Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 Bills

Many in this place will recall that, late in 2016, I was appointed to chair a Senate select committee looking at religious freedom, should the parliament choose to go down the path of passing a law to change the definition of ‘marriage’. In the chair’s foreword, I said that the change to the definition of ‘marriage’ would:

… potentially enliven the right to freedom of thought, conscience and religion in a range of areas. Evidence demonstrated that there are substantial matters of law and individual human rights to be dealt with that extend well beyond the Marriage Act itself. I note that if Australia is to remain a plural, tolerant society where different views are valued and legal, legislators must recognise that this change will require careful, simultaneous consideration of a wide range of specialist areas of law as opposed to the common perception that it involves just a few words in one act of parliament.

I finished off by saying that there are:

… fundamental rights that must be carefully considered, respected and balanced in any future legislation that a Parliament may approve.

That brings us to where we are today.

I have some concerns about the bill that’s before us, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, both general and specific. In general, religious freedom requires the ability for individuals and groups to articulate, to discuss and, where appropriate, to debate religious doctrines, tenets and beliefs. Our forebears have fought authoritarian rulers in years past for their attacks on the freedom of thought and speech, the freedom of association and the freedom of religion. This approach in this bill, both the time frame and, for example, the lack of a committee stage, undermines those same freedoms and therefore undermines pluralism and democracy in Australia. Further, by precluding the ability of religious believers to associate, to form groups of like-minded people and to maintain educational institutions that can operate consistent with their beliefs, this bill actually breaches the right to equality and freedom of discrimination on the basis of religious belief.

On a couple of specific concerns: the act as it stands has two specific sections, sections 37 and 38. Section 37 goes to the issue of bodies formed for religious purposes, and section 38 goes more to those around education. The bill before us not only amends section 38 with regard to religious educational bodies but also proposes amendments to the general religious bodies exemption at section 37(1)(d) that would remove the ability of those bodies to provide education that is consistent with their doctrines, tenets or beliefs. Where this is of particular concern is that, while the EM and the title of the bill talk about schools and students, the actual text of the bill—and the bill is the key part here—talks about education in religious bodies. There are no further definitions that would narrow this to schools and students—as we would know primary or secondary schools or even tertiary bodies. By the letter of the law, the wording in this amendment exposes churches, synagogues and mosques that provide education to their adherents, whether that be in the form of teaching on a Sunday, Saturday or Friday morning, or through seminars or workshop. There is a whole range of areas where education is provided, and it leaves those people exposed, because the word ‘education’ will take its ordinary meaning within section 37.

The bill provides that the limitation on section 37(1)(d) doesn’t extend to an act or practice connected with the employment of persons. We’ve just heard an explanation on how that doesn’t affect teachers, but what it leads to is a situation where, currently—and under this reform—a body may be able to say, ‘Look, we want to engage someone to teach who supports and is willing to teach the beliefs and the doctrines of this organisation,’ but then the law would not allow that person to teach those elements.

The third area of concern I have is that the explanatory memorandum to Labor’s bill says that section 7B of the SDA, which is known as the reasonableness test, means that there are defences remaining. In the current climate, the definition of ‘reasonable’ is debated broadly in our society. I would argue that what Archbishop Porteous did in explaining the Catholic Church’s teaching on marriage and distributing that to parents who had their children at a Catholic school in Tasmania was reasonable. I would argue the same for Jason Tey, the photographer in Perth who agreed to provide a service to a same-sex couple but said, ‘Look, I just need to disclose that my personal beliefs aren’t in line with where you’re at.’ He said, ‘I’m happy to provide the service, but, if that’s of concern to you, I just need to disclose that.’ He’s been taken before the Equal Opportunity Commission, and it’s now before the State Administrative Tribunal on the basis of it being discriminatory—not for some action he has taken, but merely for stating his belief. There can be no more clear example of what would have been considered reasonable not more than 12 or 18 months ago and is no longer considered reasonable in the current climate by many in our community and, importantly, by people who are holding statutory positions in bodies of the state—whether that be Commonwealth or, in this case, Western Australia—who have the ability to apply law.

We’ve also seen, recently, laws passed in Tasmania’s lower house pertaining to gender. It highlights how the views of one part of Australia’s community, if they manage to get a political majority in a parliament, can pass a set of laws. That’s okay—that’s democracy at work—but my concern is that the nature of that bill also seeks to shut down dissent and to shut down commentary from people who disagree with that view. That is not democracy; that is not the plural democracy that Australia is built on. The bludgeon of antidiscrimination law should not be allowed to completely stifle the expression or teaching of a religious view—the conscientious view of any individual or group.

