Thursday, 25 October 2018

 Sky News Live – Newsday with David Speers

Transcript

E&OE

Subjects: Religious schools

DAVID SPEERS:

Welcome back to the program. You may recall last week in the lead-up to the Wentworth by-election, there was a rather embarrassing leak for the Government: details of a long-awaited Ruddock review into religious protections were revealed, were published. And they showed that the Ruddock review was suggesting continuing, at least in some way, the right of religious schools to discriminate against students based on their sexuality.

Well, the response was fairly explosive and by the end of that week, in particular, the Prime Minister made clear that he wanted to repeal that Commonwealth discrimination anyway and suggested that that would happen this week, in the week following the Wentworth by-election that no longer would religious schools have that right.

Well, there has been negotiation back and forth between the Government and Labor throughout the week but Parliament's about to rise for the week and won't be back until the end of November for its final two weeks of sitting in the Lower House for the year. And still no agreement has been struck, no legislation has been introduced. With me now is the Attorney-General Christian Porter who's been engaged in negotiations with Labor.

Attorney-General, thanks very much for your time. So, we were told this would be urgently done this week; why hasn't it?

ATTORNEY-GENERAL:

Well, I mean what the Prime Minister said and his words were: I believe the view is shared across Parliament that we should use the next fortnight to ensure the matter is addressed. We absolutely have been addressing the matter. So, my consultations and negotiations and conversations with the Labor Shadow Attorney-General have been very constructive. They've been progressing well, but we've not reached an agreement. And the Prime Minister's view has always been that we should reach that agreement before we introduce legislation to Parliament.

DAVID SPEERS:

Well, according to the Shadow Attorney-General, Mark Dreyfus, he says: you have stuffed this up are his words. He believes that it's not just about repealing this discrimination as the Government suggested, but potentially in his words: significant ramifications of indirect discrimination for LGBTI students. Is that the case?

ATTORNEY-GENERAL:

Well, he’s certainly not used any of that sort of language directly with me as we've been negotiating this and I’ve found the negotiations and dealings very constructive. But, look, there should be no doubt that what we're intending by way of legislation is to absolutely remove the exemptions that Labor introduced in 2013 that would otherwise allow a religious school to expel or refuse to admit someone because of their gender identity or sexual orientation – they will be removed and there's no disagreement about that; that's absolutely clear. It does advise though …

DAVID SPEERS:

Are you adding something new in?

ATTORNEY-GENERAL:

We are looking at an issue that naturally arises once you remove those exemptions around a section of the act that has long existed that allows a decision maker to determine whether or not a rule of general application, such as in a workplace, for instance, or a school rule, is reasonable in all the circumstances.

So, for instance, meeting with the Christian Schools Association yesterday, they indicated that one of their concerns is whether or not after these exemptions are removed, which they support, by the way, after they're removed, whether or not it would still be reasonable for, say for instance, a religious school, a Catholic school to have a school rule of general application that required all students to attend chapel regularly. Now, whether or not the Act copes with that type of situation in its present form is the nature of the negotiations that we're having with Labor at the moment, and I don't think that's an unreasonable thing to ensure as clear before you bring legislation into Parliament.

DAVID SPEERS:

But how does whether a student has to attend chapel regularly have anything to do with the school's ability to kick out a kid for being gay?

ATTORNEY-GENERAL:

Well, nothing. And a school would never be able to do that under the amendments that we will be proposing; never. But a secondary issue arises as to whether or not there can be any general rule of application that might disproportionately affect anyone of a particular gender or gender identity or sexual orientation. And whether or not, in all the circumstances, that's reasonable. And this is just an ancillary issue that arises by virtue of removing these exceptions which we absolutely undertake to do. And it is an issue that needs to be sought through drafting, in a detailed and sober way.

DAVID SPEERS:

Just so I understand this, what we're talking about here is, what, whether an LGBTI student has to attend chapel regularly in a religious school?

ATTORNEY-GENERAL:

Well, I mean if a religious school had a rule, and I understand that many do, that require all students regardless of their gender or gender identity or orientation to attend chapel on a regular basis or religious education, which is in the nature, of course, of that religious school, it's not inconceivable that someone might complain about that rule. And the question is whether or not in all the circumstances that rule would be determined to be reasonable; which is why we needed to look at the drafting around the section that's …

DAVID SPEERS:

But the Government wants to uphold the right of the school to be able to insist on that. Labor, however, are saying - correct me if I'm wrong - Labor is saying: they shouldn't be able to insist on that.

ATTORNEY-GENERAL:

Well I think Labor are saying they're not sure at this point in time.

