Non-discrimination is students’ ‘best interests’: a submission to the inquiry by the Senate Legal and Constitutional Affairs Committee on the Discrimination Amendment (removing discrimination against students) Bill

This January 2019 submission to the Australian Parliament Senate Legal and Constitutional Affairs Committee discusses Senator Wong's proposed draft Amendment Bill 2018 on the Sex Discrimination Act, which aims at removing discrimination against students. This submission adds to past submissions on SDA Drafts citing evidence showing that many LGBT students in religious schools suffered discrimination; and past submissions outlining the constitutional and legal problems in maintaining exemptions for religious schools in the SDA. The key argument and policy analyses of this particular submission is pitched against replacing current exemptions which the Wong Bill would remove, with further mediations. These mediations were suggested by the Australian Government (KQ147-151) and added to the draft documents originally submitted by Senator Wong, adding lines to the Wong draft allowing religious schools to treat students according to what they believe is in their 'best interests' (and other exemption-like lines) - effectively undoing the Wong draft's intended removal of the exemptions. The submission clarifies that student wellbeing is served by non-discrimination rather than enforcing religious views on a child's best interests (which may stand in the way of the human right to education access): this must be enforced by Australian anti-discrimination law in full. It reminds the Senate Committee and the Australian Government that constitutionally, the law cannot enforce religious observances or religious tests for students or other people in schools in the law's text as it currently does. The changes added on to Wong's draft by the Australian Government would be unconstitutional and cannot be accepted. This submission recommends complete withdrawal of the anti-discrimination exemptions for Australian faith-based educational institutions without replacing them with similar provisions. This includes: 1. Fully repealing the section 38(3) exemptions; 2. Inserting clarification that the exception provided in section 37(1)(d) does not apply to the treatment of students, teachers or staff by faith-based educational institutions; and 3. Fully abandoning KQ147-151 amendments by the Government to section 7B(2). The submission was published on the Parliament of Australia website.