Published: 28 May 2015

[3.57 p.m.]

Ms FORREST (Murchison) - Mr President, I only wish to comment on a small number of aspects of this bill, as this issue was debated at length in 2013 and very little, if anything, has actually changed.  The member for Elwick made it pretty clear that nothing really has changed in many ways. 


At that time, when it was identified that some small religion-based schools were acting outside the law, it was made very clear that the Anti-Discrimination Commissioner would work with these schools to address this.  It seems this offer has not been taken up and rather a general exception is sought to avoid the need to demonstrate the necessity to exclude some children.


I have real concerns about enshrining the right to discriminate on the basis of religious belief, as we know religion has been used for centuries as a shield in all manner of discriminative practices and behaviours.  One of the arguments that has been given in support of the bill includes that we already discriminate in other areas such as gender with a single-sex school.  I believe this argument is just a diversion and seeks to detract from the real issue here.


There have also been claims that this bill will prevent schools from allowing them the right to religious freedom.  First, this bill does not prevent anyone or any school expressing and practising their religious beliefs.  Second, freedom of religion is a personal right, not a school's right.  The other point made, that this would bring us in line with other Australian jurisdictions, is clearly erroneous.  There are significant variants across the country.  I do not believe it is right to water down what is a good and strong anti-discrimination legislation in the guise of consistency when that is clearly not the case in any event.


There has also been a claim that the current process is cumbersome and uncertain.  I agree that the right to discriminate, if it is enshrined in legislation at all, should not be an easy process to achieve.  Those who seek to exercise a right to discriminate should be required to justify this right, should it be granted.  Without this, the strength and the current intent of our legislative framework in this area is undermined and devalued.


This is a matter that is very serious and should be taken very seriously.  We are all aware - we should be all aware if we are not - of the terrible devastating and permanent harms that result from incidents of discrimination.


The bill will also effectively limit choice for families who may wish to enrol their child at a specific school, a school that receives significant government funding for reasons other than religion.  It may be geographic.  It may be that specific programs are offered at the school that provide specific benefits to the child.  There may be many reasons.  In any event, a parent seeking enrolment for their child could reasonably be expected to know that their child will be taught according to the doctrine of the school.  It is a reality that children enrolled in a Catholic school, for example, will all participate in religious education instruction.  Non-Catholic children will not receive the sacraments, however, they will all participate in the preparation the other children are engaged in.


On this point I wish to foreshadow an amendment I believe should be included if this bill is supported into the Committee stage.  It will require any schools that wish to use or may use this exception provision to potentially exercise their right to discriminate on the basis of religious tenets, beliefs, teachings, principles or practices, to inform any prospective students and/or their parents of that right.  So it is up front and clear; there is no mistake, there is no question.  I cannot believe anyone would want to oppose that because this is what they are asking for after all.


Whilst there appears to be an issue that requires resolving for some of the smaller religious-based schools that are very unlikely to ever be oversubscribed - so they are unable to achieve an exemption through the general exemption provisions - the option of having a more proactive exemption process adjusted to meet their needs has not been considered.  I believe that is the way it should have been considered, not a general exception provision.  I do not believe the way this legislation is proposed is the right way to go.  It sends the wrong message to our society and to our children.


Some members have mentioned they have had hardly any representation from the community.  I have not had a lot but I have had some, and some very strong opinions.  One was a constituent of the member for Montgomery but she lived in Burnie so she did not know that she was on the wrong side of the boundary.  I suggested she contact the member for Montgomery but I represent her views as well.  She was a lady in her eighties who was very adamant that this legislation should not be supported for a number of reasons.  In particular she thought it was discriminating against children in a way that was not acceptable.  She is entitled to her view, as everyone is, and I respect everyone's view.  She put a very strong case.


I have had a number of people talk to me about this when I have been out and about at functions in my electorate.  Members may not have had the representation, and that is fine, but views are raised in the minds of people at different times.  I have had very strong opposition to this and even when I spoke to people at a Catholic school in my area, who contacted me, when we sat down and talked about it, they did not really need it and did not particularly want it because it is not necessary, and what is there works.  The case for this legislation has not been made in the work I have done in my electorate, particularly.


Some schools have contacted me to discuss this, and those from my electorate have provided me with a description of their enrolment processes and policies which have clearly indicated that change is not needed.


