THE HON. BILL SHORTEN MP
LEADER OF THE OPPOSITION
SHADOW MINISTER FOR INDIGENOUS AFFAIRS AND ABORIGINAL & TORRES STRAIT ISLANDERS
MEMBER FOR MARIBYRNONG
THE HON TANYA PLIBERSEK MP
DEPUTY LEADER OF THE OPPOSITION
SHADOW MINISTER FOR EDUCATION AND TRAINING
SHADOW MINISTER FOR WOMEN
MEMBER FOR SYDNEY
WEDNESDAY, 5 DECEMBER 2018
SUBJECT: Removing exemptions for discrimination against LGBTIQ students.
BILL SHORTEN, LEADER OF THE OPPOSITION: Good afternoon everybody. My Deputy Leader and I want to make some brief remarks concerning the importance of removing discrimination against children at school. I believe that the substantial majority of our parliament want to see discrimination against children - the right to discriminate against children removed from the nation's laws. It is therefore very disappointing that the Government in the lower house has chosen to put forward a proposal which will replace one form of discrimination with another.
I get that all the sides of politics genuinely I think, in most cases want to remove discrimination off the law books. I also understand the importance a lot of people feel that religious faith should be able to be taught in schools. I don't see these two goals as irreconcilable. However, whilst I think there is substantial momentum to remove discrimination against children, I don't think the Parliament at this point has been able to come across a mechanism which sufficiently reassures religious schools about how to teach faith, and their ability in fact to teach faith, without actually reintroducing the same discrimination sought to be removed, in a new form. Our legal advice about the Government's proposed amendment is that it has the potential to permit discrimination against students in schools both direct and indirect. The advice goes on to say that the provisions which we seek to put in would not prevent the provision of instruction in an educational institution. So we believe our simple proposal, which removes the exemption against discrimination against children - that works. Now the Government's not convinced of that, or perhaps not the Prime Minister.
Very sensibly at about 10:34 this morning in the Senate, Senator Cormann, the Leader of the Government in the Senate and Senator Penny Wong, and indeed, the minority party, the crossbench parties - all agreed that whilst we want to remove discrimination against kids, the mechanisms to do so weren't agreed and therefore the matter should be deferred until there was more considered discussion, and I can understand that that was a sensible course of action. But what really disappointed me, and has led to myself accompanying Tanya out to talk about this issue, is that 10 minutes later, our Prime Minister enthusiastically bounded out to a press conference and said that he wanted to deal with in a controversial fashion, the very measures which the Government in the Senate had decided to defer.
So we say to the Prime Minister that this partisanship is not where the debate goes. I get there's legitimate anxieties from religious schools and we respect that, and I get that there is an overwhelming desire to remove discrimination against children. How could it be otherwise? The Parliament hasn't come across a mechanism which seems to get that balance right, but unfortunately the Prime Minister has sought to weaponise this dispute, and I do think that rather than looking for the angle, the Prime Minister should look for the outcome. There is no set of circumstances where this Parliament should be voting to replace one set of laws permitting discrimination against children with another set of laws permitting discrimination against children.
I'd now like to hand over to Tanya Plibersek, our Deputy Leader and education spokesperson.
TANYA PLIBERSEK, DEPUTY LEADER OF THE OPPOSITION: Thanks very much Bill. Before the Wentworth by-election, we had a Prime Minister that said that it was an urgent priority to remove discrimination against children, the ability to discriminate against LGBTI kids in Catholic and independent schools. And I think the country breathed a sigh of relief, I think most Australians were unaware of the fact that this ability to discriminate against children in non-government schools existed. Labor was on board for that change, we came back to the Parliament with high hopes that we could move on this change quickly because it is a simple thing to do.
At the moment, there is an exemption from the operation of the Sex Discrimination Act that applies to children in Catholic and independent schools, so they don't have the protection of the Sex Discrimination Act in relation to being a gay or lesbian student in that school. Simple; we just remove the exemption from the operation of the Sex Discrimination Act that applies in schools. We thought we could get this done in the first couple of weeks after the Wentworth by-election, but something changed. And I think what changed was that the right-wing of the Liberal Party said to Scott Morrison, Prime Minister, that's not happening, we're not doing that. And since then we've had delay, obfuscation, division. We now in this parliamentary sitting week, the final week of the parliamentary sittings, are in a situation that is so reminiscent of the marriage equality debate where individual senators, the conservatives in the Liberal Party, the Nationals and others, are all trying to introduce complicating amendments to something that really is very simple. I'm worried that this will go down the same route at the marriage equality debate. Someone will be suggesting a plebiscite next.
