In the final weeks of the run-up to the Wentworth by-election, the Prime Minister promised rapid amendments to anti-discrimination law to remove the freedom of private schools to expel students on the basis of their sexuality, his own fears of ‘gender whispering’ in public schools that he claimed had driven him to enrol his children in a private religious school being cast aside with such haste that it took some sections of the private school sector by surprise.
The leaking of the Ruddock report on religious freedom had a cathartic effect on Scott Morrison, appearing to release him from some deeply held prior convictions.
He developed overnight a revulsion for the idea that any schools, including private schools, could expel gay students. This appeared to arise from a sudden fear that this particular expression of religious freedom might not appeal to voters in a seat that had voted overwhelmingly for same-sex marriage.
Or was it his professional marketing expertise that led him to turn his back on such discrimination against students? Had he, perhaps, read the advice of the Independent Schools Council that religious belief was declining as a reason for choice of private schooling, and that ‘schools may need to think about the implications of the slow but steady rise of secularism, and the ways this may affect their approach to religious education and how they market their schools’?
The suggestion that it would expel students on the grounds of their sexual orientation was rejected outright by one spokesperson for a Christian school. He added that he was completely unaware of the ‘religious institutions exemptions’, and that such schools had never asked for freedom to discriminate against students on the grounds of sexual identity or orientation. This raises the question of how many other private school authorities are ignorant of the legal and regulatory framework within which their schools operate.
But is this expression of ignorance believable?
Well, yes. Some private school authorities may well be unaware of the history of the exemption which leaves them free to determine whether or how they will engage in discriminatory behaviour towards students and staff.
On the Commonwealth’s part, the exemption of private schools stems from the 1984 Sex Discrimination Act. As a member at that time of the Commonwealth Schools Commission, I was well-placed to observe the reaction from within the schools sector to the advent of an Act that would make it generally unlawful to discriminate against a person on such grounds as sex, marital status, or pregnancy. It was quite a bombshell, especially given that in most of the more populated areas of the country, our school system reflected the British school system in being stratified on social class and gender lines. In NSW, for example, there were single sex schools across the public as well as the private sector and one way to avoid an upheaval was to exempt them from the provisions of the Act.
But the main hostile reaction from the school sector came from the Catholic church, which sent a body of bishops straight to Prime Minister Hawke to secure a blanket exemption from Labor’s progressive legislation in order to avoid injury to the sensibilities of religious schools acting in good faith according to the doctrines, tenets, beliefs or teaching of their particular religion or creed.
Since 1984, and in the context of a growing school population, there has been a shift of some 10 percentage points of the school population from public to private schools, with 94 per cent of the latter being religious schools. Most of the increase in the proportion of students in private schools occurred in the independent sector, which more than doubled, growing over these years from just over 6 per cent to around 15 per cent of the total school population.
It would certainly be implausible if Catholic schools were to claim ignorance of the scope of their freedom to discriminate on the grounds otherwise forbidden by law under sex discrimination legislation. But it is believable that the Christian and other religious schools that sprang up over these years may have been ignorant of the religious institutions exemption – especially since those who were well aware of it operated on a ‘don’t ask, don’t tell’ policy which has suited them and the political parties that are in thrall to the power of the private school lobbies – whether real or imagined.
But it is pure sophistry for the Coalition, thrashing about to justify the change of heart brought about by the Wentworth by-election, to sheet the blame for granting private schools the freedom to expel gay students on to Labor.
Certainly it was the Labor Gillard government, in 2013, that took historic steps in enacting legislation to remove almost all remaining forms of discrimination on the grounds of sexual orientation, gender identity and intersex status, stopping short of legalising marriage equality.
In his second-reading speech, the then Attorney-General Mark Dreyfus skipped lightly over the issue of exemptions:
“The bill also amends existing exemptions as appropriate to reflect the new grounds. This includes exemptions for religious bodies in relation to employment and the provision of education that have been in place for many years. These exemptions will continue under this bill and encompass the new grounds.”
It could be argued that the Labor Government in 2013 had thus by default broadened the scope for religious schools to discriminate against students and teachers.
But never did the Coalition do anything in 1984, 2013 or the intervening years to curb the freedom for private schools in the name of ‘choice’ to practise the above and other forms of discrimination.
Private schools have argued over the years that they rarely, if ever, use their exemption to expel students on the basis of their sexual orientation, gender identity and intersex status. Since they are not required to register the reasons why they expel students, it is difficult to examine this claim.
But it is clear that there are religious schools that do want the freedom to select or expel students on these grounds.
And the problem for these schools is the proposed requirement for transparency contained in the leaked Ruddock report on religious freedom. It would seem from media reports that the Ruddock inquiry has taken the very proper view that schools wishing to discriminate against students or teachers on religious grounds should be required to specify those grounds and make them clearly known to those affected in their school prospectuses and teacher recruitment procedures.
A very wise colleague taught me not to venture far into policy development without asking the question of any proposal: ‘How would this work?’
So it was excruciating to watch the flounderings of the first questioner on a recent edition of the ABC’s Q&A program. He argued the case for his religious school having the right to select its students and staff consistent with its religious beliefs. But he resisted strong pressure to describe the actions that this would entail on the part of the school. It is clearly a problem for those who wish to discriminate against others if they shrink from placing on the record the particular religious tenets they wish to invoke and the actions these tenets oblige them to take in respect of others.
If what you are planning to do is unspeakable, surely the wiser course would be not to do it.
Lyndsay Connors AO is the co-author with Jim McMorrow of the 2015 report Imperatives in Schools Funding: Equity, sustainability and achievement, published by the Australian Council for Educational Research.