February 11, 2022

Issues and policies

Faith no more

By Russell Marks
Image of Prime Minister Scott Morrison introducing the religious discrimination bill in the House of Representatives on November 25, 2021. Image © Mick Tsikas / AAP Images

Prime Minister Scott Morrison introduces the religious discrimination bill in the House of Representatives on November 25, 2021. Image © Mick Tsikas / AAP Images

In withdrawing support for the religious discrimination bill, the Christian right showed what it wanted all along: the freedom to discriminate against others

The federal parliament brought Australia belatedly into the new era of universal civil rights in 1975 when it passed the Racial Discrimination Act. That statute, along with each subsequent piece of human rights law – the Sex Discrimination Act (1984), the Disability Discrimination Act (1992) and the Age Discrimination Act (2004) – has been met with disgruntled murmurs from people who felt they’d lost something. Despite the language we often use when we talk about rights, they’re not intrinsically inalienable: whenever parliaments legislate to protect rights, they’re deciding to protect particular rights over others. When the right of a person to not be sacked because she’s pregnant is protected above the right of an employer to decide whom he hires and fires, the employer does lose a degree of freedom.

Liberal Party members have often been at pains to say how much they loathe racial discrimination, while in the same breath explaining why they don’t want laws making it actually illegal. “We regard racism as detestable and abhorrent,” said Philip Ruddock in 1994, explaining why the Coalition was voting against Labor’s amendments which introduced section 18C into the Racial Discrimination Act. That section became a flashpoint in the culture wars when Justice Mordecai Bromberg of the Federal Court found Andrew Bolt breached it by writing two articles full of “erroneous facts, distortions of the truth and inflammatory and provocative language” about fair-skinned Aboriginal people, and which were reasonably likely to humiliate or intimidate them. Some people worried that their right to talk publicly about minority groups in ways likely to offend or insult them had been diminished. “People do have a right to be bigots, you know,” said George Brandis, then attorney-general, in 2014. His efforts to amend section 18C failed.

The backlash of the bigoted reached a crescendo during the campaign to liberalise marriage. For the first time, a civil right would be extended to a minority over and above the strongly held objections of some religious people who claimed a monopoly over marriage as an institution. Those objections had a curious basis: religious people with strong beliefs about the heterosexual sanctity of marriage were never going to be forced into same-sex relationships, or to change their lives in any way. But religious conservatism was such a strong element in the “Liberal” Party that Malcolm Turnbull, then prime minister, conceded to a postal survey to maximise the opportunity for people who wouldn’t be affected by same-sex marriage to voice their opposition to it. As it turned out, religious conservatism was itself a minority position. Nearly four fifths of eligible voters responded, and 61.6 per cent of those who did supported the reform. An exemption meant that “religious marriage celebrants” and religious organisations could decline to participate in, or provide goods or services to, a wedding ceremony that conflicted with their faith. The Marriage Act was amended in December 2017 and the sky – and heaven – stayed right where they’d always been.

Meanwhile, a Turnbull-initiated inquiry chaired by Ruddock – who as Howard’s attorney-general in 2004 had introduced the laws restricting marriage to “a man and a woman” – recommended that religious organisations be allowed to discriminate against people in ways that would otherwise be unlawful. The inquiry’s main suggestion was that religious schools should, despite accepting billions in public funds from the secular state, be allowed to discriminate against staff and students who identify as other than male or female, or other than heterosexual, or who “live in sin”. It was a bizarre recommendation. Not only did it lend weight to the ludicrous idea that one person’s religiously informed discomfort at another person’s gender or sexual identity could become the basis for lawful discrimination. This exemption for religious schools was already in section 38(3) of the Sex Discrimination Act, and had been since Bob Hawke’s Labor government created it in 1984.

When they were leaked in October 2018, the Ruddock review’s schools recommendations created a public storm. Attempting to contain the fallout, Scott Morrison, now prime minister, promised action to plug the gap in the Sex Discrimination Act. “No student of a non-state school should be expelled on the basis of their sexuality,” he declared to the (then) Fairfax Media (though he remained silent about gender diversity, which was, by then, causing the right’s culture warriors to whip themselves into a lather). “Our government does not support expulsion of students from religious non-state schools on the basis of their sexuality.” It seems he hadn’t consulted his party, however. A Senate inquiry produced a minority report created by eight Coalition senators. “The existing exemptions for schools … should not be eroded unless adequate protections for religious freedom are afforded in their place,” they wrote. The religious right was flexing its muscles.