Now, just today, the Prime Minister further complicates issues by suggesting a conscience vote. Labor doesn't need a conscience vote because every member of the Labor Party agrees that it's wrong to discriminate against children. It's not complicated. In fact, I don't understand how anyone who claims to have a conscience can think that it's ok to discriminate against children. The vast majority of schools have made clear to us that they don't want these provisions, they don't use these provisions, they don't want to discriminate against children in their schools. They've made it clear to us that they don't want to discriminate against children in their schools, that they are happy for this change to proceed. They don't want to use these exemptions from the Sex Discrimination Act. In turn Labor has made it clear to schools through the explanatory memorandum of our Bill, through a second reading amendment moved by my colleague, Senator Jacinta Collins that nothing in our Bill prevents religious schools from teaching the tenants of their faith, from teaching religious instruction in their schools. There is nothing in our Bill that prevents that.
There is a very nasty scare campaign being run by the right-wing of the Liberal Party saying that this somehow undermines religious freedoms when it doesn't. This is simple. Do we support discrimination against children or do we not? If we don't support discrimination against children in our schools then we move the simple bill, support the simple bill that removes the right to discriminate. We should not allow this to be complicated by political agendas other than the simple desire to let our children live their true selves, not to be discriminated against in their schooling.
JOURNALIST: You said this is partisan; you've also said that the government is weaponising this issue. But isn't a conscious vote a way to avoid that partisanship and stop it being weaponised? Why don't you support a conscience vote?
SHORTEN: No one with a conscience supports discrimination.
JOURNALIST: But that means you're deciding the views of your own Labor MPs?
SHORTEN: No, no, it's Labor Party policy not to support discrimination. Frankly, the fact that these crude exemptions to the law currently exist, reflects on a lack of progress in the past and it's well past the hour to remove - well long past the time, if it ever in fact was the time, to have exemptions where kids could be discriminated against on the basis of their sexuality. So do you really need the Prime Minister's mechanism - no we don't. I think - in fact I know from survey after survey, most Australians do not support discrimination against kids. Let's go to where this debate started. This is the backwash of what happened a year ago. We had the marriage equality postal survey, a very complicated and expensive process But as the sop of the right-wing of the Liberal Party, Mr Turnbull said we better have an inquiry into religious freedom. Now that report was conducted, paid for by the taxpayers and it was concluded by about April or May - we've never seen it. If the government was being fair dinkum they would actually provide the report to the Australian people and indeed, to other members of the parliament. And so what's happened is that before Wentworth, Mr Morrison I think was concerned, in what was viewed as a socially progressive electorate, to be seen to want to talk about some issues and someone who didn't like Mr Morrison leaked the report and maybe - who knows. But the problem is this debate became public, and I think a lot of Australians discovered for the first time that it's legal to discriminate against kids. So we want to remove that and so -
JOURNALIST: What's the -
SHORTEN: Hang on this is a very important context to get; how did we arrive at this point because a lot of Australians would be looking at the parliament right now and saying why is it that when it comes to these issues, the parliament just sort of, disappears into finger-pointing and recrimination. It really is hopeless. What we've recognised is that we want to remove the discrimination, the exemption to discrimination - allowing it, we want to get rid of that. The Government doesn't like what we've proposed, they've proposed amendments which like it or not, our legal advice says will replace one form of discrimination with another. Calm heads prevailed in the Senate, you know Senator Cormann -
JOURNALIST: So why not have a conscious vote -
SHORTEN: Sorry, this is really - David there will be plenty of time for questions, because what the people of Australia don't want is this debate reduced down to little sound bites. Senator Cormann said in the Senate that the Government and the Opposition need more time to progress the discussions to make sure we get it right. 10 minutes later the Prime Minister bounds out and says lets you know, have a different way of doing it. So we are deeply frustrated because this isn't just about discrimination against kids, although that's the number one issue. What we've got here is yet again, the parliament set a test by the people of Australia and it's just descending into high farce.
JOURNALIST: What's your legal advice say though, what do you fear would happen under the government's bill?
SHORTEN: Well we will provide it to you, but it says and I'll quote “there can be little down in my opinion” - this is the Senior Counsel – “that amendment KQ149”, which is the amendment which the government is proposing, “has the potential to permit discrimination against students, in school both direct and indirect.”
JOURNALIST: Where is the resolution here; where do you meet in the middle?
SHORTEN: Good question.
JOURNALIST: Because my understanding is from what Scott Morrison said this morning schools can't prejudice, discriminate against gay students. But they also said that schools had the right to teach their religious beliefs. Isn’t it just inevitable that there is always going to be a clash here?
JOURNALSIT: How do you resolve it?
SHORTEN: Your question goes to the heart of the problem.
JOURNALIST: So how do you change it?
