1.1
The leak of
the recommendations of the Ruddock Review has prompted significant public debate
regarding the rights of LGBT (lesbian, gay, bisexual, transgender) students and
teachers. Much of the debate has focussed on existing exemptions in the Sex
Discrimination Act 1984 (SDA) that allow faith-based educational
institutions to discriminate against students, teachers and staff on the basis
of various attributes including sexual orientation and gender identity.
1.2
Subsequent to
reports about the Review's recommendations, both the Government and Opposition
expressed support for changing the law to ensure that students cannot be
discriminated against on the basis of their sexuality.
1.3
With a view
to removing this discrimination Senator Wong introduced the Sex Discrimination Amendment
(Removing Discrimination Against Students) Bill 2018 into the Senate on the 29th
of November 2018.
1.4
Instead of
acting on this issue the Government has in its report to the parliament on this
inquiry recommended that the bill not be passed and that the bill and its
amendments be referred to the Australian Law Reform Commission.
1.5
Rather than seeking to immediately ensure that school students
are not discriminated against by religious educational institutions on the basis of their sexual
orientation, gender identity, marital or relationship status or pregnancy the
Government continues to defer the issue.
1.6
Labor respects the rights of parents to send children to the school of
their choice and to have their children educated in accordance with their
religious convictions.
1.7
Labor respects that many parents choose religious schools because they
want their children to be grounded in the identity and mission of a particular
religious faith.
1.8
Labor has
been prevented from being able to meet our commitment to legislate to remove discrimination
against students and staff in faith based schools in this Parliament. Labor Senators are aggrieved that
the Government has failed to set sufficient sitting days to allow a debate on
these issues to take place.
1.9
Labor is
deeply disappointed that the Government has failed to act on its commitment to
legislate on this question and has instead subjected young people who are
currently without protection from discrimination to an ongoing and divisive
debate.
1.10
Labor notes
that it appears at this stage it is unclear if there is a majority to pass the
legislation without amendments that would compromise its intent to prevent
discrimination. However, it is clear there is a majority of the parliament
opposed to discrimination and the parliament must work to prioritise resolution
of this issue.
Background
to this Bill
1.11
The Sex
Discrimination Amendment (Removing Discrimination Against Students) Bill 2018
(the bill) seeks to amend the SDA to prevent schools from discriminating
against students on the basis of sexual orientation, gender identity, marital
or relationship status or pregnancy in connection with the provision of
education or training by an educational institution.[1]
1.12
This bill
would not affect the operation of the indirect discrimination provisions in the
SDA, which will continue to operate in a manner that allows faith-based institutions
to impose reasonable conditions, requirements or practices on students in
accordance with the doctrines, tenets, beliefs or teachings of their particular
religion or creed.[2]
1.13
This bill
will remove the capacity of bodies established for religious purposes that
provide education to directly discriminate against students on the basis of
their sexual orientation, gender identity or other attributes named in the SDA.
1.14
The bill does
not seek to amend the SDA to address the issue of discrimination against staff
employed by religious schools.[3]
Impact
of discrimination
1.15
As heard
through the inquiry LGBT students experience far higher rates of bullying and
depression than their peers, and are significantly more likely to attempt
suicide as young adults. Research has found that faith-based schools that
discourage the disclosure of sexual diversity and fail to establish safe and
inclusive learning environments for students with diverse sexualities
exacerbate these statistics.[4]
1.16
Labor
believes that all students
should be protected from discrimination on the basis of gender, sexuality, and
the other attributes covered by the SDA. The committee heard stories of the
suffering that this discrimination can and has caused.
1.17
Anna Brown
and Lee Carnie highlight the scenario of seventeen year Thalia who described
her experiences in a religious boarding school as a teenager. [5]
“Due
to my mother’s homophobia I was sent to a strict Catholic boarding school where
I was forced to scrub floors and walls on my hands and knees and pray multiple
times a day. I am not religious and it was an extremely homophobic environment.
Within a month I was on anti-depressant[s] and expelled after attempting
suicide because ‘Suicide is a sin and so it was not acceptable to take part in
the school.’”
1.18
The Australian
Marriage Equality also told the tale of LGBT children.[6]
“I
attended Catholic school for 13 years. I did not identify as a lesbian until I
was late into my twenties, but I knew quite a few girls who identified in high
school, and they had a very difficult time. One I know sought help from a
teacher, who broke confidence and spoke to the principal, and my friend was
under threat of being expelled if she did even the smallest thing wrong
("just give me one reason") due to her sexuality.”