Despite a bevy of state and territory laws that prohibit discrimination against religious beliefs, some people of faith remained convinced they were being discriminated against. Morrison promised new laws if the Coalition won the 2019 election. Against all expectations it did, so in August 2019 his attorney-general, Christian Porter, released a draft religious discrimination bill. It promised to nationalise existing protections in state laws, which was uncontroversial. More contentiously, it carved out exemptions so that religious organisations themselves could freely discriminate against people because of their religious beliefs (or lack thereof). Provocatively, the bill also sought to exclude “statements of belief” from the definition of what constituted unlawful discrimination, unless they were malicious or were likely to harass or vilify anyone.

The draft was a mess. It reflected the Coalition’s “broad church”, which included Christian reactionaries and small-L liberals like Warren Entsch. The “statements of belief” section was clearly a response to Israel Folau’s sacking by Rugby Australia after he’d published various biblical and Bible-inspired statements that vilified “homosexuals”, “adulterers”, “fornicators”, “atheists” and the concept of gender inclusivity. Folau’s sacking became a cause célèbre for those pushing hardest for new religious discrimination laws, yet Porter’s draft was unlikely to have protected Folau. Despite promising to prohibit religious discrimination, the bill promised more of it by religious schools, hospitals and nursing homes.

Because religious groups are already protected from discrimination at the state level, Porter’s bill exposed a conceptual flaw at the core of the religious right’s demands. What they want, in fact, is protection so that they can lawfully discriminate against other people who don’t share their beliefs or whose lifestyles or identities conflict with their own religiously inspired moral codes. This is difficult to translate into legislation. While they remain unable to discriminate against others in accordance with their own codes, religious conservatives feel oppressed. But this is neither oppression nor discrimination. It is discomfort – with modernity, with liberalism, with secularism and democracy, and with social change that creates a more equal society. When groups such as the Australian Christian Lobby express this discomfort, it baffles other Christians and non-Christians whose knowledge of Christ’s teachings comes from the Synoptic gospels. The Jesus of Matthew, Mark and Luke is the compassionate friend of sinners and outcasts, the blesser of the hated, the lover of enemies, the bloke who (reportedly) said “do not judge” and “do not condemn”.

Wanting above all to judge and condemn, the religious right told Morrison and Porter their bill didn’t go far enough. A second draft bill, released in December 2019, promised religious bodies even more freedom to discriminate. Yet the ACL remained unhappy. “Commissions, Tribunals and Courts will be able to knock out an otherwise protected statement of belief where it meets the low threshold of being likely to ‘threaten’ or ‘seriously intimidate’,” it lamented.

Riven by internal division between the moderates and the hard right, Morrison – understandably – dragged his heels. It wasn’t until November last year, in one last nod to the party faithful as the government slid further and further behind in opinion polls, that attorney-general Michaelia Cash at last introduced the promised religious discrimination bill to parliament. (The bill has not arrested the slide.) It was a contentious decision even then, with some Liberals openly wondering why the government was prioritising this reform over creating an integrity commission. Morrison quickly promised Entsch and the other moderates, who were reserving their position on whether to cross the floor, that the Hawke-era gap in the Sex Discrimination Act – the one that allows religious schools to discriminate against gay and transgender staff and students – would be closed as part of the package. Yet a fortnight later, Cash reassured conservative Christian organisation Family Voice – the rebranded Festival of Light – that the gap would stay.

As the parliamentary debate began on Tuesday, the government’s overall position remained confused. The bills reflected the position of Cash and the Christian right, while the government had also circulated amendments that would have protected students from being expelled because of their sexuality, but not if they were transgender.

The implications of the present law had been made clear on January 28, when Citipointe Christian College – a Pentecostal church school in Brisbane – demanded parents sign contracts agreeing that the school would distinguish boys and girls “on the basis of the individual’s biological sex” (and not their gender identity) and that “any form of sexual immorality” – it listed homosexual and bisexual acts together with bestiality, incest and paedophilia – “is sinful and offensive to God and is destructive to human relationships and society”. No doubt emboldened by recent public discussion, Citipointe reserved its right to expel students who identify as transgender. A nationwide backlash caused its principal to backpedal, then double down in a six-minute video to parents, then withdraw the contract and take “extended leave”. Human rights lawyers and Queensland’s education minister said the school’s contract was unlawful under Queensland law. But it was entirely lawful under the federal Sex Discrimination Act, which would have prevailed to the extent of any inconsistency with Queensland’s law.

