Se­na­tors warn against ex­pand­ing re­li­gious schools' rights to ex­pel gay stu­dents

The Guardian Australia - - News - Paul Karp

Key cross­bench se­na­tors have warned the gov­ern­ment not to ex­pand re­li­gious schools’ right to fire gay teach­ers and ex­pel gay stu­dents, as Philip Rud­dock in­ter­vened to claim the re­li­gious free­dom re­port was de­signed to “pro­vide clar­ity” about where this can al­ready oc­cur.

Sen­a­tor Der­ryn Hinch and the Cen­tre Al­liance’s Rex Pa­trick told Guardian Aus­tralia any such changes would be “ret­ro­grade” and “in­ap­pro­pri­ate” af­ter the leak of sec­tions of the Rud­dock re­li­gious free­dom re­view back­ing schools’ right to turn away gay stu­dents. Hinch also called for the gov­ern­ment to strip pub­lic funds from schools that dis­crim­i­nate on the ba­sis of sex­u­al­ity.

One Lib­eral sup­porter of same-sex mar­riage – the MP Trent Zim­mer­man – has pro­vided qual­i­fied back­ing to Rud­dock’s view that the re­port has rec­om­mended “pos­i­tive changes” that will in fact re­strict re­li­gious schools’ abil­ity to dis­crim­i­nate un­der ex­ist­ing fed­eral law. The full re­port has not been re­leased pub­licly.

Guardian Aus­tralia has con­firmed that the Rud­dock re­view rec­om­mended the com­mon­wealth amend the fed­eral Sex Dis­crim­i­na­tion Act to pro­vide “that re­li­gious schools may dis­crim­i­nate in re­la­tion to stu­dents on the ba­sis of sex­ual ori­en­ta­tion, gen­der iden­tity or re­la­tion­ship sta­tus”.

By stat­ing that schools may dis­crim­i­nate in fed­eral law, the sec­tion may cre­ate an in­con­sis­tency with state laws and over­ride those that pro­vide greater pro­tec­tions to LGBTI peo­ple. Fed­eral law cur­rently al­lows re­li­gious schools to dis­crim­i­nate by way of an ex­emp­tion that does not over­ride state laws.

LGBTI ad­vo­cates have called on the gov­ern­ment to rule out ex­tend­ing the fed­eral law to the states, be­cause stu­dents in Queens­land and Tas­ma­nia and teach­ers in Tas­ma­nia are pro­tected from dis­crim­i­na­tion on the ba­sis of sex­u­al­ity.

In or­der to gain the right to dis­crim­i­nate, schools would need to pro­vide a pub­lic pol­icy stat­ing their po­si­tion and give no­tice to par­ents, stu­dents and prospec­tive stu­dents.

Fur­ther safe­guards re­quire that the school must have “re­gard to the best in­ter­ests of the child as the pri­mary con­sid­er­a­tion in its con­duct” and dis­crim­i­na­tion must be “founded in the pre­cepts of the re­li­gion”.

Rud­dock told Guardian Aus­tralia the panel found that “in large mea­sure” the is­sue of fir­ing teach­ers and ex­pelling stu­dents “was not a prob­lem”.

How­ever, Rud­dock said some re­li­gious schools felt that “their ethos, part of their be­lief sys­tem” could be “un­rea­son­ably chal­lenged”, for ex­am­ple if stu­dents pros­e­ly­tise against re­li­gious teach­ings.

He said the rec­om­men­da­tion sought to en­sure in ju­ris­dic­tions where dis­crim­i­na­tion on sex­u­al­ity can al­ready oc­cur – in­clud­ing New South Wales and the Aus­tralian Cap­i­tal Ter­ri­tory – schools “can’t am­bush peo­ple – they need to spell it out with clar­ity”.

A fur­ther leak from the Rud­dock re­view – seen by Guardian Aus­tralia – re­vealed the panel said there was “no need” to in­tro­duce pro­vi­sions al­low­ing re­li­gious schools to dis­crim­i­nate on the ba­sis of sex­u­al­ity in ju­ris­dic­tions with greater pro­tec­tion for LGBTI staff and stu­dents.

