Despite the deferral on Monday of a Bill introduced in the Senate to amend balancing clauses applying to religious bodies in the Sex Discrimination Act 1984 (Cth), the Bill has now been rescheduled for debate in the Senate on Wednesday, December 5, between 11am and 12:35pm.

The Senate Notice Paper for December 5 contains the following entry, listed for 11 am:

Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018—(Senate bill)—(Leader of the Opposition in the Senate, Senator Wong) 

Adjourned debate on the motion of the Leader of the Opposition in the Senate (Senator Wong)—That this bill be now read a second time. 

And on the amendment moved by Senator Collins—At the end of the motion, add “but the Senate is of the opinion that nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity: 

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and 

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings” 

A motion approved in the Senate on the afternoon of Tuesday Dec 4 reads:

“That—
(a) the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 be considered on Wednesday, 5 December 2018 from 11 am to 12.35 pm, at time allotted for consideration of government business;
(b) if, by 12.35 pm the bill has not been finally considered, the questions on all remaining stages shall be put without debate;
(c) paragraph (b) of this order shall operate as a limitation of debate under standing order 142; and
(d) the provisions of standing order 115(3) shall not apply to the bill so that the bill may be further considered even if it has been referred to a standing or select committee for inquiry and report.”

All the comments I have made previously about the defects of the ALP-sponsored Bill are still applicable. I have given a brief summary of the problems previously, which was as follows:

• No religious schools want to be able to expel same sex attracted students on the grounds of their sexual orientation alone.
• However, the current ALP-sponsored Bill goes far beyond dealing with this problem, and will seriously reduce the religious freedom of religious schools to operate in accordance with their religious beliefs.
• The Bill is also so widely framed that it removes protections for all “religious bodies” in relation to “education”, and this has the potential to make it unlawful for churches, mosques and synagogues to teach the doctrines of their faith to their own members.
• It would be best if legislation was not rushed through at the last minute. Parliament should wait until the Ruddock Report has been released and there is time for careful consideration and consultation before making any amendments in this area.

My previous post also noted links that could be used to contact Members of Parliament and express concerns.

Sadly it seems at the moment that there is no intention to accept even the very limited Government amendments, let alone to take into account the concerns that have been raised about removing the ability of schools to set down policies on conduct and behaviour consistent with their faith. It has to be stressed, at the risk of sounding like a broken record, that these concerns will not be adequately dealt with by leaving these things to be dealt with as if they involved “indirect discrimination”. Policies on sexual behaviour and support for homosexuality, whatever politicians may say, have been held by the courts to engage the prohibition on direct sexual orientation discrimination.

Finally, let me briefly comment on the very odd form of the one amendment that the ALP seems to have agreed to put forward, moved on Monday by Senator Collins. In fact, this is not an amendment to the SDA itself, or even to the ALP Bill; it takes the form of an amendment to the motion for a Second Reading. As such it is the expression of an “opinion” by the Senate.

I have not looked in detail into how the courts have dealt with such “opinions” in the past, but on general principles it seems likely that this opinion is of little legal effect. The courts take very seriously their role as interpreters of legislation, and in doing so clear priority is given to the words of the law actually enacted by the Parliament. Expressions of opinion by one House or the other as to the meaning of legislation may presumably be “taken into account” in some circumstances by the courts (as they may consider statements in formal Second Reading Speeches or Explanatory Memoranda (see s 15AB of the Acts Interpretation Act 1901(Cth)). But in the end the meaning of legislation is a matter for the courts, and members of either House of Parliament cannot authoritatively declare what the law means, without that declaration being enacted by both Houses and becoming the law of the land in the usual way.

Hence the “opinion” to be expressed by this amendment is of little binding force. It seems designed to be a version of a Government Amendment I noted in a previous post:

“amendment KQ149 does something a bit different. It inserts a new, more general provision as s 7F:

 7F Educational institutions established for religious purposes 

(1) Nothing in this Act renders it unlawful to engage in teaching activity if that activity: 

(a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and 

(b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings. 

(2) In this section: 

teaching activity means any kind of instruction of a student by a person employed or otherwise engaged by an educational institution. “

If included in the text of the SDA this would be a helpful provision, ensuring that, for example, a religious school teaching the Bible’s view that sex should only take place between a man and a woman who are married to each other would not face a complaint that this act of teaching somehow involved “less favourable treatment” being given to a same sex attracted student. But simply left as an expression of “opinion” by the Senate, it would be of dubious utility.

In short, I remain of the view that the ALP-sponsored Bill, even with this “window dressing” Second Reading amendment, should not be supported. If the Government amendments were accepted it would be better. Best of all would be take more time to deal with the agreed problems without producing a number of unintended bad consequences, which seem to be present in all the current proposals.