Senate report recommends removal of religious exemptions allowing faith-based discrimination against LGBTI students and teachers
Australian Lawyers for Human Rights (ALHR) commends the recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs inquiry into legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff.
The matter was referred to the Committee on 13 November 2018, following leaks of the Religious Freedoms Review, known as the Ruddock Review, to the media in October 2018. The Committee was required to report within a very short timeframe by 26 November 2018. The Government has been criticised for failing to release the Ruddock Review and denying an order to table it in the Senate, despite having been handed it in May 2018.
Notwithstanding the extremely limited timeframe given, the Committee received 180 submissions from individuals, schools, educational bodies and key human rights organisations including ALHR. In its report released yesterday the Committee recommended that the government reject the leaked recommendations of the Religious Freedom Review which sought to 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.
Georgia Burke, Co-Chair of ALHR’s LGBTI Rights Committee said, “We echo the committee’s recommendation to immediately release to the public the full report and findings of the Religious Freedoms Review and call on the government to heed the recommendations made by the committee to amend s 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 sexual orientation, gender identity or relationship status, which are protected attributes in the Act.”
However government senators have spoken out against the recommendations, causing shadow Attorney General Mark Dreyfus to introduce a private members bill to repeal religious exemptions for discrimination against LGBTI Students.
Nicholas Stewart, Co-Chair of ALHR’s LGBTI Rights Committee said, “The committee’s recommendations were a relief to LGBTI students and their families who, only a year on from the marriage equality debate, are having their human rights debated on the national stage yet again. Hearing the views expressed by dissenting Coalition senators however, the concern is that this will be short lived.”
“Protections must also extend to LGBTI teachers,” Burke said. Even if children are not directly discriminated against by the faith-based institution in which they have been placed, they are effectively taught, where discrimination by such institutions is permitted, that faith-based discrimination is legally and socially acceptable.
“ALHR calls on the senators who have spoken out against the committee’s recommendations to reconsider their positions in light of Australia’s human rights obligations pursuant to the UN Convention on the Rights of the Child which establishes that in all actions concerning children the best interests of the child must be a primary consideration and that all children have an equal right to an education that provides life skills, the capacity to enjoy the full range of human rights and which promotes a culture infused by appropriate human rights values such as equality and non-discrimination.”
Contact: Matt Mitchell, ALHR media manager 0431 980 365.
ALHR has made a submission to the Senate Legal and Constitutional Affairs References Committee on Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff
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.
ALHR has submitted that faith-based educational institutions should not be permitted to discriminate against staff or students. There is no theoretical or practical justification for such an exemption from Australian anti-discrimination legislation. Discrimination is rightly made illegal because it is harmful. Discrimination against children is reprehensible. It is also inconsistent with the UN Convention on the Rights of the Child. LGBTI children are particularly vulnerable children due to the risk of homophobic or transphobic bullying in schools. Homophobic and transphobic bullying is perpetuated where permissible discrimination is able to exist in faith based institutions
Even if children who are students are not directly discriminated against by the faith-based institution in which they have been placed, they are effectively taught (where discrimination by such institutions is permitted) that faith-based discrimination is legally and socially acceptable.
The right to express one’s religious beliefs is a limited right which must be balanced against other types of rights and other peoples’ rights. It does not ‘trump’ other rights, such as the right to be free from discrimination. A secular Australian democratic government should not privilege the right to act on ‘religious’ views which are discriminatory. Where protection is desired for particular behaviour it will be relevant to what extent that behaviour reflects respect for the rights of others.
Human rights provide an appropriate standard and framework which should be applied: Without the support of a human rights framework which provides the principles and procedures for the balancing of competing interests, religious freedom for everyone in Australia in every religious community is effectively impossible (because of the conflicts in tenets of different religions). Human rights entail both rights and obligations. Hence in so far as we are ourselves entitled to the protection of human rights, we must also respect the human rights of others.2 An extrinsic standard is also required so that society does not support only the dominant religion and does not suppress secularism, atheism or other religions. A human rights framework can provide that standard.
In the words of the current UN Special Rapporteur on Freedom of Religion or Belief, Ahmed Shaheed4
‘all believers — whether theistic, non-theistic, atheistic or other — should join hands and hearts in articulating ways in which “faith” can stand up for “rights” more effectively, so that each enhances the other. Rejecting expressions of hatred within one’s own community and extending solidarity and support across faith or belief boundaries are honourable and meaningful actions.’
In ALHR’s view, laws which allow faith-based educational institutions to discriminate against staff or students are counter to the human rights framework established by the rules-based international legal order and have no practical nor theoretical justification.