The Morrison government’s religious discrimination bill is being rushed into parliament ahead of the election, although it fails to clarify key aspects of discrimination, including the treatment of queer school students. By Karen Middleton.
What the religious discrimination bill is really about
When government MPs were briefed about the prime minister’s redrafted religious discrimination bill on Tuesday morning, Scott Morrison was grilled from both the left and right of the Coalition.
Conservative Queensland Nationals senator Matt Canavan demanded to know why Morrison was prepared to override state governments with this legislation but wouldn’t do it on mandatory vaccination.
And moderate New South Wales Liberal MP Trent Zimmerman asked why, given the bill was going to be sent to a senate committee for scrutiny, it was not being introduced into the senate first.
Attorney-General Michaelia Cash, who has carriage of the legislation, is in the senate and Zimmerman was pointing out that a simple course would have been to introduce it there and send it straight to an inquiry.
But Morrison had organised to have it introduced first in the lower house because he wanted to do it himself.
Having it pass through at least one house would also allow him to tell faith communities that his personal pre-election promise to legislate to protect their religious views was on its way to being fulfilled.
Zimmerman and some of his colleagues were not happy. They were concerned that those with questions about the bill were going to be asked to vote on it next week without the benefit of the senate inquiry’s findings to help assess its implications.
After Canavan and four conservative senate colleagues voted against their own government on the vaccine issue, Zimmerman and some moderate colleagues were threatening to do the same on religious discrimination.
“I reserve my right based on my analysis of the bill and the issues of concern that I still have,” Zimmerman told Sky News on Wednesday.
As the second-last parliamentary sitting week of the year closed on Thursday, the government moved to avoid another embarrassing split on the floor of parliament, abandoning the plan for a vote in the house first.
As he introduced the bill on Thursday morning, Morrison was being urged privately to send it straight to a senate inquiry. He was warned if he insisted on a vote first, he could face another revolt – the third in a week.
So the government moved in the senate to refer the bill to a senate committee – which is government controlled – to report back on February 1 next year. But Labor, the Greens and some crossbenchers wanted it referred to a joint select committee, which is not government controlled. The decision will now be taken next week.
On Monday, Canavan and four other Coalition senators crossed the floor to support a bill put forward – unsuccessfully – by One Nation senator Pauline Hanson seeking to stop state governments from imposing restrictions on people not vaccinated against Covid-19.
And on Thursday morning, just after the religious discrimination legislation and two related bills were introduced, Tasmanian Liberal backbench MP Bridget Archer embarrassed Morrison further by backing a bill from independent Helen Haines for a national integrity commission.
Archer stunned colleagues by seconding Haines’s motion aiming to force parliament to debate the bill, after Haines had urged all MPs to support her if they believed “this government has got its priorities wrong”. The motion passed on the numbers but was invalidated on a technicality – because of Covid-19 limits, too few of those voting MPs were physically present in the chamber to reach an absolute majority. Morrison called Haines’s proposed anti-corruption commission “a kangaroo court”.
Earlier, Morrison had emphasised individual rights and freedoms as he presented the religious discrimination bill.
“Our anti-discrimination laws play an essential role in protecting the liberty of our citizens, each as individual human beings,” the prime minister told parliament. “It is only right we should expect that what we sincerely believe should be afforded the same protection from discrimination in a free liberal democracy, as any other protected attributes of our humanity. And as provided for in this bill, this includes not being discriminated against for non-belief. Such protections respect the true integrity and dignity of the individual.”
The latest version of the legislation, its third in as many years, omits some of the protections for religious belief originally included, but retains others.
Now called the religious discrimination bill, and no longer the “religious freedom bill”, Morrison insists it is meant as “a shield, not a sword”. Similarly, a new human rights commissioner will be known as the religious discrimination commissioner, not the religious freedom commissioner.
The legislation no longer contains the “Folau” clause, named after rugby player and evangelical Christian Israel Folau, whose contract with Rugby Australia was terminated in 2019 after public comments he made condemning homosexuality.
But a modified version of the clause remains, protecting people whose work is licensed or authorised by a professional body. The clause protects them from being penalised for breaching a professional body’s code of conduct by making offensive, insulting, uninformed or hurtful comments, provided they are based on a genuinely held religious belief and are made outside the work context.
The bill guards “statements of belief”, allowing people to make comments against others that are currently considered discriminatory, provided they are made “in good faith”, based on genuinely held religious beliefs, don’t harass, intimidate or vilify, and are not malicious.
