Treasurer Frydenberg, Please Abolish the National School Chaplaincy Program

The Morrison Liberal-National Government is currently calling for Pre-Budget Submissions for the 2019-20 Commonwealth Budget. Submissions close 1 February 2019 – for more details click here.

 

Please see my submission below, which I have also sent to the Leader of the Opposition Bill Shorten and Shadow Treasurer Chris Bowen.

 

**********

 

Treasurer Josh Frydenberg MP

c/- prebudgetsubs@treasury.gov.au

 

Monday 28 January 2019

 

Dear Treasurer

 

Please Abolish the National School Chaplaincy Program

 

Thank you for the opportunity to provide a submission ahead of the upcoming 2019-20 Commonwealth Budget.

 

In this submission I will make the case for what should be the easiest Budget decision of them all – to save $247 million over four years by abolishing the National School Chaplaincy Program.

 

There are multiple reasons why this entirely unjustified program should be axed, with most stemming from the requirement that any person who acts as a school chaplain must be religious. This requirement is completely inappropriate in a contemporary society.

 

In theory, these positions are supposed to be about improving student welfare. In practice, they are about promoting Christian theology, including in supposedly secular public schools.

 

As the Guardian Australia reported, in 2015 the Education Department revealed that of 2,336 chaplains funded by the Commonwealth Government, 2,312 (or 99%) were Christian, with the negligible remainder split between Islam (13), Judaism (eight) and one each from Bahai, Buddhism and Aboriginal traditional religions.

 

As a program it has already been found to be unconstitutional on multiple occasions (thanks to the ongoing efforts of the courageous Ron Williams). Successive Commonwealth Governments have responded by resorting to increasingly intricate arrangements to circumvent these findings.

 

Indeed, on a prima facie reading, the program is clearly in breach of section 116 of the Constitution, which provides that:

 

‘Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’

 

The only reason the program has not been found unlawful because of section 116 is because the money to fund it is now funnelled through grants to state and territory governments.

 

Instead of engaging in this intellectual dishonesty, the Commonwealth Government should instead honour the spirit of the Constitution. As Treasurer, you should acknowledge that the National School Chaplaincy Program imposes a religious test on positions that are paid for with taxpayers’ monies – and consequently abolish it.

 

The religious requirement for chaplaincy positions presents another legal problem, and that is it is potentially in breach of state and territory anti-discrimination and equal opportunity laws,[i] because it actively discriminates against people with different religions, or who have no religion.

 

This is currently being tested in the Victorian Civil and Administrative Tribunal, with a complaint against Access Ministries by a person who was barred from applying for a position with them because she was not Christian. As noted in that complaint:

 

‘The discrimination is not reasonably necessary for Access Ministries to comply with the doctrines, beliefs or principles of the religion associated with Access Ministries, because the work of a school chaplain takes place in a non-religious context and workplace, namely a government school, with a student population made up of students with a variety of religious affiliations and with no religious affiliation.’

 

Hopefully, that challenge is successful. Even if it fails, it is likely that the lawfulness of the National School Chaplaincy Program will come under fresh scrutiny as the Commonwealth Government establishes a new Religious Discrimination Act, as part of its response to the Ruddock Religious Freedom Review.

 

It is impossible to argue the program does not discriminate on the basis of religious belief (or lack thereof), when such discrimination lies at its heart. There must be no special loopholes as part of any new Commonwealth Religious Discrimination Act merely to allow discrimination against non-Christians, agnostics and atheists alike to continue. Nor should there be taxpayer funding for this discrimination in the Commonwealth Budget.

 

A third reason why the National School Chaplaincy Program should be abolished is because of its internal contradiction, with people hired as school chaplains because they are religious then required not to ‘proselytise’ their beliefs as part of their role.

 

There have been multiple reports, over many years, of chaplains in public schools completely disregarding this prohibition.

 

From 2011The United Christian Education Foundation is the chaplaincy provider at Ulladulla High School on the New South Wales South Coast.

 

A newsletter on its website reads: “There is much to be thankful for as we look back on another year of bringing the great news of Jesus to the precious young people at Ulladulla High School. The other week a Year 7 boy put up his hand and said, ‘I asked Jesus into my life the other day’.

 

“A Year 8 girl told me about the peace she now has since becoming a Christian,” the newsletter continues.

 

Proselytising is against the federal Education Department’s guidelines on chaplaincy, but some students at the Ulladulla school believe the chaplain is there to convert them.

 

“[It is] basically to make people become of his religion. That’s it really. To convert people to their religion,” said Max, a Year 8 student.

 

Nick, a maths teacher at the primary school nearby, was shocked when the chaplain came to his school and invited the children to pray.

 

“The chaplain was addressing the Year 6 children, a majority of those children would be going to the local high school and he did say that he was available for children there, and they can come to him and pray with him, or if not, he would pray for them,” he said.

 

And from just last year: Generate Ministries, the largest provider of school chaplains in NSW, has begun offering a “faith building” course to students and told them their chaplain is one way of accessing the program.

 

The subject, called Veta Morpheous, is a certificate III course for HSC students developed by the Victorian-based Veta Youth which says the studies enable students to “really invest in your spiritual growth and to explore your faith with adult mentors” and “grow in your Christian life.”

 

“It’s a space… to discover who you are in Christ, and to test your faith in real life,” Veta Youth says.

 

In a now-amended statement on its website Generate Ministries said: “The key to the program is the local ministry supervisor and the peer group supervisor… this is often the local minister, Chaplain.”

 

When contact about the possible breach, Generate Ministries said it only intended for chaplains funded under a separate NSW wellbeing program to offer the course. However that program also forbids chaplains from proselytising.

 

There are countless other examples of chaplains engaged in proselytising behaviour. Perhaps just as concerning is what is not considered proselytising, and therefore deemed acceptable, with then-Education Minister Simon Birmingham telling Senate Estimates that proselytising is only ‘attempt[ing] to convert someone to a particular religion or belief’ and that quoting the Bible is not necessarily proselytising.

 

I am sure many parents with children attending public schools would be horrified by that distinction.

 

To some extent, it is difficult to blame chaplains for engaging in this behaviour. Telling them not to proselytise – when that activity forms such a central part of their identity, their ‘mission’ – is like telling News Corp columnists not to engage in culture wars. It is their raison d’etre, and they will continue to do so for as long as they draw breath (and expel hot air).

 

The fault instead lies with the Howard Liberal-National Government who first funded this program, and all subsequent Governments who have extended it, knowing that employing chaplains in schools will inevitably lead to proselytising to children, irrespective of what any guideline might say.

 

You will own your share of that blame if you do not abolish the National School Chaplaincy Program in your first Budget as Treasurer, expected in April 2019.

 

The fourth problem is a much more fundamental one, and that is, if the aim of the program is to promote student welfare, the National School Chaplaincy Program is a poorly-designed, and ineffective, approach.

 

It is an opt-in program, and even then the funding provided does not pay for a full-time position (with schools expected to fundraise to supplement the Government’s grant). Given the people hired must satisfy a religious test, it is also not open to all of the best-qualified people for the role,[ii] meaning some students will inevitably end up with second-rate support.

 

In short, it is a half-hearted attempt to address what is a genuine challenge.

 

If the Morrison Liberal-National Government was actually serious about student welfare, it would provide funding for school counsellors in all schools, and employ people based on their qualifications not their religious beliefs. If you are not prepared to do that, it is clear student welfare is not the primary focus of the program, and it must therefore be abolished.

 

My fifth and final concern is a much more personal one and that is, as a long-term advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the National School Chaplaincy Program is inherently dangerous for LGBTI students.

 

This is not to say that all chaplains are homophobic, biphobic, transphobic or intersexphobic. I am sure there are many who are genuinely inclusive and respectful of all students irrespective of sexual orientation, gender identity or sex characteristics.

 

However, I am saying there have been too many examples, over too many years, of people employed under the National School Chaplaincy Program being harmful to young LGBTI people. In some cases, the organisations providing chaplains across different schools are themselves explicitly homophobic and transphobic.

 

For example, from 2014: ‘Citing a survey from gay rights organisation All Out, Senator [Lousie] Pratt said “students described chaplains helping them to ‘pray the gay away’ and advising them to sleep with a member of the opposite sex to ‘correct’ their same sex attraction”.’

 

And this, from 2015‘The school chaplaincy program in NSW is dominated by Generate Ministries, which lodged a submission to an Australian Human Rights Commission inquiry into religious freedom stating homosexuality is “a serious sin”.’

