Key crossbenchers say greater rights to fire gay teachers and expel gay students would be ‘retrograde’ and ‘inappropriate’

This article is more than 1 year old

This article is more than 1 year old

Key crossbench senators have warned the government not to expand religious schools’ right to fire gay teachers and expel gay students, as Philip Ruddock intervened to claim the religious freedom report was designed to “provide clarity” about where this can already occur.

Senator Derryn Hinch and the Centre Alliance’s Rex Patrick told Guardian Australia any such changes would be “retrograde” and “inappropriate” after the leak of sections of the Ruddock religious freedom review backing schools’ right to turn away gay students. Hinch also called for the government to strip public funds from schools that discriminate on the basis of sexuality.

One Liberal supporter of same-sex marriage – the MP Trent Zimmerman – has provided qualified backing to Ruddock’s view that the report has recommended “positive changes” that will in fact restrict religious schools’ ability to discriminate under existing federal law. The full report has not been released publicly.

Guardian Australia has confirmed that the Ruddock review recommended the commonwealth amend the federal Sex Discrimination Act to provide “that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status”.

By stating that schools may discriminate in federal law, the section may create an inconsistency with state laws and override those that provide greater protections to LGBTI people. Federal law currently allows religious schools to discriminate by way of an exemption that does not override state laws.

LGBTI advocates have called on the government to rule out extending the federal law to the states, because students in Queensland and Tasmania and teachers in Tasmania are protected from discrimination on the basis of sexuality.

Liberal Dave Sharma rejects giving religious schools right to expel gay students Read more

In order to gain the right to discriminate, schools would need to provide a public policy stating their position and give notice to parents, students and prospective students.

Further safeguards require that the school must have “regard to the best interests of the child as the primary consideration in its conduct” and discrimination must be “founded in the precepts of the religion”.

Ruddock told Guardian Australia the panel found that “in large measure” the issue of firing teachers and expelling students “was not a problem”.

However, Ruddock said some religious schools felt that “their ethos, part of their belief system” could be “unreasonably challenged”, for example if students proselytise against religious teachings.

He said the recommendation sought to ensure in jurisdictions where discrimination on sexuality can already occur – including New South Wales and the Australian Capital Territory – schools “can’t ambush people – they need to spell it out with clarity”.

A further leak from the Ruddock review – seen by Guardian Australia – revealed the panel said there was “no need” to introduce provisions allowing religious schools to discriminate on the basis of sexuality in jurisdictions with greater protection for LGBTI staff and students.

Ruddock confirmed this was a finding of the report, but declined to say whether anything else in the report could overturn the rights of students and teachers in jurisdictions currently protected from discrimination on the basis of sexuality.

Patrick said that religious freedom laws were a matter of conscience in his party but he would “find it inappropriate” for laws to allow firing of gay teachers and expulsion of gay students based on sexuality.

“Teachers should be employed on merit and exclusively on merit,” he said. “Students should be able to attend a religious school … irrespective of their sexuality.”

Centre Alliance education spokeswoman, MP Rebekha Sharkie, agreed that if religious schools get public funding they should not be able to discriminate.

The government wants another fight on LGBT rights – and I'm sick with panic | Sally Rugg Read more

Hinch said if reports that powers to fire and expel gay staff and students could be extended are accurate “it is a retrograde step for this country and won’t pass the Senate”.

Hinch also flagged a Senate motion that private schools should “be stripped of all government funds and charity status” if they discriminate against a teacher or student on sexuality grounds.

Derryn Hinch (@HumanHeadline) I will move a notice of motion in the Senate Monday calling for any private school that discriminates against a teacher or student on sexuality grounds be stripped of all government funds and charity status.

On Wednesday the attorney general, Christian Porter, went into damage control, arguing there is “no proposal for any new exemption” because federal law already allows religious schools to reject teachers and students based on sexuality.

Scott Morrison said the “existing law” is to allow schools to turn students away based on sexuality. The Ruddock review – submitted in May – is a report to government and is yet to be considered in cabinet.

Zimmerman told Guardian Australia he hadn’t seen the report but “based on reporting it seems to recommend some positive changes to existing federal law which allow religious schools to discriminate”.

He said these included requiring schools to publish a policy of their intention to discriminate on the grounds of sexuality, and restricting discrimination to “new enrolees, not existing students”.

In another part of the Ruddock review seen by Guardian Australia, the panel said there was “no justification” for schools to discriminate on the basis of race, disability, pregnancy or intersex status.

It recommended these exceptions to anti-discrimination law that allow religious schools to discriminate on those grounds to be abolished, which Zimmerman said would lead to “greater protection”.

The report recommended that states should not allow religious schools to discriminate against an employee “solely on the basis that the employee has entered into a marriage”.

In a statement the shadow attorney general, Mark Dreyfus, said: “Labor has been clear – we will not support any weakening of existing anti-discrimination law.

“We will not support any new laws which make it easier to turn kids away from a school because of who they are.”

The Greens have also committed to opposing any changes that might extend religious schools’ powers to discriminate.