It contains a power to override state and territory laws and other federal laws to ensure statements of religious belief are protected. The override will particularly affect an existing Tasmanian law and will include Victoria’s equal opportunity legislation, currently before that state’s parliament, if it passes.
The bill no longer allows hospitals and health services to refuse to provide certain services on religious grounds.
But it allows corporations to sue if they suffer detriment by being refused access to goods, services, facilities or accommodation because of their religious affiliation. Religious hospitals and schools will be able to preferentially hire staff who adhere to their particular faith – and discriminate against those who don’t – provided they publish a clear policy stating the basis of their beliefs. And the bill doesn’t resolve the issue of educational institutions discriminating against gay teachers or students – something currently allowed under the Sex Discrimination Act. Morrison has previously promised to deal with that, asking the Australian Law Reform Commission to investigate and report back. But he stipulated that its review cannot be concluded until one year after the religious discrimination legislation passes.
Moderate Liberals want explicit protection from discrimination for LGBTQIA+ students and teachers immediately, preferably in conjunction with the new legislation.
“There is no earthly reason why we can’t be getting on with this,” Trent Zimmerman said on Thursday.
Sydney Liberal MP Dave Sharma, whose electorate includes significant communities of both LGBTQIA+ people and people of the Jewish faith, says he supports legislation to protect both. “No teacher or student should be dismissed or expelled on the basis of their sexual orientation or gender identity and we must make this crystal clear,” he said.
Zimmerman and Sharma were among seven Liberals – also including Bridget Archer – who spoke on the issue in the party room on Tuesday.
NSW Liberal senator Andrew Bragg told the senate on Wednesday that freedom should be for all Australians and “too many Australian teachers are being sacked for being gay”. He said that should be addressed at the same time.
“I think that the existing exemptions in the Sex Discrimination Act are not fit for purpose,” Bragg said. “I think that we need to separate the question of ethos from raw discrimination. I don’t think that someone should be sacked for being gay. I don’t think that teachers will be sacked for being Jewish or of a particular ethnicity, but I do think – and I do know – that teachers are being sacked in NSW for being gay. So if we’re going to go down this path of providing schools with more authority to act in accordance with their ethos, which is an entirely reasonable proposition, then we need to clean up this issue.”
Queensland MP Angie Bell is also raising her voice. “Everybody has the right not to be discriminated against,” Bell told the ABC. “That includes gay teachers, that includes gay students, and that includes people of faith.”
Morrison said on Thursday that gay students and teachers should not be removed from schools.
Deputy Prime Minister Barnaby Joyce is among those advocating for greater protections for people of faith, saying they should not have to “hide it under a blanket”.
“People have come to the table and everybody has given something up to arrive at that table,” Joyce told Sky News.
The Australian Christian Lobby welcomed the bill, despite describing it as “a significantly reduced document”.
“This bill has been a work in progress since the last election, and ACL will continue to make the case for the statements of belief protection in the upcoming senate committee process,” national director Wendy Francis said. “In particular we will advocate for the return of the ‘Folau’ clause, the purpose of which was to provide important and reasonable protections for religious individuals against overreach by employers.”
LGBTQIA+ advocates Equality Australia called for the bill to go to a joint select committee of the parliament, not just a senate committee.
“What constitutes discrimination today will be lawful tomorrow, allowing people to say harmful, insulting and demeaning things,” says chief executive Anna Brown. “Things like a medical worker telling a person living with HIV that AIDS is a punishment from God, or a person living with disability that their disability is caused by the devil.”
Brown called for the inquiry to be held before MPs were required to vote. “It is unreasonable and irresponsible for the government to ask members of parliament to vote on the religious discrimination bill without a full understanding of its impacts on the community and on their constituents.”
The Labor opposition has not decided how it will vote on the bill, with senior figures believing it is “the government’s problem”.
Labor spent the week attacking Morrison’s integrity and the disunity in the government.
In a long address to the Coalition party room on Tuesday, Morrison had pleaded with his colleagues for unity.
“Discipline and unity wins elections,” he told them. “And if we surrender that, we surrender government. We’re dealing with some difficult issues at the moment and that’s not new. Many of us have sat in this party room for a very, very, very long time. We know the give and take of being in a political party. Sometimes it doesn’t go the way you want, sometimes it does. But that is the point of the … party room, the give and take, because the ultimate goal is bigger and what is at risk is great.”
Despite his warning, a growing number of dissenters have decided it’s a risk they’re prepared to take.
This article was first published in the print edition of The Saturday Paper on November 27, 2021 as "Faith dealer".
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