Kristina Keneally (NSW, Australian Labor Party) Share this | Hansard source

I rise to take part in the debate on the Discrimination Free Schools Bill 2018 that is before the Senate. I do so being mindful that this is an issue that goes to some very basic questions about who we are as human beings and how we understand, recognise, respect and accord human dignity to one another. I also do so while acknowledging that we are at this point and in this debate in the Senate and, indeed, in Australia as a result of a review into religious freedom instituted by the former Prime Minister, Malcolm Turnbull. While I may have a cynical view about why that review was instituted—in regard to the political debate at the time in relation to marriage equality and a desire for the then Prime Minister, Mr Turnbull, to placate concerns raised by some in his party room regarding religious freedom—I do acknowledge that the question of religious freedom in a secular, liberal democracy is one that is fundamental to our body politic. We need to consistently balance the rights of people to freedom of religion and freedom of association alongside the rights of people to be treated equally and without discrimination.

I will get to the intent of the legislation, but I'd like to spend a few minutes reflecting on how we got to this point. As I mentioned, this debate has arisen as a result of the religious freedom review instituted by Malcolm Turnbull in November 2017. Mr Turnbull appointed an expert panel, chaired by the Hon. Philip Ruddock, a former minister in the Howard government, that included some eminent Australians: Emeritus Professor Rosalind Croucher AM, President of the Australian Human Rights Commission; the Hon. Dr Annabelle Bennett AO SC, President of the Anti-Discrimination Board; Father Frank Brennan SJ AO, CEO of Catholic Social Services Australia; and Dr Nicholas Aroney, professor of constitutional law at the University of Queensland. This panel conducted public consultation over a seven-week period during February and March of 2018. These consultations were held in Canberra, Perth, Sydney, Western Sydney, Hobart, Melbourne, Brisbane, Adelaide and Darwin, and the panel received more than 15,500 submissions in that period. That would suggest to me that questions about religious freedom are ones that are important to Australians and ones that many Australians choose to engage with. The panel announced they'd completed the report, and delivered it to Mr Turnbull, in his capacity as Prime Minister, on 18 May 2018.

It has been some 153 days—five months—that the government has had this report and, unfortunately, they have not released it for public consideration. Given the considerable public interest and involvement in it, given the time and intellectual capacity contributed to it by the eminent Australians on the panel, it is disappointing to say the least that we have not yet been able to see the report. In fact, we heard this week in the House of Representatives from the current Prime Minister, Scott Morrison, who served as Treasurer in the Turnbull government, that he first saw the report not long after he became Prime Minister. This is a man who was the Treasurer of the government. He is a person who has a professed and publicly stated interest in religion and religious freedom, and he had not even seen the report, according to his own advice to the parliament.

The Turnbull government had sat on this report since May. They clearly hadn't shown it to the cabinet; cabinet has not been deliberating on this report since May. Quite frankly, the government has been hiding it from its own ministers and from public consultation and consideration. I do think this is disrespectful. That the panel itself is not able to comment on the report until it is released continues the disrespect, and, according to the panel's website, that release is a matter for the Prime Minister.

Nonetheless, someone has selectively released portions of this report. Someone has put portions of this report into the public realm, through the media, and, as a result of that, that's where we are today. We now have portions of this report, and those portions that we have for public consumption make clear that the report highlighted to Australians that within our antidiscrimination legislation we still have these exemptions not just for staff and teachers but for students. I would say that many Australians and many legislators would have been aware of the exemptions as they relate to staff. I'm not sure that many Australians would have been aware of the exemptions as they relate to students.

Here we have, though, the government playing politics in the lead-up to the Wentworth by-election. They have their political reasons for keeping this report secret. However, as a result of the report, there are policy discussions that are now happening in good faith in the community and, putting all of this politicking aside, we may yet get a good policy outcome, at least on this portion of the report.

The legislation that has been introduced in the Senate, the Discrimination Free Schools Bill, is, I acknowledge, a good first step. It is a good first step in achieving an end that Labor, the Greens, some of the crossbench and Liberal senators who have participated in this debate have made clear they all want to accomplish—that is, the removal of an exemption in our antidiscrimination law as it applies to students in religiously affiliated schools. As I said, this legislation is a good first step. However, I believe the legislation can be improved in certain ways. It is not just about making clear that discrimination against students and staff because of who they are or who they love is no longer lawful. I would also like to see this legislation assert an affirmative position in law relating to the ability of religious schools to exercise freedom of religion and freedom of association.

The Discrimination Free Schools Bill would amend the Sex Discrimination Act and the Fair Work Act. The effect of these amendments would be to remove these exemptions in antidiscrimination laws for both students and staff that have applied to religiously affiliated schools. The intent of these exemptions when they were introduced was to uphold the ability of faith based schools to maintain the ethos and the mission of that faith and that school. In 2018, it is clear that these exemptions from discrimination for both students and staff on the basis of gender identity, sexual orientation and relationship status are out of step with community expectations and are no longer the best way to safeguard the mission and identity of religious schools. Even without the release in full of the Ruddock report, the selected portions that have been leaked have prompted a public reaction and a policy response from various political parties.

Labor has made clear that it supports removing the exemptions to antidiscrimination legislation both for students and in the hiring of staff and teachers at religious schools. As I said, the government has made clear that it supports removing such exemptions for students. However, government senators who have spoken in this debate confirm that they do not support the exemption relating to staff and teachers, and that does, at this time, make it very difficult for such legislation to pass the parliament.