 

How could any LGBT student attending a school with a Generate Ministries chaplain ever feel comfortable seeking support from their supposed school welfare officer when that person thinks they are intrinsically sinful?

 

Meanwhile, from last year‘In one disturbing case, a transgender child was forced into seven sessions of chaplaincy counselling at her religious school – without her parents’ knowledge – in a bid to stop her from transitioning…

 

Canberra’s response [not to take action against gay conversion therapy] belies the fact that gay conversion ideology has been quietly pushed in schools as part of the federal government’s chaplaincy program.’

 

There are plenty of other examples of the National School Chaplaincy Program being the source of homophobia and transphobia. This is shameful, but not nearly as shameful as the fact taxpayers’ money – money from people like me – is being used to inflict these harms on young LGBTI people.

 

It is your moral responsibility, as Treasurer, to cease funding for a program that, rather than improving student welfare, contributes to the mistreatment of some of the most vulnerable members of society.

 

**********

 

As I have outlined above, the only reason the National School Chaplaincy Program remains constitutional is because successive Commonwealth Governments have chosen to circumvent decisions of the High Court.

 

It is possible the program is unlawful under state and territory anti-discrimination laws, because it actively discriminates on the basis of religious belief, and it would likely fall foul of any new Commonwealth Religious Discrimination Act.

 

The National School Chaplaincy Program also suffers from an insurmountable internal contradiction, where people whose primary purpose is to proselytise are politely asked not to. It is unsurprising that many fail to obey this direction.

 

It is a poorly-designed, and ineffective, student welfare program; if Governments were actually serious about student welfare they would fund qualified counsellors in all schools. The National School Chaplaincy Program is also dangerous, and harmful, to lesbian, gay, bisexual, transgender and intersex students.

 

While these may sound like challenges, they also represent an opportunity for you, as Treasurer, to make perhaps the easiest saving of a quarter of a billion dollars that anyone could ever make. The only question is whether you are up to the task.

 

Thank you in advance for taking this submission into consideration.

 

Sincerely

Alastair Lawrie

 

cc Bill.Shorten.MP@aph.gov.au Chris.Bowen.MP@aph.gov.au

 

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Treasurer Josh Frydenberg, who could save $247 million – or continue to fund the discriminatory, harmful and wasteful National School Chaplaincy Program.

 

Update: 12 April 2019

Treasurer Frydenberg handed down the Commonwealth Budget on Tuesday 2 April 2019. Unfortunately, although perhaps not unexpectedly, the Treasurer and the Morrison Liberal-National Government have decided to continue funding for the National School Chaplaincy Program, with $61.4 million committed for each of the next four years.

However, while not unexpected, it remains a disgraceful decision, and an unjustifiable waste of $245.6 million in taxpayers money, on a scheme that is discriminatory against people who are not christian, and inherently harmful for LGBTI students in particular.

With a federal election now scheduled for Saturday 18 May 2019, it is up to the Australian public to vote out a Government that prefers to subsidise the religious indoctrination of children rather than genuinely support student welfare.

Footnotes:

[i] In the states and territories where religious belief is a protected attribute, noting that New South Wales and South Australia currently do not prohibit religious discrimination in their anti-discrimination laws.

[ii] I am not suggesting that all people currently hired as chaplains do not have appropriate student welfare qualifications, but I am saying that, by excluding a large proportion of people because of their religious beliefs (or lack thereof) the talent pool of people hired must inevitably be significantly diminished.

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Letter to Minister Pyne Calling for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion

The Hon Christopher Pyne MP

Commonwealth Minister for Education

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

C.Pyne.MP@aph.gov.au

Tuesday 9 December 2014

Dear Minister Pyne

Call for COAG to Reject Health & Physical Education Curriculum Due to Ongoing LGBTI Exclusion

I am writing to you in advance of the COAG Education Ministers Council meeting on Friday 12 December 2014 in Canberra. Specifically, I am writing to request that you, and your state and territory ministerial counterparts, reject the national Health & Physical Education (HPE) curriculum and start again.

I make this serious request on the basis that this curriculum does not ensure that all students are provided with health and physical education that is relevant to their needs, including those students that are lesbian, gay, bisexual, transgender and intersex (LGBTI).

The development of the national HPE curriculum has, like other national curricula, been a long process, with multiple stages of public consultation.

This has included:

None of these versions of the HPE curriculum have been genuinely LGBTI-inclusive. None of these three documents have even included the words lesbian, gay or bisexual. Not once. How can a national HPE curriculum support all students, including those with diverse sexual orientations, if it cannot even name them?

It must also be pointed out that none of the three drafts of the HPE curriculum have included sufficient sexual health information, with no references to sexually transmissible infections, condoms and/or safer sex and, more than 30 years into the HIV epidemic, none have even mentioned HIV or other blood borne viruses. These omissions mean Australian students, including but not limited to LGBTI students, will not be given the information that they need to stay safe in future.

Of course, the national HPE curriculum, like other curricula, underwent an additional review during 2014, after you requested that Mr Kevin Donnelly and Mr Ken Wiltshire review the entirety of the Australian curriculum (see my submission to this review here:  https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/).

Unfortunately, the outcome of this review, at least as far as the HPE curriculum is concerned, is far from positive (see my summary of this: https://alastairlawrie.net/2014/11/09/the-national-curriculum-review-fails-to-support-lgbti-students/).

In their report, released in October 2014, Mr Donnelly and Mr Wiltshire noted that at least one jurisdiction, one religion-based school system, and a number of other individual schools, have each rejected the inclusion of even minimal content for same-sex attracted and gender diverse students, and will oppose any attempt to introduce comprehensive sexual health education.

The national curriculum review also found that the HPE curriculum is overcrowded, and recommended that “[t]he core content should be reduced and a significant portion should become part of school-based curriculum…” This jeopardises further the few positive references that have made it into the current draft (such as the option for schools to teach students about homophobia, alongside racism, sexism and other forms of discrimination).

Finally, the national curriculum review report supported the views of some religious organisations that the HPE curriculum should grant schools even greater flexibility in how ‘sexuality education’ should be delivered, when it should be delivered (allowing schools to delay provision of this vital information), and even flexibility in who should teach it (commenting that “[w]e think this is the way forward” in response to suggestions that older teachers should deliver these topics).

The specific recommendation in this area notes “[t]he two controversial areas of sexuality and drugs education should remain, but schools should be given greater flexibility to determine the level of which these areas are introduced and the modalities in which they will be delivered…”

The net outcome of the national curriculum review, at least as it concerns Health & Physical Education, is this: a curriculum that already largely excluded LGBTI students and content, is, in practice, found to be essentially optional, with at least one jurisdiction, one religion-based school system, and other individual schools all opting-out. What LGBTI-related subject matter there is remains under threat as the content is slimmed down, while those religious schools that do teach ‘sexuality education’ will have the ‘flexibility’ to choose when it is taught, how it is taught and even by whom it is taught.

This is the exact opposite of what a national curriculum should be. A national Health & Physical Education curriculum should be a document that recognises that, no matter what state they reside in, and irrespective of the type of school they attend (government, religious or private), all LGBTI students have the fundamental right to an inclusive education, to learn about themselves and their sexual orientations, gender identities and intersex status, to be taught that who they are is okay, and not to be silenced, excluded or marginalised.

The existing version of the HPE curriculum does not even come close to recognising that right, and, as such, I believe it should be rejected and the entire curriculum development process begun again.

I call on you and the state and territory ministers attending the COAG Education Ministers Council meeting to take this serious course of action because the failure to do so will have serious consequences for the next generation of LGBTI young people and students.

I am sure you are aware young LGBTI people are at greater risk of experiencing bullying (including homophobic, biphobic, transphobic and intersexphobic discrimination) and physical abuse, are at greater risk of depression and other mental health issues and, most tragically of all, are at greater risk of attempting or committing suicide than their non-LGBTI peers.

The development of a national Health & Physical Education curriculum was an unprecedented opportunity to address some of these issues by guaranteeing that, in their classrooms at least, young LGBTI people were provided with an inclusive and understanding environment. Unfortunately, despite two public consultations and the national curriculum review, the current draft of the national HPE curriculum fails miserably to seize this opportunity.

We can do better, we should do better, we must do better, for the sake of young LGBTI people around the country, now and in coming years. Please reject the national Health & Physical Education curriculum and start again.

