. I move the amendment standing in my name on sheet 8606:

At the end of the motion, add "but the Senate is of the opinion that nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity:

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings."

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. It was almost a year ago that Australians, almost with one voice, voted to remove discrimination against LGBTIQ Australians. We came together as a nation—we were forced to do so under a process that we didn't support—and we sent a strong message to politicians in Canberra that we are a country that is committed to the principles of equality and that we are a nation that doesn't believe that there is one set of rights for one group of people in our community and a different set of rights for another group within our community. We came together as a nation, and we made it very clear that we won't stand for discrimination, whether that discrimination is based on someone's race or culture or ethnicity or, more importantly, whether that discrimination is based on a person's sexual or gender identity.

Here we are, a year on from that vote, from that historic moment in this place, and, despite the overwhelming message that was sent to the members of parliament, I don't think some of them actually got the message. It's hard to believe, but there are people in this place who simply haven't got the message: we are a nation that is committed to the principles of equality, and we won't stand for discrimination in whatever form that takes. I do hope that what we have now is an opportunity for people in this place to reflect, to acknowledge the humanity that is being debated in this chamber and to allow ourselves an opportunity to say to people in our community: 'You're all respected; you're all valued.'

Senator Wong's bill before us today, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill, is something we support as it stands. We support that piece of legislation because we don't believe that religious schools should be able to discriminate against LGBTIQ students. We just don't believe that that right should exist in law. Here's an opportunity for us to affirm again, as a parliament, that there is no place for discrimination in our schools. Of course, this is a long-overdue reform. It's been brought to this parliament on the back of a religious freedoms review, which I'm interested in discussing in a moment.

This piece of legislation supports—indeed, it mirrors—much of the legislation we had before the parliament in our Discrimination Free Schools Bill 2018 and, on that basis, we will support it. However, there is a very important distinction to note between this piece of legislation and the legislation that the Greens were proposing to debate, the Discrimination Free Schools Bill 2018. This bill protects students against discrimination, but what it does not do is protect lesbian, gay, bisexual, transgender, intersex and queer teachers. If you are a teacher in a school and you are discriminated against on the basis of your sexuality or your gender identity, this bill doesn't protect you. This bill allows teachers to be discriminated against. It allows schools to continue to say to somebody who might be in a same-sex relationship, 'You've got no place teaching my kids,' and we won't stand for it. We will not stand for it.

Under the legislation we're debating today, teachers remain the subject of discrimination in schools. And, sadly, what we're saying with the passage of this bill is that there continues to be two classes of people in our schools. There are students for whom discrimination has no place—and that's a good thing—but we're saying to teachers, 'You are not a priority right now.' That is, indeed, what the Labor Party is saying right now, by not including teachers in legislation and therefore allowing discrimination to continue to occur against them.

We have to ask ourselves, why is that? Here we have something that this parliament could fix. With the support of the Greens and the crossbench, we know we've got the numbers to defeat this discrimination, and yet we've got legislation that doesn't reflect the wishes of our community. I think it was Senator Pratt who last week said, 'Having the religious exemptions in place gives a message that LGBT people are second-class citizens.' You know what? She's right. Senator Pratt is absolutely right. So what message are we giving when we say to teachers, 'If you're in a same-sex relationship, you can be fired for that'? What message are we sending to our community when we allow religious institutions and schools to discriminate on the basis of sexuality and gender identity? What we are saying is that they are, in Senator Pratt's words, second-class citizens. That's why we're so disappointed that, when we have the chance to end that discrimination, we're not taking it. We're only addressing half the equation. That's what's so disappointing right now.

No school should be able to tell a young person who might be trans, gay, lesbian or bi—or maybe somebody who is just struggling with who they are—that they don't belong, that they're not welcome and that they have no place. And no school should be able to tell a teacher the same thing—'Because of who you live with, you're not welcome in our school.' A person's sexuality or gender identity is who they are, and we have schools telling people: 'You're not allowed to teach in our school. We will not employ you because of who you are.' That's discrimination. And that's why we'll be moving an amendment to this piece of legislation—to ensure that we end discrimination not just for students but for teachers as well. We don't accept discrimination in our workplaces.

