Views on the bill and circulated amendments
Evidence received by the committee drew out several key issues relating
to the bill and the circulated amendments. These issues can be characterised as
the need to remove legislative exemptions which permit discrimination
against LGBTIQ+ students;
the meaning of 'education' and 'educational institution';
the ability for religious educational institutions to teach in
accordance with their beliefs;
indirect discrimination and the 'reasonableness' of rules imposed
by religious educational institutions;
discrimination against employees of educational institutions;
the need for further consideration by the Australian Law Reform
Commission (ALRC); and
the case for immediate, targeted reform.
This chapter will examine each of these issues in turn before presenting
the committee's recommendations.
The need to remove legislative exemptions that permit discrimination
against LGBTIQ+ students
A number of submitters supported the bill's intention of removing the legislative
exemptions in the Sex Discrimination Act 1984 (SDA) which allow
faith-based educational institutions to discriminate against students on the
basis of sexual orientation, gender identity or intersex status. In setting out
their positions, many of these submitters emphasised the importance of
protecting LGBTIQ+ (lesbian, gay, bisexual, transgender/gender diverse,
intersex and queer) students against the damaging effects of discrimination.
Equality Australia stated it was 'reasonable, necessary and
proportionate' to prohibit faith-based educational institutions from
discriminating against students on the basis of their sexual orientation or
It emphasised the need to protect the right to equality and the right to
education for LGBTIQ+ students:
LGBTQ+ students should be able to learn in educational
environments where they are supported and accepted for who they are. No
students should be expelled or disciplined because of an inherent part of their
identity. No child should have to live in fear of being mistreated and cast out
of an educational institution where they have spent years learning and
developing close personal friendships which promote positive mental health and
The National LGBTI Health Alliance highlighted the adverse consequences
for the overall health and wellbeing of young LGBTIQ+ people that could flow
from experiences of discrimination. It explained:
Although most LGBTI Australians live healthy and happy lives,
an overwhelming amount of research evidence has consistently demonstrated that
a disproportionate number experience poorer mental health outcomes and have
higher risk of suicidal behaviours than non-LGBTI people. These health outcomes
are directly related to experiences of stigma, prejudice, discrimination and
social exclusion on the basis of an individual's sexual orientation, gender
identity and/or variations in sex characteristics.
Amongst those submitters that expressed support for the overarching intention
of the bill, there were a wide range of views on the merits of the bill and
circulated amendments. Submitters raised concerns about the potential
unintended consequences that could arise from the current drafting; highlighted
the need to ensure balance between competing priorities; and provided
suggestions on how their respective concerns could be addressed. These views
are discussed further on in this chapter.
Additionally, the committee received evidence from submitters who
opposed the bill. Some argued that it represented an unacceptable incursion on
religious freedom, while others asserted that it would introduce uncertainty
into the SDA and would lead to much broader, unintended consequences.
Submitters also argued the changes would create unnecessary conflict and
ambiguity in school communities. 
For example, the Australian Christian Lobby characterised the bill as an
incursion on religious freedom and warned that 'given a broad interpretation',
the proposed amendments to the SDA could 'conceivably be used to restrict the
content of all religious instruction.
It emphasised the importance of the current exemptions contained in the SDA:
[Subsection] 38(3) [which the bill seeks to repeal] has a
role to play in preventing schools from having their faith-based teachings,
particularly around sexual ethics, unduly interfered with. 
Similarly, FamilyVoice Australia argued for the protection of religious
freedom and rejected the need to repeal the exemptions for faith-based schools
contained in the SDA :
Legislating to water down already inadequate exemptions in
the Sex Discrimination Act  would further infringe upon religious
freedom and the rights of parents. If there is any move to change the Sex
Discrimination Act exemptions, it should be to strengthen rather than
weaken the very limited protection that presently exists.
The meaning of 'education' and 'educational institution'
Item 1 of the bill proposes the inclusion of a new paragraph—subsection
37(3)—to the general exemption for religious bodies in section 37 of the SDA to
provide that the general exemption in paragraph 37(1)(d) does not apply to an
act or practice of a body established for religious purposes if:
- the act or practice is connected with the provision, by
the body, of education; and
- the act or practice is not connected with the employment
of persons to provide that education.