Some schools that will be subject to this legislative change have a policy of inclusion, an inclusion of all-comers, and they welcome all faiths and rely on the financial contribution of those who are often not members of their faith, as they tend to heavily subsidise other families in some cases.  So it allows them to allow children of their own faith to be educated in their facility because they are cross-subsidised by those who are not of their faith.  Those things are all very relative and important to note.


To me there is not a demonstrated need for this change, as proposed.  I believe this bill and the process requires fresh thinking and a different approach to deal with a very small number of small religious-based schools within Tasmania.  Enshrining discrimination in our laws in this manner is fraught and could well result in unintended consequences and a real risk of long, drawn-out legal battles where the burden of proof shifts from the school or church - a large, well-funded and powerful institution - to the child and the child's family.  This is not the way we should treat those vulnerable and less powerful members of our community.  This approach needs to be reconsidered.


Another concern is the practicality of the law when questions of religious tenets, beliefs, teachings and principles or the practices of a particular student, who may be a very young child, will, by their very nature, require a tribunal or a secular court to make a determination on religious belief.  This too is fraught.  Under this bill, all schools will be required to have a very robust admission assessment process which they will need to apply to every child, particularly when a child makes a claim against the school.  I have no doubt this will provide a challenge to schools, possibly a bigger challenge than applying for an exemption.


Ms Rattray - Would they not have a rigorous enrolment process anyway?


Ms FORREST - I am talking about assessing the child's capacity here and their beliefs, and that sort of thing.  That has never been tested; it has not had to be tested.  That is the point.  The member for Mersey talked a lot about this - the risks and challenges of assessing a child's religious beliefs, whether based on the parents' or the child's beliefs, is fraught.  I believe there is a better way of doing it, which has not been considered here.


Other members have commented widely on these matters, so I am not going to go on at length.  I have raised the key points I think are relevant.


I was somewhat staggered to hear a church leader last night at the briefings talk about this issue as being a matter of trust.


First, we should not make laws on the basis of trust.  We are legislators.  We are not here to make laws in the hope that people will do the right thing.  We make laws to ensure that those who perhaps are not trustworthy are actually required to act according to the expectations of society as a whole.  Unfortunately we need to legislate for the lowest common denominator.  Martin Luther King said that the law cannot change the heart but it can restrain the heartless.  We are not making laws here for the best-case scenario.  We are not making laws for those who do the right thing.  We are making laws for the minority who do not do the right thing.


Second, while some of these schools may originally have been built and run using funds provided by parishioners, these schools now receive, in the words of a church leader, 'large sums of taxpayers' funds.'  He stated that the government trusts these schools with large sums of government - and thus, taxpayers' - funds and therefore we should trust them with making decisions about the best interests of our children.


Lawmaking is not a matter of trust.  I believe that trust in this area has been well and truly trashed by a great number of religious institutions over many years, with absolutely devastating outcomes.  Trust has to be earned; trust has to be rebuilt when it has been lost; trust is not automatic because you belong to a specific group or have been seen by some as trustworthy.  As lawmakers, we should not base our laws on trusting individuals or organisations that have shown that trustworthiness is not a shining light in their history.


I have a fundamental concern with enshrining the right to discriminate in legislation.  When a religious institution, such as a school, receives significant taxpayer-provided funding - even when people who utilise their services are also taxpayers and these funds are to provide a service to the public, which is what these schools do - they should not have an automatic exception to discriminate.  If this is deemed necessary, and the institution wants to discriminate, it should not be an easily granted process, as a matter of course. Institutions will have to justify why they want the exemption.


We should have had a proactive approach to this.  It seems that such an approach was not considered.  Instead, a broad exception is provided that, to my mind, does not provide certainty for the schools' prospective students.  This approach enshrines the right to discriminate on the basis of religious tenets, beliefs, teachings, principles or practices of a particular student, a student who may be four or five years old.


I do not support the bill in its current form.  I believe that the option of reviewing the process here to address the needs of the small number of schools should be pursued.  For this reason I seek the support of the House to adjourn the debate, to enable the bill to be referred to Government Administration Committee B for further consideration.  There is a way to fix this, but I do not think that what we are looking at is the way to do it.  I was hoping to leave my speech to the end so that everyone had an opportunity to express their views, but no-one else took the call and the President was about to put  the motion.  I waited, I sat there and waited and no-one else stood and so I did.  I had to reach for my papers, so I did wait.  No-one is facing an election at the moment, no-one is not going to be here in another month's time or six months' time to not be able to complete this debate.


