Perhaps the best way to get an idea of the reality of the issues confronting religious schools and the profound problems with the Penny Wong Bill is to analyse the speeches of the various Senators that spoke about it. Below there are excerpts of speeches both in support and condemning the bill. They do a great job of summing up 3 things regarding this bill: 1. The context. What has led up to the bill. 2. The concept. What the bill actually proposes 3. The consequences: What will happen should the bill be passed.

Each of these will be briefly discussed and supporting references can be found in the speeches as indicated.

The Context It is clear that following the legalisation of same sex marriage (SSM) that there has been a focus on the rights of religious schools to teach their concept of marriage, one that may very well not support SSM. Indeed this was warned about by the ‘NO’ campaign but was essentially ignored as a ‘red herring’.

The current Sex Discrimination Act (1984) contains a number of exemptions that apply to religious bodies including schools. This allows them to effectively discriminate against people who do not uphold the tenets and values of the religion behind the institution as long as it is necessary to avoid harm to the institution. They allow schools to expel students based on a sexuality or gender identity that is not consistent with their religion.

While these provisions exist, there is no record of them actually being used. They are, in a sense, like the fence around the pool in which no one has yet drowned, or like the person who has learned self defence but has never actually had to use it. The precise reason that there has been no litigation is because the exemptions provide such a clear right to religious schools. (Reference A

While these provisions are somewhat of a ‘negative right’ in that they apply what somebody ‘cannot do’, they are also the ONLY REAL PROTECTION these institutions have under the law to run their institutions according the values and tenets of their beliefs. Evidence from the schools themselves confirms that they see them as NECESSARY, however cumbersome they are. (Reference B, Reference C)

The current debate about this bill is characterised by misinformation,oversimplification, and a complete failure of the careful analysis of these issues. Senators Stoker and Fiorravanti-Wells sum this up well. (Reference A, Reference I) Also, the discussion from those in support of the bill is superficial and revolves around emotive issues such as ‘identity’. There has been much said about the ‘identity’ of LGBT students and that the SDA supposedly discriminates against them for ‘who they are’. (Reference E). In addition to there have been conflicting claims about what religious schools do and no not want. (References B, Reference F)

But what about the religious schools? What about their identity? What about their concept of ‘who they are’? If they can’t teach the doctrines of their faith clearly without impediment, then their ‘identity’ as a religious school effectively disappears. Their ‘who they are’ totally disappears. This has been effectively ignored during this discussion.

The Concept It is clear from the reading of the bill and the speeches behind it that the bill has been put together rather hastily, is poorly defined and goes way beyond just the issue of whether or not gay students can be expelled. There is a lack of clear definition of key terms and it makes a bill that is already clumsy even clumsier. The fact that so many amendments have been needed is evidence of this. Indeed, it all appears to have been rather rushed, following the Wentworth bi-election.

Both Labor and the Greens have made it clear that this bill is far from the end of the matter and the real goal is to remove the rights of religious schools to discriminate in the hiring of teaching and other staff based on sexuality, relationship status and gender identity. (References D, Ref E) The bill is therefore just the beginning of a process that will have far-reaching consequences.

The Consequences Passage of this bill would not only remove the rights of schools to remove troublesome students, it would effectively gut the ability of ANY religious institution or gathering that had ANY educational purpose to teach in accordance with that religion. These consequences have been discussed extensively by senators and it is important to note that one of them was a Labor Senator ( References B, C, G, H, I)

In brief, just some of these consequences would include 1. Forcing schools to accept LGBT students/parents who had NO intention of accepting the teachings of the school. 2. Allowing gay students or those whose parents were in a SSM to sue for discrimination/ damages if they were ‘offended’ by a school teaching a biblical view of marriage 3. Allow ANY educational meeting including sermon, bible study, Sunday school that taught a biblical view of marriage and sexuality to be viewed as offensive by someone. 4. Empower students who do not wish to participate in mandatory religious activities eg attend chapel. 5. Force schools with biblical view of gender and sexuality to allow gender dysphoric children to use facilities of the opposite sex or to participate in affirmation and gender transition. 6. Force schools to hire staff whose views on marriage and sexuality are totally at odds with those of the religion behind the school. 7. Ultimately force religious schools to be just like non-religious ones. If this happens, what is the point of having them?