We don't accept it in other areas of our community. We should not allow it to continue in our schools. And it shouldn't be something that we're even debating in 2018. This is a basic question of decency. It's about time we fixed it. Of course the only reason we're here is because, on the back of the marriage equality legislation in an effort to appease the far right of his party, we had Malcolm Turnbull engage in yet another ill-conceived and poorly managed project of work—the Religious Freedom Review. This was an attempt to tell the right wing of his party: 'Guess what? If we get marriage equality over the line, we're going to work hard to ensure that we entrench discrimination in other areas of Australia.' All it's done is allow us to shine a light in areas like this. We Greens have long campaigned for an end to discrimination in schools for both students and teachers, but now we're having a national debate about it, and that's a good thing.

The government's seeking to hide its report into religious freedoms. We have to ask ourselves some questions about why that might be. Is it because this is a government that's so internally divided that simply putting forward a report, the result of months of work, would mean that the government can't keep its show together, or is it because, indeed, there are other areas of discrimination that it doesn't want the community to see the light of day on?

The news that the Morrison government was actually considering legislative change to entrench discrimination was shocking to a large number of Australians. Perhaps even more shocking was the realisation, which many people had, that the law already allowed it. So we're pleased that, in an effort to appease the hard right, we're now having this national debate. We're pleased that when governments act not in the interests of the community but in the interests of buying off people in their party who will never be satisfied, where that leads to is where we are right now—ensuring that we make our country a fairer, less divided community.

As I said earlier, we have amendments that would remove those provisions in this 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, indeed, their pregnancy status. 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. All we are saying is that the same should apply to staff and other contractors in schools. That's all we're saying. Let's apply that standard across the board. Let's not make a distinction that says we end discrimination in one area but we're only going to go halfway rather than getting the job done properly.

Secondly in our amendments, we are proposing to remove the new carve out that Senator Wong's proposing in the proposed new section 37(3)(b). The provision highlights how simple it actually is to remove discrimination. This isn't hard. In fact, Labor have to add a new provision into their bill that explicitly allows discrimination against teachers and staff, so they've carved out an area to discriminate where it didn't exist before. We're removing discrimination in schools, but then we have to introduce a new piece of legislation that allows discrimination to occur against teachers. We're actively legislating to discriminate against teachers in this bill. That's remarkable. At a time when we should be applying this law across the board, we are actively legislating to discriminate against teachers. Unfortunately, it says everything about where we are right now. We have a government that, in an effort to appease the hard right, has allowed this parliament to end discrimination. Clearly this is not what was intended by the Prime Minister when he pushed forward on the religious freedoms review.

Of course, you only need to look at reports today to know what happens when you try and appease the hard Right. Indeed, Mr Turnbull is out there today arguing against the preselection of an existing member of the government on the basis that this is an individual whose views have no place in the modern Liberal Party. And yet, when he was the Prime Minister, he gave him, Tony Abbott and, indeed, the hard Right of the Liberal Party everything they wanted—and look where it got him. So it says everything about politics at the moment—where we have a divided government tearing themselves apart and refusing to release a report that was commissioned months ago, and now a debate in this chamber to remove discrimination when their express intent was to entrench it.

It also says something about the Labor opposition, which is trying to hedge its bets. We are thankful that we have legislation before the parliament that will remove discrimination against students, but why on earth would we seek to introduce legislation that will further entrench discrimination against teachers? We have a unique opportunity, with the support of the crossbench, with the numbers in the lower house as they are, to fix this properly, not do a half-baked job. And yet that is the legislation that's being proposed today. We have a Labor Party that will say one thing to its supporters on one side of the country and another thing to its supporters on the other side of the country.

You see, this is a pretty straightforward case. You either support discrimination or you don't. You can't make this a little bit better. Why is it that the Labor Party would say that students shouldn't be expelled because of their sexuality or gender orientation and yet they would say that that right doesn't apply to a teacher? Is it because they want to be able to say one thing in this place and go out and front a press conference and talk about what Labor's done to end discrimination, and then go to those religious institutions and say, 'We looked after you; we've allowed you to continue to discriminate'? Is that why they're doing it? Is it like Bill Shorten going to Queensland and talking about how important it is to mine coal and then coming to Melbourne to talk about how we need to phase-out coal and move to renewable energy? Take a stand and do this properly.