I seek the opportunity to adjourn the debate.  To support that motion, I want to read the email from the Anti-Discrimination Commissioner, Robin Banks, who sent an email last night to clarify a couple of points.  She said -


(1)     I stated that I have not received any complaints relevant to admission to schools on the basis of religious belief, practice or affiliation, and I am as confident as I can be, that there has never been a complaint on that basis made under the act.


          I have however received complaints against non-government schools of discrimination in education on other grounds protected under the act.


(2)     Prior to the current exemption provisions, section 55A and 55B of the act, being enacted it is correct to say an application for exemption under the other exemption provisions would not be able to be granted to allow faith-based schools to discriminate on the basis of religion in admission because it would have been entirely inconsistent with the act, and the commissioner is not empowered to grant an exemption where it would be against the principles and provisions of the act.


          That said, it would be possible to consider an alternative exemption drafting to extend the provision to schools, irrespective of oversubscription …


This is the point I am making, that there is another way to do this.


          This has not, as far as I am aware, been considered as it was not the basis on which the original provision was sought.


(3)     The current exemption is consistent with the recommendations of the review report which recommended the act be amended to allow for exemption, not exception.


Given the scope of the issues identified in today's briefing, I urge you to seek further time and more opportunity to fully understand the options for achieving what is sought.


Yours sincerely,

Robin Banks, Anti-Discrimination Commissioner.


Mr Deputy President, the Anti-Discrimination Commissioner, who is the expert in this field, makes it very clear.  We do need more time.  There is another way.  I formed that view before that email had been received by me and others - we all got a copy of that.


I am happy to make other comments in support of the motion if necessary, but I seek the support of the House to adjourn the debate for the purpose of referring it to Committee B for further consideration.  There is a better way to do this.  I do not deny there is a need to fix the problem that exists for a small number of schools.  What we are looking at, I do not believe is the way.  I seek the support of the House.


Mr Valentine - Mr Deputy President, while the honourable member is on her feet, if someone else was to move that motion at the end of the whole debate, would you be prepared to let someone else do that rather than move -


Ms FORREST - I was hoping to be able to do that but no-one else took the call and there were other members here who have spoken.


Mr Valentine - If it is possible, I am happy to go last and move that at the end.


Ms FORREST - Maybe, Mr Deputy President, if members want to speak to the adjournment motion which I am putting, they can make that intention clear and we can get a sense one way or the other.


Mr DEPUTY PRESIDENT - You are moving the debate stand adjourned.


Ms FORREST - I am moving the debate stand adjourned.


[4.13 p.m.]


During this time other members made contributions.


[4.43 p.m.]

Ms FORREST (Murchison) - Mr President, I will make some concluding remarks.  I am respectful of the House.  When more time has been requested to enable members to get information about areas that are not clear, particularly when we are trying to progress amendments on the run on significant legislation, it concerns me that we have not had adequate time to fully consider the implications and the potential unintended consequences, of which I believe there are a number.  However, we will deal with that when we get into the Committee stage of this bill.


I reiterate my view that there is no need for this change as it is has been demonstrated, and that there are other ways to address the issues of small religious schools.  Unfortunately we will not have that opportunity at this time to see if that could work.  I do not believe exceptions to discriminate on the basis of religion, or any other attribute for that matter but in the case of religion here, should be easy.  It should not be a matter taken on trust.  We do not legislate on the basis of trust, particularly where trust has been shattered and treated very poorly in this area over many years.


I will not support the bill in its current form.  I have made that quite clear.  It concerns me that we seek to enshrine discrimination in our legislation.  I do not believe that is okay in this frame.  I know there are times when it can be demonstrated, but they are few and far between.  I do not think we should try to compare because once you start comparing, the waters become muddied.


I believe there was another way to address the issues of the small schools.  There is a very limited need for this. The member for Elwick clearly outlined that there is very limited need for this.  In fact, most of the schools, particularly those in my electorate, do not require it.  There are a couple of very small religious-based schools, and they have not made representation to me seeking support for this, and I have had discussions with some who have said there is no need.


I am reflecting the views of those constituents who have contacted me - there are others who have not, obviously - and also respecting the views of some constituents who are not members of a faith-based school, who had very strong views that this should not be supported.  I can only make my point and make the best of the opportunity I have to voice those very real concerns about enshrining discrimination based on religious belief in our legislation.


[4.45 p.m.]


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