Religious discrimination bill scratched for now

By Melissa Coade

February 11, 2022

Scott Morrison
A new federal funding announcement is aimed at attracting international visitors to Australia’s regions. (AAP Image/Mick Tsikas)

Scott Morrison has been forced to pull the plug on his pledge to pass a controversial bill before the federal election, with conservative MPs expressing outrage that amendments were made overnight to protect transgender students from discrimination. 

The decision not to put the so-called ‘top priority’ bill before the Senate on Thursday followed a call from the Australian Christian Lobby not to proceed. The group said removing section 38(3) of the Sex Discrimination Act, which contained ‘vital protections’ for religious schools, had the effect of ‘faith-based schools teach[ing] their religion and conduct[ing] their schools according to their faith values’. 

What the amendment, proposed by Labor and members of the crossbench, would have actually done is attempt to prevent schools from expelling LGBTIQA+ students. It was the only amendment of several the group put up that passed.

“The loss of this protection would outweigh any benefits that could be obtained by the religious discrimination bill,” ACL national director of politics Wendy Francis said. 

“Taking away protections for Christian schools is a price too high to pay for the passage of the Religious Discrimination Bill. The amendments voted on by [sic] these Liberal MPs unnecessarily interfere with the operation of faith-based schools,” Francis said.

ACL blamed Labor, Independents and named Coalition members Bridget Archer, David Sharma, Trent Zimmerman, Katie Allen and Fiona Martin for what they regarded as a watering down of laws the PM had committed to.

“With the amendments so damaging to religious freedom, the government should immediately withdraw the bills,” Francis added. 

However, constitutional law expert Professor Luke Beck from Monash University said the amendments to the proposed bill still left it wide open for religious schools to discriminate against minority groups of vulnerable students in other ways.

“Schools will be allowed to discriminate against gay kids by banning them from extracurricular activities, suspending them, or putting them on detention just as long as schools don’t expel them,” Beck said. 

During an early morning press conference on Thursday, Labor leader Anthony Albanese said the removal of  section 38(3) would make an enormous difference, going further than merely banning a school from expelling someone on the grounds of “sexual orientation”.

The government confirmed that a Senate inquiry would consider the issue but that the bill was unlikely to come before the Upper House before the election.

Thursday was the last Senate sitting day before Budget week in late March, given estimates hearings will take place next week.

In a radio interview on Thursday, Labor’s shadow minister for women Tanya Plibersek said her party believed the rights of religious groups and others in the community could coexist. She suggested the religious discrimination bill met the fate it did because the PM left complicated legislation to the last minute when there was clearly room for improvement.

“Not even everybody in the Liberal and National parties can agree with the content of this bill. Scott Morrison has got a bill that even his own people are worried about, so it’s no wonder that Labor wants to propose some changes to improve the legislation,” Plibersek said.

“We want to work cooperatively to give that protection to people of religious faith, but we think the bill can be improved and we would really like the government to work with us to improve the bill,” she said. 

The Greens have labelled the government’s proposed bill as a ‘Trojan horse for hate’, arguing that laws should protect every Australian equally. They have vowed to fight the bill as part of what the Greens regard as an attack on shared values of equality and fairness for all.

“People of faith should be free to practice their religion without fear of harm or prejudice. But this bill will privilege religious belief over other human rights, giving religious people and institutions the freedom to discriminate against vulnerable people and minority communities,” the party said in a statement.

Other advocates, including Rodney Croome, former national director of Australian Marriage Equality and spokesperson for the group Just Equal, said the now-shelved bill was ‘fatally flawed’ anyway. Although it was unlikely the proposed law would be reintroduced by the government in May, Croome said his supporters were on standby to campaign against it if needed.

“This whole exercise has shown that both major parties lack clear, comprehensive policy in the area of LGBTQ+ rights,” Croome said. 

“It is ridiculous in this day and age that both Labor and the Liberals have to have marathon crisis meetings to discuss LGBTIQ+ discrimination.”

Croome thanked the politicians who stood against the bill and, in some cases, went against the wishes of their own party in the name of fairness and inclusion. 

He called on the major parties to articulate clear policy positions on LGBTIQ+ rights, and said the debate made the case for a dedicated minister of equality and a commissioner focused on their issues appointed in the Human Rights Commission.

“This bill may have gone away for now, but the push by a minority of religious leaders to wind back our hard-fought rights will not. 

“We need national leaders that will defend and protect the LGBTIQ+ community, not allow our rights to be taken away under the guise of ‘religious freedom’,” Croome said. 

Kylie Gwynne, board co-chair of Rainbow Families, said the she was deeply concerned about the impact of the religious discrimination debate on vulnerable groups. It was counterintuitive to describe faith-based freedoms as mutually exclusive to LGBTIQ rights, she added, given the vast majority of people of faith embraced LGBTQ people.

We are distressed by the cost of this divisive and unnecessary debate, especially on young people, Gwynne said.

We want them to know they are fabulous as they are, they deserve to feel safe and respected at school, and the role of schools is to nurture and grow all young people into awesome adults.

A debate about religious freedom should never have sought to sacrifice the freedom of LGBTQ students or teachers and we are relieved this sorry saga is completed for now, she said.

The Law Council of Australia (LCA) cited its concerns about the bill while giving evidence last month at a parliamentary joint committee on human rights’ public hearing about the proposed law. The peak group representing Australian lawyers told the hearing that part 2 of the bill departed from a conventional approach to discrimination law’ and those aspects of the proposed legislation were not supported by the group. 

“In particular, Clause 12 makes lawful ‘statements of belief’ which would otherwise be unlawful, by overriding all federal, state and territory discrimination laws,” the LCA said.

“This privileges manifestation of religious belief over other human rights, including the right to equality and non-discrimination, and is contrary to international human rights law.”

The LCA warned that some parts of Clause 12 of the bill relating to conduct that was not discrimination were so wide, they undermined the objective of the act. Where exceptions to the bill’s prohibitions exist, these should be justified, proportionate and limited in scope, the lawyers said.

“The LCA recommends deleting clause 11, which permits certain state or territory laws to be overridden so that a religious educational body may give preference on the grounds of religion in employment,” the group said in a statement. 

“This provision has been subject to little consultation, undermines the concurrent operation of federal, state and territory laws, and pre-empts the Australian Law Reform Commission’s inquiry into such matters.”


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