The government expressed concern that the effect of the new subsection
37(3) would be much broader than intended due to the use of the term 'bodies established
for religious purposes':
...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.
Government amendment KQ147 seeks to address this concern by removing
proposed subsection 37(3) entirely from the bill.
A number of stakeholders also noted that as currently drafted, proposed
subsection 37(3) may have a broader operation than intended, particularly in
relation to the terms 'education' and 'body established for religious purposes'.
For example, the Australian Human Rights Commission (AHRC) noted that it
would be beneficial 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
The Anglican Church Diocese of Sydney remarked that as currently worded there
were 'significant, presumably unintended' consequences of the proposed
subsection 37(3), and cautioned of the danger that the ordinary teaching
activities of religious bodies would be caught within the very broad scope of
the exemption. Instead, the diocese indicated it supported a change of wording
proposed by Professor Patrick Parkinson in order to provide clarity to the
The Law Council of Australia (Law Council) observed that the proposed
subsection 37(3) was 'too broadly worded'.
It set out the need for clarity around the term 'body established for religious
purposes', given that a range of educational activities (for example, bible
study, relationship counselling, welfare and youth work) may be run by religious
...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.
The Law Council further advised that this alternate wording would mean
that proposed subsection 37(3) would then only apply to the acts or practices
of faith‑based schools, colleges, universities and other institutions at
which education or training is provided. It would exclude acts or practices which
are connected with the provision of education by, for example, churches,
synagogues or mosques.
Additionally, the Monash University Castan Centre for Human Rights Law identified
the need to amend the wording of proposed subsection 37(3) to provide more
specificity around what constitutes 'education':
The amendment uses the term 'education', which is potentially
broad enough to include the education provided, for example, by Sunday schools
and seminaries. The term 'education' should be replaced with 'primary or
secondary school education or university or vocational education' or similar.
Despite recognising the need to clarify the scope of subsection 37(3), several
submitters argued that amendment KQ147 put forward by the government was not
the correct way to address the problem.
The AHRC stated that amendment KQ147 was 'unsatisfactory' as it may
allow educational institutions to continue to rely on the general exemption in paragraph
37(1)(d) following the repeal of subsection 38(3) as set out in Item 2 of the
Instead, the AHRC endorsed the Centre Alliance amendment (Sheet 8614),
stating the it addressed the concerns about the scope of the subsection 37(3)
'more specifically' by replacing the word 'body' with the words 'educational
This amendment [Sheet 8614] would clarify that the bill only
purports to affect the education and training activities of educational
institutions, not other religious bodies. For this reason, the Commission
recommends that the amendment outlined in Sheet 8614 be adopted.
A number of other submitters also supported the Centre Alliance
Other submitters supported government amendment KQ147.
For example, Professor Michael Quinlan, a Professor of Law at the University of
Notre Dame, who submitted in a private capacity, argued that given the
'shortcomings' of inserting proposed subsection 37(3), amendment KQ147 'would
be an improvement' on the bill.
Ability for religious educational institutions to teach in accordance with
The committee heard concerns that the bill would undermine the ability
of religious educational institutions to teach in accordance with the
doctrines, tenets, beliefs or teachings of their faith.
For example, the Anglican Church Diocese of Sydney indicated that faith‑based
schools had concerns that without the protection of subsection 38(3) of the
SDA, the act of teaching from religious texts might expose a school to
accusations of discrimination which would expose them to litigation. It explained:
For example, a student who identifies as having a non-binary
gender may object to bible readings in chapel services which refer to the
creation of humanity as male and female. We would hope that, if this issue had
to be litigated, the courts would recognise that this was neither direct nor
indirect discrimination for the purposes of the Act. However, it would be
preferable by far to ensure that the SDA provided clarity on this issue.
