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As the government’s Religious Discrimination Bill collapsed, and five Liberals crossed the floor, the prime minister wedged only himself. By Mike Seccombe.

How the religious freedom bill fell apart

It was just before 5am on Thursday when Scott Morrison’s plan to placate his religious right support base and wedge his political opponents crumbled, along with much of the prime minister’s authority in his party.

It was Morrison’s calculated refusal to extend more than minimal protection to gay students from discrimination in religious schools, and offer no protection at all to transgender students, that did it.

When it happened, it happened very fast – although it came at the end of a long night of parliamentary debate, and after more than three years of public debate and unfulfilled promises by Morrison.

A centrist crossbencher, Rebekha Sharkie, moved a brief amendment to repeal section 38(3) of the Sex Discrimination Act, which allowed church schools to discriminate against students on the grounds of their sexual orientation, gender identity, marital or relationship status or pregnancy. That was the end of it.

When the motion was put, five members of the government crossed the floor to join Sharkie, most of the rest of the crossbench, and Labor, in voting for the amendment.

Those five were Bridget Archer, Trent Zimmerman, Fiona Martin, Katie Allen and Dave Sharma.

The government didn’t see it coming. Only two of the five – Archer and Zimmerman – had publicly flagged that they would cross. According to accounts from some of those present, Deputy Prime Minister Barnaby Joyce was furious, loudly complaining that the other three had not told them of their plans.

Sharkie was less surprised, given the previous statements of those five – and other moderate Liberals. Still, her attempt to move for the repeal of the whole of section 38, which allows religious schools to discriminate against teachers and other workers, failed.

“Fiona, Trent and Dave came over for the repeal of the whole of section 38, to protect teachers and students, but that failed because Labor didn’t support it,” she says.

“I really wanted that, but getting section 3 repealed was a pretty good consolation prize.” 

In its panic at having lost on its own, weaker proposal to amend the act, she says, “the government tried to pull its Human Rights Legislation Amendment altogether, but the five stayed with the crossbench and the opposition to allow the bill to go through”.

The situation was absurd. “They wanted to pull their own bill,” Sharkie says. “The government was prepared to completely withdraw their entire bill – the Human Rights Legislation Amendment Bill, not the Religious Discrimination Bill – because we got that small amendment through.”

If that seems confusing, it’s because Morrison’s position on so-called religious freedom has been confused from the start. That in turn reflects the political difficulty of applying the rigour of law in such a way as to balance the prejudices of faith against rapidly evolving community attitudes.

In 1984, when the Sex Discrimination Act (SDA) was passed, homosexuals were a vilified minority and the acronym LGBTQIA+ was unheard in public discourse.

But community attitudes evolved. They have changed even since 2013, when the Gillard government sought to strengthen the SDA – but still allowed that it was lawful to discriminate against another person on the grounds of sexual orientation, gender identity or marital or relationship status, in the provision of education or training, if it was “in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed”.

Clear evidence of the community’s shifting outlook came four years later, in the outcome of the 2017 postal vote on same-sex marriage. Almost 62 per cent of those who voted – and almost 80 per cent of enrolled electors participated – voted “Yes” to equal marriage.

Further evidence came the following year, when the government’s promised Religious Freedom Review – the first step towards the current package of religious discrimination legislation – was under way. A YouGov Galaxy poll, conducted for the queer rights lobby group Just Equal, found that 82 per cent of respondents opposed exemptions that allowed the expulsion of gay and lesbian students from schools.

The government sat on the review committee’s report for four months. Then, in early October, it was leaked. It recommended schools retain the right to discriminate “on the basis of sexual orientation, gender identity or relationship status” of students – albeit with minor caveats.

Scott Morrison was caught between majority public opinion on one side and religious conservatives on the other. The prime minister vacillated.

In a morning Melbourne radio interview on October 11, 2018, he said “religious schools should be able to run their schools based on their religious principles”, and defended the existing law.

Two days later, he released a media statement promising “action to ensure amendments are introduced as soon as practicable to make it clear that no student of a non-state school should be expelled on the basis of their sexuality”.

Morrison said, “I want to see that addressed over the next fortnight.”

Ultimately, he offered a tradeoff. The government would produce legislation to protect the religious from being discriminated against, but would also amend the SDA to limit the right of religious schools to themselves discriminate.

That was more than three years ago. In any case, it was a tightly limited promise. Morrison did not address the situation of teachers or other employees of religious schools, although the same 2018 poll found 79 per cent of people thought schools should be stripped of the right to fire teachers if they married a person of the same sex. Nor did his proposed fix address the fact that there are many other ways in which a student might be discriminated against other than expulsion, as Sharma told the ABC on Wednesday.

“We need to bear in mind here,” he said, “that a student can quite easily be forced out of a school without being expelled. If they are harassed or intimidated or bullied or made to feel unwelcome or unsafe, of course they’re going to leave.”

Another Liberal backbencher, Andrew Laming, told parliament such tactics were used by some religious schools to “allow the school to say they never expelled them”.

