It’s 2024 and Australia’s federal parliament still can’t decide whether and how to prohibit religious discrimination and remove religious exemptions to sex discrimination laws.
What’s the issue?
Critics say Australia’s federal discrimination laws have two broad defects:
Discrimination on the basis of religion is not prohibited in the same way as other protected attributes such as race, age, sex and sexuality.
Sex discrimination laws contain broad exemptions for religious educational institutions, allowing them to expel gay and transgender students or fire teachers for their sexuality and gender.
Didn’t the Coalition government try to fix this?
The Ruddock religious freedom review, launched after the legislation of marriage equality, recommended that if religious schools want to discriminate against staff or students for their sexuality or gender, this must be stated in a public policy.
This prompted backlash about the existing religious exemptions, resulting in Labor offering bipartisan support to fix the law and Morrison committing to amendments to protect students.
The Morrison government introduced a religious discrimination bill to prohibit discrimination on the basis of religion, and protecting students against discrimination on the basis of sexuality but not gender, in effect excluding trans kids.
When the bill came to a vote five Liberal MPs crossed the floor supporting an amendment prohibiting discrimination against kids for sexuality or gender. As a result the Coalition shelved its own bill, due to changes that religious schools complained would interfere with their ethos.
What did Labor promise to do?
In opposition, Labor attempted to amend the bill to include provisions prohibiting vilification on the basis of religion.
It committed that a future Labor government would:
Prevent discrimination against people of faith, including anti-vilification protections.
Act to protect all students from discrimination on any grounds.
Protect teachers from discrimination at work, while maintaining the right of religious schools to preference people of their faith in the selection of staff.
Why is this news this week?
On Thursday the government released the Australian Law Reform Commission report on how to achieve the protection of teachers and students.
Ahead of the report’s release, Anthony Albanese revealed to Labor’s caucus that he had approached the opposition leader, Peter Dutton, seeking bipartisanship and, if it is not provided, the legislation would not proceed.
What did the ALRC recommend?
The ALRC recommended repealing section 38 of the Sex Discrimination Act, which allows religious schools to discriminate against people on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status.
It proposed that religious institutions should be allowed to preference staff based on their religious beliefs so long as it is “reasonably necessary” and “proportionate” to the aim of maintaining a community of faith and does not breach sex discrimination laws.
What was the reaction to the ALRC?
National LGBTQ+ group Equality Australia backed the ALRC proposal. Its legal director, Ghassan Kassisieh, said “discrimination against LGBTQ+ students and staff is happening in religious schools across the country because of gaps in Australian laws that makes it lawful”.
Many religious groups, including the National Catholic Education Commission, the Sydney Anglicans and Australian National Imams Council, rejected the proposal.
The NCEC executive director, Jacinta Collins, said the ALRC had “critically neglected the attorney general’s third term of reference to ensure that religious schools can ‘continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff’”.
What is Labor proposing?
The attorney general, Mark Dreyfus, and Anthony Albanese have made clear that the ALRC report is “not a report from the government”. That is, it is not government policy.
Labor is proposing two bills to:
Amend the Sex Discrimination Act, including to repeal section 38.
Create a Religious Discrimination Act, including the right of schools to preference staff based on religious beliefs and practices and anti-vilification provisions.
These bills have so far not been introduced to parliament or released publicly, so it is difficult to gauge how Labor’s drafting might differ from the ALRC proposal.
Dreyfus has said “no student or member of staff should be discriminated against because of who they are”. “At the same time, religious schools must continue to be able to build and maintain communities of faith.”
LGBTQ+ equality groups are concerned about the extent of religious institutions’ rights, and whether the second bill could still allow controversial practices such as schools requiring teachers to sign statements of belief.
The shadow attorney general, Michaelia Cash, has a copy of the bills and Coalition members will be briefed on Tuesday. Cash has described them as substantially different from the Coalition’s earlier legislation.
So will this go ahead?
For the moment, the government is maintaining that it wants opposition bipartisanship and the Coalition has not provided it.
On Friday Cash told Guardian Australia:
The priority at the moment is ensuring that any bills put forward by the government address the very serious concerns raised by faith leaders and religious schools in the wake of the ALRC report. We will negotiate constructively with the government to try and secure a position which takes faith communities forward, and not backwards. It is concerning that the government have already ruled out an inquiry on significant legislation like this.”
Albanese said he had “made it very clear from very early on in this process” that the reforms “need bipartisan support … because I don’t want this to be an issue in which we go through the old culture wars”.
Albanese said Labor will “engage across the parliament” and noted the government needed the support of the Coalition or the Greens in the Senate.
What about hate speech and doxing?
The government will separately aim to legislate a prohibition on hate speech, and this will not be contingent on opposition support.
It is unclear whether religion is one of the grounds on which hate speech will be prohibited, and why this is separate to anti-vilification in the religious discrimination bill.
Similarly, the civil and criminal penalties for doxing will be legislated separately and are not caught in this logjam.
