Louise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | Link to this | Hansard source

This evening I present the report by the Legal and Constitutional Affairs References Committee into the legislative exemptions that allow faith based educational institutions to discriminate against teachers, students and staff, together with the Hansard record of proceedings and documents presented to the committee. I seek leave to move a motion relating to the report.

Leave granted.

I move:

That the Senate take note of the report.

As chair of the committee, I say that it needs to be clear before this place that it is not necessary for faith based educational institutions to use legislative exemptions in the Sex Discrimination Act in relation to LBGTI students or, indeed, any other attributes, such as pregnancy or marital status, within the Sex Discrimination Act. The evidence before the committee made it very clear that schools have not been actively using this exemption, and almost all schools said they did not need these exemptions to exist. In addition, the small numbers of institutions that said they'd like these exemptions to remain on the statute books also, nevertheless, reiterated to the committee that they did not want to, and they would not, discriminate against any student.

The committee received over 160 submissions from stakeholders on both sides of this debate in relation to LBGTI rights but also in relation to sex and pregnancy discrimination. I have to commend the secretariat for the wonderful job they've done in organising this inquiry, from the taking of submissions to holding public hearings in just 13 days. Some might like to criticise the short time frame for this debate, but this has been a very simple and straightforward inquiry. It was brought on in response to what has already been very significant public debate on the issue of existing exemptions in the Sex Discrimination Act, which was originally sparked by the leaked recommendations from the Ruddock report into religious freedoms.

The evidence to the committee showed very strongly how much the community was largely, frankly, unaware that the exemptions even existed. I have to say—and I won't name names, in terms of the evidence before the committee—that even those who were there to try to defend the exemptions and their existence had no idea how they worked or, frankly, no idea of the attributes that the exemptions covered. This debate is not new to many Australians, but it's clear that most were unaware that these exemptions have allowed faith based schools to discriminate against students and, indeed, teachers for a great many years.

As the report I have tabled states, organisations on both sides of this debate are calling for the full release of the Ruddock report so they can see the recommendations of that report in their full context. What is extraordinary is that the government was handed this report back in May this year, has not made the report public and is now escalating community concern about the issues raised in it, because it refuses to lay them out on the table for public consideration or comment.

On 10 October, the Prime Minister himself said that the report had not even been considered by the cabinet. It was very clear that this was an attempt to gag debate on this issue, just as the government was starting to run out of oxygen in the Wentworth by-election. We see that the report from the expert panel received more than 15,000 submissions. Surely, this report needs to see the light of day. Nevertheless, the Prime Minister's statement in the context of responding to this report, affirming that the government would move to protect lesbian and gay students from being expelled on the basis of their sexuality in faith based schools, was very, very welcome. Submissions to the inquiry show that, overwhelmingly, schools do not want to discriminate against LGBTI children in schools, nor do they want to discriminate against pregnant students. Frankly, they could not, before the committee, assert any reason for doing so. Even the schools that said they had ethos and religious paradigms that might contradict, said they would want to manage it in the context of their teachers and said that there was no justification for discriminating against students.

Most positively, there were a great many witnesses. From the Carey Baptist Grammar School, a faith based school in Victoria with 2½ thousand students enrolled, there was strong support for not only the repeal of these exemptions but also very holistic and supportive environments, particularly for their LGBTI students. They are a co-educational college and have enrolled students as boys, students as girls and students who do not necessarily identify as male or female or transgender. The school has welcomed same-sex couples to attend their ball and say they don't discriminate in their employment practices or in their enrolment of students. The principal made clear his faith based school's proposition on current exemptions when he said:

Carey will never change in its opposition to the current legislation which allows religious schools to discriminate against staff or students on the basis of their gender identity or sexual orientation.

This is very much a position I welcome. As one witness said:

... once you enrol a student, you're making a commitment to that student ... forever ...

