Thursday, 14 February 2019
Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018
I rise to speak on the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 and the chair's majority report, which found that the bill and all amendments should not be passed. Over 9,000 submissions were received, predominantly against the bill, and this is the second time in recent months that alleged gender discrimination has been considered by the Senate. What continues to be clear is that this is a very complex area of the law.
The issue arose from the leak of a recommendation of the Ruddock review without the reasoning behind it. Those opposite have sought to cast this bill as one aimed at ensuring gay students are not discriminated against and expelled from schools and have built the bill on this furphy. Overwhelming evidence has been provided in both inquiries that religious schools are not expelling gay students.
The Sex Discrimination Act was enacted in 1984. The exemptions to religious bodies and religious educational institutions have been in place for many years. There has been no public outcry. There was no legal challenge to their validity. Indeed, as the evidence has shown, they have provided a very important framework within which religious schools have operated to manage issues and ensure that gay students have been appropriately and pastorally taken care of.
This bill goes way beyond the non-issue of alleged expulsion of gay students. It seeks to impose a stringent legal framework which will affect millions of people, to purportedly solve a problem that is non-existent. The bill 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 their students. The direct result will be that such teachings and rules of conduct will now expose religious schools to litigation under the SDA.
As indicated by Ms Eastman from the Law Council of Australia, the operation of the exemptions are technical and complex and involve the interaction of various provisions, including sections 21, 37 and 38. The extensive evidence presented to the inquiry highlighted the myriad issues raised by the bill and the proposed amendments. It reinforced the complexities that the Ruddock review was faced with and that any reform in this area needs to be comprehensive and not piecemeal. There was substantial evidence from across the broad religious spectrum, opposing the bill on the basis that it represented an unacceptable incursion on religious freedom and that it would introduce uncertainty into the SDA that in turn would lead to much broader, unintended consequences which would create unnecessary conflict and ambiguity in school communities.
The effect of the proposed subsection 37(3) is much broader than intended. As drafted, it 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, mosques, monasteries, prayer centres, theological colleges and seminaries, if they were engaged in educational activities, to provide education in accordance with their religious beliefs or ethos. This was exemplified by Pastor Worker from the Seventh-day Adventist Church, who stated that the unintended consequences included employment and retention of staff, without which religious schools would no longer reflect the religious purpose for which they were established to espouse, and, in turn, the existence of religious schools would be at risk.
Another unintended consequence is the potential negative impact on the broader work of local churches and community service initiatives of churches, including classes and groups operated to communicate Bible teachings, principles and values of the church. This raises the spectre of the state directing churches in their practice of beliefs, doctrines and tenets of faith. It was observed by the Law Council that the proposed new section was too broadly worded and brought into play the need for clarity around the term 'body established for religious purposes', given that a range of educational activities, for example, Bible study, relationship counselling, welfare and youth work, may, in turn, be run by religious bodies. The meaning of 'body established for religious purposes' would almost certainly have to be tested and defined by the courts.
We are supposed to protect freedom of religion, not expose religion to activist litigation and, therefore, any law that this Senate passes should be clear and unambiguous in its intent. The government amendments sought to address these concerns, but they, in turn, created their own uncertainties, and the prospect of adding further factors to the test of reasonableness would have added unnecessary complexity. Accordingly, we accepted the views of many submitters that the intersection of various human rights raised significant and complex matters that needed to be properly investigated to result in a balanced and reasonable solution, and we concluded that referral of the matter to the Australian Law Reform Commission was necessary. In short, prohibiting discrimination should not occur at the expense of the ability of religious educational institutions to maintain their ethos through what they teach and the rules of conduct that they impose.
Religious freedom is a vital aspect of our society, and religious communities should feel respected and protected. Indeed, over the summer break I spent long hours briefing and discussing issues with key religious leaders across the religious spectrum. Faith based schools have a unique and important role to play in our system, and it is important that they are maintained and their ability to teach according to their ethos is maintained free of the threat of legal liability.
I welcome the release of the report Religious Freedom Review. It was long overdue. I was especially pleased that finally there was recognition of a standalone need for the fundamental right of religious freedom to be recognised, a right that is recognised under international law. As I indicated at the time of the same-sex marriage debate, all of these issues should have been considered then. Many people voted for the same-sex marriage survey on the understanding that religious freedom would be protected. This is a freedom recognised by international law. It will require constitutional considerations and changes to state and federal legislation, and, therefore, referral of these to the ALRC is really important. Indeed, a passage of comprehensive reforms to include standalone religious freedom legislation will overtake the need for this bill and, indeed, the government's own exposure draft.
This is a complicated and difficult issue, where we see competing rights needing to be balanced. I put to most submitters the following from the Ruddock review:
Importantly, there is no hierarchy of rights: one right does not take precedence over another. Rights, in this sense, are indivisible … Australia does not get to choose, for example, between protecting religious freedom and providing for equality before the law. It must do both under its international obligations.
Can I also reflect on the Attorney-General's Department's submission. It states that under international human rights law, limitations may be imposed where it is reasonable to do so. This brings into question our obligations under the International Covenant on Civil and Political Rights. Article 18(3) provides that the right to manifest religious belief may only be limited to the extent that it is necessary in order 'to protect public safety, order, health or morals or the fundamental rights or freedoms of others'. Arguably the standard of 'reasonable' and 'necessary' do not equate. This is a complex issue that also needs to be considered. This is why the Ruddock review recommended that governments across Australia should have regard to the Siracusa principles when drafting laws. These principles outline the operation of the necessary limitation.
Article 18 also enshrines the right of parents 'to ensure the religious and moral education of their children in conformity with their own convictions'. Australia needs to decide whether we are going to respect this right, whether we respect international human rights law, and whether we truly are going to have a diverse society. If we do take the alternative path, we will be instead enshrining a single state-sanctioned teaching on sexuality and morality. These are not questions of conscience but of recognition of human rights, and they should be legislated accordingly.