The federal government’s controversial Religious Discrimination Bill has passed the lower house but looks unlikely to become law before the next election, after the draft bill was dropped from the Senate’s agenda.
The proposed legislation passed the House of Representatives following a marathon overnight sitting last month, which saw five Liberal MPs cross the floor to vote with Labor. Those MPs supported independent MP Rebekah Sharkie’s amendment to abolish the right of religious schools to discriminate against gay and transgender students.
But just hours later, the Coalition shelved the laws after receiving legal advice suggesting the amendments may have “unintended consequences”, and backlash from religious schools and conservatives.
The idea to create a new Religious Discrimination Act (RDA) had been proposed after a backlash from conservative religious groups to the Marriage Equality Act in 2017. Two draft bills released by then Attorney-General Christian Porter in 2019 and 2020 were not well received, creating division between human rights and LGBTQI advocates, and conservative religious groups.
The third version of the bill, as well as a separate related amendment to the Sex Discrimination Act, were both voted on in February. The legislative package was drafted following extensive public consultation, receiving 13,000 submissions and roundtables with almost 100 stakeholders through the previous two rounds of exposure drafts.
The government’s proposed amendment to the Sex Discrimination Act stipulates it would be “unlawful for an educational institution to discriminate against a student on the ground of the student’s sexual orientation by expelling the student on that ground”.
Various groups have raised concerns that a proposed amendment to the Sex Discrimination Act will enable religious schools – which would be unable to expel a student for being gay or bisexual – to expel someone for being transgender.
South Australian MP Sharkie proposed to wipe the entire section in a bid to better protect LGBTQ+ students. She said in a Twitter post that, while she couldn’t support the Religious Discrimination Bill, she was “proud to have played a small part in making bad legislation better.”
The Law Council of Australia’s submission, which the Law Society of NSW collaborated on, voices support for the parts of the RDA that make in unlawful to discriminate against a person on the basis of religious belief or activity.
However, the Law Council does not support the “statements of belief” clause, and said it departs from a conventional approach to Australian discrimination law.
“In particular, Clause 12 makes lawful ‘statements of belief’ which would otherwise be unlawful, by overriding all federal, state and territory discrimination laws. This privileges manifestation of religious belief over other human rights, including the right to equality and non-discrimination, and is contrary to international human rights law,” the Law Council said.
The package will now move to the Senate, but with only two more parliamentary sitting days before Australia heads to the polls in May, it leaves little time for further debate.