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Equal Opportunity (Religious Exceptions) Amendment Bill 2021

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Sam Hibbins MP
Member for Prahran
17 November 2021

Mr HIBBINS (Prahran): It is with great pleasure that I rise to speak on the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, and this is a bill that I and the Greens will be supporting through this Parliament. This bill addresses the significant issues that the Greens along with LGBTIQ+ communities have been advocating for—and fighting for change—and they are the exceptions, the carve-outs, in the Equal Opportunity Act 2010. An act that is supposed to protect people from discrimination instead currently allows for faith-based schools and faith-based organisations and services to discriminate against people on the basis of their sexuality, their gender identity and I think their marital status, which obviously impacts, and I think has been used to impact, sole parents. Now, surely this is an untenable law by any standards, let alone today in 2021, or in fact for the many decades that these provisions have been in place throughout the various iterations of equal opportunity and anti-discrimination laws.

Certainly I agree with the former Attorney General, who did state that this was a long-overdue bill. This certainly is long overdue. Now, it has not always been, I am aware, the government’s position throughout its entire term that these carve-outs should be so reduced. I think previously, when they were elected in 2014, it was about, ‘Well, you can’t discriminate against the gardener, but you can against the maths teacher’. Then before the next election there were obviously commitments made, and now in the third year of government they are coming through—because if we did not get them through in this term of Parliament, the risk was: who knows what would happen in the next term. There was a real risk that they would never get through.

Now, in making this contribution I certainly note that many faith-based schools and many organisations do a fantastic job when it comes to equality, but the law as it stands and the need for this bill is clear. Firstly, the fact that discrimination is allowed means a teacher could face the sack, a student could be expelled or a homeless person could be denied access to a service simply because they are gay or transgender. Secondly, even if the discrimination is not so overt, and this goes to how insidious these laws are, the threat of discrimination, the risk of discrimination are still there and they can prevent people from living as who they are, forcing them to stay in the closet, as the saying goes, and not live consistently with the gender they identify with. I have heard from teachers in my own electorate who will not go for jobs at a faith-based school lest they experience discrimination when applying. Why should teachers, students, social workers or service users like people who are experiencing homelessness or family violence risk going through a door where they may be discriminated against? For young people in particular, who may have been kicked out of home because of religious discrimination and who then need to access a faith-based service, many of them simply will not do it because of that fear of the risk of discrimination. That is just how insidious these laws are.

Finally, like those Victorians who are protected by the Equal Opportunity Act, no matter how good an organisation or a school may be, if a person feels that they have been discriminated against they should have recourse under the law, and under the law as it stands when it comes to faith-based organisations they do not. It takes many brave people to be able to speak out when they feel or when they face this discrimination. It is little wonder many people in their contributions already in this debate from the opposition or when I first raised this or spoke to the government about my private members bill some time ago indicate that it is not a problem: ‘We don’t hear about this’. Well, if people do not have recourse under the law, of course you are not going to hear about it because they have nowhere to go. It takes someone to be brave enough to then actually put their hand up and come forward.

There are, as I will outline later on, and as has been mentioned by the former Attorney-General, examples of where people have experienced discrimination under these laws, so the importance of this bill cannot be overstated. We look at Evie, a transgender student who as a 10- or 11-year-old at a religious primary school was made to attend seven chaplaincy sessions designed to prevent her from affirming her gender as female. This was done without the knowledge of her parents. This bill will mean that people like Harley will not be counselled against disclosing their sexuality when staying in a faith-based family violence refuge. It means that teachers will be protected from losing their jobs after disclosing their sexuality, like Sam, who was forced to resign from Flinders Christian Community College, or John, who worked in Catholic schools for 37 years, 20 of those as a principal, and spent the whole time hiding his identity. So there are examples where the law as it stands has meant that people have experienced discrimination, and this causes real, deep and lasting harm to people, to the LGBTIQ+ community, who are already facing higher rates of bullying, harassment and violence. It has a major impact on people’s mental and physical health. If we allow discrimination in our laws, we are creating schools, workplaces, services where same-sex attracted and gender-diverse people have no protection.