Government amendment KQ149 seeks to address these concerns by inserting a
new section 7F into the SDA to ensure that religious educational institutions
will be able to maintain their religious ethos and teach in accordance with
their religious values.
Proposed new section 7F provides that nothing in the SDA renders it
unlawful to engage in teaching activities if that activity:
- is in good faith in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed, and
- is done by, or with the authority of, an educational
institution that is conducted in accordance with the doctrines, tenets, beliefs
The explanatory memorandum for KQ149 provided further detail on the need
for the amendment:
During public discussions on the issue of religious
exemptions in the SDA, religious schools throughout Australia have clearly
stated that they do not rely upon the existing exemption in subsection 38(3) to
expel students solely on the basis of their sexual orientation. However, many
faith-based schools have raised concerns that the removal of this exemption
entirely may challenge their ability to teach in accordance with their
religious beliefs or ethos.
A number of submitters indicated that they supported amendment KQ149 as
a way to protect the ability of faith-based schools to teach in accordance with
their religious beliefs and ethos.
For example, the Australian Catholic Bishops Conference called the
amendment 'most important' as it would insert section 7F as a 'positive
statement of freedom of religion'.
Dr Alex Deagon, a senior lecturer in law at the Queensland University of
Technology, who submitted in a private capacity, described his thoughts on the
insertion of 7F as outlined in KQ149:
This is a positive step which should be passed in conjunction
with a more general provision which allows religious educational institutions
to impose uniform rules of behaviour and conduct in good faith according to the
doctrine of that religion. This would protect the freedom of religious
educational institutions to educate in accordance with their religious ethos
without fear of being subject to direct or indirect discrimination claims. It
is worth noting this change would not protect other religious bodies such as
churches, mosques and synagogues as mentioned above, and must go further in
However, other submitters raised concerns with the amendment.
For example, the AHRC stated that it did not support KQ149, in part
because there was a risk that the amendment could make certain forms of direct
discrimination lawful, an outcome that would undermine the agreed objective of
The AHRC also noted that section 7B of the SDA already provided that
teaching in accordance with a religious belief or ethos will not amount to
indirect discrimination if any conditions or requirements imposed on students
are reasonable in all the circumstances, and that this constituted an adequate
protection for educational institutions.
The Law Council submission included an in-depth discussion on whether
there was a need for proposed new section 7F in order to ascertain whether
faith-based educational institutions would be precluded from teaching in
accordance with their religious doctrines, tenets and beliefs if the bill was
Ultimately it concluded:
The Law Council does not consider that there is a risk that
educational institutions will be unable to teach the doctrines, tenets or
beliefs of that religion or creed in a reasonable manner without the risk of
engaging in unlawful discrimination. It therefore queries the necessity of
proposed section 7F.
Additionally, the Law Council raised specific concerns about a number of
aspects of the proposed new section, including:
the very broad definition of 'teaching activity';
that 7F would provide an exemption from both direct and indirect
discrimination under the SDA;
that 7F would extend to exempting discrimination, direct or
indirect, on the ground of a person's sex, intersex status, potential
pregnancy, breastfeeding or family responsibilities;
that 7F appears to extend beyond educational institutions to
teaching activities conducted by other individuals, provided that they are done
'with the authority' of an educational institution; and
unlike existing subsection 38(3), 7F does not require that the
discrimination also be 'in order to avoid injury to the religious
susceptibilities of adherents of that religion or creed'.
In light of these concerns, the Law Council stated that it did not
support amendment KQ149.
The Monash University Castan Centre for Human Rights Law argued that proposed
section 7F appeared to be 'poorly thought out'.
It provided an example of the potential negative impact the new section could
The Sex Discrimination Act bans discrimination and it bans
sexual harassment. Proposed section 7F would permit teachers at religious
schools to sexually harass students in class, provided that the conduct
amounting to harassment accords with the beliefs of the religion. Proposed
section 7F would permit a religious school to introduce a rule that female
students are not permitted to enrol in higher level mathematics subjects (for
example, if the religion has a belief that a woman’s place is in the home and
therefore girls have no need to study higher level mathematics).