The Conclusion

When all of the evidence is considered it leads to the following conclusions: 1. While LGBT students have a right to their ‘identity’, religious schools also have a right to their ‘identity’. This involves being to teach ALL of the doctrines of their faiths without government interference, including views that may not be shared by LGBT students, parents and activists. 2. The only protection that religious schools have in maintaining this ‘identity’ is a set of somewhat clumsy provisions in the SDA act. Just because there has been a lack of litigation or implementation of these provisions does not mean they are not needed. All the credible evidence suggests they are needed. Indeed it is positive evidence that they are serving their purpose in preventing vexatious litigation. 3. The bill proposed by Penny Wong has been rushed and poorly thought out. It FURTHER COMPLICATES an already complicated situation. It also has far-reaching consequences on religious freedom that would effectively remove the identity of a religious school as a religious school. 4. The Penny Wong should be comprehensively rejected. Until such time as religious freedom is protected as a stand alone right, backed by well-thought out legislation following extensive public consultation, the current exemptions to the SDA should remain. References quoted above

Reference A When I think about some of the most important principles that motivate me to contribute in this place, I think of freedom, strong institutions and fairness for all. Then I look at this bill, and it's devastating. It represents the biggest single blow to religious freedom this nation has seen in all of its history. Of course there has been, through the quite aggressive use of existing discrimination laws, a chipping away at freedom of speech, freedom of association and freedom of religion in recent years. But in a sense that was slow. This bill works fast. Labor will tell you that this bill just makes sure that gay kids don't get discriminated against. That's a profound mistruth. Everyone in this chamber thinks gay kids shouldn't get expelled simply for being gay. The PM is on the record saying just that. But this bill does so much more. By removing all protections that previously existed in the Sex Discrimination Act for religious schools to operate according to their ethos, the bill will hollow out the religious school sector to being nothing more than privately funded schools with the same values as public ones. In doing so, we deny parents a real choice about how their children are educated.Why do parents send their children to a faith based school?...... For this parliament to determine that religious educational institutions have no claim to act according to their beliefs in relation to, for instance, sexuality, gender and relationships is to carve out an area of religious conviction and to say that religious schools can no longer lawfully manifest those convictions. It raises the very real concern that religious institutions and believers are being subjected to detrimental actions solely on the basis of their religious belief, and that's in contravention of their right to equality. It's a strange irony. You might also say, as I've heard a number of the senators who have spoken on this bill so far do, 'Religious schools don't use these exemptions much.' Again, in a superficial sense, that's true. But, contrary to the way it's been painted by those opposite, that doesn't mean they're not needed and that they aren't wanted by many in the education sector. It is the fact of the existence of clarity in the legislation about the exemption for religious schools that is the reason there is so little litigation in this area. Take the exemption away and that changes dramatically. It's a little bit like saying, 'No-one has drowned in our swimming pool, so we don't need the fence anymore.' It just doesn't work. That's the reason why so many submitters— Association of Christian Schools, the Institute of Civil Society, Christian Schools Australia; I could go on—all pleaded for the retention of this exemption. Yet all submitters were at pains to explain how pastorally, how caringly, they approach the issue of helping students who are same-sex attracted or who struggle with their gender, how these students are cared for and included within the framework of the world view of that religion. But each retained their concern that, if the exemption were removed, they'd have no way to deal with the situation of activist students or activist parents who, with absolutely no intention of attempting to live according to the values of the faith of the school they have asked to be a part of, demand that the faith change to accommodate them. These are faiths that are thousands of years in the making, and we could, in this place, with less than four hours of debate, take away the ability of a school to deal with those who do not want to be a part of the value system of that religion.

There is also a hypocrisy in the parliament trying to apply standards of anti-discrimination that they'd never apply to themselves. As the Institute of Civil Society, one of the submitters to the recent committee inquiry on this issue, so clearly explained it: Our society would not expect the ALP, the Liberal Party, or the Greens (also voluntary associations), to have to employ and retain persons who consistently spoke or acted against core party policy. So why should a law force a religious school to justify to a human rights commission or a tribunal— why it should have to accommodate people who consistently spoke or behaved in a manner that defies the core values of that religion? And they make a good point. Adjunct Associate Professor Fowler from the University of Notre Dame put it this way: Why should believers—be they Islamic, Jewish, Protestant, Hindu or any other faith—be prevented from coming together with their fellow believers to act upon the dictates of their faith that encourage humanitarian concern? No similar limitation is proposed for persons who are motivated to humanitarian acts absent religious compulsion. It's a bizarre conclusion, and it represents a form of discrimination on the basis of religious belief.

