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NSWCCL SUBMISSION Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 Submission to the Senate Legal and Constitutional Affairs Legislation Committee 2019 1 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 About NSW Council for Civil Liberties NSWCCL is one of Australia’s leading human rights and civil liberties organisations, founded in 1963.
We are a non-political, non-religious and non-sectarian organisation that champions the rights of all to express their views and beliefs without suppression.

We also listen to individual complaints and, through volunteer efforts, attempt to help members of the public with civil liberties problems.

We prepare submissions to government, conduct court cases defending infringements of civil liberties, engage regularly in public debates, produce publications, and conduct many other activities.
CCL is a Non-Government Organisation in Special Consultative Status with the Economic and Social Council of the United Nations, by resolution 2006/221 (21 July 2006).
Contact NSW Council for Civil Liberties http://www.nswccl.org.au 2 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 The Council for Civil Liberties (CCL) thanks the Legal and Constitutional Affairs Committee (the Committee) for the opportunity to make a submission to its inquiry concerning the Removing Discrimination Against Students Bill (the Bill).

A.

Introduction.
A.

Introduction.

The crucial issues raised by this bill concern the safety and just treatment of students and teachers who are members of the groups protected by the Sex Discrimination Act (the Act); and the rights of parents in relation to the education of their children.

The rights of parents do not exist in a vacuum, but are derived from the rights and interests of their children.

Parents rights are there for the sake of their children.

As such, parents’ rights are subordinate to children’s rights.
The central issue in the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 therefore is not the entitlement of parents to determine the religious and moral education of their children, but the more fundamental right—that of children (and young people) to an education.

It is astonishing, therefore, that most of the second reading speeches which oppose or seek to amend the bill, and the submissions which do likewise, have little or nothing to say about children’s rights.1 B.
International law.

One section of the International Covenant on Civil and Political Rights has repeatedly been appealed to in the public debate on this bill, and, more generally, on the exemptions granted to educational institutions from the provisions of the Sex Discrimination Act.

It reads: Article 18 1.

Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2.

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3.
3.

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

1 The extensive and erudite submission by Dr. Alex Deagon, submission 3 in the Committee’s list, does not mention children’s or students’ rights at all, and their interests only once.
The comments by Associate Professor Neil Foster (https://lawandreligionaustralia.blog/2018/12/01/government-amendments-to- religious-schools-bill/) also do not address either matter.

3 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 4.
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.

However, that is not the whole of relevant international law.

In contrast to the ICCPR are a number of relevant articles from the Convention on the Rights of the Child (the CRC).

The issue is how these contrasting commitments are to be reconciled.

Article 13 1.
Article 13 1.

The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.

2.
2.

The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; or (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 14 1.

States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2.
2.

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3.

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Article 15 1.
Article 15 1.

States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly.

2.

No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 28 1.
States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; 4 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2.

States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.

Article 29 1.
States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.
2.

No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

(Emphases added.)

C. Reconciling the Covenant and the Convention.


The first thing to note is that the entitlement of parents is to educate their children, not to indoctrinate them.

Indoctrination, the closing of a student’s mind, produces belief that is unsupported by evidence or argument, or in fact disproven.

It produces uncritical dispositions to believe.

Indoctrination is thus contrary to the ‘development of the child's personality, talents and mental and physical abilities to their fullest potential’.
For example, restrictions within schools which inhibit student input (other than the normal requirements of classroom discipline) in the interests of supressing opposition to the religious beliefs and values that the school authorities wish to impart, is contrary to Article 13.

It would, at the least, inhibit the achievement of Article 19 (1) (d).
It is a mistake, then, to suppose that section 4 of Article 18 licenses parents to ensure that the schooling of their children will result in them adopting the beliefs and values of their parents.

At most, it entitles them to ensure that their children are aware of those beliefs and values, the reasons for them, and any competent reasons against them.

2 D. The effects of the proposed amendments to the Act.
The amendments in the Bill will have these effects: 2 See, from an extensive literature, Siegel, Harvey, 1988, Educating Reason: Rationality, Critical Thinking, and Education, New York: Routledge.
5 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 It will be unlawful for educational authorities in education institutions established for religious purposes or conducted in accordance with the doctrines, tenets, beliefs or teachings on a particular religion or creed, to discriminate against a student on the ground of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy of potential pregnancy or breastfeeding [LGBTIQ etc grounds] by: refusing or failing to accept the person’s application for admission as a student; imposing terms or conditions on which they are prepared to admit the person as a student denying access or limiting the student’s access to any benefit provided by the authority; expelling the student; subjecting the student to any detriment, even if these things are done in order to avoid injury to the religious susceptibilities of adherents to that religion or creed.
It is plain that school authorities do not need to do any of the actions that will be made unlawful in order ‘to ensure the religious and moral education of [parents’] children in conformity with their own convictions’.