Professor Quinlan provided the committee with a different observation on
the amendment. He noted that as currently drafted, the KQ149 may not provide
protection to all religious bodies:
This suggested amendment to the Bill applies to indirect and
direct discrimination which is to be preferred. However it applies only to
educational institutions and so may leave other religious bodies involved in
providing education such as Sunday schools, churches and mosques subject to the
new s37(3).This provision would also apply only to the teaching activity itself
which may leave inadequately protected some religious schools which take a
holistic approach to their religious community and wish all interactions
between all students and all staff to be within a context which is consistent
with the teachings of their particular faith tradition.
The 'reasonableness' of rules imposed by religious educational institutions
Another issue raised during the inquiry was the impact the bill may have
on the ability of religious educational institutions to impose reasonable rules
in relation to student conduct.
Government amendments KQ148, KQ150 and KQ151 seek to address these concerns.
As noted in Chapter 2 of this report, KQ150 and KQ151 provide alternative
amendments to each other, as well as to KQ148.
KQ148 inserts a proposed new section 7E into the SDA to ensure that the
repeal of current subsection 38(3) as proposed in the bill does not undermine
the ability of religious educational institutions to impose reasonable rules in
relation to student conduct. 
New subsection 7E(1) clarifies that religious educational institutions
are permitted to impose or enforce reasonable rules regarding student conduct
consistent with their particular religious ethos. It provides three specific
criteria to determine whether, for the purposes of current subsection 7B(1) of
the SDA, a rule is reasonable:
- whether the condition, requirement or practice is imposed
in good faith in order to avoid injury to the religious susceptibilities of
adherents of that religion or creed;
- whether the condition, requirement or practice is imposed,
or proposed to be imposed, in a manner that is consistent with a policy of the
educational institution; and
- if the student is a child – in imposing, or proposing to
impose, the condition requirement or practice, the educational institution has
regard to the best interests of the child.
New subsection 7E(2) seeks to ensure that the practices and policies of
religious educational institutions are open and transparent by imposing a
policy requirement on educational institutions proposing to impose a condition,
requirement or practice under the proposed new subsection 7E(1). Namely, a
policy of a religious educational institution must:
be in writing;
be publicly available;
set out the educational institution's policy in relation to
adherence to its doctrines, tenets, beliefs or teachings; and
comply with any other requirements prescribed by regulations.
The explanatory memorandum for KQ148 listed three examples of school
rules which would be 'reasonable' if all of the criteria of proposed 7E were
a school policy that requires attendance at weekly chapel services;
a school policy that requires students to adhere to certain
standards of dress, language and conduct in the use of school facilities; and
a school policy that students must not actively advocate against
the doctrines, tenets, beliefs or teachings of the school.
Amendments KQ150 and KQ151 both introduce an amendment to current
subsection 7B(2) of the SDA to provide that additional factors must be taken
into account when determining whether a condition, requirement or practice is
reasonable, where the condition, requirement or practice is imposed by a
religious educational institution in relation to a student. KQ150 applies to
all religious educational institutions, while KQ151 specifies that only primary
or secondary schools are affected.
A number of submitters expressed support for the government amendments.
For example, the Anglican Church Diocese of Sydney indicated that it supported
the new section 7E, while also offering an alternative approach to achieve a
Christian Schools Australia and Adventist Schools Australia also
proffered support for KQ148, stating that it provided clarity to schools and
students and ensured that boundaries would be 'not only fair, but clear' to all
The Australian Catholic Bishops Conference acknowledged that it was
reasonable for religious schools to be required to have written, publicly
It expressed support for KQ148, and also KQ150 or KQ151 as 'second-best'
Dr Renae Barker, a law lecturer at the University of Western Australia
who submitted in a private capacity, emphasised that where the law permits
people, especially children, to be discriminated against in the interest of
protecting and rights and freedoms of others, it is crucial that the
discrimination is made transparent. She noted that in the case of religious
schools, such transparency would allow families to make an informed decision
about their child's education.