Sincerely

Alastair Lawrie

Will Minister Pyne listen to the needs of LGBTI students?

Will Education Minister Christopher Pyne listen to the needs of LGBTI students?

Cc: The Hon Adrian Piccoli MP, NSW Minister for Education (office@piccoli.minister.nsw.gov.au)

The Hon James Merlino MP, Victorian Minister for Education (james.merlino@parliament.vic.gov.au)

The Hon John-Paul Langbroek MP, Queensland Minister for Education, Training and Development (education@ministerial.qld.gov.au)

The Hon Peter Collier MLA, Western Australian Minister for Education (Minister.Collier@dpc.wa.gov.au)

The Hon Jennifer Rankine MP, South Australian Minister for Education and Child Development (minister.rankine@sa.gov.au)

The  Hon Jeremy Rockliff MP, Tasmanian Minister for Education and Training (jeremy.rockliff@parliament.tas.gov.au)

The Hon Joy Burch MLA, Australian Capital Territory Minister for Education and Training (BURCH@act.gov.au)

The Hon Peter Chandler MLA, Northern Territory Minister for Education (minister.chandler@nt.gov.au)

The National Curriculum Review Fails to Support LGBTI Students

The Final Report of the Review of the Australian Curriculum, conducted by Ken Wiltshire and Kevin Donnelly, was released on Sunday 12 October 2014, accompanied by the Commonwealth Government’s Response (both documents can be found at the following link: <http://www.studentsfirst.gov.au/review-australian-curriculum ).

Based on initial reporting (including this article by Samantha Maiden in The Sunday Telegraph <http://www.dailytelegraph.com.au/news/nsw/teenagers-should-be-given-lessons-on-sex-and-drugs-national-curriculum-report-states/story-fni0cx12-1227087475187 ), you could be forgiven for believing that the outcome of the Review was, overall, a positive one for LGBTI students, with a commitment to include content relevant to their needs.

Unfortunately, however, a closer examination of the Final Report, and the Government’s Response, reveals that it is nothing more than another missed opportunity, yet another failure to ensure that the national Health & Physical Education (HPE) curriculum caters to the needs of all students, including those of different sexual orientations, gender identities and intersex status.

To understand just how far short of this standard the ‘Wiltshire & Donnelly’ Review falls, we must first look back at the development of the HPE curriculum. Drafted by the Australian Curriculum, Assessment & Reporting Authority (ACARA) during 2012 and 2013, the HPE curriculum was subject to two rounds of formal public consultation, before the current draft was submitted for the consideration of COAG Education Ministers late last year.

Despite a number of submissions highlighting the HPE curriculum’s failure to genuinely include LGBTI students and content (including two from yours truly: <https://alastairlawrie.net/2013/04/11/submission-on-national-health-physical-education-curriculum/ and <https://alastairlawrie.net/2013/07/30/submission-on-redrafted-national-health-physical-education-curriculum/ ), and even after some minor tinkering around the edges (with a couple of welcome references to ‘homophobia’ and ‘transphobia’ added), the current draft of the HPE curriculum does not guarantee that all students will learn what they need to know to be comfortable in who they are, and to stay safe.

In particular, as I made clear in my submission to the National Curriculum Review itself, the draft HPE curriculum:

  • Has significant problems in terms of terminology – for example, it does not even use the words ‘lesbian’, ‘gay’ or ‘bisexual’ once in the entire document.
  • Includes a fine-sounding commitment to student diversity that is almost immediately undermined by allowing “schools flexibility to meet the learning needs of all young people” – and which is especially poor when compared with the first draft that clearly stated that “same-sex attracted and gender diverse students exist in all Australian schools”.
  • Does not ensure students receive comprehensive sexual health education – with no year band descriptions providing a minimum level of information about sexually transmissible infections, and no references to condoms either, and
  • Completely excludes HIV and other BBVs, like hepatitis B and C – despite the fact that, more than 30 years into the HIV epidemic in Australia, the number of transmissions is rising (with one potential cause a lack of comprehensive and inclusive sexual health/BBV education for students).

[NB My full submission to the National Curriculum Review is available here: <https://alastairlawrie.net/2014/03/13/submission-to-national-curriculum-review-re-national-health-physical-education-curriculum/ ].

The choice to appoint noted homophobe Kevin Donnelly (see my letter to Minister Pyne calling for Mr Donnelly to be sacked on that basis: <https://alastairlawrie.net/2014/01/11/letter-to-minister-pyne-re-health-physical-education-curriculum-and-appointment-of-mr-kevin-donnelly/ ) to review what was already a poor document was obviously a major concern.

And I will be the first to admit that the Final Report of the National Curriculum Review, including its recommendations about the HPE curriculum, is not as bad as was initially anticipated. But just because it did not live down to some exceptionally low expectations, does not mean that the outcome for the HPE curriculum, and its potential impact on LGBTI students, was in any way positive.

The first major failing of the National Curriculum Review’s approach is that it appears to concede, without mustering much opposition, that, far from being a national minimum standard, the HPE curriculum is essentially optional.

For example, it notes that “one jurisdiction said it would refuse to implement the content in sexual orientation” (which appears to be Western Australia), while “a few schools are implacably opposed to the inclusion of such material [sexuality education] and some have refused to teach it”, and “[o]ne organisation claimed they would not teach it as prescribed as it did not fit in with their religious values.”

Presumably, that final organisation was the National Catholic Education Office (NCEC), with the Final Report noting that “the submission by the NCEC signals that Catholic schools reserve the right to implement the Australian Curriculum according to the uniquely faith-based and religious nature of such schools: For example, as usual in all Catholic schools, the new Health and Physical Education Curriculum will need to be taught in the context of a Personal Development program informed by Catholic values on the life and personal issues involved” (emphasis in original).

Which means that Catholic Schools – which now account for more than 1-in-5 students across Australia – (presumably) Western Australian schools, and select other schools, have all refused to implement a document that wasn’t even genuinely LGBTI-inclusive to start.

The second major failing, or in this case potential failing, of the National Curriculum Review’s approach is that it supports “the need to reduce the amount of content overall”, noting that “[s]ubmissions and consultations and the opinion of the subject matter specialist suggest that it is overcrowded and needs some slimming down and some restricting of year-level content. Some of the content could well be addressed more in school-based activity.”

Indeed, one of its key recommendations is that “[t]he core content should be reduced and a significant portion should become part of school-based curriculum…” While this recommendation isn’t explicitly linked to LGBTI-related content, there is now a real risk that, in finalising the HPE Curriculum, either at the COAG Education Ministers meeting in December, or subsequently during 2015, what little LGBTI-inclusive material there is may be on the chopping block. This is something that will need to be monitored closely in coming months.

The third major failing of the National Curriculum Review in this area is that, rather than mandating that every student, in every school, receives a minimum level of LGBTI-related education, it instead supports ever greater levels of ‘flexibility’ in terms of what is delivered in the classroom (noting that that the original HPE curriculum already supported ‘flexibility’ in this area).

For example, in one particularly telling paragraph it notes “[o]ther schools, including Christian schools, have advised us that they are comfortable with the inclusion of such content [sexuality education] in the health and physical education curriculum, provided there is flexibility so that they are able to teach it at the age level they deem appropriate, and by mature teachers rather than younger ones who may feel challenged in this arena. We think this is the way forward.”

Which, upon analysis, is actually a pretty bizarre statement – not just because it shouldn’t matter how old a teacher is, as long as they are appropriately qualified, but also because the National Curriculum Review is essentially agreeing to schools disregarding the evidence of when it is best to provide sexuality/sexual health education to students. Instead, the Review supports allowing schools to teach this content at whatever age they wish, without any justification, and presumably delaying it beyond the age at which it would be most valuable.

The recommendation in this area goes even further: “[t]he two controversial areas of sexuality and drugs education should remain, but schools should be given greater flexibility to determine the level at which these areas are introduced and the modalities in which they will be delivered…” (emphasis added). Which means that even how sexuality education is taught is apparently negotiable.

The net outcome of the National Curriculum Review, at least as it concerns Health & Physical Education, is this: A curriculum that already largely excludes LGBTI students and content, is, in practice, essentially optional, with at least one jurisdiction, one religion-based school system, and other individual schools all opting-out. What LGBTI-related subject matter there is remains under threat as the content is ‘slimmed down’ in coming months, while those religious schools that do teach ‘sexuality education’ will have the ‘flexibility’ to choose when it is taught, how it is taught and even by whom it is taught.