Now, you might say to me, 'This bill doesn't prevent religious people from forming a religious organisation, like a school.' Well, that's true in a superficial sense. But look a little deeper and you'll see that the bill guts schools of the ability to operate according to their ethos. And if schools can't operate according to the values, to the ethos, that is reflected in their faith, then why have them at all? For what reason would parents select a religious school if it is not permitted to teach and expect compliance with the tenets of that faith? How will the school develop or maintain the culture that flows from the values of that faith? And why would parents who have children in these schools continue to subsidise the cost to the public of the provision of education—as they do—when they wouldn't be getting anything different for their money? (Senator , Liberal Senator for Qld, 29.11.18)

Reference B I’d go to Senator Keneally’s claim that all the schools are on board and that they don’t see any issue with this. That is simply not true. I’ll go through the senior leadership of some of our biggest school providers who have said that, despite the clumsiness of some of these exemptions-in fact that’s the exact words that Anglican leadership used- they said: ‘The current exemptions, however clumsy, in the Sex Discrimination Act 1984 are really the only significant legal protections available to schools to maintain their ethos and values with regards to core issues of faith’.. ..Peter Comensoll, on behalf of the Australian Catholic Bishops conference said: ‘Catholic schools do not use these exemptions to expel students simply on the grounds of sexual orientation or gender identity....schools want to maintain the capacity to teach a Christian understanding of sexual ethics and marriage according to our faith tradition. Our right to continue to teach Catholic beliefs is threatened by proposals to repeal existing faith based exemptions for religious schools and institutions.. ..Adel Salman of the Islamic Schools Association of Australia makes a similar point saying: ‘With students, the association is not calling for students to be discriminated against or in fact to be expelled from the school because of their particular sexuality, but by the same token the students and their families need to understand that the school will be teaching the particular values and principles of the religion’ There were a number of other contributions, including from the Australian Association of Christian Schools. They said: ‘Proposals to remove the ability to access exemptions is effectively the removal of the ability of the institution to define its character, goals and imperatives. It is the removal of the ability to control the unique voice of the institution to the wider society. It is actually the removal of the identity of the institution’ Christian Schools Australia..said: We are concerned that if changes are made to the Sex Discrimination Act 1984 without creating adequate positive protections for our schools-that’s the important point-the effect would be to profoundly compromise the ability of our schools to act in accordance with their beliefs and convictions...no changes should be made to legislation affecting our schools, until there is also adequate protection in place for schools to maintain their beliefs and character as faith-based schools. Christian Schools need legislation that gives us much clearer assurance that schools can continue to teach in a manner consistent with the religious beliefs of the school...They are concerned that, without adequate protection, schools could be forced..to teach in ways that contradict what they genuinely believe, to act against their conscience and beliefs in the way they handle behaviour, and to employ staff who don’t share in and meaningfully uphold the beliefs of the school’ (Senator , Liberal Senator for ACT, 29.11.18) As Mark Fowler, adjunct professor at Sydney’s Notre Dame Law School, wrote in The Australian on the weekend: ‘On a plain reading, this would capture the Sunday morning sermon, the Friday kutbah at the mosque, a Buddhist meditation course, the children’s Sunday school, the midweek Bible study, the Friday night youth group talk. It is clear to both the preacher and the recipient in all of these exchanges that they are participating in an act of education that expands on religious principles (Senator Zed Seselja, Liberal Senator for ACT, 03.12.18)

Reference C 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.. The approach in this bill..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....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 them: 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 this 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 evidence coming 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 women caught in the act of 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 her to commit to the model of sexual fidelity and marriage that he taught. Religious schools need to have this same freedom, to have that balance between grace and truth...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 operate in truth and to faithfully put forward the teaching of their particular group.“ (Senator , Liberal Senator for , Senate, 03.12.18)

Reference D Also, this bill does not deal with the issue of teachers. Whilst Labor has made clear that it supports the removal of that exemption too, it acknowledges there is not yet wide enough support across the parliament to get that done. We will continue to work with schools and religious bodies to find a way in which that exemption can be removed so as to protect religious school’s rights to practise their beliefs. As Mr Shorten as said, Labor will seek to remove that exemption early next year’ (Senator Penny Wong, Labor, Senate 03.12.18)

Reference E Here we are again..debating whether young LGBTQ people deserve not to be expelled from schools, separated from their friends, taken out of their studies and school community, simply for being who they are’ ‘Senator Wong’s bill acknowledges that section 38(b), relating to exemptions for educational institutions in the provision of education or training, needs to be repealed to remove discrimination against student. We are simply proposing the same for staff and contractors’ ‘We support religious schools’ ability to teach in accordance with their religious beliefs, but to discriminate against people on the basis of their sexuality or their gender identity-yes their very identity- that is not religious ethos; it’s discrimination’ (Senator , , 03.12.18) [Who get’s to determine what’s religious ethos and what’s not? Senator Rice or the school? What about the ‘identity’ of the school? How will the school be able to be ‘who they are’ if they cannot teach that marriage is between a man and a woman and that God created sexuality between a husband and a wife?]

