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Anthony Albanese’s suggestion he would work with the Greens on religious discrimination reforms is being seen as a wedge to make churches pressure the Coalition back into negotiations. By Mike Seccombe.
‘Threat to existence’: Inside Labor’s religious discrimination reforms
Tuesday’s Labor caucus meeting had barely concluded before Jacinta Collins sounded the alarm.
The former Labor senator, who is now executive director of the National Catholic Education Commission, had received word Prime Minister Anthony Albanese was considering relying on support from the Greens to pass legislation relating to religious discrimination. He had just suggested as much to the party room.
For Collins, a conservative Catholic, this was a very disturbing development. The Greens have long opposed legal exemptions that give special rights to religious institutions, insisting they should abide by the same rules as everyone else. The last thing religious conservatives wanted was the left-wing party involved in shaping legislation.
On Tuesday, the government was considering two major legislative changes. One would introduce legislation to protect people of faith from discrimination and the other would amend an existing law – the Sex Discrimination Act 1984 – to protect people from discrimination by religious institutions, specifically religious schools.
The National Catholic Education Commission hustled to produce a media release, protesting on behalf of its 1756 schools.
“We are concerned by reports from caucus today that the Prime Minister might negotiate with the Greens, who have shown antipathy towards faith-based schools in the past…” the release quoted Collins as saying.
“How could we expect a fair balance of protected rights if the Greens are ideologically opposed to religious schools?”
The following day an open letter was sent to Albanese – and provided to select media outlets – with 41 signatories. It covered representatives from a wide range of faiths, including Muslim, Hindu, Jewish and various Christian denominations.
It too expressed “deep concerns” that Albanese was considering negotiating with the Greens, given the party had a track record of advocating for “removing exemptions for all religious organisations in anti-discrimination law”.
The letter urged the prime minister to negotiate instead with the Coalition. “We expect that any proposal supported by The Greens will be unfavourable to faith communities. If the Government chooses toabandon attempts at bipartisanship and work with The Greens, it will be interpreted by our faith communities as a betrayal of trust.”
Earlier, religious leaders had warned the proposed changes would be the end of religious schools. They were described as an attack on freedom. The Catholic archbishop of Hobart, Julian Porteous, said they were “a most serious threat to the existence of our schools and our ability to provide such education”.
Writing in The Australian, the Catholic archbishop of Sydney, Anthony Fisher, warned the proposed reforms suggested church groups were seeking “the right to discriminate” and only ran schools “in order to promote hate”. He said the capacity of faith groups “to gather, speak freely, pray together and undertake works of service for others – is being reduced slice by slice”.
A week before Collins’s release, Albanese had told caucus he had approached Opposition Leader Peter Dutton seeking bipartisan agreement to the proposed legislation. Without that, he said, it would not proceed.
When he announced he would work instead with the Greens, some insiders saw a complicated play: news that would deliberately alarm the religious lobby and send them to lean on Dutton and the shadow attorney-general, Michaelia Cash, to start negotiating instead of playing politics.
This level of complexity should not be surprising. The reforms have sat for decades in the too-hard basket, with neither major party wanting to enact them.
While laws have been passed to protect against discrimination on the basis of various attributes, including age, race, sex, gender identity and sexual orientation, there are no equivalent protections under federal law for religious belief, save those focused on employment. Faith groups have long sought to have this rectified, so they cannot be discriminated against.
On the flip side, these same groups have fought to maintain the right to discriminate against others. This is a particularly wicked problem in education, where religious organisations receive enormous amounts of public funding and where they are exempted from anti-discrimination laws. This year alone, the federal government estimates it will provide $9.8 billion to Catholic schools and $8 billion to independent schools, most of which have religious affiliations.
The Sex Discrimination Act that was passed 40 years ago provided a carve-out in section 38 for religious education to allow schools and colleges to discriminate against staff members or contractors on the basis of “sex, marital status or pregnancy”. Those exceptions, which seem anachronistic even in 1984, were expanded over the years as the act itself sought to cover additional forms of discrimination. In its current form the carve-out refers to grounds of “sex, sexual orientation, gender identity, marital or relationship status or pregnancy … in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed”.
In the case of students, part three of the section allows discrimination on grounds of sexual orientation, gender identity, marital or relationship status or pregnancy.
Australia has changed a lot over the course of the act’s lifetime. It has become more pluralistic and secular.
At the last census before the Sex Discrimination Act was introduced, in 1981, 76 per cent of Australians identified as Christian. Just 1.4 per cent practised other religions and only about 11 per cent said they had no religion.
By the 2021 census, the proportion of Christians had plunged below 44 per cent, while those of other faiths had grown to 10 per cent. The number professing no religion had almost quadrupled, to 38.7 per cent.
