The leaked copy of the Morrison Government’s bill to protect students from discrimination has raised concerns and a push for more consultation with the community.
Anna Brown, Co-Chair of the Equality Campaign and Director of Legal Advocacy with the Human Rights Law Centre, said that no child should face discrimination at school.
“The most straight forward way to remove discrimination against children is to remove the exemption that allows religious schools to discriminate against kids. It’s that simple.”
"Kids in schools should be focused on classes and their homework, not living in fear of mistreatment because of who they are. All children should be accepted for who they are at school. Every school should be inclusive of all types of families.”
"The Government should table the bill so we can properly explore any risks or problems with the proposed drafting and make sure all students are protected," added Ms Brown.
The Government bill would remove all direct discrimination against students currently permitted under federal law. This would cover a student who has been expelled because they are gay. However, the bill allows for religious sensitivities and the best interests of students to be considered when assessing a claim for indirect discrimination.
“The test for indirect discrimination is already very broad and allows a school to demonstrate their conduct is reasonable in the circumstances,” said Ms Brown.
The proposed bill stops short of requiring schools to consider the best interests of the child as the primary consideration.
“This bill only requires the interests of children to be taken into account, rather requiring their best interests to be the primary consideration. This is unacceptable. Children’s wellbeing should always come first,” added Ms Brown.
The Government bill disregards the recommendation from the Ruddock view that schools must publish their policies on discrimination.
“It’s only fair that you can make informed decisions about the risk of discrimination before you enrol your child in a school or apply for a teaching job. The current law allows religious schools to rely on discriminatory policies when it suits them, which is inherently unfair,”
“Australians voted for fairness and equality this time last year, not discrimination against LGBT people. Teachers should be able to do their job without having to hide who they are,” added Ms Brown.
On 25 October 2018, a copy of the Sex Discrimination Amendment (Protecting Students) Bill 2018 was published in the media.
The bill would remove all direct discrimination against students currently permitted under federal law (e.g. expelling a student because they are gay).
Anti-discrimination law also prohibits indirect discrimination. Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute (e.g. a policy that requires all students to pass a strength test would tend to disadvantage girls).
Currently section 7B of the Sex Discrimination Act provides for a defence of ‘reasonableness’ to a claim of indirect discrimination. This involves taking into account (a) the nature and extent of the disadvantage, (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
The bill would amend the Sex Discrimination Act to introduce to two further ‘matters’ to be taken into account when assessing whether conduct is reasonable.
(a) whether the condition, requirement, or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed; and
(b) whether, in imposing, or proposing to impose, the condition, requirement or practice, the educational institution has regard to the best interests of the student.
The burden of proof will be on the school to provide evidence to satisfy the Court that the conduct was ‘reasonable’ in the circumstances.
The Religious Freedom Review report recommended that the best interests of the student be the ‘primary consideration’ but the Government bill only requires the educational institution to ‘have regard to’ the best interests of the child. The Religious Freedom Review report also recommended that schools be required to publish policies in relation to the matter in question. This requirement is absent from the bill.
The bill does not clarify that religious schools will not be able to continue to take advantage of the broad exemption available to ‘bodies established for religious purposes’ in section 37.
The bill does not protect students from discrimination in circumstances where they are refused enrolment or otherwise discriminated against because their parent or carer is gay, unmarried or a single parent.