As I said earlier, we as a nation came together to end discrimination. When it comes to marriage, we said that all people are equal before the law, and that was a great moment for this nation. LGBTIQ people are sick of being used as political footballs—they are sick of it. The horrendous plebiscite that was imposed on our community and the pain and grief that that caused is something we should never see repeated, and yet here we are with an opportunity to do something good—something decent—and put an end to all forms of discrimination, and we're squibbing it. What we need is genuine reform. We will support this legislation as it stands because it does go some way into bringing us into the 21st century, but we are so disappointed that we couldn't do the job properly.

I suppose, when reflecting on what it is that we need to do as a nation to move forward, we can debate individual pieces of legislation like this and do that systematically, but we believe, ultimately, that we as a nation need a charter of rights. If we're serious about ending discrimination in law in all its forms, we need a charter of rights. We're one of the only Western liberal democracies without such a charter. It behoves all of us to ensure that, when it comes to passing laws in this chamber, we put an end to discrimination, rather than entrench it. So, over the longer term, we'll be continuing to campaign on ensuring that we do have a charter of rights in Australia. My colleague Senator McKim has done so much good work in that space, and we'll be making sure that, in the lead-up to the next election, we push both parties towards implementing a charter of rights. Until then, we will do what we can, with every vote we have in this place, to end discrimination. That means ending discrimination against people on the basis of who they are. Whether it relates to people's ethnic or cultural background or their sexuality or gender orientation, discrimination has no place in modern Australia. It has no place when it comes to students, and it has no place when it comes to teachers in our schools.

Michaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | Link to this | Hansard source

I, too, rise to speak on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. One of the great flaws of Labor's bill is that it completely removes the ability of religious educational institutions to maintain their ethos through what they teach and the rules of conduct they impose on students. They should have the ability to do this. This is because Labor's bill would, for the very first time—and it is a very important point to note that it would be for the very first time—expose religious schools to litigation under the Sex Discrimination Act merely because they impose reasonable rules such as, for example, requiring students to attend chapel.

The coalition is going to be putting forward a number of amendments, and I will be speaking to those amendments, because, as you know, the debate on the bill is actually time-limited. The time available is exactly 63 minutes. So I will take this opportunity to put our case for our amendments on the record. In summary, what our amendments will do is ensure that religious schools can impose reasonable school rules without opening themselves up to the threat of litigation, or, in the event that litigation does occur, that the Human Rights Commission or courts would have to consider the religious nature of this particular institution in determining whether a rule was reasonable and was made in good faith. These are modest and sensible amendments, and they protect the ability of religious schools to impose reasonable rules in relation to the behaviour and conduct of the entire school. These amendments would give certainty to Australian students and families by ensuring that they are protected from discrimination on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy, whilst at the same time preserving the ability of religious educational institutions—and, again, we're talking about religious educational institutions—to impose nothing more and nothing less than reasonable rules, and these rules must be imposed in good faith and also have regard to the best interests of the student.

As I've said, given that this debate is time-limited to, now, 61 minutes, I am going to speak to the amendments that the coalition government is putting forward. There are three major amendments that we are putting forward and the first is in relation to removing item 1 of the bill. What does item 1 do? Item 1 of this bill amends section 37 of the Sex Discrimination Act to provide that the general exemption for bodies established for religious purposes in section 37(1)(d) does not apply in relation to the provision of education. The stated intention of this provision is to ensure that religious educational institutions cannot access the broader exemption in paragraph 37(1)(d) following the repeal of the specific exemption for religious educational institutions in subsection 38(3).

The purpose of the amendment that we are putting forward is very simple. It is to remove item 1, as it is not required to meet the stated intention of the bill, and it adds unnecessary complexity into the Sex Discrimination Act. The existence of the specific and more limited exemptions for religious educational institutions in section 38 of the Sex Discrimination Act supports the propositions that a body established for religious purposes under paragraph 37(1)(d) does not include a religious educational institution. Even with the removal of subsection 38(3) by item 2 of this bill, subsections 38(1) and 38(2) will continue to provide specific exemptions for religious educational institutions in relation to staffing. The maintenance of these provisions clarifies that religious educational institutions can only access the narrower exemptions in section 38, and not the more general exemption in section 37. As such, it is the position of the coalition that item 1 is unnecessary.