Which, to me at least, sounds like the exact opposite of what a national curriculum should be – and demonstrates just how big a missed opportunity this entire process has been.

A national Health & Physical Education curriculum should be a document that recognises that, no matter what state they reside in, and irrespective of the type of school they attend (government, religious or private), all LGBTI students have the fundamental right to an inclusive education.

The existing HPE curriculum does not even come close to recognising that right, and the Final Report of the Australian Curriculum Review will not deliver it, either. That is why we must give the ‘Wiltshire & Donnelly’ Review a fail – because it fails to support LGBTI students.

Two final points. First, at least one of the explanations for why the National Curriculum Review has ultimately failed LGBTI students lies in the fact that it actively bought into the notion that the area of ‘sexuality education’ is somehow controversial. Well, that is simply not true.

Just because there are people who disagree with something does not make it controversial. Just because some governments, religious organisations, individual schools and even some parents do not think students should be taught material because it is LGBTI-inclusive, does not mean their opinion is valid.

None of their individual or collective prejudices about sexual orientation, gender identity or intersex status trump the rights of LGBTI students to hear about themselves in the classroom, and to be taught that who they are is okay. Nor do the so-called interests of these groups override the need to reduce the number of suicides of young lesbian, gay, bisexual, transgender and intersex people, an ongoing tragedy in schools and communities across the country.

Which brings me to my final point. Some people believe that the inclusion of the following paragraph indicates that the Curriculum Review is supportive of LGBTI students:

“Expert medical opinion is clear that, along with the earlier maturation of young people, there is currently a serious crisis – including youth suicides – occurring in Australian society in this domain as a result of a lack of forums and spaces where young people can discuss such issues, including sexuality. The school setting, on the assumption that the curriculum is balanced and objective in dealing with what are sensitive and often controversial issues, offers one of the few neutral places for this to occur.”

Of course, I agree with the majority of this statement (reference to ‘controversial’ aside) – as would many advocates operating in this area. But, if you are to raise the spectre of youth suicide, and LGBTI youth suicide in particular, but then fail to deliver a document that would do anything to tackle this crisis, then, Mr Wiltshire and Mr Donnelly, your words aren’t just hollow and tokenistic, they are offensive.

Ken Wiltshire & Kevin Donnelly's National Curriculum Review has failed LGBTI students around the country.

Ken Wiltshire & Kevin Donnelly’s National Curriculum Review has failed to support LGBTI students around the country.

Dear Joe Hockey, If you’re serious about cutting expenditure, you must axe school chaplains

As promised during the 2013 federal election campaign, one of the first actions of the Tony Abbott-led Liberal-National Government was to establish a National Commission of Audit, to review all Commonwealth expenditure in an effort to reduce spending and ultimately deliver a Budget surplus.

Indeed, the Terms of Reference for the Commission of Audit described it as a “full-scale review of the activities of the Commonwealth government to:

-ensure taxpayers are receiving value-for-money from each dollar spent;

-eliminate wasteful spending; …

-identify areas or programs where Commonwealth involvement is inappropriate…” [among other objectives].

The Commission’s first report was delivered to the Treasurer, Joe Hockey, in mid-February, and the second was handed over at the end of March. The contents of both reports were, quite cynically, kept from the public ahead of the Western Australian half-Senate election on 5 April (because you wouldn’t want an electorate to actually be informed about impending spending cuts before they vote), although, with only one month left until the Federal Budget is handed down it’s highly likely they will be released in the next week or two.

It is expected that the Commission will recommended that the axe fall on (or at least make significant cuts to) a wide range of different programs, with apparently ‘authorised’ leaks focusing on things like the aged pension, Medicare (through a $6 co-payment) and other vital health, education and welfare services.

However, there is one program that, I believe, meets all of the above criteria and thoroughly deserves to be cut as part of any serious expenditure review: the National School Chaplaincy and Student Welfare Program. It is almost impossible to argue that putting ministers of religion into government schools could ever be value-for-money, when compared with almost any other government expense. As well as being enormously wasteful spending, it would also seem to be the definition of a program where Commonwealth involvement is inappropriate.

And yet, given the highly political nature of the Commission of Audit, I suspect it is unlikely the National School Chaplaincy Program is under any real threat. Even if the Commission were to recommend its abolition, it is hard to believe that Joe Hockey would actually follow through on any such advice when he rises to the dispatch box on the night of Tuesday 13 May.

More’s the pity. The National School Chaplaincy Program is amongst the worst examples of public policy over the past decade (and there have been some absolute shockers in that time). It was introduced by John Howard in the dying days of his government (2007), as he realised his grip on power was loosening with age – basically, it was a sop to ultra-conservatives and religious fundamentalists (both of which can be found in the form of the Australian Christian Lobby) to entice them to remain aboard his sinking electoral ship.

Alas, in a demonstration that poor policy, and religious pork-barrelling, can be bipartisan, the incoming Prime Minister, Kevin Rudd, maintained the National Schools Chaplaincy Program throughout his first stint in the Lodge. When it came time to review the first three years of its operation, frustratingly he and his then Deputy, Education Minister Julia Gillard, chose to continue, rather than close, the program.

As Prime Minister in the lead-up to the 2010 poll, Gillard then announced a $222 million extension of the program til the end of this year (2014). This money was also provided to allow for expansion of the scheme’s coverage, from 2,700 schools up to 3,550 schools.

The only figure that accomplished anything to at least partially mitigate the genuine awfulness of the National Schools Chaplaincy Program over the past seven years was Education Minister Peter Garrett, who changed the program guidelines from the start of 2012 to allow schools to choose between chaplains or qualified student counsellors (hence the revised name). He also attempted to introduce a requirement that all workers, including chaplains, have some level of relevant qualifications, although recognition of ‘prior learning’ on the job was also encouraged.

Nevertheless, the vast majority of people employed as a result of this scheme remain ministers of religion. Imagine that: in 2014, the Commonwealth Government provides up to $24,000 per year to more than three and a half thousand schools to subsidise the employment of someone whose primary ‘qualification’, indeed whose primary vocation full stop, is to proselytise.

Ironically, the National School Chaplaincy and Student Welfare Program Guidelines then go to great lengths to attempt to limit the ability of chaplains to proselytise or evangelise from their position of authority within the school community, which is about as useful as telling a tree to stop growing leaves (or telling Cory Bernardi to stop being a bigot). It seems like the apotheosis of a set of rules where adherence, rather than breach, will be the exception.

The Guidelines themselves are also full of loopholes, allowing chaplains to “provid[e] services with a spiritual content (excluding religious education) including facilitating discussion groups and lunch time clubs” with approval and consent, as well as “performing religious services/rites (such as worship or prayer during school assembly etc), with… appropriate prior consent”.

This is an obvious and serious contravention of the principle of the separation of church and state. In the United States, such a program – paying for men (and some women) of faith to introduce their religion into government schools – would be struck out as unconstitutional by their Supreme Court.

Sadly, the anaemic interpretation of section 116 of the Constitution adopted by the High Court of Australia in the “DOGS case” [Attorney-General (Vic); Ex Rel Black v Commonwealth [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981)] meant that it was never going to be struck down here, or at least not on those grounds.

Even after the program was successfully challenged by Toowoomba father, and man of principle, Ron Williams in 2012, with the High Court finding that the scheme did not have a legislative basis to appropriate money, the Government squibbed the ideal chance to abandon a flawed program and instead rushed through legislation to support its ongoing operation [as an aside, the High Court will be hearing a further challenge from Mr Williams, on May 6-8 2014, that the rushed omnibus Bill was itself unconstitutional].

And even if the National School Chaplaincy Program is ultimately found to be constitutional, there is still absolutely zero evidence that it is effective at improving the overall welfare of students.

If any of the Howard, Rudd, Gillard, Rudd (again) or now Abbott Governments genuinely considered that student welfare was a matter of priority, they would properly fund, rather than part subsidise, actual student counsellors or social workers to perform that function in every school, not implement a scheme where cashed-up churches could target individual cash-starved schools and offer the ‘services’ of ministers of religion, essentially as a backdoor way of indoctrinating a fresh generation of children.