The current exemptions, as I said, have meant that school students could be denied enrolment, excluded from activities, expelled from religious schools for being trans or same-sex attracted, and unmarried or pregnant people could be denied support—that could be housing, emergency aid, counselling. This is just not acceptable, and it is certainly out of step with the values of the overwhelming majority of Victorians. When I say the overwhelming majority of Victorians, I also refer to our multicultural communities and our faith communities. These are the standards that I see, and I have certainly engaged with our multifaith and multicultural communities on matters of equality. I see the change that has gone on within those organisations but also the views of so many people of faith who support equality.

So the bill includes a number of changes that the Greens and advocates have been fighting for for many years. This will make a tangible difference, and whilst we are always looking at ways to strengthen the protections against discrimination, make no doubt this bill will make a tangible difference, a real difference, to people’s lives by protecting them from discrimination at religious schools and organisations. The bill removes the ability for religious schools to discriminate on the basis of people’s sexuality, gender identity, sex, lawful sexual activity, marital status or parental status. The same applies to religious organisations that receive state government funding. They will not be able to discriminate on the basis of sexuality, gender or family situation. Both those bodies will continue to be able to offer their services or have an organisation or a school for people of certain religious beliefs. When they are looking to discriminate on the basis of religion, it has got to be reasonable and proportionate.

The bill also adds an inherent requirement test for employers at religious schools and organisations so they might only discriminate on the basis of religion if it is an inherent part of the role and it is applied consistently and is reasonable and proportionate. I think that is a really important part of it—to say, ‘Well, if a school does decide that it wants to use these provisions that allow for discrimination on the basis of religion, they cannot just simply pick and choose’, and to say, ‘If someone does happen to come out or transition gender, they can’t then decide, “Oh well, we might be allowing some other people who don’t adhere to our faith to teach at or attend our school, but we are just going to nominate you”’. I think that is a really important protection.

Now, look, these are good protections. They are not necessarily watertight. There are still loopholes in the act that could see discrimination continue, but have no doubt, this is a significant improvement for protecting LGBTIQ people and their communities. This is not an attack on religion, no matter how much it might be so framed. There are still protections that ensure religious schools and organisations can hire people of faith as religious instruction teachers or as principals, for example—no changes to the way that clergy are hired and trained. It simply removes the right to discriminate on the basis of gender identity, sexuality and other protected attributes.

Look, to be honest, if you are running a school or running a service and you think you need these existing exemptions to discriminate against teachers and students, with all the damage that that does to a person, well, maybe it is time to have a bit of a think about why you are running a school or why you are running a service. Those who do want to continue with these provisions are just kidding themselves if they think like that, because all they are really doing is forcing people to hide who they are and hide who they are at their schools and services.

Now, these changes have certainly been something that the Greens and LGBTIQ+ organisations have been advocating for for many years. I would certainly like to thank and acknowledge the work of the pride lobby, Equality Australia, Minus18, Thorne Harbour Health and the many organisations and individuals that have advocated tirelessly for these changes. Since the Greens were first elected to Parliament it has been a priority to amend the Equal Opportunity Act to remove these types of discriminations against students and teachers. In fact it was as far back as 2007 that Sue Pennicuik, a former MP in the other place, sought to amend the then Equal Opportunity Act to remove the provisions that allowed for discrimination in religious schools, and she again tried to get rid of those exemptions in 2011.

