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Legislative Exemptions That Allow Faith-Based Educational Institutions to Discriminate Against Students, Teachers and Staff

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Legislative Exemptions That Allow Faith-Based Educational Institutions to Discriminate Against Students, Teachers and Staff The Senate Legal and Constitutional Affairs References Committee Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff November 2018 Commonwealth of Australia 2018 ISBN 978-1-76010-872-4 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. ii Members of the committee Members Senator Louise Pratt (ALP, WA) (Chair) Senator the Hon Ian Macdonald (LNP, QLD) (Deputy Chair) Senator Kimberley Kitching (ALP, VIC) Senator Nick McKim (AG, TAS) Senator Jim Molan AO, DSC (LP, NSW) Senator Murray Watt (ALP, QLD) Substituted members Senator the Hon Concetta Fierravanti-Wells (LP, NSW) to replace Senator Jim Molan AO, DSC (LP, NSW) (from 15.11.2018) Senator Janet Rice (AG, VIC) to replace Senator Nick McKim (AG, TAS) (from 14.11.2018) Participating members Senator Jane Hume (LP, VIC) Senator Amanda Stoker (LP, QLD) Secretariat Dr Sean Turner, A/g Committee Secretary Ms Nicola Knackstredt, A/g Principal Research Officer Mr Antony Paul, Senior Research Officer Ms Ophelia Tynan, Research Officer Ms Alexandria Moore, Administrative Officer Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: [email protected] iii Table of contents Members of the committee ............................................................................... iii Recommendations .............................................................................................vii Chapter 1.............................................................................................................. 1 Introduction .............................................................................................................. 1 Conduct of this inquiry ........................................................................................... 1 Structure of this report ............................................................................................ 1 Background ............................................................................................................. 1 The current legal framework .................................................................................. 7 Commonwealth laws .............................................................................................. 7 States and Territories ............................................................................................ 13 Acknowledgements .............................................................................................. 20 Chapter 2............................................................................................................ 21 Key issues................................................................................................................. 21 Human rights and constitutional contexts ............................................................ 21 Do faith-based educational institutions 'use' the legislative exemptions? ............ 27 Support for maintaining the existing legislative exemptions ............................... 30 Support for removing the legislative exemptions ................................................. 36 Should the application of the exemptions to students differ from their application to teachers? ........................................................................................................... 44 Options for reform ................................................................................................ 46 Committee view .................................................................................................... 50 Dissenting Report Of The Coalition Senators ................................................ 55 Australian Greens Additional Comments .................................................... 107 Appendix 1 ....................................................................................................... 113 Submissions ........................................................................................................... 113 Answers to questions on notice ............................................................................ 118 Tabled documents ................................................................................................. 119 Media release......................................................................................................... 119 Appendix 2 ....................................................................................................... 121 Public hearings and witnesses ............................................................................. 121 vi Recommendations Recommendation 1 2.126 The committee recommends that the government reject recommendations 5 and 7 of the Religious Freedom Review, which permit faith-based educational institutions to single out certain groups for discrimination on the basis of sexual orientation, gender identity or relationship status, in particular circumstances. Recommendation 2 2.127 The committee recommends that the government immediately release to the public the full report and findings of the Religious Freedom Review. Recommendation 3 2.131 The committee recommends the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act. Recommendation 4 2.137 The committee recommends that further consideration be given to amending the Sex Discrimination Act 1984, and any other relevant legislation, to prohibit discrimination by faith-based educational institutions against teachers and staff on the grounds of the protected attributes in the Act. In so doing, consideration should be given to the relevant provisions of the Anti-Discrimination Act 1998 (TAS) discussed in this report. Recommendation 5 2.140 The committee recommends that consideration be given to inserting in law a positive affirmation and protection of religious freedom in Australia that is appropriately balanced with other rights. Chapter 1 Introduction 1.1 On 13 November 2018, the Senate referred the following matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 26 November 2018: Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff, including on the basis of sexual orientation and gender identity and other attributes covered by the Sex Discrimination Act 1984, with particular reference to proposals for amendments to current legislation, and any related matters.1 Conduct of this inquiry 1.2 Details of this inquiry were advertised on the committee's website, including a call for submissions. The committee wrote directly to a range of organisations inviting them to make submissions. The committee received 180 submissions, of which 13 were received in camera. The submissions are listed at Appendix 1 of this report. 1.3 The committee held a public hearing in Melbourne on 19 November 2018. A list of witnesses who appeared at the hearing is available at Appendix 2. 1.4 The committee thanks all those who made submissions or gave evidence at its public hearing. Structure of this report 1.5 There are two chapters in this report: • This chapter provides background and outlines the administrative details of the inquiry. • Chapter 2 presents the key issues raised in evidence and the committee's view. Background Religious Freedom Review 1.6 The recent public debate on the matters being considered in this inquiry has been prompted, in the most immediate sense, by the disclosure of certain recommendations in a review on religious freedom commissioned by the government. This part of the chapter briefly summarises that review and the recommendations in question. 1.7 On 22 November 2017, the then Prime Minister, the Hon Malcolm Turnbull MP, announced the appointment of an Expert Panel (the Panel) to examine whether Australian law adequately protects the human right to freedom of religion. The Panel, which was supported by a secretariat in the Department of the Prime Minister and Cabinet, was comprised of: 1 Journals of the Senate [Proof], No. 127, 13 November 2018, p. 4077. 2 • The Hon Philip Ruddock (Chair) • Emeritus Professor Rosalind Croucher AM • The Hon Dr Annabelle Bennett AO SC • Father Frank Brennan SJ AO, and 2 • Professor Dr Nicholas Aroney. 1.8 The work conducted by the Panel is known as the Religious Freedom Review (the Review) or the Ruddock Review. The Terms of Reference for the Review were announced on 14 December 2017. The objective, scope and timing of the review were set out as follows: Objective The Panel shall examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion. Scope In undertaking this Review, the Panel should: • Consider the intersections between the enjoyment of the freedom of religion and other human rights. • Have regard to any previous or ongoing reviews or inquiries that it considers relevant. • Consult as widely as it considers necessary. … Timing
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