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Monday, 3 December 2018
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Senator SESELJA (Australian Capital Territory—Assistant Minister for Treasury and Finance) (12:02): In my contribution on Thursday, I made clear some of the concerns in the community about an unamended version of this bill and its implications. To quote Senator Keneally, in her contribution:

We also know that the overwhelming majority of religious schools do not want or see the need for these exemptions. We know this as a result of the recent Senate inquiry, where Catholic and other religious school systems gave evidence that these exemptions are not used or relied upon.

I went through Christian Schools Australia—65,000 students plus the 15,000 from Adventist schools—and the Australian Association of Christian Schools—110 or so schools with 45,000 students. I also talked about the statements from members of the Australian Catholic Bishops Conference, who educate around 766,000 students in this country, and a number of others.

Even if we were to accept, despite the fact that those numbers tell a very, very different story, that there are no significant concerns or that it's only a minority, this goes to the very point about what religious freedom is and what freedom of religious belief is. It's not about whether there's a majority who have a particular view; it's about whether or not there is a right to express that view.

Dr Alex Deagon, of the Queensland University of Technology, states:

The idea of religious freedom is to protect religious belief and practice from any prevailing orthodoxy (e.g. equality) which might oppose it. The idea is 'worthless' if it is allowed only when it fits in with that particular orthodoxy.

   …   …   …

As Trigg powerfully observes, 'the essence of religious freedom is that people are allowed to follow their religion, even if it is a different one from that of the majority. The accommodation of minority beliefs is what distinguishes democracy from a totalitarian state'.

Choice in education, of course, means choice in education. There will be a range of providers who have different views on all sorts of things.

One of the great things in Australia is that parents have the opportunity to choose—based on their religious beliefs, in many cases—an institution which adheres to their beliefs, be they majority or minority beliefs. And so for that reason the government is proposing a number of amendments to ensure we protect genuine religious freedom in schools. The Labor bill as it stands completely removes the ability of religious educational institutions to maintain their ethos through what they teach and through the rules of conduct they impose on students. This is because such teaching and rules of conduct will now expose the religious schools to litigation under the Sex Discrimination Act to which they were previously not exposed. Labor's bill is, thus, as it stands unamended, contrary to the basic human rights of freedom of thought, conscience and religion. As stated in 18(4) of the ICCPR most specifically when it comes to schools:

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.

Therefore, it's completely reasonable and in line with the principle of freedom of religion to ensure religious institutions are able to uphold their ethos.

As I have mentioned, the government's position is that we don't want to see discrimination against students, but what we also don't want to see is the freedom of religion taken away through changes that are done in a hasty manner without considering the consequences. There are now a growing number of warnings about those consequences. Under the Sex Discrimination Act, unless it is reasonable in the circumstances, a condition, requirement or practice will unlawfully discriminate against a person on the basis of a protected attribute—for example, their sexual orientation—if the condition, requirement or practice has or is likely to have the effect of disadvantaging a person with that protected attribute.

Government amendments clarify the operation of section 7B of the act, which sets out criteria for determining whether a condition, requirement or practice is reasonable in the circumstances. The new provisions will clarify that religious educational institutions may continue to impose rules regarding student conduct consistent with the doctrines, tenets, beliefs or teachings of that institution. These amendments are necessary to provide certainty to the Australian public, particularly students, their parents and those attending or sending students to religious educational institutions, that no student should be discriminated against on the basis of their sexual orientation and that reasonable rules at that institution should be allowed so as to maintain that institution's religious ethos. A further amendment from the government protects the ability of religious educational institutions to teach in accordance with their faith, which is fundamental to their character as religious educational institutions. It is a modest, sensible amendment that clarifies that, if an educational institution is established for religious purposes, it does not contravene the Sex Discrimination Act by teaching in accordance with the doctrines, tenets, beliefs or teachings of that institution if that teaching is done in good faith.

