Labor more likely to move on religious discrimination

Halfway through the federal election campaign, there has been a gigantic switcheroo on the hot button issue of religious discrimination.

Unlike during the last campaign, it is the Labor Party promising legislation, while the Coalition seems to be saying “no change, let’s keep things as they are.”

But of course, either party could update their positions in a dynamic election campaign.

Prime Minister Scott Morrison has sent a letter to religious leaders that talks down the idea of a Religious Discrimination Bill. He says, “I pursued this law in good faith, putting politics aside, as I did not wish this to divide our nation,” according to a report by Dennis Shanahan in The Australian.

The critical part of the letter explains the risk of amendments to the Religious Discrimination Bill that would remove provisions in the Sex Discrimination Act (SDA) that give religious schools exemptions from the anti-discrimination rules. Morrison implies this risk is too significant to bring the bill back.

“Until a consensus can be found … we cannot in good conscience put at risk the ­existing protections that currently exist for people of religious faith.” – Scott Morrison

That would be a repeat of what happened when Independent MP Rebekha Sharkie (Mayo, South Australia) moved an amendment to remove section 38(3) from the SDA, which passed with the support of Labor and five “moderate” members of the Coalition, who crossed the floor.

(While the Morrison government had accepted a tightly focused change removing schools’ ability to discriminate against enrolling gay and lesbian students, Sharkie’s amendment went further in removing more exemptions.) The government withdrew the bill after Christian schools groups and the Australian Christian Lobby and FamilyVoice said they could no longer support the bill.

The PM wrote: “Until a consensus can be found and the issues that have been ­created by these amendments can be resolved, we cannot in good conscience put at risk the ­existing protections that currently exist for people of religious faith. Sadly, ­Anthony Albanese and the Labor Party prized scoring a political victory against the government as more important than achieving laws to protect Australians of religious faith against discrimination.”

So what are the possible outcomes of the federal election?

Describing what he regards as a bad result, Michael Kenny, Editor in chief of the Catholic Weekly, says, “Catholic schools could potentially be placed in a highly compromised position where Religious Education teachers may end up in a position where they are teaching traditional Church teaching about sexuality to transgendered children.”

Kenny can stand for many Christians who want to have both a Religious Discrimination Bill and keep the existing exemptions in the SDA.

A middle ground would seek to give or maintain freedom of speech, allowing Christian institutions to teach according to their beliefs, but ensure schools enrol LGBTIQ students – and do what Kenny opposes, teach students who might openly identify as LGBTIQ.

A progressive position might be to restrict conservative, orthodox Christian teaching in schools by prioritising LGBTIQ rights.

For voters, the task is to see how these positions map onto the party policies.

The political landscape underwent a significant shift during the Morrison Religious Discrimination Bill debate.

The easiest one is the progressive position. The Greens’ policy is to remove exemptions from anti-discrimination law and institute a bill of rights. However, excising all exemptions from the SDA would include section 37, which deals with the appointment and training of ministers and sections 38 (1) and (2) concerning schools’ staffing.

The political landscape underwent a significant shift during the Morrison Religious Discrimination Bill debate. The fate of the exemptions in the SDA is no longer tied to whether a Religious Discrimination Bill is brought before parliament. A Sharkie-style amendment or Bill to remove the student provisions of the SDA is likely if there is:

• A Labor government
• A hung parliament
• A Coalition government with a small majority – with enough “moderate” members to cross the floor to support a Sharkie-style bill.

For the SDA exemptions to remain unscathed, whether or not a Religious Discrimination Bill is attempted, requires a Coalition government that achieves:

• A solid majority which makes any floor crossing by progressive members irrelevant OR
• Enough seats, maybe with the support of conservative minor parties in a hung parliament, to retain government. A hung parliament would probably mean (some) moderate Liberals are defeated, probably by so-called “teal independents”.

A Coalition government dependent on progressive Liberals is unlikely to pass a Religious Discrimination Bill – because it won’t achieve the consensus the PM talks about.

This calculation explains the stance of groups such as the Australian Christian Lobby, which campaigns against the “moderate” Liberals.

What effect will the ACL campaign have? If successful in swaying votes, it could:

• Result in a Coalition shorn of some of its “moderate” wing. If it picks up seats elsewhere, that would mean a more conservative government.
• Result in a hung parliament with several progressive “teal” Independents.
• The “moderate” Liberals hang on with reduced first preferences, and the scare might mean they accept some version of a Religious Discrimination Bill.

So we can conclude the Coalition will leave the Religious Discrimination Bill alone unless it gets a big enough majority to overlook surviving floor crossers.

That leaves the ALP. Its policy has three points, just like a sermon in some churches.

•  Prevent discrimination against people of faith, including anti-vilification protections.
•  Act to protect all students from discrimination on any grounds; and
•  Protect teachers from discrimination at work whilst maintaining the right of religious schools to preference people of their faith in selecting staff.

This summary suggests that Labor will remove the SDA exemption for students.

Labor is likely to go further and remove more of the exemptions from the SDA, especially regarding teachers. They will attempt to balance the rights of schools to preference people of faith with employment rights for LGBTIQ teachers. This compromise gets tricky where a religious group has a conservative view on human sexuality. Eternity hopes we can get more information about this policy.

Labor may not have thought through what happens when a religious group makes a conservative view on human sexuality part of its statement of faith.

One possibility is that it will follow something like the Victorian model of allowing schools to preference people of faith where there is some inherent requirement (leading a school or formally teaching religion) and not allow any blanket ban on LGBTIQ staff. But this is only a guess.

Another possibility is some type of balancing system, where a court or tribunal works out how to strike that balance.

At this stage, it seems clear that neither the Labor Party nor the Coalition is proposing to remove the exemptions in clause 37 of the SDA, which protect the training and appointment of a religious minister.