On faith-based schools: freedom of religion and freedom from discrimination

On faith-based schools: freedom of religion and freedom from discrimination

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?

Well, there are many parents who want a schooling for their child that reflects their personal faith and the values by which that family has chosen to live. So, if we take away a school’s right to shape its own culture according to the values of the faith that family has chosen, we take away its character. We take away the different offering it can give to that which is available in the public sector. Now, of course, that’s precisely what those opposite would like. Not only would they happily squeeze every person of faith out of the public sphere; they also want to squeeze it out of our institutions until all that is left is a big government which is more easily directed to adopt the tenets of political correctness and the causes of the Left.

So, let’s step away from the politics and talk principle. What are the principles that should underpin the way we look at the balance between ensuring freedom of religion in this nation and ensuring that all students, no matter their attributes, are treated fairly? Let’s start at the fundamental rights of Australians. Article 18 of the International Covenant on Civil and Political Rights, the gold standard of human rights law, expressly protects freedom of thought, conscience and religion. It’s a right of the highest order—core to what makes a human human. I don’t trivialise the other rights we protect in international law—rights like equality and freedom from discrimination—but the problem with this amendment is that it doesn’t engage in a balancing exercise of those rights. It simply extinguishes religious freedom, and that’s never been how competing rights are meant to be managed.

Human rights law stipulates that strict conditions must be satisfied in order for the manifestation of freedom of religion or belief to be limited. It is a well-known principle of international law that not every differentiation of treatment will constitute discrimination, if the criteria for that differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate. In this context, the right to manifest religious belief at article 18.3 of the ICCPR may be limited only to the extent that it is necessary in order to protect the fundamental rights and freedoms of others. As now set out, the bill completely fails to comply with this requirement. It is in no sense proportionate.

The Siracusa principles—that is, the principles by which we resolve the conflict between competing rights at international law—also state that, in applying a limitation, we should ‘use no more restrictive means than are required for the achievement of the purpose of the limitation’. The complete removal of the religious freedom of a school in how it deals with students is clearly more restrictive than is required in order to progress the right to equality. In fact, the bill actually discriminates against religious believers as it imposes a burden upon them that they alone encounter on the basis of their religious conviction.

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.

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?

The Australian Bureau of Statistics notes that nearly a third of Australians, 30 per cent, reported in the census that they had no religion in 2016. It’s a statistic often cited by those who say this exemption has to go because we’re a secular society. However, such calls for a secular society often overlook the logical extension of the subsidy argument—that the 70 per cent of people who profess a form of religious belief are also subsidising non-religious persons through the proportion of the taxation they provide that is applied to public schools for all. There’s nothing wrong with that, but they should be entitled to get what they pay for. It should go without saying that a truly neutral, democratic and pluralistic society would seek to most accurately reflect both the religious and nonreligious sentiments that are exhibited within a society. In this context, this is most properly acquitted through the ongoing presence of both public schools and private religious schools in their true and meaningful sense.

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—the Australian 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.

Of course no-one has to be religious. You don’t have to have a faith or to choose to go to a religious school. Indeed, there are plenty of independent private schools that are not faith based, and there are even more public schools that willingly and happily accommodate these qualities in a student. But that’s not enough for the activists. They demand that all bend to their preferences. It’s not enough that the public school or the grammar school or the nonreligious private school would happily give them a great education. No; they require that even religious schools be deprived of the ability to teach and live the values that underpin that faith.

Let’s talk about what we need to do to fairly balance the rights of students who are homosexual or transgender with the rights of parents and students who want the benefits of a religious school and the approach to education and values that it provides. Here are four ideas that would help a great deal in getting the balance right—and I suggest they form the basis of quality amendments to the bill that is before this chamber. The first is that we need to make it very clear that religious educational institutions need to be able to both act in accordance with and teach their beliefs in respect of students. That needs to continue to be lawful in a way that means that it can’t constitute either direct or indirect discrimination. To say to a religious school that the faith they have had for thousands of years can no longer be passed on to the children of that flock because, within the last decade, we’ve decided that it contravenes modern principles of antidiscrimination, is absolutely contrary to the idea of religious freedom.

Here’s a second principle we should apply. We should be acting in the best interests of the child at all times and we should require schools, in their approach to dealing with students who struggle with these issues, to have regard at all times to the best interests of the child. It is the school and the parents involved who understand that student best. They are the institutions, rather than, say, the courts, that are best placed to decide what is in the best interests, in terms of welfare and education, of an individual student. But, when we consider the best interests of the child, we should consider those matters in the context in which that student lies. That means we need to have regard to the obligations of the school to other students. We should have regard to the maintenance of the religious ethos of the school as a component of the educational offering that’s provided, and there should be regard to any relevant professional advice that has been provided to assist that student.

Here’s another principle we should use to try and get the balance right in dealing with these matters. These amendments should extend beyond primary and secondary schools and should include tertiary institutions. To fail to do so would mean that tertiary faith based institutions, with the exception of Bible colleges, which are a different category under the act, wouldn’t be able to teach or act in accordance with the applicable doctrines. One thing I noticed that’s interesting about the bill that is currently before this chamber is that, in item 1, the provision of education is framed in the broadest of terms. That means that it doesn’t just encompass primary school and secondary school; it also encompasses kindergarten and faith based playgroups. ‘Education’ would also encompass the Sunday sermon or youth group of a religious organisation. If you’re going to tell a church that they can no longer give a sermon or offer a youth group that operates according to the tenets of their faith, then you might as well shut it down altogether.

Another principle we should have in mind is that, as we take away the exemptions in section 38(3), as I think most in this chamber would want to do, there needs to be explicit permission given to religious educational institutions that they can act in accordance with their beliefs regarding marriage, gender identity being biologically determined, and the proper expression of sexuality, including through the ways that it is taught in those schools. If we do anything less than those four principles, we will have irrevocably changed the nature of faith based education in this country in a way that unduly, unfairly and rather undemocratically will shut down religious freedom in this country.

In conclusion, let me reiterate: the expression of all these views doesn’t detract from the fact that of course we need to be kind and inclusive and helpful to people who are same-sex attracted or people who have transgender notions. Of course we need to be compassionate, but our desire to offer them compassion cannot come at the expense of all other students in a religious school, it cannot come at the expense of faiths that have been thousands of years in the making and are deeply held in the hearts of so many Australians, and it cannot come at the expense of the value that these institutions provide to our community as a whole as they educate so many students around this country. It’s for that reason that I oppose the bill in its current form and hope that there will be amendments of this nature brought before this chamber.