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

I am pleased to be presenting the dissenting report of coalition senators, signed by Senator Macdonald, the deputy chair, and Senators Hume, Abetz, Stoker, Duniam, O'Sullivan and Brockman. Can I start by thanking Senator Stoker as the principal author of this report. It is a difficult area, and her work in researching and considering complex issues has facilitated the preparation of our report.

The context of this referral was the introduction of the Discrimination Free Schools Bill 2018, the bill by the Australian Greens, together with the leak in TheSydney Morning Herald of recommendations purporting to be from the Ruddock review. The bill proposes to remove the existing exemptions at section 38 of the Sex Discrimination Act provided to educational institutions that are conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed. Those exemptions cover the employment of staff, the engagement of contract workers and the provision of education and training. Can I say at the outset that the committee was not established to undertake an examination of very substantial issues raised by this question in good faith. It has been hurried in a way that exposes its true purpose—namely, to provide a platform for some Labor and Greens senators to project their predetermined views onto a larger stage for their own political advantage, and those involved should be condemned for doing so. It is therefore not surprising that coalition senators cannot support the majority report, and we set out our reasons in the dissenting report.

In summary, it is our view that the committee's work demonstrates the need for further consideration to be given to a positive and standalone protection of religious freedom in Australia. I want to touch briefly on some key elements of our report. We look at inconsistencies with relevant international law. The bill has two paragraphs and it is confined to only one of the applicable rights: the right to equality and non-discrimination. There is no reference to religious freedom. It is one-sided and inadequate consideration of applicable human rights. Indeed, as our report shows, the bill undermines human rights in the name of arbitrarily selected human rights in a way that we can say is not permissible in international law.

Our report looks at the International Covenant on Civil and Political Rights and examines the importance of religious institutional autonomy. The principal protection to religious freedom is in article 18 of the covenant, which protects freedom of thought, conscience and religion. It's a protection which extends to both individuals and institutions. We look at the UN General Assembly's Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which enfolds, within that protection, the right to establish and maintain appropriate charitable or humanitarian institutions. The provision of education is recognised as a charitable purpose in our law and has also been recognised as such with various statements of the UN Special Rapporteur on freedom of religion or belief, as cited in our report.

We note the Australian Human Rights Commission has, in the past, recognised that special provisions for religious institutions are appropriate. Our report also examines exemptions for religious schools existing to balance religious freedom with non-discrimination. The leaked report includes a recommendation that the Commonwealth, state and territory governments should have regard to the Siracusa principle that states:

All limitation clauses shall be interpreted strictly and in favor of the rights at issue.

The bill fails to satisfy the requirement of proportionality as it extinguishes the right to religious freedom for a right that can be maintained through other means.

We also examine article 18(4) of the covenant that not only protects the right to establish private religious schools but also the rights of parents who don't wish their children to participate in religious instruction provided in public schools and who may excuse their children from that teaching. We look at the establishment and maintenance of faith based schools in accordance with their religious freedom rights and necessitates their ability to exercise discretion over their leadership, their staff and their volunteers, and we demonstrate how the bill would breach international law by preventing religious schools from maintaining their distinct religious ethos. This includes examining how failure to recognise the rights of faith based institutions would strip the wider community of the unique voices of such bodies. We conclude that the bill amounts to religious discrimination in that it imposes a burden on religious believers that they alone encounter on the basis of religious conviction. In light of these considerations, the bill's proposal is more restrictive of religious freedom than is required and is not proportionate to achieve the asserted countervailing rights under international human rights laws that Australia has ratified.

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 that 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 teach in accordance with widely-held Christian beliefs regarding sexuality, gender and relationships to manage the school community and student behaviour in ways that are appropriate to the faith of the school and employ only people who share their beliefs and manifest those beliefs in their own lives.

During hearings witnesses were asked to provide examples of cases in which the legislative exemptions have been involved or invoked. Understandably, due to the sensitive nature of the matter, several submitters provided confidential examples. However, 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 as far as the law currently stands. Indeed, our report outlines various instances, provided in camera, where reliance was placed on the exemptions.

Our report also considers other important factors, including constitutional implications of the bill and its potential breach of constitutional protection of the free exercise of religion contained in section 116 of the Constitution. We look at public funding and liberal autonomy. Alternative models are examined in the report, including its various advantages and disadvantages. We look at state laws and the interaction of state and Commonwealth laws. We look at the best interests of the child test, including the importance of balancing the interests of other students in the school community. What's very clear is that there is a pressing need for protection of the rights of individuals to have the freedom to practise their faith, including when they come together to form schools and other religiously based organisations. It has brought to the fore the desirability of legislation that protects this right, along with the need for several Commonwealth acts to be amended consequentially.

In conclusion, we reject the majority committee report, for the reasons outlined therein, and instead recommend that the government give further consideration to legislation that would enshrine and protect the right of religious freedom and make it clear that religious schools and religious institutions—universities—are permitted to operate in accordance with the doctrines, tenets and beliefs of their particular faith. Of course, to do anything less than this would have the effect of depriving those institutions of the ability to teach their beliefs and operate consistently with their ethos. It would also assist if there was a nationally consistent approach to the issue of discrimination of this kind.

The existing exemptions for schools in the SDA should not be eroded unless adequate protections for religious freedom are afforded in their place. For this reason, we believe that further investigation and consultation is required on the issues raised by the majority recommendations. Clearly this matter needs to be the subject of serious and intense consultation with schools, religious leaders, parents, teachers and all other stakeholders and cannot be adequately dealt with in this rushed inquiry. We recognise that the SMH's coverage of the Ruddock review leaks caused concern in the community, and this committee process has made it plain that in practice schools have been focused on the pastoral support of all students, irrespective of their gender or sexual orientation. Of course, the focus of us as a parliament must be to ensure that we set the conditions to ensure that religious schools remain able to do so in accordance with their religious ethos, and therefore it's very important— (Time expired)