But, even if it were accepted that item 1 was required as drafted, item 1 is overly broad and is not appropriately adapted to its stated intention. As drafted, item 1 would limit the general exemption in paragraph 37(1)(d) for all bodies established for religious purposes, not just for religious educational institutions. In practice, this would restrict the ability for intrinsically religious bodies such as churches, synagogues or mosques to provide education in accordance with their religious beliefs or ethos. Many religious bodies provide religious education to their adherents, such as through theological colleges. It is the government's position that religious bodies should be free to conduct such education in accordance with the doctrines of their faith. For example, a church which educates missionaries may require that all missionaries live in accordance with the doctrines of the church. This may include not accepting missionaries who are divorced or who are pregnant outside of marriage. Such requirements would be unlawful under item 1. The proposed amendments, therefore, omit item 1 to remove the risk of these significant unintended consequences.

We will also be moving an amendment to clarify the reasonableness test for religious educational institutions and insert a publicly available policy requirement. Our amendment will introduce a new section, 7E, into the Sex Discrimination Act. Amendment 1(a) will ensure that the repeal of the exemption for religious educational institutions to discriminate against students under subsection 38(3) will not undermine the ability of such institutions to make reasonable rules in relation to student conduct. Subsection 7B(1) of the Sex Discrimination Act currently provides that a person does not indirectly discriminate against another person in imposing a condition, requirement or practice if that condition, requirement or practice is reasonable in all of the circumstances.

New section 7E will provide that a condition, requirement or practice of a religious educational institution is reasonable where three specific criteria are met. Those criteria are: firstly, the condition, requirement or practice must be imposed in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed. This requirement ensures that there is an appropriate link between the school rule and the religious ethos of the particular institution. The good-faith test will also ensure that this provision does not protect rules which may be imposed in bad faith, such as rules which are designed to target particular students or which are applied inconsistently.

Secondly, the condition, requirement or practice must be opposed in a manner consistent with a publicly available policy of that particular educational institution. Subsection 7E(2) clarifies that such a policy must be in writing, be publicly available, set out the institution's policy in relation to adherence to its religious ethos and comply with any other requirements prescribed in the regulations. This requirement is essential in ensuring transparency and certainty for parents and students, allowing them to make choices about the best education for their particular circumstances.

Thirdly, in relation to the conditions, requirements or practices imposed on students who are children, the educational institution must have regard to the best interests of the child. This requirement reflects Australia's obligations under the Convention on the Rights of the Child, which places the best interests of the child at the centre of all actions concerning children. This requirement will ensure that religious educational institutions must have considered the best interests of the child in addition to the interests of the school or the school community. This paragraph, or the amendment we're putting forward, therefore ensures that an appropriate balance is struck between the right to freedom of religion and the rights of students to be free from discrimination. This provision will apply to all religious educational institutions, including primary, secondary and tertiary education providers. As a whole, this amendment will provide certainty for religious educational institutions that they are still permitted to impose reasonable rules regarding student conduct, appearance or dress consistent with their religious ethos whilst at the same time providing appropriate safeguards for students.

The third amendment that the coalition will move is an amendment to clarify that religious educational institutions may engage in teaching activities. This is amendment 1B, and it introduces the new section 7F to the Sex Discrimination Act. Amendment 1B will ensure that the repeal of the exemption for religious educational institutions to discriminate against students under subsection 38(3) will not undermine the ability of such institutions to teach in accordance with their religious beliefs. New section 7F will provide that nothing in the Sex Discrimination Act makes it unlawful for a religious educational institution to engage in teaching activities in good faith, in accordance with doctrines, tenets, beliefs or teachings of their religion.

This amendment responds to the concerns that have been raised by many faith based schools that the removal of the exemption in subsection 38(3) may challenge their ability to teach in accordance with their religious beliefs or ethos. With the repeal of subsection 38(3) by item 2 of this bill, it is possible that a student could make a complaint that the teaching of certain religious doctrines, such as a biblical view of marriage, gender or sexuality, constitutes unlawful discrimination. The government is of the view that there should be no impediment in the Sex Discrimination Act to religious educational institutions teaching in accordance with their belief.