There are ways in which the introduction of ministers of religion into schools can lead to direct harm too, not least of which being the issue of potential child sex abuse. In fact, at the same time as the hearings of the Royal Commission into Institutional Responses to Child Sex Abuse, the Government continues to encourage the employment of ministers of religion in public schools, with a code of conduct that allows them to have physical contact with students because “there may be some circumstances where physical contact may be appropriate such as where the student is injured or distraught”. [NB Obviously I am not saying that most, or even many, school chaplains are child sex abusers, but it seems unnecessary, and unnecessarily risky, to bring in people from institutions with a long history of covering-up such abuse and placing them in positions of trust in public schools.]

In addition, some (although obviously not all) ministers of religion also present a clear and present danger to young lesbian, gay, bisexual, transgender and intersex (LGBTI) students, given the blatant homophobia adopted by particular churches and their officials. This threat is explicitly acknowledged by the Guidelines, which in response attempts to prohibit discriminatory behaviour on the basis of sexuality (although it doesn’t appear as though either gender identity or intersex status are mentioned at all).

In the same way as the prohibition on ‘proselytising’ described above, however, it is inevitable that there will be some ministers of religion, in some schools, who deliberately flout those rules, and in the process cause untold harm to young LGBTI students.

In short, the National Schools Chaplaincy Program is philosophically unsound, has no evidence that it benefits student welfare, is expensive, potentially causes harm and is clearly an inappropriate activity to be funded through taxpayers’ money. Surely, out of all of the programs funded by the Commonwealth, across almost all areas, it should be at or near the top of any Commission of Audit ‘hit-list’.

Even if the Commission of Audit abrogates its basic responsibility to recommend that the National School Chaplaincy Program be axed, Treasurer Joe Hockey will still have to make a decision on the future of the program as part of the 2014-15 Budget, because, as noted earlier, funding for the scheme runs out at the end of this year.

What action Joe Hockey takes on this will reveal a great deal about what kind of Treasurer he intends to be. Of all the incoming Abbott Ministers, Hockey has been the loudest in condemning middle-class welfare, in arguing that the role of Government must be smaller, and that inappropriate or unjustifiable programs should be cut.

Well, here is an ideal opportunity to live up to at least some of that rhetoric, savings upwards of $222 million in the process (that’s the equivalent of one and a half $6 GP co-payments for every person in Australia). If he does so on 13 May, then he should be applauded for it (noting of course that there might, just might, be some other things in the Budget that warrant a somewhat different response).

If Hockey fails to rise to the occasion, and extends or even expands funding for ministers of religion in our public schools, then it will show that he is not serious at all about reining in inappropriate spending, and does not believe in small Government – instead, it will simply demonstrate that he believes in big government of a different kind, one that takes money from genuine welfare programs and places it in the hands of ministers of religion for the propagation of their beliefs.

So, now it’s over to you Joe: would you rather take money from people who simply want to see their doctor via a bulk-billed appointment, or from a program which funds the placement of ministers of religion into our public schools? I know which one I would choose. I guess we’ll find out on Budget night which one you do.

Letter to Minister Pyne re Health & Physical Education Curriculum and Appointment of Mr Kevin Donnelly

UPDATE (Saturday 8 February): This week, I received a reply from Minister Pyne to my letter to him, on 11 January (see below), in which I requested that he sack Mr Kevin Donnelly from the national curriculum review because his homophobia made him unsuitable to be involved in any review of a Health & Physical Education curriculum.

In a somewhat unsurprising, but nevertheless extremely disappointing, response, Minister Pyne did not address any of the comments made by Mr Donnelly, nor deal with the problem that through his comments Mr Donnelly appears to be unable to oversee a HPE curriculum that serves the needs of all students, including lesbian, gay, bisexual, trans* and intersex (LGBTI) students.

So, while the issue of Mr Donnelly’s homophobia has received welcome public scrutiny, especially over the course of the past week, it seems Minister Pyne doesn’t really care about it – certainly not enough to actually respond to concerns which are put directly to him.

Which, sadly, makes me even more fearful of what the final HPE document will look like when it is released later in 2014.

Full text of Minister Pyne’s letter:

Dear Mr Lawrie

Thank you for your email of 11 January 2014 regarding the review of the Australian Curriculum.

As the Minister for Education, I am focussed on improving schools and student outcomes through proven policies and initiatives. Under our Students First approach, the Coalition Government is working with the states and territories on the priority areas of teacher quality, principal autonomy, parental engagement and strengthening our curriculum.

Over the past ten years, education outcomes in Australia have gone backwards, both relatively against other countries, but also in real terms. Some have identified that the reason for this is due to our curriculum not being robust enough.

I appointed Professor Ken Wiltshire AO and Dr Kevin Donnelly to review the curriculum to evaluate its robustness, impartiality and balance. Between them, Professor Wiltshire and Dr Donnelly have a tremendous amount of experience in not only the school education sector, but also in education curricula. I am confident that their considerable expertise will allow them to bring a balanced approach to this review process.

The reviewers are interested in hearing the views of parents and communities, educators and schools, and state and territory governments, to inform their analysis. This is an open public consultation process where the community are able to have their say.

I appreciate you taking the time to contact me to express your views. I encourage you to make a submission to the review. Comments will be accepted until Friday 28 February 2014. Information can be found at http://www.studentsfirst.gov.au/review-australian-curriculum.

Yours sincerely

Christopher Pyne MP

29 January 2014

ORIGINAL POST 11 January: Dear Minister Pyne

LGBTI INCLUSION IN NATIONAL HEALTH & PHYSICAL EDUCATION CURRICULUM AND APPOINTMENT OF MR KEVIN DONNELLY TO CURRICULUM REVIEW

I wrote to you in September 2013, following your appointment as Commonwealth Minister for Education, regarding the development of the National Health & Physical Education (HPE) curriculum by the Australian Curriculum, Assessment and Reporting Authority (ACARA).

In that letter, I raised serious concerns about the draft HPE curriculum, including both the initial draft released in December 2012, and revised draft, released in mid-2013, specifically:

  • That the draft HPE curriculum failed to include lesbian, gay, bisexual, transgender and intersex (LGBTI) students, and content relevant to their needs;
  • That the sexual health information provided in the draft HPE curriculum was grossly insufficient; and
  • That the draft HPE curriculum was inadequate because it failed to even mention HIV, or other blood borne viruses (like hepatitis B and C), let alone ensuring students received the vital education necessary to reduce future transmissions.

I note that, since that letter, the COAG Standing Council on School Education and Early Childhood (SCSEEC) met in Sydney on 29 November 2013. Significantly, that meeting did not endorse the draft HPE curriculum, but instead it was only ‘noted’. From the communiqué:

“The Standing Council today noted that ACARA has developed the Australian Curriculum content and achievement standards for … health and physical education … according to its current curriculum development processes.

Ministers noted that the Australian Government will be undertaking a review of the Australian Curriculum, and will bring forward recommendations from the review to the Standing Council in 2014.”

This means that there should be the opportunity for the Health & Physical Education curriculum to be improved as part of the overall review. In particular, there is now time for the HPE curriculum to be amended to specifically include LGBTI students and content, increased sexual health information and education about HIV and other BBVs.

Unfortunately, following your announcement yesterday, Friday 10 January 2014, of the two people entrusted with reviewing the curriculum, I have serious doubts that any improvements are now possible. Indeed, I am concerned that whatever amendments are made to the HPE curriculum will be entirely negative ones, and further contribute to the exclusion and marginalisation of LGBTI students in Australia.

This is because one of the people you have appointed, Mr Kevin Donnelly, has made sustained negative comments about the education needs of LGBTI students over the past decade.

For example, in 2004 Mr Donnelly is reported as saying that “[v]ery few parents would expect that it is the role of schools to teach children about the positive aspects of gay, lesbian and transgender sex lifestyles” and that “[f]orgotten is that many parents would consider the sexual practices of gays, lesbians and transgender individuals decidedly unnatural and that such groups have a greater risk in terms of transmitting STDs and AIDS” (source: Sydney Morning Herald, 3 May 2004, “Government staffer says new-age warriors waging culture wars in class”).

Mr Donnelly returned to similar themes the following year, criticising the Australian Education Union for arguing that “school curricula should “enhance understanding and acceptance of gay, lesbian, bisexual and transgender people.”” He went on to write “[f]orgotten is that many parents would consider the sexual practices of GLBT people unnatural and that most parents would prefer their children to form a relationship with somebody of the opposite sex. This is apart from the fact that many parents expect that it is their duty, not that of teachers and schools, to teach such sensitive matters” (source: News Weekly, 26 March 2005, “Teacher Unions Enforcing the Gender Agenda”).

