Disappoint or cause dismay. These were the options left open to the Morrison Government, after a poorly drafted and ill-thought-out amendment to the Religious Discrimination Bill was passed in the early hours of Thursday morning.
This left the Government with no choice but to shelve what was – and remains – a key priority.
The Religious Discrimination Bill was the product of a consultation process that dates back to Turnbull’s commissioning of the Religious Freedom Review in 2017.
The bill that came out of this process contained moderate but important protections, reflecting the desires and concerns of Australians across our community. As faith communities have made clear, it was the minimum they considered acceptable. And it came with a promise to prohibit LGBTQ students being expelled from faith-based schools on the basis of their sexuality – though in fact that rarely arises.
Yet, at the 11th hour, a motley collection of Labor, the Greens, some independents, and a handful of Liberal backbenchers derailed years of work with an amendment that would cause havoc for faith-based coeducational and single-sex schools – and could even open new avenues of discrimination that have previously been prohibited.
The stated objective of protecting vulnerable trans students is worthwhile – it’s an objective the government shares. But we also recognised the complexity of the issues involved. That’s why we commissioned the Australian Law Reform Commission to examine how this can best be achieved.
The reality of this complexity is perfectly highlighted by the fact that although the amendment claimed to be about reducing discrimination against LGBTQ students, in fact it would have allowed religious schools to discriminate against students or prospective students on grounds which are currently prohibited.
But this isn’t the only problem the amendment would cause.
Making it impossible for schools to treat a student differently on the grounds of gender identity would mean a girls school would be forced to enrol a biological male who identifies as female. It would be unable to tailor their operations to individual circumstances, even where failing to do so risks injuries to girls in contact sports, and presents complexities in boarding schools, change rooms and on school camps. Many of these issues would affect co-ed schools as well.
It could also force faith-based schools to alter their religious teaching or risk being sued. This is because of case law supporting the notion that words that confront or offend can constitute “detriment” for the purposes of the test for discrimination. Those beliefs that have the potential to cause a traumatic response in a person – particularly around biological sex, gender, relationships and marriage – would expose a school to legal liability for discrimination.
This should trouble everyone. There is something deeply censorious about threatening schools with legal actions for discrimination when they seek to teach the tenets of faiths that have been orthodox in their substance for thousands of years, even if they have more recently fallen out of vogue.
Religious schools, even at their most traditional, do not seek to harm or exclude transgender people. They accept and pastorally support students no matter their challenges. But to demand that a school affirm concepts that do not align with the tenets of the faith that the school was established to advance is disturbingly intolerant.
It also denies schools the tools they need to deal with the activist student or activist family. They could not, for example, dissolve clubs that promote beliefs contrary to those of the religion, or manage the behaviour of a student whose activist conduct divides or undermines the culture of the school.
It is a fundamental Liberal value that, wherever possible, individuals should be free to contract as they please. It is based on the belief that individuals are best placed to decide with their dollar what options in market meet their needs. In doing so, the diverse desires of the community are met in a way that no government ever could. So it is worth asking: why is it assumed that parents and schools, both of whom know and deeply care about vulnerable students, cannot be trusted to manage these sensitive issues more effectively than the blunt instrument of a prohibition?
The hundreds of thousands of Australian families who make a choice for their child that a religious education would suit them best, should quite frankly be insulted by the amendment. It declares that neither they as parents, nor the school who works with them every day, can be expected to act in the interests of the child. It proclaims that government knows what’s best for children – regardless of the views of the parents who have loved and raised that child from birth.
It is insulting, and it is wrong.
The amendments made in the House of Representative were ill-conceived. The sensible and appropriate way to legislate in such a complex area is to carefully examine legal issues in detail. That’s why the government commissioned the Australian Law Reform Commission to examine the current law and how it interacts with the Religious Discrimination Bill that emerges from the Senate.
Labor, the Greens, and the cluster of others’ decision to slap together a poorly drafted and ill-thought-out amendment at the 11th hour left the Government with no choice but to shelve the entire package, lest it do permanent damage to the ability of schools to operate according to their mission.