The right to manifest one's religion through practice or teaching is an inherent aspect of the right to freedom of religion. It is also necessary to provide certainty to parents and students as to the permissibility of particular religious teachings at such institutions. For the purposes of this provision, 'teaching activity' is defined to mean any kind of instruction of students, including by employees or other persons engaged by the religious educational institution. This provision will therefore protect teachers, tutors, coaches, pastoral care staff and any other persons providing instruction at, or on behalf of, religious educational institutions. It will also ensure that a religious educational institution can maintain its religious ethos across all teaching activities, not solely in relation to religious education classes. However, the requirement that the teaching activity be done in good faith acts as a safeguard to protect students against any actions done in bad faith, such as teaching activities which target particular students. This amendment will therefore ensure that religious educational institutions can maintain their religious ethos and teach in accordance with their religious beliefs without threat of legal liability. In the event that particular amendment, on sheet KQ149—the amendment to clarify that religious educational institutions may engage in teaching activities—does not get up, the coalition then proposes to move an additional amendment, and that amendment will seek to clarify the reasonableness test for religious educational institutions. In the event that amendment does not get up, then we will seek to move a further amendment to clarify the reasonableness test for primary and secondary religious schools.

Again, the amendments that we are putting forward are quite simple, but they are inherently necessary to improve what otherwise would be a bill—Labor's bill—which would completely remove the ability of religious educational institutions to maintain their ethos through what they teach and the rules of conduct that they impose as a religious educational institution on their students. These amendments, are actually quite simple, but they are inherently important. All they will do is give certainty to Australian students and Australian families by ensuring that they are protected from discrimination on the grounds of sexual orientation, gender identity, marital or relationship status, or pregnancy whilst, at the same time, preserving—all we're asking for is to preserve—the ability of religious educational institutions to impose nothing more and nothing less than reasonable rules. As I've already set out, these reasonable rules must be imposed in good faith and must also have regard to the best interests of the student. With that, I will also table five supplementary explanatory memoranda relating to the government amendments to be moved to this bill.

Kimberley Kitching (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, which Senator Wong introduced into the Senate. This bill fulfils the promise that all sides of politics gave following the leaking of the recommendations of the religious freedom review, or the so-called Ruddock report. Mr Ruddock submitted his report to the government in May. Six months later, the government has not released that report—six months! On 9 October, The Sydney Morning Herald reported that one of the recommendations of the Ruddock report would be:

Religious schools would be guaranteed the right to turn away gay students and teachers …

As a result, Prime Minister Morrison gave a commitment that he would act to make it clear that no Australian school could expel a student on the basis of their sexuality or gender identity. This was in the context of the Wentworth by-election. These were fine words, but, as so often happens with this Prime Minister, they were not followed by any action. He has often done leadership by thought bubble. That is why Labor has decided to act. The Prime Minister may be happy to leave this matter hanging over the summer, but we on this side are not.

In this context, I want to make some observations about the position of religious schools in Australia. One of the foundations of our Western democratic way of life is respect for diversity of opinion. We rightly celebrate Australia's diversity of ethnic origins, language, cuisine and belief systems. We should equally celebrate our diversity of religious and philosophical views. We are not only a multicultural society, but also a multifaith society. It is my strong belief that societies with plurality of belief systems, such as Israel, the United States of America, the United Kingdom, France, Australia—of course—and a myriad of other countries, are the countries where they are able to flourish because they can be true to themselves.

But religious freedom is not just a matter of passive acceptance that our fellow Australians have many different faiths. Like all our freedoms, it is often subject to incursion; like all freedoms, it needs to be actively advocated for and defended. An essential part of religious freedom is the right of parents to send their children to religious schools. It must follow from that that religious schools, whether those schools are Christian, Jewish, Islamic or indeed anything else, have a right to educate their students in a way that encourages them to adhere to the faith and practices of the religious denomination which established them. Remember, parents actively choose to send their children to these schools. They do that for a reason, or perhaps for many reasons, but they are doing it in the best interests of their children as they see those interests to be.

It follows from this that such schools have a right to require that both students and teachers act in a way which is broadly consistent with the faith and practices of the religious denomination. If they are to be denied that right, the school cannot serve the purpose for which it was established. However, there is also a majority view in Australia that Australians should not be discriminated against on the grounds of sexuality or gender identity. In relation to schools, this is the view particularly in relation to discrimination against students. It is the need to reconcile these two broadly accepted propositions and the difficulty in doing so that has been brought into sharp focus in the wake of the marriage equality survey and subsequent legislation and the subsequent Ruddock report, which again I say we are yet to see.

