Parental Rights Bill - unworkable and unsafe

The NSW Parliament is currently considering two pieces of legislation proposed by One Nation’s Mark Latham.

These bills are the Education Legislation Amendment (Parental Rights) Bill 2020 (the Parental Rights Bill) and the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 (NSW).

If passed, the Parental Rights Bill in particular will have a big impact on teaching and the work of schools.

Notwithstanding that, religious figures and some school employer representatives have leapt forward to support the Bill, without necessarily scrutinising the detail. (Catholic Education Diocese of Parramatta is a notable exception to this position, as is the Anglican Church Diocese of Sydney, for different reasons.)

Teaching unions have expressed opposition to the Bill. Both the IEU and the NSW Teachers Federation made submissions to and gave evidence before the Legislative Council Committee inquiring into the Bill.

What is the Bill about?

The Bill has two key objectives. The first is called ‘parental primacy’, that is, to ensure that parents and not schools are responsible for teaching children about core values, such as ethical and moral standards, political and social values and matters of personal wellbeing and identity, including gender and sexuality. The second objective is to prohibit the teaching of ‘gender fluidity’ in schools.

The Bill proposes a range of measures to achieve these objectives.

Parental responsibility

The Education Act already states as a fundamental principle that “the education of a child is primarily the responsibility of the child’s parents”. However, the Parental Rights Bill goes much further in giving parents a key role in school curriculum in both government and non-government schools.

All schools would be required under the Bill to ensure, as far as possible, that the education provided is “consistent with the moral and ethical standards and the political and social values” of parents. Further, the education provided must respect the “liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions”.

Precisely what this means in a society where parents have diverse religious, political and social views is unclear.

Does the school have a positive duty to enquire about these views and how do they ensure the education is in conformity? Do Catholic schools have an obligation to ensure their education respects the view of parents of other religions or no religion?

How are issues of climate change or the environment dealt with? How do you deal with literature or other texts that express views that may be contrary to the views of parents?

In order to implement parental primacy, the Bill requires NESA to identify those parts of any syllabus developed or endorsed by NESA, that relate to parental primacy.

NESA also must prepare “resources for parents” setting out the areas of syllabus that relate to parental primacy and provide these resources to schools, including non-government schools. Given the breadth of the definition of parental primacy, any syllabus that touches on ethical and moral standards, political and social values and personal wellbeing could be affected. Who will write these resources and what they will say is anyone’s guess.

The Minister for Education would be required to monitor the compliance of all schools, including non-government schools, with these parental primacy requirements two years after the legislation is passed.

Gender fluidity

Gender fluidity is defined in the Bill as the belief that there is a difference between biological sex and human gender and that human gender is socially constructed. The Bill prohibits the “teaching of gender fluidity” in the primary or secondary curriculum, prohibits the “teaching of gender fluidity” in any syllabus developed by NESA, and for clarity, prohibits the teaching of gender fluidity in any government or non-government school. The prohibition on the teaching of gender fluidity extends to school counsellors, consultants, non-teaching staff and volunteers.

Special provisions for government schools

Latham is particularly concerned about government schools. The Bill states that in government schools there must be “strictly non-ideological instruction in matters of parental primacy” that includes “general teaching” on these topics. This prohibition also applies to all teaching staff, non-teaching staff, counsellors and volunteers.

All government schools would be required each year to provide a summary of the content taught in relevant courses about matters of parental primacy and consult with parents about the content. Parents can object to a child receiving any instruction in matters of parental primacy.

Compliance by government schools with these requirements is to be monitored by NESA. NESA must advise the Department of any action taken against a school that has not complied. The Minister would also review compliance in the review two years after the legislation was enacted.

Teacher accreditation

It would also be a condition for every teacher to be accredited that the teacher agrees that parents are primarily responsible for education of their children in relation to matters of parental primacy and that the teacher does not teach gender fluidity. A breach of these conditions could lead to revocation of accreditation.

Bill is unworkable and unsafe

The union considers the Bill would be unworkable and unsafe in both non-government and government schools for the following reasons:

• The concept of parental primacy is so broad that it could impact on almost every curriculum area. Parents could object to the teaching of curricula approved by NESA for example in the area of science (evolution and geology), Shakespeare (cross-dressing, suicide and pre-marital sex), geography (climate change and the environment), modern and ancient history (religion, social movements, role of women, political beliefs) PDHPE (personal wellbeing and identity, sex, consent), to name just a few examples. While the Bill refers to the rights of parents, there is no consideration of the rights of the child, a concept enshrined in child protection legislation in NSW and the International Convention on the Rights of the Child, which has been ratified by Australia.
• Schools do not teach gender fluidity to their students but they have a duty of care to all their students, including those who may be uncertain as to their gender or who have a diverse gender identity. To seek to govern the interactions between counsellors and teachers and their students in such a heavy-handed way is to breach this duty of care (potentially exposing the school to legal liability through civil action) and put at risk the psychological health of students, potentially leading to child protection allegations.
• The Royal Commission into Institutional Responses to Child Abuse in its Final Report proposed mandatory national Child Safe Standards including Standard 4: Equity is upheld and diverse needs are taken into account. The Standard commits teachers to equity and inclusive practice towards lesbian, gay, bisexual, transgender, and intersex children and young people. The Bill as proposed would make it difficult, if not impossible, for school communities to comply with this Standard.
• The requirement that government schools must provide to parents at the start of each year a summary of any courses that have content relating to parental primacy is extremely onerous, given the broad definition of parental primacy. Of course, teachers continually evaluate and adapt their teaching program and on a day-to-day basis answer any questions that students might put in the course of a lesson. It would be impossible to avoid straying from a course outline provided months earlier. In addition, the right of parents to withdraw students if such material is to be taught could be chaotic.
• Many non-government schools have a religious foundation or other well-publicised ethos. However, such schools, along with all other schools, would be required to respect the views of all parents on parental primacy issues, even if those views conflict with the views of the school. There would be uncertainty in all schools about how to meet the requirement to ensure the education provided was in conformity with views of parents.
• The red tape for schools and teachers in demonstrating compliance with the Bill would add just another complexity at a time when all parties have expressed a commitment to decluttering the curriculum and removing unnecessary compliance burdens.

The Bill is a distraction from the key work of teaching and learning undertaken in NSW schools and endangers the welfare of vulnerable children.