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Dutton furiously denounced Albanese for halting the changes. He turned the issue into a question of character and trust, although he did not declare how the Coalition might vote on the changes.
Attorney-General Mark Dreyfus on Wednesday insisted the government wanted to work with the Coalition to pass the full package of reforms. “That’s why we’ve commenced discussions with the opposition,” he said.
Albanese, in question time, said there had been 10 inquiries, 260 hearings and consultations, and 70,000 submissions on the issue since 2016.
“It is now time to determine whether we’ll progress forward or not. I’m up for progressing forward on the basis of a bipartisan position and I hope that that can be achieved,” he said.
How we got here
The religious discrimination issue was born from the tumult surrounding the marriage equality debate in 2017. At the time, some politicians, religious leaders and commentators raised concerns that allowing same-sex marriage would restrict people’s ability to practise their religion.
To mitigate their concerns, then-prime minister Malcolm Turnbull tasked former Liberal MP Philip Ruddock with conducting a review of religious freedom in Australia.
The Ruddock report found no widespread problem with people’s right to practice their faith but nonetheless recommended there should be a Religious Discrimination Act. It also called for clarity around the circumstances in which religious schools could discriminate against students and staff based on their sexuality or gender identity.
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In an attempt to appease moderate Liberals who supported LGBTQ+ kids – and deliver on his promise just months out from the federal election – Morrison said he would abolish the right of schools to expel gay students.
But he didn’t extend this protection to trans students – a move aimed at appeasing conservative Christian lobby groups – and offered no additional protections to teachers. That led five moderate Liberal MPs to cross the floor and vote with Labor.
Morrison was forced to shelve the bill, facing more mutiny in the Senate and a backlash from key religious lobby groups.
And so the issue was still burning as voters went to the 2022 election. Enter Albanese, who said Labor would both legislate a religious discrimination act and scrap the ability of schools to expel gay and transgender students if it won government.
“We should be able to tackle both of these problems at once,” frontbencher Jason Clare said on the campaign trail.
What is the religious discrimination bill?
The bill would deliver an anti-discrimination framework for Australians of faith, akin to that which is already in place to protect Australians against discrimination based on their age, race and sex.
While the government has prepared draft legislation, nobody has seen it yet, so we don’t know all the details.
But Labor has outlined the core principles for what it wants to achieve: schools can’t discriminate against students or staff based on their sex, sexuality, gender identity, relationship status or pregnancy. Schools should, however, be able to build their communities by giving preference – in good faith – to people of the same religion.
That means there are some things we know to expect, including the key flashpoints.
The first will be around Section 38 of the Sex Discrimination Act. That is the part that allows religious schools to discriminate against students and staff based on their sexual orientation, gender identity, pregnancy or relationship status. In practice, it means religious schools have a right under federal law to sack gay teachers and expel transgender students, although some states and territories have blocked them from doing so.
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An independent report on how to resolve the issue, by the Australian Law Reform Commission, is due to be tabled in parliament on Thursday. There is a good chance it says Section 38 should be abolished.
That will create a second issue: how to protect the right of religious schools to uphold their faith, including by hiring staff that reflect their values.
Religious leaders say they fear schools would be forced to hire teachers who “may not share or support the religious beliefs of the organisation” and open them up to litigation. They want to keep their right to hire and fire teachers over issues of belief.
Hospitals, charities, aged care homes and disability providers run by religious groups could also be caught by the changes if they want to hire staff who follow their faith.
A third flashpoint is around an anti-vilification clause. Attorney-General Mark Dreyfus has committed to new measures that protect people from hate speech and vilification based on their faith. The anti-vilification provisions are important to Muslim and Jewish leaders, and have been backed by Christian groups despite their initial hesitation because it could hamper their own religious teachings.
Labor previously expressed support for provisions that would make it unlawful to “threaten, intimidate, harass or vilify” a person based on their religious beliefs. But the Coalition has been concerned about limiting freedom of expression and likened the measure to a “blasphemy law”.
Labor doesn’t need the Coalition’s support to pass the reforms if it has support from the crossbench. But Albanese told Labor MPs this week he did not want a divisive debate on religious freedom laws when tensions were already running high given fears of antisemitism and Islamophobia.
That means he will seek the Coalition’s support on all those thorny issues to progress the legislation.
Why it matters
This debate has political ramifications both within parliament and outside it.
Labor does not want a culture war that will run until the next election, which is a key reason it is making bipartisan support a sticking point.
It has learnt that lesson from the Indigenous Voice to parliament debate and will want to avoid a campaign against it by religious schools, which have mobilised against governments at previous elections. On the other hand, the government could be exposed to a political attack from the Greens if it doesn’t do enough to protect LGBTQ+ Australians.
There is also the risk of internal ructions. The Coalition’s legislation fell over in both 2018 and 2021 because its MPs couldn’t agree. The 2021 debate, in which five moderate Liberals crossed the floor to vote with Labor, was a major embarrassment for the Morrison government.
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But rights and freedoms are also at stake. Religious Australians have campaigned for years for more protections, and the case for this has been heightened by community tensions due to the Israel-Hamas war in Gaza.
Michael Stead, the Anglican Bishop of South Sydney, says legislation is needed because Australia has significant problems with Islamophobia, anti-Semitism and discrimination against Christians. “It’s definitely on the rise and there’s no federal protection against it,” he says. “It’s the missing jigsaw puzzle piece in our national anti-discrimination laws.”
For religious schools, there is the issue of uncertainty. “We need to have clarity that we can employ staff who share our beliefs and values,” Christian Schools Australia policy director Mark Spencer has said. “We want our schools to be genuine communities of faith. We want to be able to teach what we believe.”
And for LGBT Australians, including Steph Lentz, it’s a matter of wellbeing and stopping discrimination in their school or workplace. Lentz believes the current legislation protects religious organisations at the expense of LGBTQ+ people, and without good reason.
“I think bringing these reforms would be a correction that makes things fairer and more balanced,” she said.
“It’s the delay in all of this that has been problematic. The human cost of the delay is sometimes obscured by the political discussion.”
The legal director of Equality Australia, Ghassan Kassisieh, says it’s an issue consistently raised by the LGBTQ+ community. “Every day that we delay means another teacher has lost their job, or been told to hide who they are, or a student has been denied enrolment because of who they are or whom they love,” he said.
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