In the same article, he wrote “it is also wrong to introduce students to sensitive sexual matters about which most parents might be concerned and that the wider community might fine unacceptable” in response to a lesbian teacher simply telling her students of her relationship.

Mr Donnelly’s views are not confined to last decade, either. In an article published on The Drum website on 6 December 2011 (“Marriage Equality: Secrets of a Successful Campaign”), he wrote:

“Such has been the cultural-left’s success in relation to gender issues that the so-called Melbourne Declaration, the blue print for Australian school education, argues that all school sectors, faith based, independent and government, must provide an education free of discrimination based on gender and sexual orientation.

A strict interpretation of the Melbourne Declaration is that religious schools will lose the freedom they currently have to discriminate in relation to who they enrol and who they employ. One also expects that the proposed national curriculum, in areas like health, will enforce a positive view of GLBT issues.”

Implicit in these comments is that private/religious schools should be able to discriminate against LGBTI students and teachers, and that the national curriculum need not include a positive approach to ‘GLBT issues’.

In short, over the past decade, Mr Donnelly has repeatedly argued against positive representations of LGBTI students and issues, has argued that same-sex relationships are ‘sensitive matters’ that should not be referred to in schools, and has on multiple occasions repeated the view, without condemnation, that “many parents would consider the sexual practices of GLBT people (decidedly) unnatural”.

As part of his role in reviewing the broader national curriculum, Mr Donnelly will have responsibility for reviewing the draft national HPE curriculum. Based on his public comments of the past decade, he is eminently unsuitable for this position. In my view, Mr Donnelly has amply demonstrated that he is incapable of reviewing, and redrafting, a national Health and Physical Education curriculum that meets the needs of all Australian students, not simply those who are cis-gender and heterosexual.

Given this evidence, the responsible course of action for you to take, as Commonwealth Minister for Education, would be to terminate his appointment. I urge you to do so.

Irrespective of what decision you take in relation to Mr Donnelly’s specific role, your announcement of the broader curriculum review on 10 January has confirmed that it is now your responsibility to ensure that the final Health and Physical Education curriculum is genuinely inclusive, and meets the needs of all students, including LGBTI students. This is a serious burden, and one that I sincerely hope you give serious attention to during 2014.

Thank you in advance for your consideration of the matters raised in this letter. I look forward to your reply.

Yours sincerely,

Alastair Lawrie

Submission on Alex Greenwich’s Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

The following is my submission, lodged today, in response to a discussion paper and Bill released by the Member for Sydney, Mr Alex Greenwich. The Paper and Bill seek to remove exceptions which allow private educational authorities, including religious schools, the right to discriminate against lesbian, gay and transgender students. Unfortunately, I think that to achieve that goal, more amendments to the NSW Anti-Discrimination Act 1977 may need to be made. In any event, I believe that there are a range of other amendments which should also be made at the same time, including the removal of section 56 generally. Anyway, here it is:

Mr Alex Greenwich

Member for Sydney

Sydney@parliament.nsw.gov.au

Monday 30 September 2013

Dear Mr Greenwich

Submission on Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013

Thank you for the opportunity to provide a submission in response to your discussion paper on anti-discrimination law reform, released in August 2013, and in particular in relation to your Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013 (the Bill), which you introduced into NSW Parliament on 19 September 2013.

First of all, let me say that I welcome your strong commitment to removing the discrimination that can be experienced by lesbian, gay and transgender students in private educational institutions, including private schools. As has been demonstrated by the Writing Themselves In reports, and countless other research projects over the years, schools can be one of the major sources of homophobia and trans-phobia in the lives of young people.

It is vital that any ‘exceptions’ in the NSW Anti-Discrimination Act 1977 which may authorise schools to discriminate against lesbian, gay and transgender students are removed, and this must apply to all types of private schools, including religious schools. From what I have read, both in the Discussion Paper and associated media, as well as in your Second Reading Speech, I believe this is what your Bill is attempting to achieve.

However, I do have some concerns about the Anti-Discrimination (Private Educational Authorities) Bill 2013, in particular:

  • It is unclear whether the Bill, as drafted, will accomplish this aim
  • There are a range of other amendments which also need to be made to the Anti-Discrimination Act 1997 and
  • If the Bill is aimed at removing the right to discriminate from religious schools, thereby provoking an expected negative response from religious organisations, then I believe that the right of religious organisations to discriminate more broadly under s56 should be removed at the same time.

Turning first to the question of whether the Bill, if passed, would actually achieve the aim of removing the right to discriminate from all schools, including religious schools, I note that the Bill simply removes those provisions of the Anti-Discrimination Act 1997 which provide a specific right to discriminate (namely, sections 31A(3)(a), 38K(3), 46A(3), 49L(3)(a), 49ZO(3) and 49ZYL(3)(b)).

However, the Bill does not amend or seek to repeal the catch-all section which provides exceptions to religious organisations to discriminate – and that is found in section 56(d) which states: “Nothing in this Act affects: (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

I am concerned that, by leaving this section unamended, the effect of your Bill would be to remove the right to discriminate from private educational authorities that are not religious, but that religious schools would retain the right to discriminate against lesbian, gay and transgender students on the basis of their ‘religious principles or beliefs’. The practical effect of the Bill would therefore have a positive outcome for a much, much smaller cohort of students than what is intended.

This reading of the Anti-Discrimination Act 1977, and in particular s56(d), appears to be supported by the main case in this area in recent years: OW & OV v Members of the Board of the Wesley Mission Council [2010] NSWADT 293. This case involved a service operated by the Wesley Mission, which sought to utilise the ‘protections’ offered in s56(d) to discriminate against gay male foster carers. The Wesley Mission was ultimately successful in its appeal.

While foster care is obviously not exactly the same as providing education in religious schools, I believe that it is potentially analogous in terms of indicating how broad the religious exceptions under s56(d) are in practice, and in particular in suggesting that they would operate to shield religious schools that discriminate against lesbian, gay and transgender students from the scope of the Anti-Discrimination Act 1977.

This also appears to be the opinion of the current Attorney-General of NSW, the Hon Greg Smith SC MP. In a speech titled Religious Vilification, Anti-Discrimination Law and Religious Freedom, which he gave on 24 August 2011, the Attorney-General discussed the operation of s56:

“116. Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to:

  1. The training, education, ordination or appointment of religious leaders [s56(a)&(b)];
  2. The appointment of any other person [s56(c)];
  3. Any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of thast religion [s56(d)].

117. Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:

a. While section 56(c) of the ADA exempts the appointment of persons ‘in any capacity’ by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;

b. Some other jurisdictions have provisions equivalent to s56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice [NT], or don’t extend the exemption to discrimination in work or education [Qld], or limit the grounds of discrimination that are exempt.” [emphasis added]

The implication from this speech, and in particular from para 117(b) above, is that the Attorney-General believes that the protections offered by s56(d) would be available to a school or educational facility run by a religious organisation. This also appears to be the interpretation of s 56(d) by other organisations and advocacy groups which work in this area, including the Inner-City Legal Centre and Public Interest Advocacy Centre.

If that is the case – that either your Bill does not operate to limit the right of religious schools to discriminate against lesbian, gay and transgender students, or that there may be some ongoing uncertainty in this area – then might I suggest you seek additional legal advice on the scope of s56(d), and whether further amendments to your Bill might be necessary to guarantee the rights of lesbian, gay and transgender students in religious schools not to be discriminated against. Obviously, if the Bill is to be debated and ultimately voted upon in late 2013 or early 2014, it would be useful to have clarity about the exact protections to be offered by the Bill beforehand.

Moving on to my second concern about the Bill, which applies irrespective of whether students at religious schools are covered or not, specifically that there are a range of other serious problems with the NSW Anti-Discrimination Act 1977, and it is my belief that these issues should be considered at the same time by the Parliament.

For example, as well as protecting lesbian, gay and transgender students, anti-discrimination protections should also be offered to teachers and other employees at the same schools, irrespective of their sexual orientation or gender identity.

In fact, I believe that religious exceptions should be limited to only cover the appointment of ministers of religion, and the conduct of religious ceremonies. In short, religious organisations should no longer be sanctioned by the State to discriminate in employment and service delivery in places like hospitals or social services – and a reform to the existing law is a perfect opportunity to make such changes.

There are also a range of problems with the current scope of, and definitions included in, the NSW Anti-Discrimination Act 1977, including the fact that it protects homosexuals (in s49ZF) rather than people with different sexual orientations (with the effect that, while lesbians and gay men are covered, bisexuals are not).