Labor supports the intent of the Discrimination Free Schools Bill insofar as it supports the removal of such exemptions that allow schools to discriminate against children and staff on the basis of sexuality, gender identity, marital status or pregnancy. But Labor is currently reviewing the specifics of the particular amendments as they are drafted in the Discrimination Free Schools Bill for unintended consequences and sufficiency, and I do flag that we may yet have more to say in the course of this debate, in any future committee stage or in the face of future government legislation in the Senate. However, as I said in my opening remarks, I believe, and Labor believes, that this legislation can be improved. It can be improved by providing for a positive, affirmative position that recognises the ability of religiously affiliated schools to uphold the value and ethos of those schools and to set rules within the school that require staff to act in ways in their roles that uphold the value and the ethos and to not undermine the mission and the identity of those schools and that faith. I'd like to speak to this in a bit more detail in the time remaining.

I acknowledge the contribution of Senator Wong as well as that of Senator Pratt, both of whom have spoken before me. I agree quite strongly with the descriptions they have given of the need to remove discrimination for LGBTIQ people and to ensure that in Australia we no longer have in law the ability to discriminate against people on the basis of their identity. We are tolerant. We are accepting. We are able to recognise that all of our citizens, regardless of their sexual orientation or relationship status, are fellow human beings, and accord them the dignity and rights that entails. However, we also recognise that our community, country, people and nation—some of us with faith; some without—are and always have been multicultural and multireligious. The right of our churches and churchgoers to live by their traditions and beliefs is also part of our national identity. Balancing these two things is fundamentally important in a democracy. We know that many people have strong views in this debate about how we should balance freedom of religion and the right of all Australians to live free of discrimination. In that regard it would be incredibly helpful if the government released the Ruddock review.

As someone who has been educated in the Catholic education system from year 1 all the way through to a master's degree, as the daughter of a Catholic schoolteacher and as someone who worked as a Catholic primary schoolteacher myself, I understand very well the role of religious education and why families choose it for their children, but, as a legislator for nearly ten years in the New South Wales state parliament and as a former Premier of that state, I also understand our responsibility as legislators to get the balance right, upholding religious freedom while ensuring we are not enacting discriminatory practices within our legislation. We on this side of the Senate very much respect the right of parents to send children to the school of their choice. I understand that firmly. It is a choice my husband and I have made for our own children. Like many parents who have chosen religious education, I have done it because I want my children to be grounded in their Catholic faith. I want them educated in the ethos and the social justice traditions of my church.

I know that my children and other children who are in religiously affiliated schools do not just receive that ethos, mission and identity in a religious or a scripture class; they receive it from the moment they step on the school grounds through to the moment that they leave, whether it be in student leadership, extracurricular activities, sporting activities, other parts of the curriculum, the library, the cafeteria, the gymnasium or the interactions they have with the staff and teachers. The mission and identity of a religious school is not just in the classroom; it is part of the culture, behaviours and activities that take place within that institution. When it comes to employment, we know that the parents who send their children to those schools expect the teachers and staff to support that ethos, to live out that mission and identity and to not act in ways that undermine that mission. The reality is that staff who work in those schools understand this too, and that's why there are very few examples where faith based schools making employment decisions have needed to rely on the identity based exemptions in discrimination law. While every employer is entitled to require employees act and perform their duties in accordance with the stated mission and practices of the organisation, in the absence of such exemptions in our antidiscrimination law it is necessary to ensure religious schools are positively entitled to teach and operate in accordance with their faith and mission.

Labor proposes that we have an affirmative position for religious schools that upholds their exercise of religious freedom and freedom of association. Our approach to legislation on this issue would remove exemptions on the basis of sexuality, gender identity or relationship status. But we would also like to see in legislation a recognition that religious schools are entitled to require their employees to act in their roles in ways that uphold the ethos and values of that faith and that that requirement may be taken into account when a person is first employed and in the course of their employment.

As we have done previously, we do call on the government to come to the table and work with us and with the crossbench to find a suitable way forward. It's disappointing to hear the Liberal senators who have participated in this debate so far reject that call when it comes to the employment of staff and teachers. It is also disappointing that the review into religious freedom has not been released by the government. In many ways, we are left without the guidance that that review might provide to inform this debate. But the public reaction to the parts that have been selectively leaked to the media makes it clear that the public is impatient. They expect us to deliver on removing discrimination. While the government, unfortunately, may choose to play a waiting game until they can get past Saturday's by-election in Wentworth, the public does not have the patience for such political trickery. Religious freedom is not something that should be played with as a political game. Unfortunately—cynically, I would have to say—the government has chosen to do so.

This does go to the heart of who we are as human beings and the heart of who we are as a nation. We are people who come into this place bringing all of our experiences, and I believe we're also people with a spiritual dimension. I acknowledge that our first people, our first Australians, have a deeply spiritual connection to our land. While I do not believe everyone needs to have a faith in order to practise that spiritual dimension, many people choose to do so. Our challenge as legislators is to work out how to balance their rights and abilities to exercise that faith, and to raise and to educate their children in that faith, with ensuring that we are removing discriminatory practices in laws and discriminatory practices against our citizens that are no longer in keeping with community expectations.

I'm pleased that this legislation and this move are taking place in the Senate and that we are having this debate. I would like to think it can continue to be considered in these respectful terms. I look forward to a point in time when we are able to say to all Australians that there is no discrimination in law and to all our Australians of faith that we recognise their right to a freedom of religion.