The Sex Discrimination Act currently provides certain exemptions to religious schools. The act makes it unlawful to discriminate in, amongst other things, education against people who have certain protected attributes, as the act prescribes. These attributes include sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy and breastfeeding. The bill before us would require that religious schools conform to this provision of the act in relation to students. I point out, however, that while sexual orientation, gender identity, intersex status and marital or relationship status are protected attributes under the act, political advocacy and activism are not. There has also been discussion around subsections (1) and (2) of section 38 of the act, and I think there is a need to reconcile and balance different rights. I believe the balancing of rights is desirable. In those circumstances, I believe an appropriately drafted, positively expressed right to religious freedom should be legislated.

I want to thank the Senate Legal and Constitutional Affairs Committee. The committee worked together very well and productively and the secretariat worked—dare I say it—a miracle to produce the report in a very short time. Labor has decided to act, and it is on that basis that I'm happy to commend Senator Wong's bill to the Senate.

Stirling Griff (SA, Centre Alliance) Share this | Link to this | Hansard source

This bill represents a significant change to the Sex Discrimination Act and, as such, should not be rushed through this week. There is absolutely no urgency for this bill to be dealt with this week, as particularly religious schools generally don't rely on these provisions in practice. We support the intent of what Labor is trying to do with this bill for the simple reason that we do not support discrimination against students. We support the intent of the Greens to ensure teachers are not discriminated against and we also support the intent of the government to ensure religious freedoms are protected. Our view overall is that this bill should have been sent off for proper inquiry and scrutiny. This would provide all with the necessary time to properly consider all implications and input from stakeholders. As the bill now stands, our party considers the topic one for a conscience vote, but we all came to a united approach on this—and that is that we will support this bill because its intentions align with ours, but we cannot at this stage support any additional amendments. We have been forced into this position because we have not had a real opportunity to consider the implications and unintended consequences of all the amendments.

On these amendments we have been hearing, particularly in the last two hours, a very diverse range of views—many of them conflicting—which tells us that even those that seem somewhat straightforward may potentially open a Pandora's box of problems. For instance, we support what the government is seeking to do with ensuring teachers can teach in accordance with their faith. But this may simply create an avenue for discriminatory treatment of students to creep in. We are also unsure that we need to bolt on additional protections to the existing reasonableness test that exists at 7B in the act. Maybe it's appropriate or maybe it is unnecessary. We simply haven't had the time to fully consider the implications, so we will abstain on this and the other government amendments.

We know there is bipartisan support in this place and the other place for amending the Sex Discrimination Act so that schools cannot discriminate against LGBTQI students and teachers. It is unfortunate that there is no consensus about how to proceed. Labor's bill amends section 37 of the Sex Discrimination Act and repeals section 38(3). In effect, this bill proposes to remove existing protections that currently allow religious schools to discriminate against lesbian, gay, bisexual, transgender, queer and intersex students if it's done in line with their religious doctrine or if it is to avoid injury to the religious susceptibilities of adherents of that religion. We appreciate that this bill makes religious schools very nervous. Removing familiar protections will inevitably have that effect. We accept this might mean religious schools have to rethink their approach to some students in some instances. But, in practice, this should not stop religious schools from teaching their faith. But we also understand that these provisions are not heavily relied on by schools as it is. My office has also been told by Christian school stakeholders that they fear some students might be tempted to make mischief and abuse the weakened protections. I'm not entirely sure how or why a student would do so, especially if they want to be at that school. But that kind of fearmongering misses the point. We need to legislate to protect the rights of the many, not to quash the rights of the many in order to protect against extreme scenarios.

This bill may well end up not being legislated. We may yet see other attempts to amend the Sex Discrimination Act. Whatever we are faced with, in this parliament or the next, Centre Alliance will approach it with a view to ensuring equality of treatment for all students, regardless of their sexual orientation or gender identity. This is ultimately about keeping our society moving on a path towards equality and acceptance of all people.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I have spoken on the second reading; I just want to briefly speak to the second reading amendment moved by Senator Collins, which is on sheet 8606. So I rise to speak on that amendment. Today, as I've previously said, we do have an opportunity to do what this parliament too often fails to do; to come together on an issue on which we all agree and change the country for the better. The bill does one thing, and one thing only; that is, to ensure that every Australian child, no matter their gender or sexual orientation, is treated equally. It will make this country a more equal place, nothing more. It won't prevent schools from requiring students to attend chapel, it won't prevent schools from requiring uniforms and it won't prevent—let me be very clear—the teaching of religious education. To put that issue beyond doubt, Senator Collins has moved the second reading amendment on sheet 8606 to that effect. I support that amendment.