DAVID SPEERS:

Right. Okay. But you believe schools should be able to insist on all students regardless of their sexuality should have to attend chapel?

ATTORNEY-GENERAL:

Well we think something as simple as a religious school having a rule of general application that requires all students to attend chapel or religious education on a regular basis is not an unreasonable thing. And it's something of course that has existed in Australia for some period of time. But it was a question that never arose for determination because of the existence of the exemptions which we've promised to remove. So it's a question that we have to responsibly deal with and that's why we've been consulting with stakeholders over the last several days. So it is a matter of technical drafting, but it is a real question and one that we should resolve before legislation is introduced. And I still hope that we can reach an agreement with Labor around that type of issue.

DAVID SPEERS:

I mean, I didn't go to a religious school; maybe you can explain this to me. Is it pretty standard that all students are expected to go to chapel regularly, there's no sort of exemption for kids who may have strong feelings on a particular topic?

ATTORNEY-GENERAL:

Well look, it's been a long time since I was at school as well David, and my chapel attendance was pretty ordinary, I have to say. But what we have garnered in talking to the Catholic Education sector and the Association of Christian Schools in Australia is that some religious schools have rules that insist on that regular attendance at religious education in chapel, some don't, some themselves have exemptions and have ways in which they deal with these circumstances. But as a matter of principle, should a religious school which wants to insist on a rule of that type be able to do so we think it's an important question. Now, our essential proposition is that that's not an unreasonable thing to do for a religious school and we just want to make sure that in removing these exemptions, that kind of ability is reasonably preserved.

DAVID SPEERS:

But even on your own experience, all those years ago, clearly not all students go to chapel regularly and schools are fine with that, or have been in the past. Could this be a de facto way for religious schools to discriminate against gay kids without actually saying that's what they're doing?

ATTORNEY-GENERAL:

Well the section of the Act that we're now looking at, section 7b, has been in the Act since Labor put it there in 1995. And what it's meant to do is deal with these situations where a workplace for instance, has a rule of general application, but which may have a disproportionate effect on some group inside the workplace and that happens with some regularity. I mean, rules that say that you have to be of a certain height, may in an indirect way disadvantage women applicants. But the decision maker, in this case the Human Rights Commission, would ultimately be called on to determine whether or not, in all the circumstances that rule of general application, which is not meant to discriminate is reasonable in all the circumstances. Now a rule of general application, for instance, in a religious school, that said students are expected to attend chapel and that would apply to students of any gender or gender identity or sexual orientation, it would apply broadly to all students of the school, is I think a not unreasonable thing for religious schools to want to be able to have as a school rule. The question is whether that would be determined to be reasonable in all the circumstances and that's a question that requires some care in drafting.

DAVID SPEERS:

Okay. I know you don't have much time left, but given this now won't be dealt with until the end of November, are we going to see the full Ruddock Report and the Government's response to it by then?

ATTORNEY-GENERAL:

Well obviously, that's going through Cabinet processes and as you can see David, from this conversation about one..

DAVID SPEERS:

Your colleagues, I mean, Concetta Fierravanti-Wells and others are saying get it out now.

ATTORNEY-GENERAL:

Well, in fact, I've spoken to a very large number of my colleagues over many months, consulting around the types of things that you might expect in the Government's response to the Ruddock Review. I must say I haven't ever had a call from Connie about it, but I'm sure if she wants to talk to me, she will.

DAVID SPEERS:

And have you worked out your position on teachers, whether religious schools should be able to hire and fire based on the sexuality of a teacher?

ATTORNEY-GENERAL:

Well of course, that'll be part of our response. But essentially, our position is that it remains an important feature of religious education to be able to have teachers who teach in a way that is consistent with the doctrine or faith of the school. Now that again, I think is ultimately coming down to a drafting exercise where we look at the Act as it is and see whether or not there are better ways to achieve that end.

But what I would say is that Bill Shorten came out very strongly last week and said that teachers (schools) shouldn't have any ability in respect of trying to choose or maintain teaching staff who teach consistently with their faith. And he had a curious form of words where he said that he'd spoken to the sector and they didn't think that this was a big issue. Well I can tell you they do think it is a big issue and religious schools do want to have some reasonable ability to be able to choose and maintain teaching staff, who are able to teach consistent with the central tenets and doctrines of their faith. And again, I don't think that's an unreasonable thing. The question is  how do we move through the debate, soberly, rationally, accurately and in good faith so that we produce drafting that achieves the best balance and outcome.

DAVID SPEERS:

Attorney General Christian Porter. We'll have to leave it there, thanks so much.