The NSW Act also includes what I understand to be an out-dated definition of transgender (in s38A), rather than the preferred definition of gender identity as passed in the Commonwealth Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. Indeed, the NSW Act does not even cover intersex status at all, unlike its Commonwealth counterpart. I hope that you, and other MPs involved in this area of public policy, are consulting with groups representing the transgender and intersex communities about whether, and how, to deal with these issues.

There are also other problems with the current Act, including what I find to be an objectionable difference in financial penalties for individual offenders found guilty of vilification; the maximum financial penalty for racial or HIV/AIDS vilification (set at 50 Penalty Units) is five times higher than that for homosexual or transgender vilification (set at 10 Penalty Units). There can be no justification for this discrepancy, which effectively creates a hierarchy of offensiveness, with some types of vilification considered more serious than others.

The above problems with the NSW Anti-Discrimination Act 1977 are simply those which I have identified from my own reading and research. I am sure that there are other issues which also need to be addressed. This to me suggests that there is sufficient impetus for a more comprehensive re-write of the Act. While the subject of protecting lesbian, gay and transgender students is an incredibly important one, I believe that the range of problems identified above should all be dealt with at the same time.

Which brings me to my third concern with the draft Anti-Discrimination Amendment (Private Educational Authorities) Bill 2013, and that is a concern around tactics or strategy.

By attempting to limit the right of religious organisations to discriminate against lesbian, gay and transgender students in their schools, you are taking on something which many churches take to be an inalienable ‘right’ – the ability to indoctrinate young people with their religious teachings against homosexuality or transgender identity.

As a result, I would expect a significant backlash from those same religious organisations against your Bill. The size or scale of that backlash might only be slightly less than that which could be expected from an attempt to narrow the broader exceptions contained in section 56 (by limiting its coverage to the appointment of ministers and conduct of religious ceremonies).

In that case, it is my personal view that, as well as removing the specific provisions concerning private educational authorities (as featured in your Bill), any attempt to reform the NSW Anti-Discrimination Act 1977 should also contain provisions which significantly reduce the scope of s56. If people such as yourself are going to take on the right of religious organisations to discriminate, then why not do so more comprehensively, rather than in what could be described a piecemeal (or at the very least, narrowly-targeted) fashion?

Which is not to say that moves to protect lesbian, gay and transgender students from discrimination are not welcome – they obviously are. And I also wish to restate my support for the overall intention of the Bill; protecting young people who are lesbian, gay and transgender from homophobia and trans-phobia is an incredibly important objective.

However, any attempt to do so must ensure that the Bill captures all private schools, including religious schools. And, even if that drafting issue is resolved, it remains my personal view that reform to the NSW Anti-Discrimination Act 1977 should go much further, and address broader issues including but not limited to restricting the scope of section 56.

Thank you for considering this submission.

Yours sincerely,

Alastair Lawrie

Submission on Redrafted National Health & Physical Education Curriculum

The Australian Curriculum, Assessment and Reporting Authority (ACARA) released a slightly redrafted version of the national Health & Physical Education curriculum for limited public consultation over the past 2 weeks. While there were some modest improvements from the original draft released in December 2012, there are still significant problems with what is proposed, especially as it fails to ensure that content is relevant for LGBTI students, and that every classroom is genuinely LGBTI inclusive.

This afternoon I provided my personal submission to the process, which included attachments covering my previous petition to the Commonwealth Education Minister, the Hon Peter Garrett MP, and the comments which people made on that (although not reproduced here because both are too large). Anyway, here is my submission (I understand that a range of groups, including the NSW Gay & Lesbian Rights Lobby and others, will be making submissions too, so hopefully there is more change before the final document is released later this year):

Submission on Redrafted National Health & Physical Education Curriculum

I am writing to provide a personal submission in response to the redrafted national Health & Physical Education (HPE) curriculum, as published on the Australian Curriculum, Assessment and Reporting Authority (ACARA) website in July 2013.

I also provided a submission in April 2013 in response to the original draft HPE curriculum as released by ACARA in December 2012. Please find a copy of that submission at Attachment A. In it, I outlined a range of substantive concerns with the draft curriculum, and in particular in relation to how it related to (or, more accurately, ignored) the needs of lesbian, gay, bisexual, transgender and intersex students.

These concerns included that:

  • The draft curriculum did not explicitly include LGBTI students by name, nor did it ensure that every classroom in every school included content that was relevant to LGBTI student needs
  • The draft curriculum also concentrated on ‘reproductive health’ meaning that it effectively excluded the sexual health needs of LGBTI students and
  • The draft curriculum did not even include the term HIV, let alone ensure that groups at higher risk of contracting HIV (including gay and bisexual men) receive appropriate education to help prevent new transmissions.

Following the lodgement of my submission, I also initiated a national petition to the Commonwealth Education Minister at the time, the Hon Peter Garrett MP, and his state and territory counterparts. I have since sent this petition to the new Commonwealth Education Minister, the Hon Bill Shorten MP, and the NSW Education Minister, the Hon Adrian Piccoli MP.

This petition, which called for the three issues listed above to be remedied as a matter of urgency, received an incredible level of community support, garnering more than 6,000 signatures in less than four weeks.

However, just as important as the number of signatures, the comments which people provided demonstrate the breadth and depth of community concern about the failure of the original HPE curriculum to address the issues of LGBTI inclusion, sexual health education and HIV.

These comments show that this is an issue which matters not just to LGBTI people themselves, but also to their family members and friends, as well as a broad cross-section of the community who understand that everyone has a right to inclusive, appropriate health education, irrespective of sexual orientation, gender identity or intersex status. I would strongly encourage you to read these comments, as many of them are far more articulate and passionate about why LGBTI students must be included than I could ever hope to be.

Having examined the redrafted HPE curriculum released on the ACARA website earlier this month, I would like to acknowledge that there have been some improvements made from the December 2012 version, including an attempt to include reproductive health and sexual health, rather than just reproductive health.

However, it is also disappointing to note that many of the significant problems which existed in the original draft have not been resolved.  I will use the remainder of this submission to identify those areas which still require amendment in order to meet the needs of LGBTI students, including specific recommendations to make these much needed improvements.

Recommendation 1:  The national HPE curriculum must directly and explicitly include lesbian, gay and bisexual students, and content which is relevant to their needs

As with the original draft submission, I believe that it is irresponsible for a national HPE curriculum not to even include the words lesbian, gay or bisexual. These are the most common forms of sexual orientation for people who are not heterosexual. To deliberately exclude these terms from the curriculum contributes to the marginalisation of students who may grow up to identify with any one of these terms.

By excluding these terms/sexual orientations, I believe that the curriculum would inevitably lead to some schools ignoring the health needs of these students, and ultimately contribute to higher level of mental health issues across the lesbian, gay and bisexual communities, including higher rates of depression and youth suicide.

I must also highlight that including the term same-sex attracted (in the ‘aspirational’ paragraph on page 18 – more on that at recommendation 3, below – and in the Glossary) is insufficient in and of itself to ensure that lesbian, gay and bisexual students are included in both classrooms and content. While I acknowledge that it is an inclusive term, I do not understand how referring to the term ‘same-sex attracted’ twice (and only once in the body of the document, and even then not in the content description for any year), without providing more information, will help ensure that all students learn what being lesbian, gay and bisexual mean, in the same way that they would learn what being heterosexual means.

In fact, I find it impossible to see how excluding the words lesbian, gay and bisexual does anything other than ensure that students who happen to be lesbian, gay or bisexual are denied their right to an equal and fair health education, irrespective of which school they might attend.

Recommendation 2: The national HPE curriculum must directly and explicitly include transgender and intersex students, and content which is relevant to their needs, whilst noting that gender identity and intersex status are different things meaning that education about these issues must make this distinction

I acknowledge that the terms transgender and intersex are at least included in the redrafted national HPE curriculum. However, they are only included in the glossary on page 45, and unfortunately the curriculum incorrectly includes both as part of the definition of gender-diverse. Transgender may fall within this term, but intersex is a distinct characteristic as a biological sex status.

I am not an expert in this field, and expect that submissions from the National LGBTI Health Alliance as well as Organisation Intersex International (OII) Australia will provide recommendations to improve the curriculum in terms of transgender and intersex inclusion. I would encourage you to give full consideration to their suggestions in these areas.