Indirect discrimination will still be a feature of religious
schools under the exemption in section 7B of the Sex Discrimination Act 1984
(Cth). I therefore support the inclusion of a transparency requirement in the
amendment contained in document KQ148, namely the insertion of section 7E(2)...
Other submitters raised concerns about the government amendments.
For example, the AHRC expressed reservations about the need for KQ148, noting
that it considered that the current form of section 7B of the SDA contained
appropriate protection for religious schools to teach and organise their
affairs in accordance with their beliefs. It further stated:
By definition, discrimination involves unfavourable treatment
on the basis of a protected attribute. The Commission has been unable to
identify a circumstance in which unfavourable treatment towards a child on the
basis of his or her sexual orientation or gender identity could be in the
child's best interests. To avoid suggesting otherwise, the Commission does not
support including in the SDA a provision that allows discrimination where it is
deemed to be in a child's best interests. 
The Law Council also stated that it did not support amendment KQ148,
citing concerns that it overrides the existing 7B reasonableness test contained
in the SDA which requires consideration of all the relevant circumstances of
the matter, including the nature and extent of the resulting disadvantage to an
individual, the feasibility of overcoming or mitigating the disadvantage, and
whether it is proportionate to the result sought.
The Law Council expressed concern that the proposed section 7E would encourage
a blanket approach to be adopted by educational institutions, without requiring
that regard be had for the merits of individual cases:
It [proposed 7E] would not, for example, require a school to
consider ways of mitigating or avoiding any disadvantage or harm caused to an
individual student, regardless of the level of distress involved or the
Additionally, the Law Council noted that the proposed section 7E may
lead to unintended consequences that would ultimately disadvantage LGBTIQ+
The Law Council is concerned that over time, proposed section
7E may in fact lead to increasing numbers of schools adopting blanket policies
which, while neutral on their face (and therefore do not raise alarm for
parents enrolling their children), in effect disadvantage vulnerable LGBTI
students. This would undermine their rights to equality and non-discrimination.
It notes that indirect discrimination may be considered a more ‘insidious’ form
of discrimination. While it understands that arguments for greater transparency
and clarity may be attractive, it would be concerned if this were at the cost
of individual students’ wellbeing.
The Australian Discrimination Law Experts Group informed the committee
that it did not support, and in fact 'strongly counsel[led] against' the
proposed new subsection 7E in outlined in KQ148, as well as proposed new paragraph
7B(2)(d) contained in KQ150. It argued:
Even if the scope of the amendment were confined to the
attributes currently covered by s 38(3), the addition of further factors to the
test of reasonableness adds unnecessary complexity to defining indirect
discrimination, will distort the existing test for reasonableness, and will
actually fail to adequately protect LGBT students from discrimination. 
The Public Interest Advocacy Centre noted that amendments KQ148, KQ150
and KQ151 were substantively similar as all would amend the existing test for
reasonableness in section 7B. It argued that the three amendments were 'flawed'
and should be rejected as they added 'elements of subjectivity into an
established test that is primarily objective in nature'.
Discrimination against employees of religious educational institutions
Although the bill proposes to prevent religious schools from
discriminating against students on the basis of sexual orientation, gender
identity or intersex status, it does not seek to address the issue of such
discrimination against staff and contractors employed by religious schools.
Senator the Hon. Penny Wong explained the rationale for this approach:
Given the short number of sitting days left between now and
the election, we do have to prioritise – and children are our priority... Labor
is committed to removing exemptions which relate to LGBTI staff at religious
schools...We know there is broad support across parliament to deal with the issue
of staff. We are dealing now with the issue of children. We accept that there
are complexities in relation to the issues of teachers and staff, and we intend
to continue to work with relevant stakeholders on this. However, we are not
prepared to hold up the change for students while that work goes on.
A number of submitters asserted that the bill should be amended to
address the issue of discrimination against staff.
For example, PFLAG (Parents, Families and Friends of Lesbians and Gays)
The parents of PFLAG have LGBTIQ children that both study and
work at religious institutions, we see no justifiable reason for them to be
treated differently under the anti-discrimination law due to their age.