1.19
Labor is concerns that the amendments to the act will
undermine the existing tests of reasonableness as Lee Carnie in Sydney told the committee:
“It is exceptionally broad,
uncertain and creates confusion. It introduces a blanket exemption for religious
teaching, regardless of the content of these teachings and whether they are
harmful. It undermines the existing test of reasonableness, which requires an
objective consideration of disadvantage facing a student.”
1.20
This concern was further echoed by the Ms Kate Eastman from the Law
Council of Australia in Sydney telling the committee that:
“'If somebody stands up and
professes those views in a classroom, is section 21(2) engaged? Is that denying
a student access or limiting the student's access to a benefit provided by the
education authority? Is it expelling a student, or is it subjecting a student
to any other detriment?' Simply making those comments in a classroom, without
some much broader context or something else, is unlikely to even get you, in
effect, to first base for the purpose of the Sex Discrimination Act.”
1.21
Rebecca
Reynolds from the National LGBTI Health Alliance highlights how students, and
staff, were afraid to speak out due to risk of action from the school
administration.[7]
When
I identified as trans, I was at a Christian school and my mum worked there as a
teacher. So I always had this fear that if I told one of my friends my secret,
it would humiliate and cause my mother to lose her job. Unfortunately there
were no gay or trans people at my school. At least whom were out. Looking back
I should have told somebody
1.22
Dr Tiffany Jones from the Department Educational Studies at
Macquarie University highlights how students and staff feel safer, and
experience less abuse at schools which have protective policies in place. [8]
Communicating
local policy protections to students is helpful – when protective policies are
known LGBTIQ students are significantly more likely to feel safe (75% v. 45%);
and significantly less likely to experience physical abuse (23% v. 47%) or
attempt suicide (13% v. 22%) (Jones, 2015).
1.23
In addition, the
mere fact that the discrimination is permitted by law has sent a negative
message to young LGBT people and young parents that their identity is not
worthy of protection from discrimination on the same basis as other attributes
such as race or disability. Labor is greatly concerned that the exemption to
the SDA for religious organisations, rather than simply providing for religious
freedom, can be seen as mandate to discriminate.
1.24
The Labor Party
notes the strongly held views of the LGBTI community and the majority of
Australians who supported marriage equality that such a mandate for
discrimination should simply not exist on our statute books.
1.25
The children
who might suffer discrimination under these exemptions are often experiencing
the most vulnerable period of their lives. It is critical that legislation
which enables and exacerbates the trauma of children be removed.
Right of
schools to uphold their religious ethos
1.26
Labor strongly
affirms the right of faith‑based educational institutions to uphold their
ethos. Schools can with the passing of this legislation continue to be assured
that the ethos and values of their schools are respected and protected. There
is also strong support from a great many schools with religious affiliations to
ensure that they provide education and do not discriminate against their
students.
1.27
Many churches
made statements to say that they do not use the exemptions. The Anglican Church
Diocese of Sydney reinforced this in their submission.[9]
“Anglican
schools do NOT want a “right to discriminate”. Anglican schools do not sack
teachers because they are gay, and they don’t expel students because they are
gay. Anglican schools do not bully LGBTI students and teachers, nor indeed do
they tolerate any bullying within their school communities.”
1.28
This sentiment was echoed to the committee by Archbishop Coleridge from
the Australian Catholic Bishops Conference: [10]
“Catholic schools
do not use the exemptions in the Sex Discrimination Act to expel or otherwise
discriminate against students on the grounds of sexual orientation, gender
identity or intersex status.”
1.29
Ms Ann Maree Rebgetz, Board Director of Secondary
Principals Australia and principal of St James College in
Spring Hill in Brisbane
told
the committee:
“Catholic
secondary principals have a strong moral compass in relation to the treatment
of secondary students in our schools. They believe that inclusivity, as a
gospel value, must reign supreme in the treatment of their clientele. This
translates into the safeguarding of all students, and particularly those
students who are in a minority and may feel marginalised. Religious schools
should not be able to discriminate against students on the basis of their
sexual orientation and identity.”[11]
1.30
There is clear
evidence based on the experience of states who have already removed such
exemptions from their anti-discrimination laws that school ethos and teaching
have not been affected by these changes.
1.31
Labor draws
on the experiences
of schools in state and territories where anti-discrimination laws already
cover students under state and territory laws. As Ms Betts, Executive Director,
Brisbane Catholic Education Office told the committee in questioning that
Catholic schools were happy to comply with Queensland anti-discrimination law:[12]
Ms Betts: As you know, we are required to be compliant with law at both the
federal and the state level. The Queensland Anti-Discrimination Act does not
allow us to discriminate against students, so we don't and, even if there was
an exemption in that act, we would not apply it.