E. Expelling a student, or refusing admission on LGBTIQ etc.

grounds.

1.

Let us assume for the sake of example that the school is a Catholic one.
The mere presence in a school of an LGBTIQ student is not going to prevent teachers from arguing that sexual relations between consenting adults of the same sex are immoral, on the basis of moral theory adopted by the Catholic Church.

A student might, of course, challenge the moral theory, the doctrine of double effect, the view of what is natural, the reliability of the Bible or popes, or the existence of God.
None of that is going to inhibit the religious education of the other students—unless of course the teachers have difficulty in answering the objections.

Moreover, students are going to meet such objections in their lives as adults.

It is, surely, part of their education to feel the force of the objections, and to know the extent to which they can be answered.
Indeed, if no student raises the objections, you would expect teachers, who have learnt about the ways of dealing with controversial issues, would raise them themselves.

It is extremely unlikely that such discussion will harm LGBTQI etc.

students.

2.

One of the reasons for permitting dissident views in schools and teaching students to discuss them with respect is that it models the kind of behaviour that is required in a tolerant and democratic society.
That is how the requirement of the CRC, that ‘The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin’ be one of the aims of their education, is met.

It is true, a student might make him or herself obnoxious by constantly interrupting classes in religious education with the same objections.
Dealing with this will be a normal matter of class discipline; to require the student to be thoughtful of others, to raise their hand before speaking and so on, is hardly acting to the student’s detriment.

That is also part of preparing the student for responsible life in a free, tolerant society—they are required to be tolerant themselves.

The example will not be lost on the other students.

F. The consequences of such discrimination.


6 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 What teachers do has more influence on their students’ morals than what they teach.

There are deleterious effects of discrimination on both the student discriminated against and on the other students.
In the extreme case, of expulsion, students lose continuity of schooling, their friends, trust in adults, and may come to consider themselves inferior beings, even cursed by God.

They will come to hate the denomination of the school that has humiliated them, that rejects them.

Other students learn intolerance of views that differ from their own.

They are denied the opportunity to learn how to reason about controversial issues with people of different views.
They may come to believe that any views contrary to those promulgated by their denomination are evil, and that those who hold them are bound for damnation; they may think that even to consider them is to set their souls at risk.

They become indoctrinated, in other words, unable to dare to consider the possibility that they are wrong.
At worst, they may learn that it is morally acceptable to discriminate against a person for unalterable features of their own nature; that such persons are other, inferior and dangerous or beings—Untermenschen, almost—and can justifiably be driven out.

Such deep prejudices may well transfer to groups other than LGBTIQ people.

They will carry these prejudices into their adult lives.

It is impossible to see that such treatment could ever be in the best interests of an LGBTIQ etc.

student.
student.

It cannot foster the education of the other students.

It is all harm and no benefit.

It has been suggested, nevertheless, that the authorities in schools should be able to make the decision as to whether proposed actions are in the interests of the student discriminated against.

Such legislation would be contrary to the rule of law, in the most obvious way.

G. Three mistaken objections.


It is argued that schools founded by religious bodies would not be able to teach the doctrines and moral views of those bodies, because this might be taken to harm LGBTIQ etc.

students.

Second, it is argued that if the Bill were enacted, it would catch up churches, synagogues and mosques, because sermons or homilies are part of their proceedings, and they would therefore count as bodies whose practice is connected with the provision of education.
Concerns have also been expressed that institutions that educate persons seeking ordination as priests or ministers of religion could be caught up in the legislation.

Tasmania has provided protection for LGBTI teachers since 1998.

None of the consequences that people fear have eventuated.

1.

Teaching doctrines.

One might suppose from some of the argument around this Bill that teaching doctrines, values etc.

must consist in simple instruction.


That betrays ignorance of the substantial body of literature concerning the teaching of controversial material.

It also betrays a lack of concern that such teaching may in fact harm LGBTIQ etc.

students.

7 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 Further, a court will not count something as a harm to a student, if the harm is trivial.
Teaching the mediaeval history of England may include the attacks on Edward II’s advisors, who were accused of being his gay partners.

Such information may cause brief distress to a gay student.

But whether this does any harm that a court would recognise as other than brief and trivial will depend more on how the material is handled than on its mere presence in the curriculum.

For the most part, such a concern would be fanciful.
Similarly, a competent, sensitive teacher will take care, when teaching about the doctrines of a religious body, to protect LGBTQI etc students from serious harm.

An insensitive teacher may indeed cause harm, and might even do so deliberately.

