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Call to end religious schools' exemption from anti-discrimination laws

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Greens MLC Tammy Franks has called on the SA Education Minister to urgently respond to concerns and confusion about recommendations of the federal religious freedom inquiry.

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The Federal Liberal Party is embroiled in turmoil after Fairfax Media yesterday published leaked information from the long-awaited religious freedom inquiry report, which is yet to be released by the Government.

Fairfax reported that the inquiry – chaired by former Liberal minister Philip Ruddock – had called for the federal Sex Discrimination Act to be amended to codify the capacity of religious schools to discriminate against students on the basis of their sexual orientation, gender or relationship status.

Ruddock later claimed his recommendations were designed to narrow the exemptions currently available in law.

Some states – including South Australia – already allow schools to discriminate in hiring decisions on the basis of sexual orientation, gender identity or relationship status.

Commonwealth laws also contain some provisions to permit faith-based schools to exercise this discretion in relation to hiring teachers and accepting students.

The inquiry’s panel delivered its findings to the Federal Government in May.

Responding to the leaks yesterday, Prime Minister Scott Morrison repeatedly insisted that it was already existing law for religious schools to be able to lawfully discriminate against students based on their sexuality.

He added the Government was not proposing to amend or remove that law.

SA Greens MLC Tammy Franks sent a letter to State Education Minister John Gardner this morning seeking an urgent public response.

“As Education Minister, I have no doubt you are aware Article 26 of the Universal United Nations Declaration of Human Rights states that ‘everyone has the right to education’ and that right is also enshrined by the compulsion for children to be educated up to the age of 16 in our state’.” Franks wrote.

“You would also be aware that presently, South Australian law… ensures protections for school students against discrimination in education based on their sexual orientation or gender identity under S.37 of the Equal Opportunity Act 1984.”

Under South Australian law, schools cannot discriminate against students on the basis of their sexuality or gender identity. However, teachers are exempt from that ruling if the discrimination is founded on the precepts of a school’s religion.

The current Equal Opportunity Act outlines discrimination against employees on the basis of sexuality is lawful if teachers, students, parents and the public are provided with a written policy stating the school’s position.

But South Australian Equal Opportunity Commissioner Niki Vincent told InDaily SA schools could technically discriminate against students too, under a general exemption clause in the Act.

The exemption says people could be discriminated against by a “body established for religious purposes that conforms with the precepts of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.

That general exemption could potentially be relied upon to allow discrimination by religious schools against students on the basis of their sexual orientation, gender identity or intersex status,” she said.

“In a sense, religious schools could claim a right to enrol students who adhere to the religious teachings of a school under that general exemption.

“To our knowledge it’s very rarely used by schools to exclude or to discriminate against students, but theoretically the way it’s written, it could actually be used.”

Asked if South Australia’s current laws could change if the recommendations from the federal religious freedoms review came into effect, Vincent said: “All federal law trumps state law.”

Vincent said she would prefer to wait until Ruddock’s review was published in full before making further comment regarding the implications for South Australia.

In her letter to Gardner, Franks said it was “disturbing” that South Australian laws could be overrided or limited by a potential change to the federal Sex Discrimination Act.  

She called on Gardner to publicly clarify the existing protections for students in the South Australian system “for the benefit of both the Prime Minister and for the children of our state” and to cut state funding from schools that discriminated against students and staff based on their gender identity or sexual orientation.

Franks also told InDaily she would be open to introducing a Private Members Bill in Parliament that compelled schools to openly state their position on sexuality and gender identity when hiring staff.

In her letter to Gardner, she also said she would introduce a Bill to end employment discrimination in all SA schools in the coming weeks.

“I’m happy to make amendments to protect staff in a similar way to students,” Franks said.

“At the moment teachers can be sacked and we don’t have that section in the Equal Opportunity Act passed to prevent that.”

In a statement to InDaily, Gardner said the Government had not proposed changes to existing school arrangements.

“I am not aware of any South Australian schools that either are or have even sought to discriminate against gay students,” he said.

“It is very important that all young people in our community know that schools are a safe and nurturing environment for them to be able to undertake their education.”

The Guardian Australia has published additional leaks from the religious freedoms report suggests the report believes there is no need to introduce provisions to allow religious schools to discriminate on the basis of sexuality in jurisdictions with greater protection for LGBTI staff and students.

“To the extent that some jurisdictions do not currently allow religious schools to discriminate against students on the basis of sexual orientation, gender identity and gender characteristics, the panel sees no need to introduce such provisions,” The Guardian quoted the report as saying.

Ruddock confirmed to The Guardian that this was a finding of the report, but would not 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.

Prime Minister Morrison said today the report and the Government’s response would be released by the end of the year.

with AAP

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