The amendment circulated by the Australian Greens (Sheet 8601) seeks to address
these concerns by extending the operation of the bill to include staff and
contract workers of faith-based educational institutions.
Some submitters stated that although they supported removing
discrimination against staff, they felt the matter should be dealt with
separately, as is the intention of the bill.
For example, the Law Council recommended that any amendments to SDA
exemptions for employees and contractors of religious educational institutions
should only be taken after careful consideration of their interaction with
other relevant federal provisions, such as those within the Fair Work Act
2009 and the Australian Human Rights Commission Act 1986.
Dr Renae Barker noted that although the discrimination by schools
against LGBTI+ staff and contractors was an 'important issue', it should be considered
Similarly, Mr Edward Santow, Human Rights Commissioner at the AHRC noted:
....we [the AHRC] do not believe that there should be an
exemption that permits discrimination against staff, including teachers. What
we've also said is that amending the law in this space has some complexity to
it. It would also need to consider the relevant provisions of the Fair Work
Act, for example. That's why we say that needs to be done in a very carefully
The need for further consideration by the Australian Law Reform Commission
A number of inquiry participants expressed concern about the haste in
which the bill and amendments had been drafted and argued that rushed
legislative change could lead to unintended, detrimental consequences. They
emphasised that the intersection of various human rights raised significant and
complex matters that needed to be properly investigated in order to allow for a
balanced and reasonable solution. As a remedy to these concerns, submitters
suggested that the matter be referred to the ALRC for an in-depth examination
of the issues at play. 
For example, Professor Quinlan commented that a referral to the ALRC of
the issues relevant to the bill 'should facilitate taking the overt and
unhelpful politics out of this important, but complex issue'.
Dr Deagon also drew a similar conclusion, highlighting the short time
frame in which the bill and amendments were drafted:
The other thing that we have to remember, as the other
witnesses have indicated, is that this legislation was rushed, in a sense. This
bill was rushed and it came out of a heated debate about the existence and the
purpose of the exemptions. So I think the recommendation of the Australian Law
Reform Commission is a sensible one, which will then enable the commission to
have a more detailed and objective look at this issue and then propose some
more detailed and considered legislation, which can then be debated.
Archbishop Mark Coleridge, President of the Australian Catholic Bishops
Conference agreed with the need to refer the matter to the ALRC:
That would be very much our position, that this is not an
isolated issue to be treated in some kind of ideological vacuum. It is an
important issue and one that we've been dealing with for years in our schools.
This is not new. It's an important issue that is situated in a very, very large
set of contexts, the broadest of which—as I have said, and echoing the previous
speakers—is the renegotiation of the relationship between religion and the
state. That's a massive phenomenon that is unfolding in this culture at this
time. And we don't want to turn our back on it or put our head in the sand:
we're part of it. So, yes, our preference would be very strongly to set this
particular issue about the treatment of students in the schools within the much
larger context which helps us to understand the implications of any decision
which we or the parliament may make.
The Attorney-General's Department informed the committee that a referral
of matters relating to religious exemptions to the ALRC was an option the
government was actively exploring:
Given the complexity of the issue, the government has
committed to consulting with states and territories on terms of reference for
the Australian Law Reform Commission to inquire into religious exemptions. That
consultation is underway with a view to making that reference.
The case for immediate, targeted reform of section 38(3)
As noted above, a number of submitters urged the committee to reject the
bill and amendments and instead defer wide-reaching legislative change until
after the matter had been examined by the ALRC.
However, other submitters emphasised the pressing need to ensure that
school students are not able to be denied enrolment or expelled by religious
educational institutions on the basis of their sexual orientation, gender
identity or intersex status.