Rud­dock con­firmed this was a find­ing of the re­port, but de­clined to say whether any­thing else in the re­port could over­turn the rights of stu­dents and teach­ers in ju­ris­dic­tions cur­rently pro­tected from dis­crim­i­na­tion on the ba­sis of sex­u­al­ity.

Pa­trick said that re­li­gious free­dom laws were a mat­ter of con­science in his party but he would “find it in­ap­pro­pri­ate” for laws to al­low fir­ing of gay teach­ers and ex­pul­sion of gay stu­dents based on sex­u­al­ity.

“Teach­ers should be em­ployed on merit and ex­clu­sively on merit,” he said. “Stu­dents should be able to at­tend a re­li­gious school … ir­re­spec­tive of their sex­u­al­ity.”

Cen­tre Al­liance ed­u­ca­tion spokes­woman, MP Re­bekha Sharkie, agreed that if re­li­gious schools get pub­lic fund­ing they should not be able to dis­crim­i­nate.

Hinch said if re­ports that pow­ers to fire and ex­pel gay staff and stu­dents could be ex­tended are ac­cu­rate “it is a ret­ro­grade step for this coun­try and won’t pass the Se­nate”.

Hinch also flagged a Se­nate mo­tion that pri­vate schools should “be stripped of all gov­ern­ment funds and charity sta­tus” if they dis­crim­i­nate against a teacher or stu­dent on sex­u­al­ity grounds.

On Wed­nes­day the at­tor­ney gen­eral, Chris­tian Porter, went into dam­age con­trol, ar­gu­ing there is “no pro­posal for any new ex­emp­tion” be­cause fed­eral law al­ready al­lows re­li­gious schools to re­ject teach­ers and stu­dents based on sex­u­al­ity.

Scott Mor­ri­son said the “ex­ist­ing law” is to al­low schools to turn stu­dents away based on sex­u­al­ity. The Rud­dock re­view – sub­mit­ted in May – is a re­port to gov­ern­ment and is yet to be con­sid­ered in cab­i­net.

Zim­mer­man told Guardian Aus­tralia he hadn’t seen the re­port but “based on re­port­ing it seems to rec­om­mend some pos­i­tive changes to ex­ist­ing fed­eral law which al­low re­li­gious schools to dis­crim­i­nate”.

He said these in­cluded re­quir­ing schools to pub­lish a pol­icy of their in­ten­tion to dis­crim­i­nate on the grounds of sex­u­al­ity, and re­strict­ing dis­crim­i­na­tion to “new en­rolees, not ex­ist­ing stu­dents”.

In an­other part of the Rud­dock re­view seen by Guardian Aus­tralia, the panel said there was “no jus­ti­fi­ca­tion” for schools to dis­crim­i­nate on the ba­sis of race, dis­abil­ity, preg­nancy or in­ter­sex sta­tus.

It rec­om­mended these ex­cep­tions to anti-dis­crim­i­na­tion law that al­low re­li­gious schools to dis­crim­i­nate on those grounds to be abol­ished, which Zim­mer­man said would lead to “greater pro­tec­tion”.

The re­port rec­om­mended that states should not al­low re­li­gious schools to dis­crim­i­nate against an em­ployee “solely on the ba­sis that the em­ployee has en­tered into a mar­riage”.

In a state­ment the shadow at­tor­ney gen­eral, Mark Dreyfus, said: “La­bor has been clear – we will not sup­port any weak­en­ing of ex­ist­ing anti-dis­crim­i­na­tion law.

“We will not sup­port any new laws which make it eas­ier to turn kids away from a school be­cause of who they are.”

The Greens have also com­mit­ted to op­pos­ing any changes that might ex­tend re­li­gious schools’ pow­ers to dis­crim­i­nate.

Pho­to­graph: Mick Tsikas/AAP

Philip Rud­dock be­lieves the is­sue of fir­ing teach­ers and ex­pelling stu­dents is largely ‘not a prob­lem’.

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