It appropriate that the legislation should inhibit such teachers.
Thus nothing in the bill will prevent teachers or principals from presenting and arguing for their religious beliefs and values, provided they do this in a way that educates, rather than indoctrinates, and is respectful of their students.
However, if the Committee deem otherwise, the exemption should be carefully circumscribed; it should be an exemption only for what is reasonable, necessary and proportionate for articulating deliberating upon and discussing the tenets of religions, and limited to courses in religious education.

2.

Sermons, homilies.

The concerns here might be dismissed as fanciful.


However, the simple amendment proposed by the Centre Alliance senators, on sheet # 8614, would remove the possibility, by limiting the effects of the Bill to education institutions.

CCL sees no problem with amending the Bill as proposed, to make clear its restriction to schools and universities and other tertiary education institutions.

3.

Training clergy etc.


The training of clergy is specifically exempted from the Act by subsection 37 (1) G. Other proposed amendments to the Bill.

Apart from the Centre Alliance proposed amendment, discussed above, there is one amendment put forward by The Greens party, (sheet 8601) and five by the Government (sheets KQ148—KQ1551).

The Government amendments KQ 148, 150 and 151 each replace the existing exemptions for religious bodies with fresh exemptions.
Our arguments above provide more than enough reason for these amendments to be rejected.

They would provide, in fact, permission to do harm to students.

Similarly, amendment KQ 147 simply deletes what is essential for the Bill to have effect.

Government amendment KQ 149 concerns itself with the freedom to teach the tenets of a religion.

As argued above, CCL does not think that this is necessary.
8 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 The Greens amendment would repeal subsections (1) and (2) of section 38 of the Act, and remove prosed paragraph 37 (3) (b) of the Bill.

This would have the effect of removing the existing exemptions in respect of teachers and contract workers in educational institutions, and of excluding a new exemption.

CCL supports this amendment.

The dismissal of a teacher on LGBTIA etc.


grounds has effects on both the teacher and students.

The effects on students are the same as those caused by the expulsion of a GLBTIQ student—they have an example of intolerance, their prejudices are created or reinforced, they may become indoctrinated.
And, as Olivia Hogarth, an openly lesbian teacher in a Catholic School in Tasmania has pointed out, forcing teachers to hide teaches students that secrecy and hypocrisy are acceptable.3 But there are further consequences—if decisions on hiring and firing are not merit based, but made on LGBTIQ etc.

grounds, educational quality must suffer.

The effects on teachers are vividly illustrated in the second reading speech of Senator Rice, on November 29 last year.
Senator Rice quotes a lesbian person who was employed as a teacher by a Christian school, who because of the risk to her career kept her sexual orientation secret, at severe cost, life threatening cost, to her health.

When she was dismissed, she found the experience dehumanising and devastating--she couldn’t work at the school just because of who she is.

She had difficulty obtaining alternative employment.

The law should not permit such discrimination.


By contrast, Olivia Hogarth points out ‘Most Tasmanian Catholic schools would now support LGBTI students, and some run education programs for teachers on LGBTI inclusive practice.

Many I have worked in address LGBTI discrimination alongside other social justice issues, both within the curriculum and beyond.
‘There have been none of the “forced closures” or “existential crises” predicted by religious leaders in other states when the discrimination issue comes up.’ H. Teachers of religions.

CCL recognises that a person who is employed specifically to teach the beliefs and practices of a religious group mat need to be a member of that group, practising what she or he teaches.
An amendment permitting discrimination in the employment of full-time teachers of religious beliefs (and only those)—discrimination that is proportional, reasonable and necessary, would be acceptable.

I.

Conclusion.

3 ‘Tasmania’s Discrimination Protections for LGBTI Teachers in Religious Schools Work.

I Know at First Hand’, New Matilda, January 23, 2019.
9 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531 The existence of prejudices against LGBTIQ persons makes them subject to discrimination, to hurtful comments, public scorning, discrimination, and worse.

It is only recently that a string of deaths that occurred in Sydney a few years ago has been investigated as the murders they probably were.
The amendments to the Sex Discrimination Act to include discrimination on LGBTIQ+ grounds were important steps towards ending those prejudices.

It is time to stop the contribution that is made to the perpetuation of prejudices by discrimination against teachers, contract workers and students in religious institutions.

Recommendation 1: The Committee should recommend that the Parliament accept the amendments proposed by the Greens and the Centre Alliance parties.
Recommendation 2: The Committee should recommend that the Parliament reject the amendments proposed by the Government.

Recommendation 3: The Committee should recommend that the Parliament pass the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018.

This submission was prepared by Dr. Martin Bibby on behalf of the New South Wales Council for Civil Liberties.

10 Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018Submission 531