SHORTEN: Well let me explain. I think that most Australians, I'm sure all of you here and most people in the government and certainly everyone in the Opposition wants to remove the right to discriminate against kids - we agree on that. We also agree that we want to make sure that religious based schools can teach their faith according to their principles. We haven’t come across a mechanism which satisfies that second point to the satisfaction if you like, of the competing points of view.
JOURNALIST: But isn't it inevitable that we'll never come to that point of view because they both mutually oppose each other?
SHORTEN: Well I am not prepared to give up. I am not prepared to give up on removing discrimination against kids and respecting religion in our society. But what we don't have today is a solution. And so the question is when you don't have a solution, do you just engage in a train wreck or do you draw breath? I mean, the problem is that if you don't have an answer today, you can either have a big fight and divide this country and start you know, antagonising and making everyone nervous about who cares about what? Or does the Parliament do what we're paid to do, which is we sit down and we keep working through the issue.
JOURNALIST: Why do you think that Scott Morrison is doing this then? Could it not be he is doing it because he promised he would get it done in the Wentworth by-election, he hasn't got it done, he wants to close down that criticism? Or do you see something more sinister here?
SHORTEN: I'll get Tanya to perhaps answer some of that. But I'll just say this; I don't know, in my heart of hearts, Mr Morrison's motivation. But what I do know is that I do recognise a problem looming. Now in the Senate this morning, Mr Morrison's own Government worked with Labor and said listen, we haven't got it right yet, so as much as each would like to sort of, pursue a particular solution, we have got enough respect for competing points of view to try to get it right. But unfortunately 10 minutes later, we got this sort of crash through or crash approach which I don't think, in fact I fundamentally don't believe is the right way for the nation. We had enough division during the marriage equality debate, we don't need to repeat it because the politicians can't get their act together, but I might let Tanya talk a little further.
PLIBERSEK: I think the reason for this is pretty clear. I think that Scott Morrison initially proposed action in this area before the Wentworth by-election because he wanted to win a few votes. Since the Wentworth by-election, the right of his party have said no, it's not on. And like on every other issue Scott Morrison is capitulating to the hard right of his party, the reactionary right winger as the Member for Chisholm called them. What was it, "homophobic, women-hating, climate change deniers", as Kelly O'Dwyer called them. This is not complex, it's not hard to do. And we are once again travelling down the same path that we travelled down with the marriage equality debate, which Peter Dutton admits the plebiscite was introduced in order to prevent marriage equality. We're now introducing these issues of religious freedoms in order to prevent law reform, to protect gay and lesbian kids.
JOURNALIST: Except this time we’ve got a conscience vote, whereas same-sex marriage, there was not a conscience vote. This time that's what the Prime Minister is offering.
PLIBERSEK: What nonsense. What is he offering? He's not offering a single thing, Fran. And it bothers me that someone as experienced as you would be sucked in by this as an offer.
JOURNALIST: Why not -
PLIBERSEK: No, listen to me, this is really important. Labor Members of Parliament do not support discrimination against children. We don't need to take the temperature of the party to know that. We have had this discussion again and again. We do not support the discrimination against school children and no Australian with a conscience should support discrimination against children.
JOURNALIST: But is the other side of that argument that you don't support schools being able to teach their faith?
PLIBERSEK: No, absolutely not. Our advice shows, our legal advice from Maurice Blackburn shows that the proposition that the Prime Minister is putting forward swaps one legal form of discrimination with another legal form of discrimination. We have made it clear, in the explanatory memorandum to this bill. We have made it clear in Senator Collins' Second Reading Amendment that there is nothing in our legislation that prevents the teaching of religious instruction, including the tenants of the faith of the organisation, including mandating attendance at chapel, including religious instruction during the school day. All of that is untouched by our legislation and it is a wicked scare campaign on behalf of the Prime Minister and the Conservatives to suggest otherwise. It is not true and it is quite wicked.
JOURNALIST: Why not use a conscience vote and then seek to amend this bill on the floor of Parliament, which is what a free vote could do?
PLIBERSEK: Why are we contorting ourselves with all of these should we do this, or should we do that, when the solution is simple? The solution is remove the exemptions from the Sex Discrimination Act that allow discrimination against school children. It is simple. And just as with marriage equality, every effort to complicate it, is designed to delay and prevent this simple reform from occurring.
JOURNALIST: Can I ask more a bit more about the complexity of it, Mr Shorten maybe you could answer this.
JOURNALIST: When it comes to discrimination and what it actually is, if a faith or tenant of the faith is that being gay is wrong, homosexuality is wrong, is that discrimination in your mind, or is that just a reflection of a faith?
SHORTEN: Well let me go to our legal -
JOURNALIST: Because this gets the (inaudible) of it -
SHORTEN: Yes but Andrew this is not a sort of, debating society, this press conference. What we're talking about -
JOURNALIST: This is fundamental to it, isn't it?
