Prime Minister Anthony Albanese, in response to a question on August 9 on Labor’s religious discrimination bill pointed the finger at the Coalition, which he said had received a copy to consider in March.
Given today’s political climate that might mean he means to allow the Coalition to handle this “divisive debate”.
Currently religious discrimination laws allow religious schools to legally discriminate against LGBTQ staff and students. Attorney-General Mark Dreyfus told the National Press Club in July that the “religious freedoms” debate involves providing “protections to staff and students in religious schools and protections to people of faith”.
Religious freedoms became a rising issue for the Christian Right during marriage equality debate. Two weeks after it became law, in December 2017, soon-to-be PM Scott Morrison warned that he would be seeking greater protections for people of faith, “particularly” Christians.
The findings of the Malcolm Turnbull government-initiated religious freedoms review, under Philip Ruddock in late 2018, brought to light the fact that religious schools can discriminate against teachers and students based on sexual orientation and gender identity.
That fact became central to the debate.
Morrison’s religious freedoms crusade fell over in the end, because he insisted that religious schools be allowed to discriminate.
Albanese came to office promising to rectify this, however he is now waving the “social cohesion” flag as he frets over losing votes from religious communities.
Officially-approved discrimination
Playing dead on this penalises the LGBTIQ community: laws allow them to be treated in a prejudicial manner because of who they are.
Since the 2013 changes to section 38 of the Sex Discrimination Act 1985, religious schools can discriminate against staff and students on the basis of their sexual orientation or gender identity. Many were unaware of these laws before the Ruddock review.
There is also a popular misconception that these laws are not actually being applied, so no one is being harmed.
Sydney Criminal Lawyers, however, spoke to just one of the teachers sacked in relation to this law in 2019. A high school teacher had received an email from the WA Teacher Registration Board telling him that, after having worked for two years as a relief teacher at a Baptist college located south of Perth, he had been removed from the list of available teachers.
Brisbane’s Citipointe Christian College, in 2022, issued an enrolment policy that made it clear it would expel gay or trans students, but revoked it after a backlash.
Indeed, outrage over these laws led Morrison to say he would remove the provisions targeting students but not teachers.
Yet, when his Religious Discrimination Bill 2022 went to parliament for debate, Morrison resisted, saying he would remove the provision covering gay students, but not trans students.
Back then, Labor supported a change in the law covering students, but said if elected it would send the question regarding teachers for review.
However, in the final debate on these laws, on February 10, 2022, five Liberal MPs crossed the floor to ensure that, when the bill passed the lower house, it did contain protections for both gay and trans students.
Morrison then shelved his bill.
Daggers wrapped as protection
When first published in 2019, the Religious Discrimination Bill clearly revealed an attack by the Christian Right on all non-religious peoples by elevating the rights of people of faith above all others.
As the country’s majority religion remains Christianity, these laws would have worked to create Christian liberties, or privileges, in a similar manner to how the discriminating laws against LGBTIQ students and teachers are applied now.
The original 2019 exposure draft created rules that would permit people of faith to discriminate against all protected attributes in federal law, whether that be LGBTIQ people, women in general, First Nations people, people of colour and people with disabilities.
The first proposal contained the “health practitioner conduct rule”, which sought to allow medical professionals the legal right to refuse to provide care or a health service to an individual if they did not agree with their faith.
According to Morrison’s original bill, the problematic patient was imposing a form of indirect discrimination on a doctor or a nurse in seeking their healthcare assistance.
By the time the bill was shelved three years later, it was a much-watered down version of the original, but still a divisive piece of legislation.
The reason the Christian Right, with Morrison at the helm, was able to progress this crusade is that religion, or religious faith, is not a protected attribute under the federal law and anti-discrimination law experts agree that it should be protected.
So, Morrison’s bill did contain laws that would protect people of faith from discrimination, in a similar manner to all other attributes, “like a shield”, but hiding within these laws were measures that would permit the religious sector to discriminate against others if it was in line with their faith, “like a sword”.
The cowardly lion
Albanese came to office promising to fix this quandary.
He was going to revoke the laws that permit discrimination against LGBTIQ students. He sent the question on whether to extend this to teachers to the Australian Law Reform Commission, which in March called on him to do just that.
The Labor leader had further pledged to include religion as a protected attribute in federal law, in much the same way that sex, sexual orientation and gender identity are protected today, with neither attribute being given any more rights than the others.
The Attorney General has even gone to the trouble of drafting these laws and providing a copy to the Opposition’s legal spokesperson Michaelia Cash.
Cash has not responded to Labor on its draft. However, in July she said that the bill needs to be redrafted with input from faith groups.
Then, on August 14, Albanese dumped the entire proposal citing “social cohesion”, which seems to be his go-to excuse for not acting on a range of issues.
Liberty Victoria said it is “disappointed” the PM had “abandoned plans” to introduce religious discrimination laws and protections for LGBTIQ teachers and students.
“Under the current Sex Discrimination Act, schools can fire teachers and expel students because of their gender identity or sexuality,” it said.
“Social cohesion will only be achieved when LGBTQIA+ people are free to be themselves at school and at work without fear of being fired or expelled.”
[Paul Gregoire writes for Sydney Criminal Lawyers where this article was first published.]