Senator PRATT: So you've had no cause to want to advocate for an exemption to the
Queensland laws?
Ms Betts: There have been changes to those laws over the last 20 years and
there certainly has been advocacy around those laws, the details of which I
can't recall because it would go back 10 years now, but that exemption has
never been included in the act.
Senator PRATT: Has that in any way interfered with your capacity to instruct
students according to the doctrine and teachings of the Catholic Church and the
school ethos?
Ms Betts: Not to my knowledge.
1.32
Some churches raised concerns that removal of the exemptions would be
see schools becoming subject to litigation. However, Labor notes that the evidence
before the committee showed that discrimination cases are uncommon before the
courts and that the overwhelming number of cases are resolved through
mediation:[13]
“People
need to understand that discrimination cases are notoriously difficult to run,
so much so that former High Court Judge Michael Kirby said that the field of
antidiscrimination law is littered with the bodies of the wounded complainants.
Launching an action under a federal discrimination law statute requires the
financial and emotional resources that many victims of discrimination simply do
not possess. On top of that, the vast majority of discrimination complaints,
because of the way our system works—we have a cost jurisdiction, so people have
to be prepared to expose themselves financially in order to bring a case to
court—the vast majority are resolved through conciliation and settled without
even going near a court. I think we just have to keep that in mind.”
1.33
Labor is very concerned that both teachers and students who have
suffered detriment because of discrimination on protected attributes under the SDA
have no recourse or redress because of permanent religious exemptions. It is
also clear that the lack of protections means that those treated less
favourably are unable to protect themselves from discrimination or prevent it
from occurring.
1.34
Labor notes that inquiry heard from many religious LGBTI people
as well as other people of faith are in favour of reform. As the Reverend
Doctor Josephine Inkpin, Co-Chair, Equal Voices told the committee:[14]
“If
you fail to remove the discriminatory powers, you keep us chained up to the
past and old arguments. Instead, our nation needs to explore the constructive paths
that are opening up in some religious quarters, such as the Edmund Rice Safe
and inclusive learning communities statement and the Church of England's
Valuing all God’s children guidelines for addressing homophobia, biphobia and
transphobia schools. These provide religious energy to explore these issues and
enable all children to flourish without abrogating official Catholic and
Anglican positions on issues such as marriage law.”
Teachers
and staff
1.35
Labor affirms
its commitment to legislating to remove exemptions from the SDA not only for students
but also for teachers and other staff.
1.36
Labor upholds
the right of schools to ensure the fidelity of teachers to their school in their
conduct within the school. Labor notes evidence before the committee that
schools need to rely on exemptions to uphold the fidelity of an employee to
their school.
CHAIR: I might just ask a couple of
questions as chair now. I have in front of me Good Works: The Catholic Church
as an Employer in Australia, and it has a provision in it around discrimination
and harassment within the section about the right to a supportive workplace. ...
It says, with respect to exemptions from any antidiscrimination legislation,
that the church organisations need to be 'positive and precise in their
approach to employment practices'. It says: ... some positions, while not
requiring the employee to be a practising Catholic, will still require a
commitment not to offend the religious susceptibilities of the organisation by
the maintenance of a manner of life and stated beliefs which are in keeping
with the teachings of the Catholic Church (e.g. all staff in educational
institutions) ... Could you please give me an example of what you mean by 'manner
of life and stated beliefs' with respect to the teachings of the Catholic
Church?
Mr Collins: An example would be of a
teacher who was not supportive of the teachings of the church in relation to a
range of matters and who voiced that belief with students or with other staff
in a fairly public manner. That would be an issue which would be of concern to
the employer—being inconsistent with what you've just read out.
It was
noted in the course of this exchange within the committee that the exemptions
can’t be used to uphold this kind of fidelity as a failure to uphold a specific
teaching, but rather needs to be pursued through the contract with the
employee. This view was reinforced by the Independent Education Union.
1.37
Mr Anthony
Odgers, the assistant federal secretary at the Independent Education Union of
Australia, highlight that very few institutions actually overtly use these
exemptions from discrimination legislation.[15]
“Lastly,
our experience is that, in the context of rapidly expanding diversity amongst
students and staff in schools, only a small and diminishing minority of
employers in non-government schools seek to utilise or do utilise the
exemptions from discrimination legislation. The majority of employers,
perceiving a conflict of interest involving a breach of an employee’s fidelity,
treat the issue as a contractual matter”.
