My response to proposed faith-based school reforms Adjournment

I rise to speak on this adjournment, and I would like to refer back to the valedictory speech that was given earlier today.

In part, while I respect the work of Senator Rice and her very kind comments about the Senate select committee that I did chair, I do want to correct the record on one thing. She made the comment that it was a consensus report, which was the point that a lot of people made at the time, but I think it is worth noting—I believe she would appreciate me, in the spirit of being accurate and balanced, highlighting the fact—that, yes, there was a consensus in this committee, that was set up by a reference that was voted for by the ALP, the Greens and the Xenophon party at the time, to look into the exposure draft that had been released by Senator Smith.

The consensus the committee reached, having received evidence from a broad range of people, was that the issue of same-sex marriage was not actually a human rights issue because the evidence showed that Australia was under no obligation to change the definition of marriage because there was freedom from discrimination and equality before the law, which had been met via recognition of same-sex relationships in other provisions.

That was something that was actually acknowledged by consensus by the members of the committee.

It was also acknowledged that there was no barrier to Australia making this change should the parliament have the numbers and the will to decide—which, history shows, it ended up doing.

But there is a third part that I want to put on the record.

This is the reason why in that report there were no recommendations—just an observation of the facts that were presented.

The third area of consensus was that the changes would impact on article 18 of the International Covenant on Civil and Political Rights which concerns the freedom of religion, and there would be substantial matters with respect to human rights that would need to be addressed with respect to freedom of religion and belief.

In the rush to embrace the first part—which said there is no barrier, and there was a consensus on that—people overlooked and, I would say, disregarded the consensus on the second part which said that we actually need to take action on protecting, and finding the appropriate balance for, freedom of religion and belief.

It was that rush at the time and not actually taking all the elements of that report that were agreed by consensus that has led us to the position we find ourselves in this week, where we see headlines in the media of issues and contention around faith based schools.

One of the concerns we have at the moment is that there is a move led by the report that has come from the Australian Law Reform Commission to abolish section 38 of the Sex Discrimination Act, which would remove the ability of the leaders of faith based schools to employ people who actually support their faith and their values and who commit to modelling and living out the values that that school produces.

What the schools have said and what human rights lawyers have indicated is that this would fundamentally undermine the ability of faith based schools to be different from a school that was run by any other authority, including state schools.

It’s important to realise that faith based schools generally exist for one of two reasons: either the charitable mission of the church looking to support the broader community or because parents wish to have their children educated within a community of shared faith and values.

So, in the Australian context, the Josephite order established by Mary MacKillop in the 1860s is a great example of the first reason.

She established schools and orphanages and schools as well as ministries to the aged, the poor, prisoners and the incurably ill, and international human rights law recognises the right of faith based groups to establish and maintain charitable organisations with a distinctive religious nature.

In particular in 1981, the Declaration of the General Assembly article 6(b) is the most recent reference to that right.

But, in the second group, many low-fee faith based schools in contemporary Australia actually have their origins in the actions of parents who have taken the trouble to establish an alternative to the public system because they want to work with others who share their faith and their world view to create an environment for the education of their children.

Rather than seek to impose their views on other people, they have actually created an alternative.

This is also specifically supported in international human rights law, in article 13.3 of the International Covenant on Economic, Social and Cultural Rights which states that parents have the liberty to choose schools for their children other than those established by public authorities to ensure the religious and moral education of their children in conformity with their own convictions; in article 13.4, which provides a guarantee that individuals and bodies may establish private educational institutions; and, obviously, in the International Covenant on Civil and Political Rights in article 18.4.

These human rights laws come from the experience of World War II where we saw massive loss worldwide.

Nearly three per cent of the world’s population perished. World leaders came together afterwards to look at the root causes.

For those who are interested, I have written a reasonable article on the Menzies Research Centre that goes into the background of where those laws come from.

But they also, importantly, recognise that sometimes those freedoms, which include freedom of speech, freedom of association, freedom from discrimination but also freedom of religion, are all equal and they can’t be dealt with separately as in one is more important than the other.

They all have to be balanced.

There was a meeting, now known as the Siracusa principles, that gives guidance on how those things are balanced.

Importantly, there are some principles and the first of those is a necessity: any limiting of a right in order to protect another right must be strictly necessary to achieve that as well as proportional.

And that leads to one of the concerns that we see currently with the Australian Law Reform Commission report into faith based schools in the light of the government’s direction that they would put forward a model whereby the school said—sorry, the government said—schools can’t discriminate but they have to be able to maintain their religious ethos.

That’s almost an impossible balance to obtain unless you take the approach that Justice Derrington, who’s the immediate past president of the ALRC, took where she said that if faith based schools are operating in accordance with their faith and their ethos, they do not discriminate.

This actually meets the first two limbs of the current government terms of reference as well as obviously meeting the third, enabling the faith based community to maintain their religious standing and approach, which is why so many parents send their children to those schools.

The problem I have with the ALRC report is that they believe it is necessary to completely remove section 38 of the Sex Discrimination Act of 1984 which, as I said before, prevents schools from being able to employ people who share their faith and to have a consistent community that model that faith and teach that faith to the children.

They make a large part in their report about proportionality but ignore the necessity.

Parliamentary research shows that it is not necessary because, within half an hour’s drive, within 25 kilometres, around Australia, there is a state based or an independent school for every religious school with the exception of 16 very small schools in the top of the Northern Territory and Western Australia.

This means that it’s not necessary to limit the rights of hundreds of thousands of peoples of faith for the very few numbers of people who have indicated that they have felt discrimination at a faith based school, which is only 0.2 per cent, for example, of the complaints in Queensland at the Human Rights Commission, so there is another option there.

The government has taken, I think, a dreadful approach in gagging faith leaders in terms of consultations around this.

The parliament has not seen the bill that the government is planning to put forward and, as we lead into Easter, people in Australia, particularly people of faith, should be concerned that there is no transparency.

There is no openness about what is being proposed, and there is even discussion today about deals being done with the Greens, and we should be requiring that it follows the normal process of the Senate where that legislation is tabled so the Senate and the Australian public can scrutinise what is being proposed by the Albanese government.