2016-06-21
Ms PENNICUIK (Southern Metropolitan) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the charter), I make this statement of compatibility with respect to the Equal Opportunity Amendment (Equality for Students) Bill 2016.
In my opinion, the Equal Opportunity Amendment (Equality for Students) Bill 2016, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.
Overview
Currently the Equal Opportunity Act 2010 (the EO act) includes special exceptions to discriminate for faith-based educational institutions, religious bodies, religious people and other organisations.
The exception for religious schools provides that a person or body, including a religious body, that administers or is an educational institution that is conducted in accordance with religious doctrines, beliefs or principles may discriminate against another person on the basis of that person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination 'conforms with the doctrines, beliefs or principles of the religion'; or 'is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion'.[1]
The Equal Opportunity Amendment (Equality for Students) Bill 2016 (the bill) limits or narrows the religious exception by providing protection against discrimination for all school students regardless of their sex, sexual orientation, gender identity, lawful sexual activity, marital status, or parental status.
Human rights issues
Equality before the law
The bill promotes section 8 of the charter which provides that every person has the right to enjoy their human rights without discrimination, is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
Currently, students at religious schools do not have the same protection against discrimination as students at other schools.
Some students at religious schools do not even have the same protection against discrimination as other students at the same school.
A student's sex, sexual orientation or gender identity is a natural part of who they are, as are other protected attributes such as physical features or race, which are not included in the exceptions under section 83(2).[2] The current act leaves some students with less protection against discrimination for natural attributes than others.
Although the protected attribute of 'sex' may appear to apply equally to women and men, most direct and indirect sex discrimination in Victoria is against women. Women are also more likely than males to suffer discrimination on the basis of an equivalent sexual activity or parental status. In this way, in my view the exceptions for discrimination on the basis of sex, sexual activity and parental status at religious schools expose female students in particular to discrimination in education.
The bill will also promote equality under the law for those who establish, direct; control or administer schools. The effect of limiting the special religious exception would be that the directors or administrators of a religious school would be left with the same rights to discriminate under the Equal Opportunity Act as their counterparts in non-religious schools, including the same ability to apply for an exemption, in circumstances where they have a valid reason to discriminate.
Protecting the best interests of children
The bill promotes section 17(2) of the charter by securing the right for every child, without discrimination, to enjoy such protection as is in his or her best interests.
Discrimination against children because of particular attributes such as their sexual orientation, gender identity, or being a young parent is not in their best interests. Research shows that discrimination against same-sex-attracted and transgender young people has a profound impact on their mental health.[3]
It is not in the interests of female students who fall pregnant and have a child to have to change schools or leave the education system. This undermines their emotional and mental wellbeing and their ability to care for their child. It will also prevent female students from fully exercising important social and economic rights.
Furthermore, it is not in the best interests of students to be educated in an environment that is at times hostile and contrary to attempts to create a society that is free from discrimination and embraces equality and respect for all.
Freedom of thought, conscience, religion and belief
In my view, the bill either does not limit freedom of thought, conscience, religion or belief or does so in a way that is compatible with the charter.
The bill does not remove the ability for the directors or administrators of a faith-based school to discriminate against a student on the basis of the student's religious belief or activity. This is consistent with section 39 of the EO act, which provides that an educational institution or program may be operated wholly or mainly for students of a particular religious belief.
Clause 4 limits the exemption for a religious body that establishes or operates a faith-based school. As religious bodies are not persons for the purposes of the charter,[4] clause 4 does not limit any human rights protected by the charter.
Clauses 5, 6 and 7 limit the exemption for a person or body that establishes, directs, controls, administers or is an educational institution that is, or is to be, conducted in accordance with religious doctrines, beliefs or principles, if the education institution is a school.
I am of the view that any limits on the freedom of religion and belief of a person who establishes or runs a school are reasonable limits under section 7(2) of the charter, as they need to be balanced against the purpose of the limitation which is to prevent discrimination against students based on personal attributes of sex, sexual orientation, lawful sexual activity, gender identity, or their parental or marital status.
The bill does not have an unfair or disproportionate impact on the rights of religious schools to exercise their religious freedom. The effect of limiting the special religious exception would be that the directors or administrators of a religious school would have the same rights to discriminate under the Equal Opportunity Act as their counterparts at any non-religious school, including the same ability to apply for an exemption,[5] if they have a valid reason to discriminate.
Any limits to freedom of religion also need to be considered against the right for all children to equality before the law under section 8 of the charter, and to have their best interests protected under section 17(2). In my view, there is no less restrictive means available of removing discrimination.
I therefore consider the bill to be compatible with the charter.
Sue Pennicuik, MLC Member for Southern Metropolitan Region
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[1] Equal Opportunity Act 2010, s.83.
[2] Equal Opportunity Act 2010, s.6 lists the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4.
[3] Rosenstreich, G. (2013) LGBTI People Mental Health and Suicide. Revised 2nd Edition. National LGBTI Health Alliance. Sydney.
[4] See for example s.6(2) of the Charter of Human Rights and Responsibilities.
[5] Equal Opportunity Act 2010, s.89.