The next elements of our amendment are also modest, sensible amendments to protect the ability of religious schools to impose reasonable rules in relation to behaviour and conduct. These amendments give certainty to Australian students and families by ensuring they are protected from discrimination on the grounds of sexual orientation, marital or relationship status or pregnancy and preserve the ability of religious educational institutions to impose reasonable rules in good faith that necessarily have regard to the best interests of the student.

Finally, item 1 of this bill is clearly out of step with Australian community expectations when it comes to religious bodies and flagrantly infringes the fundamental human right to freedom of religion. As Mark Fowler, adjunct associate professor at Sydney's Notre Dame law school, wrote in The Australian on the weekend: 'On a plain reading, this would capture the Sunday morning sermon, the Friday khutbah at the mosque, a Buddhist meditation course, the children's Sunday school, the midweek Bible study, the Friday night youth group talk. It is clear to both the preacher and the recipient in all of these exchanges that they are participating in an act of education that expands upon religious principles.' I ask senators: do they and we as a nation really want to go down this path? This item puts these institutions at risk of expensive litigation and threatens the very foundations of religious freedom. That is why we are proposing to remove that item so that churches, synagogues, mosques, prayer centres and seminaries are not compelled to admit students who clearly have no intention of upholding the ethos of the institution.

In conclusion, schools must be allowed to uphold their ethos, not only through what they teach but in all aspects. This is fundamental to freedom of religion, and this bill, if left unamended, does put that at significant risk. I would urge senators to consider this matter seriously. I think it is unfortunate that this debate is being curtailed in the way that it is being. But in the time—

Senator Jacinta Collins: Then why did you do it?

Senator SESELJA: Well, we didn't vote for this particular motion.

Senator Jacinta Collins interjecting—

Senator SESELJA: No, that's not true. I'm getting interjections from the senator. We didn't vote to gag debate on this bill.

Senator Jacinta Collins: You gagged the inquiry instead.

Senator SESELJA: Well, we're having a debate about something which we would all agree is pretty fundamental and important. And there is going to be about three-and-a-bit hours of debate on this bill, which could have profound implications for religious schools and religious bodies in this country. But in the short time available to consider in this debate, I would urge senators to consider this matter seriously, to look at the implications of the bill, to listen to religious leaders and teachers who foresee a future where religious education is put under serious threat.

I spoke on Thursday about the concerns held by the Catholic sector, the Anglicans, Christian Schools Australia, the Association of Christian Schools and the Islamic Schools Association. Between them, they represent a huge majority of faith based schools in Australia and they've all raised serious concerns. And this goes to the nub of it. We're all in agreement that no-one wants to see a student expelled for being gay. The government supports moves in that direction. No-one wants to see that and that's not what occurs now.

Senator O'Neill: It hasn't happened. This is a political crisis of your own making.

Senator SESELJA: The senator interjects, and seems to argue against her own case. The point I'm making is that we're all in agreement on that. And that's right—it doesn't happen. But to avoid doubt, we're happy to change pieces of legislation, but without actually having any sort of positive protection for religious institutions in this country, any sort of positive protection for religious institutions in this country—

Senator O'Neill interjecting—

The DEPUTY PRESIDENT: Order! Senator O'Neill.

Senator SESELJA: Thank you, Deputy President. So we agree with that. But the bill, as it stands, unamended, would go much further than that. And Labor appears intent, unfortunately, on following the Greens down a path of persecuting religious schools or for pursuing a majority test for religious freedom.

Our amendments clarify that faith based schools and other educational institutions should still be allowed to teach in accordance with their faith, by ensuring they can hire people according to their ethos and allowing them to put in place reasonable rules of conduct to preserve their religious character. I firmly believe that reasonable senators here support freedom of religion and the freedom of schools to teach their values. And if you support those fundamental rights and freedoms, I would urge you to support the government amendments to this bill, which will ensure there is no unjust discrimination but will protect the rights of faith based schools. I commend those amendments to the Senate.