Shortcuts / 17 February 2022

The religious discrimination debate

We got lots of requests for this one… And while it’s shelved, for now, the background on creating religious discrimination laws is worth knowing ‘cos it’ll be back again. In this Squiz Shortcut, we’ll look at Australia’s anti-discrimination laws, why religious discrimination is on the agenda now, and what the Morrison Government had hoped to achieve before an election.

How did anti-discrimination laws come about in Oz?
Australia’s anti-discrimination laws are a long and winding road… So let’s go back in time to Federation in 1901.

All the way back to the White Australia policy?
You got it. That term covers policies between 1901 and 1958 that stopped people of non-European ethnic origin – especially Asians and Pacific Islanders – from immigrating to Australia. And a lot of Europeans were prevented from coming too.

Why was that?
Because when it came to immigration, Australian policymakers in those days wanted to increase the number of Brits and limit the numbers of non-white people settling in Oz to keep the country ‘British’.

Got it. How long was that a thing?
The White Australia policy was in place until after the end of WWII. In the aftermath of the war, Australia had a very small population and economic development was calling… So the then-Chifley Government said Oz had to “populate or perish”, and there was a recruitment drive to attract migrants.

But with that came discrimination…
Yep, and in 1975, the Whitlam Government forged the Racial Discrimination Act – Australia’s first national human rights legislation.

What did that change?
So acts of violence had always been prosecuted, but non-violent acts like refusing someone a job because of their race went through to the keeper until the Racial Discrimination Act was put in place.

And what about the passing of the Sex Discrimination Act?
That was another historic moment, a decade later in 1984. It meant it became a crime to discriminate against a person because of their sex, gender or marital status. And the debate at the time was focused on giving women rights, particularly in the workforce.

What other anti-discrimination laws have been passed?
There are those covering discrimination against those with a disability that was passed in 1992, and then the Age Discrimination Act in 2004.

Which leaves religious discrimination…
So to give some background, freedom of religion is one of the few rights expressed protected in our Constitution. There is also a patchwork of state and territory laws to protect people’s freedoms of religious beliefs. Australia is also signed up to international human rights treaties – and until recently, that was thought to be enough.

But the times, they are a-changin’…
They are. And we don’t have to go too far back to pinpoint ground zero of the current debate about religious discrimination. It was 2017 after the passing of laws to legalise same-sex marriage.

What was that about again?
So social conservatives in the Coalition Government were concerned that churches could be forced to marry same-sex couples. So in a bid to calm the tensions, then-PM Malcolm Turnbull commissioned a review of whether Australian laws adequately protect religious freedoms.

Take me through the review…
It was led by former Liberal Attorney-General Philip Ruddock and received 15,000 submissions from church organisations, and human rights and equality campaigners.

What did it find?
In short, churches wanted to hold onto powers they have to discriminate against people on religious grounds. For example, some don’t want to employ gay teachers in their schools because homosexuality doesn’t accord with their religious teachings.

And what did those on the other side of the debate say?
Equality campaigners said when it comes to education, employment and delivery of goods and services – church and faith organisations shouldn’t be allowed to discriminate.

What were the review’s recommendations?
It said that churches should be able to discriminate based on sexual orientation, gender identity or relationship status and that those rights should be put into the Sex Discrimination Act.

Why is that?
So it would make a uniform change to laws across the country, not just part of that patchwork of state and territory laws.

Let me guess – the review was contentious?
It sure was. But in 2018 the Turnbull Government accepted those recommendations and committed to a bigger change. And now, the Coalition backs a stand-alone Religious Discrimination Act to cover all this.

How have religious communities responded to that?
Well, it’s a really important thing for many people of faith, and there was huge support from religious organisations. Many felt it was an opportunity to reinforce the importance of faith in an increasingly secular community.

Is that sentiment shared across all religions?
Yep, many in the Christian, Muslim and Sikh communities wanted to make sure that religious minorities had greater protections. And Jewish leaders said they were concerned about rising antisemitism.

And wasn’t the whole Israel Folau saga tied into that debate?
It was. The Wallaby was sacked by Rugby Australia in 2019 over tweets saying that gay people would go to hell. But it wasn’t just a big news story – the Coalition put something called the ‘Folau clause’ into the draft bill.

What was that clause about?
The idea was that it would prevent big employers from sacking their staff if they made a contentious religious statement in public. But that clause didn’t make it into the end product.

You mentioned a draft bill… How many drafts of the Religious Discrimination Bill were there?
There were 3 draft bills released by the Coalition on their journey to putting something before the Parliament at the end of last year.

There has also been a change in PM…
Yep, Scott Morrison took the reins. As a member of the pentecostal church, he is a man of faith and he has spoken extensively about the importance of religion in his life.

So he’s supportive of the bill?
He is. He introduced the bill into Parliament in November last year, which shows how much he was invested in it. He said the bill would “fix” important weaknesses in our discrimination laws.

But it’s had some problems getting passed into law?
It sure has. Despite more than 3 years of plans and drafts and reviews and consultations, divisions remain. And that caused some issues when the bill came to be debated in the House of Representatives last week.

What were those divisions?
Well, within the Coalition, the Conservatives were good to go, but the more socially-progressive moderates wanted to remove religious schools’ rights to expel gay and trans kids.

What happened?
So going into the debate last week, Morrison had committed to doing what the progressives asked, but the new amendments covered protections for people based on their sexuality, but not gender.

So that would mean gay kids are protected, but not trans kids?
That’s right. For their part, many religious schools said no one is looking to expel trans kids, and that the issue of gender dysmorphia broadly calls for nuance, understanding and good pastoral care.

Sounds like there are still some discussions to be had…
Yep. And what Morrison’s Attorney-General Michaelia Cash has said is the issue relating to trans kids should be looked at after the Australian Law Reform Commission review reports on it next year.

What have critics said?
Some campaigners have rubbished the approach. One MP who spoke powerfully was Labor’s Stephen Jones, who said his 15yo nephew had ended his life in recent weeks. He said he was gay and “uncertain of his gender” and the “love and acceptance of family and friends weren’t enough”.

That’s pretty heartwrenching…
It sure was, and it was concern over that issue that saw 5 Liberal MPs cross the floor to vote for amendments that included protections for trans kids.

So they ultimately voted against their own side’s laws?
Yep, and it was the biggest show of dissent from the Coalition since the 1980s. The amended bill ended up passing the House of Representatives, but Morrison pulled it from being voted on in the Senate.

I need a quick reminder on the numbers in Parliament…
With pleasure… The Coalition does not have a majority in the Senate, so unless deals are done, it’s hard for Morrison to get what he wants there. And there weren’t deals in the offing on this one, so the bill has been pulled from consideration.

So the bill is dead?
Not technically – but in reality it is, at least for this term of government.

Why’s that?
Well, when you look at the calendar, the Senate sits for just 2 more days between now and when an election is due on 21 May. So Morrison gets to say he tried, Labor gets to say it stood up for what they believed to be right. And there is no Religious Discrimination Act.

What has the Opposition said?
Labor leader Anthony Albanese said it hasn’t made the problem go away, and discrimination on the basis of faith is real.

And what about the religious groups?
Most actually seemed fine with the bill tanking. The Christian Lobby said it would do more harm than good, the National Imam’s Council covering Muslims said it wouldn’t protect religious minorities, and the Sikh Association said “It was hard to distinguish in the end who the bill was serving”.

So there’s a bit more work to be done here…
Indeed. And as we head to another election this will be a key issue for many voters.

Squiz recommends:

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Bonegilla website –

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