Reference F We also know that the overwhelming majority of religious schools do not want or see the need for these exemptions. We know this as a result of the recent Senate inquiry, where Catholic and other religious school systems gave evidence that these exemptions are not used or relied upon’ ....When we hear claims that removing these exemptions will gut the ability of religiously affiliated schools to teach their faith, there is no evidence that this is the case’ (Senator , Labor, Senate 29.11.18)

‘They seem to somehow misunderstand the difference between identity and actions. What Labor is arguing here is that no school should have the basis to discriminate against a student based on their identity. We also believe that no school should have the ability to discriminate against teachers or staff on the basis of their identity. But we understand that religiously affiliated schools need to have the clarity that they are able to require their staff to act in ways that uphold the values and ethos and the tenets of the faith and actions in ways that undermine it. It is the distinction between identity and action” (Senator Kristina Keneally, Labor Senator for NSW, Senate 29.11.18)

[This is correct but what about the school’s identity? Doesn’t the student also have an obligation to ACT in accordance with the school’s IDENTITY if they choose to go there? If exemptions are removed, what options does the school have if they refuse? Labor does not answer these questions]

Reference G One of the great flaws of Labor’s bill is that it completely removes the ability of religious educational institutions to maintain their ethos through what they teach and the rules of conduct they impose on students. They should have the ability to do this. This is because Labor’s bill would, for the very first time- and it is a very important point to note that it would be for the very first time-expose religious schools to litigation under the Sex Discrimination Act merely because they impose reasonable rules such as, for example, requiring students to attend chapel.. ..With the repeal of subsection 38(3) by item 2 of this bill, it is possible that a student could make a complaint that the teaching of certain religious doctrines, such as a biblical view of marriage, gender or sexuality, constitutes unlawful discrimination. (Sen Michaela Cash, Liberal Senator for WA, Senate 03.12.18)

Reference H But religious freedom is not just a matter of passive acceptance that our fellow Australians have many different faiths. Like all our freedoms, it is often subject to incursion; like all freedoms, it needs to be actively advocated for and defended. An essential part of religious freedom is the right of parents to send their children to religious schools. It must follow from that that religious schools, whether those schools are Christian, Jewish, Islamic or indeed anything else, have a right to educate their students in a way that encourages them to adhere to the faith and practices of the religious denomination which established them. They do that for a reason, or perhaps for many reasons, but they are doing it in the best interests of their children as they see those interests to be. It follows from this that such schools have a right to require that both students and teachers act in a way which is broadly consistent with the faith and practices of the religious denomination. If they are denied that right, the school cannot serve the purpose for which it was established..I believe an appropriately drafted, positively expressed right to religious freedom should be legislated.” (Senator Kimberly Kitching, Labor Senator for Victoria, 03.12.18)

Reference I I have to state that current public discussion has been built on a lie. Faith based schools have made it very clear that students are not being expelled simply on the basis of their sexual orientation. Again, this was made very, very clear in the committee inquiry...The Senate committee report demonstrates the need for positive and standalone protection of religious freedom in Australia. The bill we’re considering today is confined to the applicable rights of equality and non- discrimination, and it does not recognise the equally applicable right to religious freedom. Unless we legislate to equate these rights, as is required by international law, we will continue to fail in balancing appropriate equality of rights. The explanatory memorandum to this bill wrongly states that an overwhelming majority of schools told our Senate committee inquiry that they do not use these exemptions and do not want them. This is not only wrong but a total misrepresentation of the evidence provided. As we noted in our dissenting report..’witnesses were asked to provide examples of cases in which the legislative exemptions have been involved or invoked. Due to the sensitive nature of the matters, several submitters provided confidential examples..the report itself acknowledges that examples were provided in camera by schools where reliance was placed upon these exemptions” (Senator Concetta Fierravanti-Wells, Liberal NSW Senator, 29.11.18)