Michaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share 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.