Only this week, it became apparent that Morrison’s promise was even more limited than it appeared in 2018. On Monday the attorney-general, Michaelia Cash, revealed that the promise to prevent the expulsion of students on the basis of their sexual orientation did not extend to covering gender identity, and schools would still be free to expel transgender students.

Her rationalisation was that removing the right for church schools to discriminate against trans students would raise complications over bathrooms and uniform requirements and “have the potential to effectively nullify the intention and ethos of religious single-sex schools”.

It was a weak argument. Those kids would still have to be educated somewhere. So why was the distinction made? That is not clear, but the widely held suspicion is that it was an exercise in wedge politics: that while the great majority of society now supports the rights of gay and lesbian people, there remains scope to stir greater prejudice against transgender people, to political ends.

Certainly in the United States, the Christian right and Republican politicians have waged a long and cruel campaign against trans students’ rights, legislating bans on bathrooms and locker rooms, participation in sporting activities, and access to medical and psychological care. According to a tally kept by the organisation Human Rights Campaign, more than 350 separate pieces of legislation were passed since 2015, 147 of them in 2021 alone.

There is a long history of Australian politics borrowing tactics from the US. Whether politically calculated or not, the government’s determination that trans students could still be discriminated against, even as slightly greater protection was accorded to others, would have further isolated vulnerable people.

A survey of the health and wellbeing of transgender Australians, published last year and involving 928 participants, found lifetime diagnosis of depression was reported by 73 per cent of trans people and anxiety by 67 per cent. Sixty-three per cent reported previous self-harm and 43 per cent had attempted suicide. Large proportions reported experiencing discrimination in employment and healthcare. Verbal abuse and physical assault were reported by 63 per cent and 22 per cent, respectively.

This singling out of trans students for legislated discrimination was anathema to many speakers, on both sides of the house. It was removed from the bill that passed the house.

The shadow assistant treasurer, Stephen Jones, told the chamber of his gay nephew, who took his own life last week: “He was uncertain about his gender and struggled with his mental health. Now he is gone and we will no longer be able to love him and support him on his journey throughout life. Clearly the love and acceptance of his family and friends was not enough.”

Jones also spoke, with permission, of his own son, “a beautiful, creative, intelligent 14-year-old”.

“He designs and makes clothes, is a gifted make-up artist, moves seamlessly between the wardrobes of men and women. He wears heels that give me vertigo and has more handbags than his sister,” Jones said.

“What message do we want this parliament to send to these kids? Are they as loved and cherished and respected as every other kid? Surely we aren’t saying to them: it’s okay if you are gay just so long as we can’t see it.”

Jones’s comments followed the news last week that Brisbane’s Citipointe Christian College had informed families it would enrol students only “on the basis of the gender that corresponds to their biological sex” and insisted they sign a “contract”, later withdrawn, requiring students to denounce homosexuality as a sin alongside bestiality and paedophilia.

Citipointe is not a standalone entity. It is part of the Christian Outreach Centre, a network of theologically conservative churches, schools and related businesses, registered with the Australian Charities and Not-for-profits Commission under some 150 different business names and 200 different trading names. In 2020 the network recorded revenue of $132 million as well as $250 million in assets.

In his powerful speech of Wednesday evening, Zimmerman, who was the first openly gay MP elected to federal parliament, and who draped himself in a rainbow flag, denounced actions such as Citipointe’s as “heinous”.

Zimmerman was particularly “disturbed” by the unequal treatment of trans students even under the limited protection the government offered gay kids, which he said amounted to a message “by omission”.

He said, “They are the most vulnerable people in our society. All the statistics show what they go through: the suicide rates, the attempted suicide rates and the mental health problems. I cannot do anything which makes their situation more difficult.”

So unhappy was the Australian Christian Lobby with the prospect of schools being unable to discriminate against LGBTQIA+ students that it called for the whole package of legislation to be withdrawn.

Those on the other side are also dissatisfied. In his speech Sharma ticked off several aspects he said required correction: there was the fact that the amendment to the SDA did nothing to protect teachers; that the Religious Discrimination Bill overrode state and other federal anti-discrimination laws; that it left unclear the point at which the bill’s guarantee of the right of religious people to make “statements of belief” crossed the line into “harassment , intimidation or vilification, either by the nature of what is said or by the persistence and the repetition”. Those issues remained unaddressed, even though the Religious Discrimination Bill was passed by the house.

On Thursday morning the shadow attorney-general, Mark Dreyfus, was confidently predicting Labor would have the numbers to make further changes to the proposed legislation in the senate.

Morrison must have feared the same thing. His government has moved to push religious discrimination off for further consideration by yet another parliamentary committee – despite the fact two committees reported on the package just last week.

Reportedly, at least one government senator, Andrew Bragg, has “told colleagues” he would not vote to overturn the changes that passed the lower house.

And so Morrison’s promise before the last election, that religious discrimination laws would be in place before the next election, is set to be broken. And his undoubted hope for a wedge issue to use against Labor has been dashed by his own side.

Morrison has wedged only himself, failing to anticipate his fellow Liberals might behave with decency and charity. 

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This article was first published in the print edition of The Saturday Paper on February 12, 2022 as "How the religious freedom bill fell apart".

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Mike Seccombe is The Saturday Paper’s national correspondent.

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