Recommendation 3: The statement about LGBTI inclusion must explicitly refer to lesbian, gay, bisexual, transgender and intersex students, and ensure that all schools are inclusive of these students, irrespective of whether students have publicly identified their orientation, identity or status

I note that the ‘aspirational’ statement of inclusion on page 18 of the redrafted curriculum has been amended from the original December 2012 draft. In particular, I am concerned by the decision to omit the statement that ‘same sex attracted and gender diverse’ students exist in all schools. It is unclear why this statement of fact has been removed, given we know that people who are LGBTI have come from all school communities across the country.

This omission also presents some complications when read together with remainder of the paragraph as redrafted, which talks about “becoming increasingly visible”, “designed to allow flexibility” and “have a responsibility… to ensure teaching is inclusive and relevant to the lived experiences or all students”. One reading of this paragraph is that schools now only have a responsibility to be inclusive where they are aware that students are LGBT or I (ie where schools are aware of the lived experience of their students).

If this is the case, it is not acceptable. All students have a right to be included, and to have their health and physical education needs met, and most importantly should not have the onus placed on themselves to disclose their orientation, identity or status in order to receive this education (especially when such disclosure can risk discrimination from other students, teachers and sometimes from the school itself).

I strongly recommend that this paragraph be amended so that it:

  • Explicitly names LGBTI students (for example, same-sex attracted students, including lesbian, gay and bisexual students, and transgender and intersex students) and
  • States that all school communities must provide content and classrooms which are inclusive of LGBTI students, irrespective of whether they disclose their orientation, identity or status.

Recommendation 4: The statement about LGBTI inclusion must be supported by explicit references to LGBTI content in the year descriptions

While an ‘aspirational’ statement on page 18 is welcome, in order to be most effective it should be backed up by explicit references to issues of concern to LGBTI students at relevant points throughout the curriculum.

For example, the terms transgender and intersex should be introduced and explained from Foundation/Years 1-2, given these identities and statuses can be present from early childhood and/or birth.

Ideally, the orientations lesbian, gay and bisexual should be introduced and explained in Years 3-4, so that students who experience same-sex attraction in puberty (which can commence for some in these years) are aware that these attractions are normal. At the latest, all students should be aware of the concepts of heterosexuality, as well as homosexuality and bisexuality, by the end of Year 6.

This would then leave room from comprehensive and inclusive sexual health education (and not just reproductive health) in Years 5-6 (more on this at recommendation 5, below), or Years 7-8 at the absolute latest.

I note with particular concern the sub-strand Being healthy, safe and active, on page 27 of the redrafted curriculum, which includes the following points under Years 7-8:

  • Examining the impact of physical changes on gender, cultural and sexual identities and
  • Exploring sexual identities and investigating how changing feelings and attractions are part of getting older.

This is both far too old (covering students who are turning 13 and 14 across most states, beyond the age which many people have first realised that they are same-sex attracted, including myself) and far too vague, to be genuinely inclusive of LGBTI students and their needs.

LGBTI issues should also be explicitly mentioned in the outline of the Relationships and sexuality learning area on page 9 of the document, which is reproduced in the Glossary on pages 47 and 48. For example, the dot point “changing identities and the factors that influence them” could be redrafted to include “developing sexual orientations, include heterosexual, lesbian, gay and bisexual, and the factors that influence them” while transgender and intersex should be included in in this Area of learning in Foundation to Year 2 (as indicated above).

Recommendation 5: The term sexual health should be preferred to reproductive health throughout

I welcome the amendment from the original draft of the HPE curriculum, with the addition of sexual health to the redrafted curriculum. However, I am confused by the inclusion of both reproductive health and sexual health, and the definitions of both which are provided in the Glossary on pages 48 and 49 respectively.

In particular, the definition of reproductive health seems to try to ‘cover the field’ for the physical aspects of sexual health, even though for many people their sexual anatomy/systems are not primarily related to ‘reproduction’. This is especially apparent when considering the definition of sexual health, which uses the shorter World Health Organisation definition of sexual health, but not the 2006 longer and more inclusive definition which begins:  “…a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or infirmity” [emphasis added].

This longer definition makes it clear that sexual health includes the physical health aspects of sex education. As a result, I believe that the much more inclusive term sexual health should be used throughout the document, and if explicit references to reproduction are considered necessary, then the term should be ‘sexual health, including reproductive health’. This would help to ensure that the needs of all students are considered and not just those of heterosexual students.

Recommendation 6: The topic of sexual health should include more detailed information on safer sex, including condom usage, and Sexually Transmitted Infections (STIs)

While it is welcome that sexual health has been added as a term to the redrafted HPE curriculum, it is unclear where it is intended that detailed sexual health education, including STI information and prevention, is included in the content for specific years.

As indicated above, I believe that comprehensive sexual health education should be included in Years 5-6 (and by 7-8 at the absolutely latest). In order to meet the needs of all students, whether LGBTI or otherwise, it must include specific references to safer sex, and condom usage, as well as ensuring that students learn about STIs and how they can best be prevented (and where relevant treated). I cannot locate this information in the redrafted document.

I believe it would be irresponsible for a HPE curriculum not to ensure that students learn this information prior to the age at which they become sexually active.

Recommendation 7: The national HPE must include Blood Borne Viruses, and in particular HIV

Building on the inclusion of sexual health, and comprehensive sexual health education, including STIs (recommendations 5 and 6 respectively), I believe that it is vital for the national HPE curriculum to explicitly refer to Blood Borne Viruses, including HIV.

As a gay man who has just turned 35, I find it almost incomprehensible that HIV, including information about how it can be prevented, has been omitted from the HPE curriculum, both in the original draft and in the redraft. While HIV is no longer a ‘death sentence’, diagnoses with HIV is still a serious thing, and we should be maintaining our efforts to minimise new transmissions. This is particularly important for younger gay and bisexual men, with male same-sex intercourse remaining the primary means of HIV transmission within Australia.

The importance of this message is reinforced by recent figures which show that the number of HIV notifications in NSW rose by 24% in 2012, including 19% among men who have sex with men. The HIV epidemic is not over, and it is essential that a national Health & Physical Education curriculum provides relevant information for young people to help them avoid future HIV transmissions.

Recommendation 8: The national HPE curriculum should ensure that all students learn about homophobia, bi-phobia, trans-phobia and anti-intersex prejudice, and the damage caused by each

One of the pleasing aspects of the original HPE curriculum, released in December 2012, was that it explicitly named ‘homophobia’ as something that students should be taught about (and implicit in this, was the assumption that students would learn the damage caused by discrimination on the basis of sexual orientation). In my original submission, I argued that this should be amended to include bi-phobia, trans-phobia and anti-intersex prejudice as well, as these encompass similarly destructive beliefs and behaviours.

Unfortunately, it appears that the reference to homophobia has now been deleted, and replaced by a much more generic statement on page 34: “examining values and beliefs about cultural and social issues, such as gender, race, sexuality and disability” and “researching how stereotypes and prejudice are challenged in local, national and global contexts.”

To me, these statements do not ensure that students learn that homophobia, bi-phobia, trans-phobia and anti-intersex prejudice are entirely negative phenomena, which can cause immense hurt amongst members of these groups (indeed, the first statement makes no value judgment at all about different ‘values and beliefs’ in relation to sexuality, and leaves it open to some schools teaching that discrimination on the basis of sexual orientation, gender identity and intersex status is acceptable behaviour).

I would strongly urge you to reconsider the drafting of these dot points, and to include homophobia, bi-phobia, trans-phobia and anti-intersex prejudice as subjects about which students should learn, including being taught about the damage caused by these types of discrimination.

Conclusion

Thank you for reading my detailed submission, and attachments. I acknowledge that much of what I have written is strongly worded, but it is only done so out of genuine concern that, if the redrafted national HPE curriculum was implemented without further amendment, it would fail to meet the needs of our LGBTI students, and fail to provide them with the sexual health and HIV prevention education that they have a right to.

Research has shown that younger LGBTI people are amongst the most disadvantaged students across the country, with high rates of bullying and harassment, and consequently of mental health issues including depression and youth suicide.

I believe that the development of a national Health & Physical Education curriculum is an ideal opportunity to remedy some of the active discrimination which exists against lesbian, gay, bisexual, transgender and intersex students, through the introduction of LGBTI-inclusive content, and hopefully leading to LGBTI students being genuinely included in classrooms across the country. I hope that the final version of the HPE curriculum will implement as many of the above recommendations as possible, to help make this a reality.

Sincerely,

Alastair Lawrie