Also, this bill does not deal with the issue of teachers. Whilst Labor has made clear that it supports the removal of that exemption too, it acknowledges there is not yet wide enough support across the parliament to get that done. We will continue to work with schools and religious bodies to find a way in which that exemption can be removed so as to protect religious schools' rights to practise their beliefs. As Mr Shorten has said, Labor will seek to remove that exemption early next year.

What we do not need here today, and what we have regrettably seen from Senator Stoker and some other coalition senators, are false accusations and prolonged debate in this chamber. Enough of the false accusations—we saw enough of that in the marriage equality debate. The country doesn't need more of that. On this matter, we are all agreed. Mr Morrison has said he supports doing this. The Treasurer has said he supports doing this. The Attorney-General has said he supports doing this. What we are doing in this chamber is seeking to give effect to the promise made by the Prime Minister in the lead-up to the Wentworth by-election. It is something that the parliament can pass today with the support of all parties. I commend the second reading amendment, moved by Senator Collins, and the bill to the Senate.

Jenny McAllister (NSW, Australian Labor Party, Shadow Assistant Minister for Families and Communities) Share this | Link to this | Hansard source

A few of my colleagues have noted in their remarks the path this proposal for reform has taken. The Morrison government joined Labor and some of the crossbench in October this year in promising to remove the right of religious schools to discriminate against students on the basis of their sexual orientation, gender identity or intersex status. To date, the Morrison government has not acted on its own promise, but Labor has. And, if this bill passes, as I very much hope it will, it will have the distinction of being one of the few legislative advances for LGBTQI people during a conservative government.

It's no accident that it has taken a Labor bill to achieve this. The history of LGBTQI law reform in Australia is a proud and important part of Labor's history. In 1975, the South Australian Labor government decriminalised homosexuality. In the eighties, Neal Blewett and the Hawke Labor government adopted a public health response to the AIDS crisis unlike the stigma we saw in other countries overseas. In 2005, the Victorian Labor government abolished the 'gay panic' defence. In 2010, the New South Wales Labor government legislated to allow same-sex couples to adopt. And the last federal Labor government wound back the religious exemption that applied to faith based aged-care facilities. Each of these actions is important in its own way. However, it is their arc that is the most compelling. Together they represent a legal recognition over time of the inherent dignity and humanity of LGBTIQ people, and this bill represents the latest expression of that recognition.

It has been a long journey to get to this point, and I know that it must feel even longer for the gay community and the activists who have fought every step of the way for their rights. They are the ones who have done the hard work to build the public case for acceptance and for change. The case has been well and truly made here. Polling has shown that 82 per cent oppose the discrimination law exemptions that allow schools to expel gay and lesbian students, and the submissions to the Senate committee that looked at this issue showed that the overwhelming majority of religious schools have no intention of discriminating against children and no desire to maintain the right to do so. The reason for this is obvious. The idea of stigmatising children and discriminating against them on the basis of who they are is abominable to decent Australians. It is a proposition that requires no explanation and no analysis in 2018.

Labor is also committed to ending discrimination against LGBTIQ staff at religious schools. The right to do so is inconsistent with who we are and who we should aspire to be as a nation. Senator Wong has spoken about our approach in her recent remarks. As the Senate leader explained in debate on this bill last week, given the short number of sitting days left between now and the election, we have to prioritise, and children are our priority. We don't want to give the government an excuse to walk away from the promises they made during the Wentworth by-election. This is something that the parliament can and should pass today with the support of all parties.

Labor will, as we always have, work constructively with churches and religious schools to ensure that they can continue to practise their beliefs. We respect the right of free exercise of religion and the ability for religious institutions to act in a way that is consistent with their faith, but the right to discriminate against children is inconsistent with our understanding of who we are as a nation. It is inconsistent with the journey that we have been on as a nation, and it has to end.