Frankly, this is a sentiment that was shared by almost all schools, in terms of their commitment to their students and the argument that they would not want to see their own school or any other school discriminate. This statement about student enrolment really highlights how important a student's relationship with their school is. I spoke to very religious schools in the course of the inquiry who said that they wanted to support their LGBTI students and that those students should be able to thrive in an environment free from discrimination. Overwhelmingly, the committee has seen that the majority of Australians would agree with that statement, because we, as a community, believe in equality.

In the short time that remains, I want to reiterate that the government must release the Ruddock report. It should immediately amend the Sex Discrimination Act to remove the exemption that currently enables faith based schools to expel and discriminate against students on the basis of their sexual orientation, gender identity, intersex status, pregnancy or any other personal attribute covered in the Sex Discrimination Act. I want to highlight that this report also strongly endorsed the fact that we need to take a look at teachers in the context of discrimination.

Many staff and students in faith-based schools fearing persecution have suppressed their sexual preference or gender identity and/or their marital status and have been and are being harmed as a result

They are words from Mr Anthony Odgers of the Independent Education Union. It is not necessary to justify the use of legislative exemptions that are harmful to LGBTI people, to pregnant women and to people who might be divorced, but it is the threat that these exemptions could be used against them that causes the harm. Students and teachers being forced to suppress their identity does indeed create long-term anxiety and prevents them from living as their authentic self. Mr Odgers said it was the experience of the union that only a small and diminishing minority of employers in non-government schools seek to or do utilise the exemptions from discrimination legislation.

In making these recommendations, the committee recommends that removing discrimination against teachers and other school staff will go beyond the Sex Discrimination Act, which might be why we can't act on these parts immediately. However, this government should get on with what it said it would do and repeal the exemptions in relation to student— (Time expired)

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to 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)

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

This report of our Senate inquiry into discrimination against lesbian, gay, bisexual, transgender and queer people in schools is incredibly important and very timely. The inquiry has brought to light important evidence demonstrating just how damaging, how dangerous and how harmful discrimination against LGBTQ+ people in faith based schools is. The Greens introduced an amendment to the original motion setting up this inquiry to ensure that the final reporting date was today, not next year, because removing discrimination in faith based schools is urgent. I want to thank the committee for the incredible work they have done in bringing together the evidence and drafting the report that has resulted in us being able to report today.

Removing discrimination is urgent. Even the Prime Minister recognised that, last month. He said that we needed to act now, that we needed to act urgently, to remove discrimination against students in school. During the hearing of the inquiry and in the submissions that were made to the inquiry we heard how urgent it was from the LGBTQ+ people who gave evidence about their experiences being discriminated against in religious schools. We heard very many moving personal stories, including from a trans woman who was fired from the Catholic school that she had worked at and still can't find a new job, six months on, with Christmas around the corner and five dependants to provide for.

We heard from gay, lesbian and bisexual teachers who are afraid to be themselves at school. They are not out to their colleagues. They're having to pretend that their partner is just a friend, having to do things like attending the school formal and not being able to hold the hand of their partner.

We were told by some of the schools that presented evidence to the committee that, yes, they didn't want to discriminate against people just on the basis of their same-sex attraction or their gender diversity, but they were advocating for it. They weren't able to tell me whether a couple holding hands, say at the school speech night, was advocacy or not.

This is discrimination. This is Australia in 2018. It's where we passed marriage equality just on a year ago, where we pride ourselves on celebrating our diversity. In Australia in 2018, discrimination has no place in any of our schools, whether they are faith based schools or public schools, whether they are primary schools, secondary schools or tertiary institutions.

The Greens welcome and support the report's recommendations to remove discrimination against students. However, we consider that the recommendations do not go far enough. The Greens' additional comments expand on them. We are calling for discrimination to be removed against teachers and other school staff as well. There are simply no grounds for any further delay in removing discrimination for all people in all of our schools.