For example, the Anglican Church Diocese of Sydney explained why it felt
there was a sense of urgency:
We urge both houses of parliament to work in a bipartisan way
to resolve this issue as a matter of urgency. The urgency is not because
religious schools across the country are expelling or mistreating LGBTI
students. The urgency is because the misinformed public debate on this matter
has created the deep division in the community and has been deeply distressing
students and staff—LGBTI and otherwise, Christian and otherwise—at our Anglican
When asked by the committee how to address this, the Diocese suggested
that a more targeted amendment to subsection 38(3) of SDA could be enacted as
an interim measure. Dr Glenn Davies, the Archbishop of Sydney explained:
....I commented in response to a Senator’s question that one of
the options open to the Senate was to deal only with the issues related to
expulsion of students at this time, and wait for the input from the Australian
Law Reform Commission before addressing the wider issues of discrimination
later. This suggestion emanated from the media attention given to this
particular issue, and the Prime Minister’s commitment to remove the possibility
of LGBTI students being expelled.
In response to a question on notice, Dr Davies provided the committee
with a suggestion of how such a targeted amendment could be achieved through
the addition of a phrase to current subsection 38(3). However, he stressed that
he believed that his proposed wording 'did not go far enough' because it only
addressed the issue of enrolment. He reiterated that the position of the Diocese
was that subsection 38(3) in its current form was causing distress and
confusion in their school communities and that his suggested amendment would
not resolve those concerns. He emphasised:
Our Anglican Schools do not discriminate against LGBT
students, and legislation which gives them the right to discriminate against
any student is deeply problematic. As we have argued in our written submission,
it is urgent that Section 38(3) be repealed and the policy void that this would
create regarding doctrine, tenets and beliefs is filled by parliament.
The committee asked the Attorney-General's Department to comment on the
feasibility of a targeted amendment to subsection 38(3) to specifically deal
with the matter of expulsions and admissions of students. The department
advised that it would be 'technically possible'.
The committee recognises that the issues raised by the bill are of great
concern to the Australian community. The large volume of written submissions
and form letters the committee received, as well as the wealth of information
provided by witnesses at the public hearings, clearly demonstrated the public
interest in the matter.
The committee notes that many sectors of the community agree that
students at faith-based schools should not be discriminated against on the
basis of sexual orientation, gender identity or intersex status. These
stakeholders, the committee included, do not dispute the harm that arises when
LGBTIQ+ children are subject to discriminatory behaviour.
The committee also observes that political bipartisanship exists on the
principle of the matter, and that there have been public commitments from the Prime Minister,
the Leader of the Opposition and some of the minor parties to repeal the SDA
exemptions that allow religious educational institutions to expel students on
the basis of their sexuality, gender identity or intersex status.
However, while the committee considers it necessary and appropriate to prohibit
discrimination against LGBTIQ+ school students, it is of the view that this
should not occur at the expense of the ability of religious educational
institutions to maintain their ethos through what they teach and the rules of
conduct that they impose on their students.
Religious freedom is a vital aspect of Australian society and religious communities
should feel respected and protected. Additionally, faith-based schools have a
unique and important role to play in Australia's education system. It is
imperative that they are able to maintain their religious ethos and teach in
accordance with their beliefs, without the threat of legal liability.
The committee considers the bill at the centre of this inquiry to be
flawed. Although the circulated government amendments represent a reasonable
and sensible attempt to remedy the overreach and unintended consequences of the
bill while still honouring its original intent, the committee is of the opinion
that matters of anti‑discrimination and religious freedom are too
important and too complex to be dealt with in haste.
Rather than a piecemeal, reactionary approach, as exemplified by the
poor drafting of the bill and the short time frame allocated for this inquiry,
the committee believes a more considered, holistic proposition is required to
ensure that the matter is resolved in the best possible way.
In light of this, the committee is recommending that the bill and all
circulated amendments not be passed. Instead, in-depth consideration of this
matter must be conducted by the ALRC in order to properly and comprehensively
assess the consequences arising from any potential legislative changes. The
committee considers that such a referral will allow for a proper exploration of
all the issues at stake and lead to a plan for cohesive, balanced reform.
The committee recommends that the bill and circulated amendments not be
The committee recommends that the bill, circulated amendments and all
relevant matters be referred to the Australian Law Reform Commission for full
and proper consideration.
Senator the Hon Ian Macdonald
Liberal Party of Australia
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