Curate’s egg of a bill that leaves concerns across the religious spectrum

The Morrison government’s first two attempts at passing religious discrimination laws were shelved after leaving nobody happy. Its next attempt at meeting one of the first promises Scott Morrison made after becoming prime minister in 2018 is similarly divisive.

The bill — which Morrison will personally introduce to Parliament, probably tomorrow — has the Australian Christian Lobby encouraged, LGBTIQ groups deeply concerned, and moderate Liberals urging caution. It means there’s little chance of it being passed this year, with review from a Senate or joint parliamentary inquiry all but certain.

Winners and losers

The ACL has been one of the loudest voices calling for religious discrimination laws, lobbying the government, and in particular Attorney-General Michaelia Cash, for months. It criticised previous versions of the bill that gave even more concessions to the faithful than the new draft, but says it is “encouraged by what’s in, disappointed about what’s out”.

“Underwhelming is a decent word for it, but it is a start,” ACL national politics director Wendy Francis said in a video update to members yesterday.

To satisfy moderates in the Coalition partyroom, Cash made some key changes to her predecessor Christian Porter’s drafts. Gone is the controversial “Folau clause” which deemed any restriction made by an employer on statements of belief made outside work hours indirect religious discrimination. Also removed are sections which allowed health practitioners to refuse treatment on the grounds of “conscientious objections”.

But civil rights organisations are still worried about the kinds of behaviour that would be sanctioned under the watered-down bill.

“Despite some significant improvements in the legislation, we remain deeply concerned that some of the worst aspects of the bill remain,” Equality Australia CEO Anna Brown said yesterday.

She’s most concerned about sections retained from previous drafts which allow “statements of belief” to override federal, state and territory anti-discrimination laws as long as they aren’t malicious, or do not threaten, vilify or harass.

“The statements of belief provision will license new forms of discrimination against women, people with disabilities, and ironically people of faith as well,” Brown said.

In practice, this means religious people have an incredibly broad defence to any potential discrimination complaint made against them. If a nurse told an HIV patient their HIV was a punishment from God, that could potentially be protected. A manager could tell a female employee the Bible says only men can hold leadership positions. A religious waiter could tell a queer couple their relationship was the work of the devil. A childcare provider could call a single mother evil for depriving her children of a father.

The bill would also override state and territory laws and allow religious educational institutions to preference people of faith so long as this is in accordance with a written policy. That would specifically target laws being considered in Victoria, narrowing the ability of faith-based schools to discriminate against teachers and students on the grounds of sexuality. The section also gives the attorney-general power to prescribe other state and territory laws which can be overridden in order to allow an institution to preference religious people.

And while the Folau clause is gone, professional or qualifying bodies are effectively unable to take into account statements made outside a work context when setting rules around admitting people. That means while an employer could still set a social media code of conduct which restricts an employee — like Israel Folau — from making religious-based homophobic statements on social media, such statements couldn’t form the basis of a medical or legal body deciding whether to admit or take action against a religious person.

The politics

Despite Morrison’s personal commitment to the bill, its fate is unclear. It was subject to long debate in the Coalition joint party room yesterday, and several mostly city-based moderates — Trent Zimmerman, Dave Sharma, Bridget Archer, Fiona Martin, Andrew Bragg and Angie Bell — raised concerns around the bill, in particular its impact on queer students and teachers. Others, including senators Matt Canavan and Ben Small, spoke up in favour of the bill.

After its introduction tomorrow, it will likely be debated early next week before heading to some form of inquiry, either in the Senate or a joint parliamentary inquiry. And while the Coalition has sometimes viewed religious discrimination as an opportunity to wedge a Labor Party struggling to retain the votes of the faithful, the opposition has been united, and is awaiting the outcome of any inquiry.

The Greens, meanwhile, have slammed the bill in its current form as a “Trojan Horse for hate”, urging it to be voted down.

“Under the guise of faith, bigots would be free to discriminate against people at school and universities, in the workplace, hospitals, restaurants, anywhere in public life,” Greens Senator Janet Rice told Crikey.

Any committee reviewing the bill would need to strike a balance between conflicting views within both major parties, and would be likely to include input from the Greens and crossbench, carefully picking through it over the next few months and reporting back in time for the first sitting week of the parliamentary year.

Whatever comes out of that will be critical to whether the bill gets passed. It’s a long road ahead, and one which could amount to little if Morrison decides to call an election in March, leaving no opportunity for it to pass Parliament.