Going to the Tasmanian example, the John Hopkins University and John Hopkins Hospital, for example, have long been the centres of research into debate around issues of gender and sexuality, and there is still debate between academics there—eminent academics—on whether the transgender theory is based on ideology or science. So, should not this place protect the right of an Australian academic or a religious school or organisation to debate or discuss with others their views on such matters without being subjected to the accusation of discrimination or even the claim that they’ve engaged in hate speech? That is what a plural democracy is about: we allow for a plurality of views within our community.

Is there evidence to support the need for these measures? As Senator Wong has clearly and accurately stated, there have been people calling for this and there was a commitment made by various leaders. But the evidence that’s come from churches and schools is that these provisions, whilst not having been used, are necessary. A lot of people have said: ‘How can that be? That’s a contradictory position.’ But what’s been explained to me by multiple principals and church leaders is that this is the balance, as they see it, of grace and truth. Grace is the acceptance to say, ‘There’s not one of us who is without fault.’ That grace is exemplified by the teaching from John 8 of the Jesus who didn’t condemn the woman caught in adultery. Grace is to accept the student for who they are and to support them and their family if they choose to be part of that religious community. But the truth is that it’s the same Jesus who talked clearly and unapologetically in Mark 10 regarding marriage for men and women, and the same Jesus who finished his interaction with that woman caught in adultery by calling for her to commit to the model of sexual fidelity and marriage that he taught.

Religious schools and organisations need this same freedom to teach, to have that balance between grace and truth. The evidence from Archbishop Porteous and Mr Tey in Western Australia indicates that they’re unlikely to have this freedom protected under the amendments in this Labor bill that we’re considering today. That’s why the government has brought forward amendments to seek to allow those schools to continue in that balance of grace but truth—of clearly and unambiguously teaching their position. This is no different, if you think about it in terms of freedom of association, to what we allow many other people and many other groups in our society with regards to who would join them and their freedom to teach things that perhaps a broader section in the community, or different sections of the community, wouldn’t agree with.

The first amendment is a new section 7E of the SDA that would ensure that a religious educational institution is able to impose general rules without that opening up claims of sex discrimination. So, just as I talked before about the general teaching on the church’s view of marriage being between a man and a woman, they also teach that the moral aspects of that mean that they don’t condone or support heterosexual activity outside of marriage. If they set rules around that which also happen to impact on people who are same-sex attracted, that shouldn’t be seen to be discriminatory, because what they’re doing is positively holding up their teaching of what a relationship of marriage should look like. The fact that that doesn’t accord with many people in Australia who are in de facto relationships, or people who might be same-sex attracted, shouldn’t mean that they can’t say, ‘This is what we believe the ideal relationship of marriage looks like.’ New section 7F ensures that religious educational institutions are able to teach in accordance with religious doctrine without that opening them up to claims of sexual discrimination.

New section 7B(2)(d) ensures that, when a human rights commission or a court decides whether a rule imposed by a religious school or tertiary institution is reasonable, they have regard to the religious nature of that institution and whether the institution has had regard to the best interests of the child—that is, the school has to consider the best interests of the child, rather than the court making that decision retrospectively about what it thinks is in the student’s best interests. That’s an important thing, because many people tend to think that religious education only occurs in primary schools and in high schools. In fact, there are a number of tertiary organisations in Australia—and they’re not just seminaries—that also teach a range of topics such as social work, counselling or even other vocational skills within a faith based setting. And those organisations, under Australia’s support for the ICCPR and article 18, have the same right to protection as anyone else. Finally, sheet KQ147 removes the ALP provision that would strip churches, monasteries, mosques, synagogues, prayer centres, theological colleges, seminaries and other similar institutions of their exemptions under the act in relation to education.

I’m calling on senators in this place today in the context of this debate—which was brought on very quickly last Thursday for a vote by 2 pm today without a committee stage that would enable people to go through this bill and explore the potential unintended consequences—to recognise that the freedoms that our forebears fought for, in terms of freedom of association, of speech, of thought and of religion, should still be afforded to our schools. They have indicated very clearly and consistently that, because they work in this balance of grace and truth, they have not used the exemptions to expel people purely on the basis of their sexual identity, but they require the ability to still operate in truth and to faithfully put forward the teaching of that particular group. If we are to remain an open, plural democracy, where the rights of minorities who don’t enjoy the support of a parliamentary majority are to endure, then senators in this place need to support the government amendments to this bill that have been put forward today.