Federal Labor has a good job in neutralising the Religious Discrimination Bill as an election issue.
Morrison’s legislative package ended up including an amendment to the Sex Discrimination Act to prevent gay students from being expelled from religious schools. But it reneged on his earlier written assurance to Anthony Albanese by not extending protection from expulsion to transgender students.
The government said it wanted a report from the Law Reform Commission before acting on trans kids, because of what it insisted were the complexities for religious schools dealing with transgender students.
It is not clear why it should be any more difficult for co-ed religious schools to deal with trans kids than it is for government owned schools. There may however be an issue as to how same-sex schools (about 20% of religious schools) might deal with non-binary kids given the binary nature of their student selection criteria.
Neither did the government’s package include amendments to the Sex Discrimination Act to prevent religious schools from sacking gay or transgender teachers.
Labor’s strategy was to move amendments to the Bill in the House- these included anti-vilification provisions and protection of all students, including trans kids. But controversially, Labor agreed with the Government’s position on referring the issue of discrimination against gay or transgender teachers to the Australian Law Reform Commission.
Labor also upped the political ante by agreeing that if its amendments were lost in the House, it would nevertheless vote in favour of the Bill to facilitate its passage to the Senate, where Labor would re-present its amendments. Anthony Albanese committed that should the Bill pass the Senate in a form it disagreed with, Labor would seek to repeal the legislation if elected to government.
Albanese showed himself to be a superior political/parliamentary tactician to Morrison who ended up wedging nobody but himself.
But, just quietly, Albanese also showed himself to be a better tactician than former Opposition leader, Bill Shorten, who argued in the caucus (along with some other caucus members) that Labor should simply vote against the Religious Discrimination Bill.
Shorten’s approach may have appeared more principled to many Labor rank and file members, some of whom were quite distraught at Albanese’s political tactics. But Shorten’s approach would have reduced the chances of hiving off those Liberals who ended up crossing the floor to vote with Labor. And it would have facilitated Morrison campaigning with religious communities by arguing that Labor’s voting against the Bill demonstrated it cared naught for them.
While at first glance Labor’s acceding to the Government’s position of referring the issue of employment discrimination against gay or transgender teachers to the Law Reform Commission looked weak and unprincipled, there are some sound political reasons for such a referral.
The truth is that, like the Government, one suspects that Federal Labor probably is internally divided on this issue.
For example, some, but not all, federal caucus members are likely to be supportive of the Andrews Government recent amendments to Victoria’s anti-discrimination laws.
In December of last year, Victoria’s Equal Opportunity Act was amended to give greater protection from sex discrimination to employees of religious schools and bodies.
Like the federal Sex Discrimination Act, Victoria’s Equal Opportunity Act previously allowed religious bodies and schools to discriminate based on personal characteristics (including sexuality/gender) where the discrimination conformed to the doctrines, beliefs, or principles of the religion or where the discrimination was reasonably necessary to avoid injuring other people’s beliefs. This meant religious bodies and schools could lawfully refuse entry to a prospective student, expel a student, refuse to employ someone, fire someone or otherwise treat someone differently based on these grounds.
The Andrews government changed the law so that, when employing staff, religious bodies and schools can only discriminate where conformity with religious beliefs is an inherent requirement of the job.
So religious bodies and schools can still discriminate in relation to things such as the ordination of a minister or when selecting or appointing people to perform functions relating to religious observance or practice. But not for other types of employment. For example, a religious studies teacher might be selected on faith grounds but not a gardener or a geography teacher.
The Andrews GOvernment amendments were heavily criticised by faith leaders from Christian, Jewish, Islamic, Hindu and Sikh religions.
In a letter to Victorian Attorney-General Jaclyn Symes faith leaders claimed “In introducing the legislation, the Victorian government is seeking to dictate how faith communities should run their organisations. This gross overreach could see religious organisations being forced to violate their beliefs and values in managing employment matters.”
The National Catholic Education Commission’s director and former Labor Senator, Jacinta Collins, also criticised the amendments stating, “the reforms will create confusion for Catholic schools, particularly in the employment of staff, and could potentially lead to unnecessary litigation.”
Interviewed on ‘Insiders’ last Sunday Kristina Kennelly stated that religious schools should be able to hire teachers or other staff that “uphold the mission or values of the school”. Kennelly said that she herself is a former Catholic school teacher and that she and all her children were educated in the Catholic School system. She stated that she understood that it is the basketball coach who must lead the prayers before players go out onto the court.
One would hope that an anti-discrimination tribunal might baulk at the notion that conducting a prayer before a basketball game should constitute an inherent requirement of the job of coaching basketball or teaching physical education.
Under these circumstances, the best chance of building momentum for adoption of Andrews Government style amendments federally, or at least avoiding those amendments overriding Victoria’s recently amended laws, is probably through a referral of the issue to the Australian Law Reform Commission. Its recommendations may be expected to carry substantial weight in the subsequent political consideration of the best policy.