Furthermore, those who still identify as having a faith appear less inclined to practise it in the traditional way. A major survey in 2021 found almost half of Australians never attended church. Only one in five went once a month or more, and less than 3 per cent went weekly or more.
Religion is losing its power to impose its moral rules on society, with inevitable political impacts. As the arc of history has bent towards more secular, inclusive values, the Coalition parties, and to a lesser extent Labor, have been behind the curve.
Witness the major parties’ long procrastination on same-sex marriage. The previous Labor government avoided the issue, despite clear evidence a majority of people supported it. When community pressure grew too great, its successor Coalition government determined not to legislate until it had held a postal vote. In the resulting survey, almost 62 per cent voted “Yes” to marriage equality.
The Sex Discrimination Act exemptions have followed a similar course. Community opinion eventually meant the issue could no longer be ignored, but when the Morrison government tried to do what Labor is now contemplating, it ended disastrously.
Scott Morrison’s calculated refusal to extend more than minimal protections to queer students was sunk just before 5am on February 10, 2022. It foundered on section 38 of the Sex Discrimination Act. The proposal Morrison put forward would have prevented gay students from being expelled but offered no protection at all to transgender students or to school employees.
Independent MP Rebekha Sharkie moved a brief amendment to the government’s bill, 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.
As she told The Saturday Paper at the time, she wanted to see the whole section taken out, to protect teachers and other school employees as well as students, “but that failed because Labor didn’t support it”.
Five members of the Coalition government crossed the floor to join Sharkie, most of the rest of the cross bench, and Labor, in voting for the amendment. Those five were Bridget Archer, Trent Zimmerman, Fiona Martin, Katie Allen and Dave Sharma. The government pulled the bill before it could go to the Senate.
No doubt they were sincerely motivated, but they also would have been aware of polling showing public opinion was strongly behind Sharkie. One poll, a week before the vote, found 64 per cent of respondents believed it should be against the law for religious schools to expel or refuse to enrol students who were bisexual, gay, lesbian or transgender, or who were the children of same-sex couples. It found 62 per cent believed the same in relation to teachers.
Four of the five Liberal floor-crossers lost their seats at the subsequent election. They all represented progressive electorates that voted for Labor or teal independents. Only Bridget Archer survived.
Labor promised it would take up the issue in its first term if it won government. Having won, it referred the matter to the Australian Law Reform Commission, which reported back in December. The government released the report only last week.
The key recommendation is the government should do as Sharkie wanted back in 2022 and remove section 38 entirely. The ALRC recommended that in place of section 38, the government could alter the Fair Work Act 2009 to allow religious institutions to hire staff who shared their faith and values. This preference could not be used to disguise discrimination and the exemption could not be an excuse to not promote staff or to fire them.
In short, the ALRC position would seem to be closer to that of Sharkie and the Greens than that of Labor or the Coalition. It is hard to be sure, however, because the government has so far been very secretive about the details of its proposed legislation. Its bills have been provided to the opposition, but at time of writing the Greens and other crossbenchers had only had verbal briefings.
The Greens’ justice spokesperson, David Shoebridge, has supported the ALRC recommendations and signalled the party’s willingness to “sit down with Labor and discuss how to implement their intent”.
It was important, he said, “that no one is dogmatic about this – what is important is protecting LGBTIAQ+ people and those of faith from discrimination”.
From the opposition there has so far only been posturing. Michaelia Cash has said there is no chance of bipartisanship until the legislation is put out for public debate.
When Albanese told caucus he was discussing reforms with Dutton, some saw a cunning plot to drive a wedge between moderates and right-wingers within the Coalition. Others saw it as a means to stop votes shifting from Labor to the Coalition in conservative seats, particularly those with large Muslim populations.
When the prime minister announced he would work with the Greens, some saw the aforementioned provocation of religious leaders as a way to pressure the Coalition back into negotiations. Others suggested Albanese realised his initial position made the government look weak. In the words of Shoebridge, it made it appear as if Albanese was giving the opposition “a veto or a co-writer’s credit on the reforms that decide if kids can be expelled or teachers can be fired for their identity”.
Of course, there is always the possibility Albanese actually wants to fix the problem, has realised the Greens are prepared to be flexible and has figured there are enough numbers on the cross bench to make it happen.
Rebekha Sharkie speaks for many when she says: “I’m just not quite understanding the tactics of this.”
This story was modified on April 2, 2024, to accurately reflect the existing federal protections against religious discrimination and evolution of the Sex Discrimination Act.
This article was first published in the print edition of The Saturday Paper on March 30, 2024 as "‘Threat to existence’: Inside Labor’s religious discrimination reforms".
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