SHORTEN: No actually, let me go to what is fundamental. The Government is proposing a mechanism which will lead to greater division in the community and it doesn't solve anything. It replaces one form of discrimination with another. I'll go specifically-
JOURNALIST: Okay, no I'll ask about your model then -
SHORTEN: I'm going to go - no I'm going to go specifically to point 7 in the advice from Mark Gibian, Senior Counsel. "Discrimination is where a person is treated less favourably by reason of, or for example, the person's sex, sexual orientation, gender identity. Now, if a school provides religious instruction or teaches religious beliefs to all students in a school, it would not be treating any student less favourably.” Now this is -
JOURNALIST: Well let's go to your model, then? Okay under your model, if a school taught that homosexuality was wrong, would that be discrimination? Under your model?
SHORTEN: Any church, religious based educational institution is allowed to teach the faith according to their tenants. But what they shouldn't be able to do is to discriminate against children by virtue of their sexual identity. And let's also be really, really clear
JOURNALIST: Haven't you just agreed with the Government?
SHORTEN: Most schools – no. Most schools do not want this debate. Most schools, religious schools, treat their kids very well. We've got to go to this division, guys.
PLIBERSEK: We have a division. Sorry, we have to go.
***DIVISION IN THE HOUSE OF REPRESENTATIVES***
SHORTEN: Are there any remaining questions on this issue?
JOURNALIST: Isn't the public entitled to take an incredibly dim view of all of you? You've had two months to come to a solution on what you admit is a very simple question and you haven't been able to do that. Aren't they entitled to judge all of you on both sides quite harshly for not being able to do that and for blaming each other for it?
SHORTEN: Well I tell you what, I'd rather get it right than wrong. And if that means taking a little longer than we otherwise wanted to, that's what we've got to do. I understand though the frustration people, and I said that in the earlier part of my press conference. I think the vast majority of Australians, and the vast majority of members of parliament, want to remove the right to discriminate against kids. There have been some concerns raised from religious institutions that they feel impinged upon their ability to teach their faith in their curriculum. We accept that we need to get it right. And in the Senate I have to say, at 10:30 this morning, the Government, the Opposition and the crossbenchers all agreed, let's take a little bit longer and get it right. But unfortunately, we've seen a crash or crash through approach, an almost immature approach in the House of Representatives, which says it's my way or the highway. And I can't turn my back on credible legal advice that the Government's proposals will replace one form of discrimination with another.
I think we've seen this pattern in the Government more generally; rush and haste. Haste and rush is no substitute for getting results. We've seen it in unrelated areas on the move of the embassy, on rushed encryption laws, on the divestment of energy companies. Every time the Government rushes in like a bull in a china shop, we've got to go back and get it right. And I don't think there's any issue more important after a year - it's the one year anniversary of marriage equality, we'd rather get it right and not see a divisive debate yet again take up so much time and cause so much harm.
JOURNALIST: So Tanya was saying just before that it's simple, you just remove the subsection that allows schools this right to discriminate. Now you're saying it's more complicated, we need more time to get right?
SHORTEN: No, what I'm actually saying is this; we think it's simple, the Government doesn't agree with our approach. But I've got enough respect for trying to bring people together in this country, that let's take the time and find the mechanism which does its very best to make sure that no child is discriminated against, but that religious educational institutions feel that they're able to teach their curriculum in their faith. I think the solution is straightforward but when there's a body of opinion which doesn't agree yet, we want to try and get it right. But this debate won't take too long. And I think Mr Morrison should follow the lead of the Leader of the Government in the Senate. I mean Senator Cormann said at 10:34 that they were going to defer this issue so further conversations could take place. But then eight minutes later, that time - we didn't realise the window for conversation was eight minutes and then out bounds the energetic Prime Minister saying let's just resolve all of this straight away.
JOURNALIST: What do you say to students who will now return to school next year without extra protections in place for them? Have you let them down?
SHORTEN: No, I think we are determined to remove discrimination and what we will do is we'll get it right. And what I can't do, in good faith is rush a solution which entrenches a new form of discrimination.
JOURNALIST: And what would you say to LGBTI people of various ages who constantly feel like their rights are being treated like a political football?
SHORTEN: I've got sympathy for that. I've got a lot of sympathy for that. An exemption against a law which says that it's okay to discriminate against people based on their marital status, whether or not they're pregnant, whether or not - their sexuality. Those laws should never have had a place, it's a crude tool and they do need to be removed. We'll keep working on that and we will remove it. So what I just say to people who feel put upon, you've got a lot of friends, this parliament will get it right. But I want to make sure we get it right and don't instead, re-entrench discrimination in a new form.