Friendless religious discrimination bill could just evaporate

The Religious Discrimination Bill before federal parliament looks like going nowhere fast.

There was no vote before parliament rose for the year, with the bill sent off to two committees – and with only five sitting days of the Senate planned next year before the election, it may simply disappear.

At that point, you might predict it will be an election issue. But maybe not – suddenly the bill has become an orphan. The people who want it most are finding out it may not be the bill for which they have been lobbying for years.

This is due to Prime Minister Scott Morrison making a deal with moderate members of the Liberal Party to bring forward the process of passing a law to prevent LGBTIQA students from being discriminated against. The amendment to do that did not make it to the floor of parliament today – and parliament is now finished for the year.

Until now, the plan has been to pass a bill that will give conservative religious people what they want – protection for public religious statements and for religious bodies such as schools to give preference to people of faith when hiring – as well as protecting against discrimination on religious grounds. LGBTIQA students (and teachers possibly) were meant to wait until the Australian Law Reform Commission (ALRC) had run a study into removing religious exemptions to the Sex Discrimination Act (SDA), which was to start 12 months after the Religious Discrimination Bill was passed.

Supporters of conservative Christian Schools are opposed to a simple removal of those exemptions in section 38(3)of the Sex Discrimination Act. But given the swift deal with the Liberal backbenchers, that could well happen

“If section 38(3) of the SDA is to be amended so that religious schools may no longer make decisions based on ‘sexual orientation’, then there still needs to be an explicit protection allowing such schools to require students to conduct themselves in accordance with the religious ethos of the school, Professor Neil Foster writes on his Law and Religion Australia blog.

“It is generally accepted that schools are entitled to set up ‘reasonable standards of dress, appearance and behaviour for students.’ A provision to this effect is already contained, for example, in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.”

Foster adds, “A school set up to teach and model the principles of Christianity may want to say, for example, that they do not want to act on student’s internal feelings or temptations, but they cannot support public advocacy and activity which is contrary to the teachings of the Bible.”

There are several areas of controversy with this. Will schools be allowed to insist that students who identify as transgender wear a cis-gender uniform? Will students be able to declare they are LGBTIQA – in essence, to “come out” at school?

“Talk of simultaneously removing section 38(3) of the Sex Discrimination Act, which protects the teaching and daily operation of faith-based schools, in exchange for some MPs’ support for the Religious Discrimination Bill, is extremely unhelpful,” says Wendy Francis, National Director of Politics. ” The Australian Christian Lobby will withdraw its support for the Religious Discrimination Bill package if it includes the removal of section 38(3).”

“The Australian Christian Lobby calls on the Parliament to proceed to debate and vote on the Religious Discrimination Bill, which has had years of consultation, without undermining the important protections for religious schools contained in the Sex Discrimination Act,” said Ms Francis.

“What this deal [to move quickly on protecting gay students] exposes is that these objections are merely being raised to try and leverage other outcomes from the government and avoid proper scrutiny,” Mark Spencer, the National Policy Director of Christian Schools Australia, told the Australian. The schools would prefer the longer ALRC process to establish their case to set behaviour standards.

But if the deal with the moderate Liberals sticks – and it might possibly be strengthened if Labor or crossbench support is needed  – the schools will face a bill that will force them to change how they operate.

If that happens the task for conservative Christians is to consider whether they have over-reached and decide whether half a loaf is better than none.

The “half a loaf” that remains in the bill might be the ability to preference staff hires and protection for “statements of belief” made in good faith.