Adjournment Speech - Sex Discrimination Act

Today, tabled in this chamber was the report of the Senate Standing Committee on Legal and Constitutional Affairs dealing with its inquiry into the proposed amendments to the Sex Discrimination Act that came from the Labor Party and also the Greens. 

I rise to take note of the majority report of that committee, and in doing so I note and incorporate the coalition senators' dissenting report to the recent reference to the Legal and Constitutional Affairs Committee that was dealing with the same subject.

The bill and the Greens amendment cannot be supported. Of course, everyone in this chamber wants to see LGBTI people treated with fairness and respect. But the Labor and Greens contributions to this subject fail to balance the rights of LGBTI people with the competing rights of others in the community. The Labor bill and Greens amendment can be described as undermining human rights in the name of arbitrarily selected other human rights, including through the limitations they propose to place upon the ability of not only religious schools but all bodies established for religious purposes to teach their doctrines. Both the bill and the Greens amendment limit human rights in a way that is clearly not permissible in international law. It's my purpose to elaborate a little on that point in particular.

The primary protection of religious freedom in international law is contained in article 8 of the International Covenant on Civil and Political Rights, which protects freedom of thought, conscience and religion. International human rights law stipulates that strict conditions must be satisfied in order for the manifestation of the freedom of religion or belief to be limited. In this context, the ICCPR provides that the right to manifest religious belief may only be limited to the extent that it is necessary in order to protect the 'fundamental rights and freedoms of others' and any limitation must be proportionate. The bill and the Greens amendment both fail to comply with these requirements as they simply extinguish the right to religious freedom. For that reason alone, they cannot be supported.

Further, article 18(4) of the ICCPR provides:

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

This convention right protects the right to establish private religious schools. In interpreting the equivalent provision in the European Convention on Human Rights, the European Court of Human Rights has said this right:

… aims in short at safeguarding the possibility of pluralism in education, which possibility is essential for the preservation of the democratic society.

Furthermore, it said:

It is in the discharge of a natural duty towards their children—parents being primarily responsible for the "education and teaching" of their children—that parents may require the state to respect their religious and philosophical convictions.

Similarly, the European Commission of Human Rights has concluded that the principle of the freedom of individuals forming one of the cornerstones of the democratic society requires the existence of a possibility to run and attend private schools.

The bill and the Greens amendment each respectively appear to proceed from the same somewhat totalitarian presumption as that remonstrated against by the European Commission of Human Rights. Many of the submitters to this inquiry who represented faith based schools emphasised to the committee that their particular model of education requires the ongoing ability to define the religious character of their institution and the education they provide. They emphasised that limitations upon the ability of religious schools to teach and to ensure conformity of standards within the student body will detrimentally impact upon their ability to create an ethos consistent with their religious beliefs. It is clear that, under Labor's bill, there is no certainty that a religious body or a religious school would be able to teach its view on matters such as marriage without the risk of suffering a discrimination complaint. For these reasons, the bill and, similarly, the Greens amendment cannot be supported.

Adjunct Associate Professor Fowler of the University of Notre Dame has argued:

To fail to recognise the rights of faith-based institutions would strip the wider community of the unique voice of such bodies. It is no understatement to say that in the Western tradition associational freedom has been the single greatest preserve of the equality rights of the individual. It is precisely the freedom of individuals to aggregate around common concerns and elect leaders who are able to articulate their unique view to the majority that has given birth to the fundamental freedoms we enjoy today. Individual equality is best preserved by a plurality of institutions, whose capacity to advocate for the fundamental rights of their members enjoys strong protection at law. In modern Australia it is the practical, granular terms and scope of the exemptions in anti-discrimination law that determine whether these foundational freedoms are maintained.

The withdrawal of such foundational societal freedoms is not a proportionate means to progress the equality right. Rather, the bill and the Greens' amendment seriously breach the equality rights of religious believers. In light of these considerations, both the bill and the Greens' amendment fail to acquit Australia's obligations under the international human rights law that Australia has ratified. Any reform will need to give detailed consideration to these complicated matters and will need to ensure that faith based schools are able to continue to teach in accordance with their religious convictions.

These matters were set out at length in the dissenting coalition senators' report to the Legal and Constitutional Affairs References Committee report on the Australian Greens' Discrimination Free Schools Bill 2018. That analysis remains equally applicable to Labor's bill. For these reasons, I'm of the view that this matter should be addressed as part of the government's holistic response to the Ruddock review so that the rights of LGBTI people are protected in a way that fairly balances that right with the competing rights of others and fosters a society in which the human rights of all people are encouraged to co-exist.