Schools should be discrimination-free zones for all LGBTQ+ people, regardless of whether they are a student, a staff member or a rainbow family. The school is such an important place in shaping young minds and is an arena in which young people develop their sense of self. It's an area that should be protected, where young people are not discriminated against by their peers or the institution in which they learn. It's important that young people aren't growing up soaking up a message that the legal and political system allows discrimination against same-sex-attracted and gender-diverse teachers and staff. It's important that teachers and staff as well as students feel safe in the school environment. Our schools should be teaching our kids about respect and about equality. What message does it send to young people if LGBTIQ+ staff can be fired just because of who they are? There is no clear rationale as to why these legal protections should extend to people under the age of 18 yet teachers and staff can be fired or not hired.

We heard from experts and members of the community during this inquiry about the effect that these exemptions have on the mental health of LGBTQ+ students and teachers, who already face poorer health outcomes than the broader community. Every day that we delay removing discrimination, those poor mental health outcomes continue.

In fact, just today, 46 principals of faith based schools across the country have written to the Prime Minister adding their voice, calling for the ability for religious schools to discriminate against LGBTIQ+ students, teachers, staff and families to be removed. Two of the principals of these schools, the principals of Overnewton college and Carey, were people who gave very moving evidence to the inquiry about how they felt that discrimination against people on the basis of their sexuality or their gender identity had no place in their faith based schools. Some of the things they wrote include:

We are convinced that our faith-based schools can maintain their religious values, beliefs and ethos without recourse to discrimination based on sexual orientation or gender identity.

In our view, religious exemptions that permit discrimination have no place in our schools.

Discrimination in any form is unacceptable. It jeopardises the safe and supportive school environments that are so central to our mission. It undermines the potential of individuals and the cohesion of communities.

Our shared religious ethos and values define the nature of our communities, and those same values call us to welcome families, however they are formed and whatever they look like. Our schools are deeply enriched by this diversity. This welcome to all people gives physical expression to the values and ethos we espouse.

I commend these 46 schools for making this public statement and for ensuring that their schools and school communities are safe places for all LGBTQ+ people. These principals understand that schools should be discrimination-free zones and that continuing discrimination in our schools is out of step with modern Australia.

Last year, Australians voted overwhelmingly for equality, not more discrimination. Recently, a survey conducted after the Ruddock report was leaked found that 74 per cent of Australians believe that we should protect LGBTQ+ people in schools. Of course, this happened when the heat was on during the Wentworth by-election, and soon enough both the Labor Party and the Liberal government had promised the Australian people that they would remove discrimination in schools within a fortnight. That time has come and gone. Labor and the Liberals need to stop delaying this important reform and act on the promise given to Australians to remove discrimination against all same-sex attracted and gender diverse students, teachers and staff in our schools.

With regard to the protection of freedom of religion, yes, let's move on establishing a charter of rights so that we can include protecting religious freedom in our human rights framework. Let's act on that. Let's do that. That's how we can balance religious freedom versus discrimination. But with regard to the very simple issue before us today, which this report is considering—removing discrimination against students, teachers and other staff—we need to move on that urgently. We cannot wait for the political support for a charter of rights. We need to catch up with countries like us all around the world where such discrimination is not allowed. We should have no more delays, no more excuses, no more ifs and no more buts. We need to remove discrimination from our schools now.

Amanda Stoker (Queensland, Liberal Party) Share this | Link to this | Hansard source

This committee reference is based on a lie. It's the lie that faith based schools expel gay people, unfairly discriminate against gay people and want to harm the wellbeing of people who are struggling with their sexuality. It is a lie that The Sydney Morning Herald was happy to propagate when it misrepresented the leaked recommendations of the Ruddock review. Nevertheless, it has exposed a truth, and that is that, when students enrolled at religious schools face these challenges, they are dealt with compassionately, pastorally and in a way that respects the best interests of each child.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

I'm loathe to interrupt you, Senate Stoker, but the time for the debate has expired. Do you wish to seek leave to continue your remarks?

Amanda Stoker (Queensland, Liberal Party) Share this | Link to this | Hansard source

Yes; I seek leave to continue my remarks later.

Leave granted; debate adjourned.