The Coalition has shelved its divisive religious discrimination laws after amendments aimed at protecting LGBTQ+ students sparked a backlash from religious schools and conservatives.
Facing calls from the Christian lobby to dump the amended laws, the government said it had received legal advice from the attorney general’s department that showed lower house amendments passed in the early hours of Thursday morning may have unintended consequences.
The attorney general, Michaelia Cash, has written to the independent MP Rebekha Sharkie and Labor over the amendments, saying she has “significant concerns” that the change could inadvertently worsen discrimination.
But the shadow attorney general, Mark Dreyfus, blasted the backdown as “a desperate attempt by Mr Morrison to cover up his humiliating defeat on the floor of the House”.
“It’s long past time Mr Morrison stopped trying to blame everyone else, stopped playing politics with the lives of children, and worked with the parliament to fix his bills,” Dreyfus said.
The advice allegedly related to proposed changes to the Sex Discrimination Act (SDA) which were supported by the Liberal MPs Bridget Archer, Trent Zimmerman, Katie Allen, Fiona Martin and Dave Sharma – who crossed the floor to vote with Labor and crossbench MPs.
The government was refusing to release the advice on the amendments, which would prevent religious schools from discriminating against students on gender and sexuality.
Despite expectations the bill would be introduced into the Senate on Thursday, the government faced calls from the Australian Christian Lobby to withdraw it. The lobby argued the SDA changes would “remove protections for Christian schools”.
The government faced the prospect of the amendments also passing the Senate after the Liberal senator Andrew Bragg put the government on notice of his intention to back the SDA changes along with Labor and a number of crossbench senators.
In a statement, the Australian Christian Lobby’s Wendy Francis said the bill was intended to help faith-based schools “but they now do more harm than good”.
“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 Labor, independents and these Liberal MPs unnecessarily interfere with the operation of faith-based schools.”
The assistant attorney general, Amanda Stoker, said on Thursday morning that the government was consulting with stakeholder groups to make sure “we can fully appreciate the implications of that amendment before we have to deal with the Senate”.
The government was “really intent on honouring the commitment we made to all of the multicultural groups, to all other religious groups, and also all of the LGBTI groups in the consultation process that we’ve undertaken”, Stoker said.
The decision to delay the bill’s introduction into the Senate meant it was unlikely religious discrimination laws would pass parliament before the election, due by May.
However, the government was understood to be still negotiating with crossbench MPs in both the lower house and the Senate, along with its own members who supported the changes to the Sex Discrimination Act, to try to break the impasse.
In the letter sent to Sharkie and Dreyfus on Thursday, Cash said “concerns have been raised” with her about the SDA changes, suggesting the new drafting of section 37(4) “could allow religious schools to discriminate against students or prospective students on grounds which are currently prohibited”.
“By expressly stating that it is unlawful for a religious education institution to discriminate on the grounds of sexual orientation, gender identity, marital or relationship status or pregnancy, this drafting leaves open the possibility of religious schools to discriminate on other grounds, being a student or prospective student’s sex, intersex status or breastfeeding.”
Sharkie said she had not yet received the legal advice underpinning the letter, but had requested it, “and, if released, will consider that advice carefully”.
“However, I have deep concerns over the cited but unseen ‘legal advice’ and have a sense of deja vu after the government previously misrepresented legal advice on the medevac transfer bill.”
Sharkie was referring to a controversial claim by the former attorney general Christian Porter that legal advice stated the medevac transfer bill would leave the government without power to return refugees and asylum seekers to offshore detention.
The advice, later released under freedom of information, did not contain such a conclusion although the government denied it had misled about its content.
Sharkie said that if the government was genuinely worried about unintended consequences, it could draft its amendments in the Senate.
“I am disappointed the government has decided to play politics with an issue that’s so important to so many Australians.”
The government’s original position had been to only ban expulsion on the grounds of sexuality – deferring other changes until a review was undertaken by the Australian Law Reform Commission.
Jane Hume, the financial services minister, said the government wanted the bill restored to its original form with the ALRC process to investigate the proposed changes to the Sex Discrimination Act “so that we get that balance right”.
“The government will inevitably move amendments to try and revert the bill back to the government’s position,” Hume said.
“When you deal with competing rights, it’s always going to be a contentious issue ... the rights of children, sometimes very vulnerable children, with the rights of people of faith to have the choice to send their children to a same-sex school.
“People of faith should be allowed to express their faith to send their children to a same-sex school but at the same time we want to make sure we protect all children, particularly Australia’s most vulnerable.”
The Equality Australia chief executive, Anna Brown, said the changes to the Sex Discrimination Act were aimed at protecting students at religious schools who were vulnerable to discrimination, including LGBTQ+ students.
“If the government considers that there is a problem, it can bring forward amendments that reflect the will of parliament to remove discrimination,” Brown said.
“There are already exceptions in the Sex Discrimination Act dealing with single-sex schools that, for example, allow girls schools to exclude boys, including trans boys. There was nothing passed last night that impacts these exemptions.
“These issues would never have arisen if the government had fulfilled its commitment to amend the Sex Discrimination Act to protect LGBTQ+ students.”