Since I was first elected, with the support of my upper house colleagues I have introduced three private members bills to address these issues. The first was debated and voted down by Labor and the Liberals in the upper house with next to no reason given as to why; the second was in 2018 in this chamber, which was voted down, again at the first reading; and in 2020 my colleague Samantha Ratnam introduced the Equal Opportunity Amendment (Equality in Schools) Bill 2020, which is currently on the notice paper. Now, one of the big challenges in fighting for reform in this area has been that the wider public have just not been that well aware of these exemptions. In fact it was not until the Ruddock review into religious freedoms for the federal government came out in late 2018 that people realised the possibility of such discrimination—that teachers could be sacked or students could be expelled for being gay or transgender—was even a thing. There was outrage, quite rightly so, and it was at that point that I committed to introducing that private members bill to this place on day one of the new Parliament, which I did do.

Now, in consulting with advocates and members of the LGBTIQ+ community I have heard that this bill could be stronger and that there are other sections of the Equal Opportunity Act 2010 that could be used as a way to discriminate. Certainly we will take their advice and look at ways that we may seek to amend this bill when it comes to the other place. I know there are concerns around gaps in the bill, around the loophole in section 42 of the act that could still permit religious schools to discriminate against LGBTIQ students if the school community, the parents, support this discrimination. It could mean that students would still not be free to wear the uniform of their gender identity or use the appropriate bathrooms or change rooms, and it may mean that students would still need to hide their identity for fear of discrimination. Certainly this is not something that would be tenable. Also, as has been noted I think in Tasmania, this ability to discriminate against students on the basis of religion only exists at the time they enrol, which is not the case with this bill. And of course this would address the situation where if a young person who is growing up and may be coming to terms with their gender identity and sexuality changes their religious beliefs, they should be free to do so without fear of reprisal from their school.

Also, in relation to government-funded services, the issue that has been raised with me by the community is that when someone is in crisis and they need to access housing support, emergency aid, family violence support or any other services which a faith-based organisation is providing, how do they know if they are accessing a service that is state funded, commonwealth funded or privately funded? Again, this could just lead to those similar issues that I mentioned before, where a person, having already faced discrimination, possibly at home, does not know whether they are going to face discrimination when they go through that door, creating an untenable situation.

One of the other opportunities that has also been missed in this bill is that it does not restore the powers of the Victorian Equal Opportunity and Human Rights Commission. These powers were taken away by the previous Liberal government. The Greens have previously called for the commission to be able to conduct public inquiries, enter enforceable undertakings and issue compliance notices. The commission should have the power to order someone to provide information and documents and to order witnesses to attend and answer questions. Certainly if we are going to crack down on discrimination, we need to make sure the commission has the powers to follow through and to address the systemic causes of discrimination.

Now, before I finish I just want to address some of the points that have been raised by the opposition. For the opposition there always seems to be a reason and there always seems to be an excuse. They want to wait for the religious freedom review. Well, hasn’t that just dragged on forever? I mean, that has been going on for years now. If anyone wants to wait for that—that is off into the never-never. I think originally that was the position of the government, that they wanted to wait for that to occur before proceeding with this bill. I think it has been very clear for a long time that that was simply just untenable.

It was in fact in 2018 when the Prime Minister, in response to the outrage over the Ruddock review, said that he was committed to protecting students from discrimination at faith-based schools, and what has happened to that? That has come to absolutely nought. Then there are always the excuses of ‘consultation’, ‘It hasn’t been properly drafted’, ‘There are some issues’. They are just excuses so they can go out and tell one group, ‘We support equality’ but tell another group, ‘We oppose the bill’. I mean, these are really the same old tactics we are hearing from the Liberals and the opposition about why they cannot support a bill that improves equality for LGBTIQ+ Victorians.

So for all the points that I have raised and some of the tightening that can be done with this bill, I do want to say that I am incredibly pleased that these laws are being brought forward. I wish them a speedy passage through both houses of Parliament. Should they pass, and I hope they will, they will have a tangible and lasting impact on the lives of LGBTIQ+ Victorians. So I want to thank all those who have pushed to see this change. I certainly acknowledge the government and the Attorney-General for putting forward this bill. It is something that the Greens and I have been pushing for for a long time, and so I commend this bill to the house.

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Sam Hibbins MP
Member for Prahran
17 November 2021
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