“Yes.
Just in terms of the practical understanding of this, I spoke earlier on of the
dividing line. That dividing line is about what you say in public; not only in
the context of your own sexuality – I’m sure all members of the committee would
be aware of the consequences for people who just seek to disparage their
employer or any element of their employer’s business. That is a basic breach of
trust, the fidelity component of the relationship. That is the offence. Perhaps
not in these instances, which are controversial, but, in most cases where an
employee is forced to accept that they are in breach of their employment
contract in respect of the matters that are dealt with by the exemptions, the
breach of contract will have occurred around something they’ve said or done in
a public manner. It won’t have been as a result of a breach of contract wherein
the employer pretends to say, ‘You may not be in a single-sex relationship.’”
1.38
Not-withstanding
the fact that in the main schools do not rely on anti-discrimination exemptions
to upheld the fidelity of an employee to the employer. The inquiry last year
highlighted clear examples of discrimination.
1.39
Evidence
again from the independent education unions highlighted the following. [16]
Mr Odgers: There are
individuals, in some cases, or there are groups, in some cases, that have what
our members would identify as extreme intolerance of behaviours. They're not so
much concerned about public statements that might be made by teachers and by
other members of staff but as to the person's conduct. Of the examples that are
quoted here—which are mostly examples of where an employer has sought to go
into a person's private life without that person making any statement that
would be necessarily contrary to the employer's beliefs or the beliefs of the
employer's faith based group—a lot of these cases come from a very small group
of employers.
1.40
Labor is
concerned about the very real stress and fear experienced by employees within
some schools as a result of these exemptions. Even if a school is otherwise
supportive, the fact that the exemptions exist creates a fundamental risk to
employees' livelihood, particularly if the school's attitude were to change.
Amendments
to the legislation
1.41
Labor is
concerned that amendments put forward to the bill would carve out and entrench
discrimination against certain groups in particular—that is, on the basis of
sexual orientation, gender identity or relationship status, in particular
circumstances. This is completely contrary to the intent of Labor’s Bill.
1.42
The
Government amendments to the bill would allow discrimination to continue
against LBGT students in religious schools.
1.43
The amendment
sheet KQ148 circulated would allow discriminatory policies and indirect
discrimination in our schools.
1.44
Amendments
KQ150 and KQ151 are similar in that they seek to introduce new matters to be
taken into account in determining reasonableness under indirect discrimination,
which adds unnecessary complexities and may fail to protect LGBT students.
1.45
The Centre Alliance has
proposed an amendment which changes the wording from ‘body’ to ‘educational
institution’. Throughout the inquiry the committee heard that the scope
of subsection 37(3) is very broad due to the use of the term ‘bodies
established for religious purposes.’ For example, the Australian Human Rights
Commission (AHRC) demonstrated the need to clarify the scope of sections 37 and
38 of the SDA as amended by the bill:
“The
term ‘body established for religious purposes’ would cover bodies such as
temples, churches, mosques and synagogues. Moreover, it is conceivable that an
‘act or practice connected with the provision, by the body, of education’ could
include a church-run seminar on marriage, a Torah study course run by a
synagogue, or even a sermon in a mosque. Hence, it would be useful to clarify
the scope of sections 37 and 38 of the SDA, as amended by the Bill.”
1.46
The Law Council of Australia recommended to the committee:
“it would be beneficial to
tighten the wording of proposed subsection 37(3) to 'educational institutions
which are conducted in accordance with the doctrines, tenets, beliefs or
teachings of a particular religion or creed', rather than 'a body established
for religious purposes'. This would mean that bodies established for religious
purposes, which are not such educational institutions, would rely on paragraph
38(1)(d) with respect to teaching in accordance with religious doctrine.”[17]
1.47
Labor would
support an appropriate amendment to clarify the definition of an educational
institution. We do not support further amendments from the Government as they are
completely unnecessary and cause confusion and undermine the intent of the bill.
Conclusion
and recommendations
1.48
Labor is
proud to have put forward this bill which will remove the exemptions within the
Sex Discrimination Act that allows religious educational institutions to
discriminate against children in connection with the provision of education or
training.
Recommendations
1.49
Labor recommends that the Senate amend the bill to clarify the scope of educational
institutions in section 37 of the SDA.
1.50
Labor recommends that the bill be passed with the above amendment only.
Senator Louise
Pratt
Australian Labor
Party
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