Many were outraged that Labor failed to condemn the religious discrimination bill outright. It’s true that doing so would have killed it dead in the water. But there were some uncontroversial (if mostly redundant) parts to it. Andrew Leigh and others spoke of recent hate crimes against Muslims and Hindus, and the rise of anti-Semitism associated with the anti-vaccination movement. The bill’s challenge, Leigh observed, “is to ensure that, in preventing discrimination based on religion, we don’t thereby allow additional discrimination”. Also, opposing the bill outright would have killed off an opportunity to amend a law that had become outdated in the 38 years since it was written. So, Labor played coy. It encouraged Morrison to think he might divide Labor’s wokes from its Catholics, while it continued to speak with Liberal moderates.

As the debate continued on Monday and late into Tuesday evening, the divisions in the Coalition became clear. George Christensen called the bill “weak”, while the moderates thought it went too far. Meanwhile, Anthony Albanese looked almost statesmanlike. “This should have been a unifying moment,” he said. But Morrison had fudged that moment by pandering to a small group of religious zealots who wanted the power to hire, fire and expel in accordance with their own narrow bigotries.

Then it all unravelled for Morrison. “While it’s important to protect the rights of people and organisations of faith,” said Warren Entsch, “I strongly believe that these protections should not come at the expense of others.” He called the bill “unnecessary”, reflecting what NSW Premier Dominic Perrottet – himself a conservative Catholic – had said earlier on Tuesday. Centre Alliance MP Rebekha Sharkie moved an amendment to remove the right of schools such as Citipointe to discriminate against LGBTIQ+ students. Labor, the Greens (each of whom had drafted similar amendments) and three independents supported it, and, dramatically, five Liberals crossed the floor, causing a rare defeat for a government on the floor of the House.

Although the religious discrimination bill itself had passed, the Australian Christian Lobby spat the dummy over the Sex Discrimination Act amendments, which, it protested, “completely undermined” the whole package. The ACL’s Wendy Francis said section 38(3) “contains vital protections for religious schools”. For her, apparently, religious schools are so fragile that they need the state to protect them from a tiny minority of gay, lesbian and transgender teenagers. An alternative approach, which many Christians do take, would be to welcome all comers and to encourage love and respect. But that’s not the ACL way. Francis demanded that Morrison stop the train altogether. In doing so, she gave the game away. It wasn’t about freedom from discrimination. If that were the case, the ACL would have been happy with the discrimination bill. Rather, the religious right wanted more freedom to discriminate. Astoundingly, Morrison bowed to its wishes, herding the bills off to the never-never of a Senate inquiry with what is likely to be only two sitting days before the election.

There’s irony in the fact that, had the ACL and the other religious reactionaries been content with the extraordinary discriminatory powers religious schools already enjoyed, those powers would likely have continued unabated. But the religious discrimination bill gave (small-L) liberals an opportunity to fix section 38(3) of the Sex Discrimination Act – and they took it. The Senate may yet try to force a vote on section 38 before the election, despite the committee referral.

For Morrison, what could have been a triumph has turned to utter disaster – and it’s likely he has just lost his final opportunity to show leadership. Down in the polls and losing ground amid turbulent political waters, with new currents he can’t seem to map, Morrison must now, surely, be wishing he’d spent the last two months spruiking a federal integrity commission instead.

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

From the front page

Image of Monique Ryan and family on election night

The end of Liberal reign in Kooyong

At the Auburn Hotel on election night, hope coalesces around Monique Ryan

Cover of Robert Lukins’ ‘Loveland’


Robert Lukins’ second novel takes a Brisbane woman to Nebraska, where an inheritance sparks a change in character as well as in fortune

Illustration by Jeff Fisher

OnlyFans and the adults in the room

The emerging OnlyFans community offering training and support to adult-content creators

Image of US President Joe Biden meeting virtually with Chinese President Xi Jinping from the Roosevelt Room of the White House, November 15, 2021. Image © Susan Walsh / AP Photo

The avoidable war

Kevin Rudd on China, the US and the forces of history

Online exclusives

Image of Monique Ryan and family on election night

The end of Liberal reign in Kooyong

At the Auburn Hotel on election night, hope coalesces around Monique Ryan

Image of US President Joe Biden meeting virtually with Chinese President Xi Jinping from the Roosevelt Room of the White House, November 15, 2021. Image © Susan Walsh / AP Photo

The avoidable war

Kevin Rudd on China, the US and the forces of history

Composite image of Prime Minister Scott Morrison and Opposition Leader Anthony Albanese speaking during the first leaders’ debate on April 20, 2022. Image © Jason Edwards / AAP Images

Election special: Who should you vote for?

Undecided about who to vote for in the upcoming federal election? Take our quiz to find out your least-worst option!

Image of the Stone of Remembrance at the Australian War Memorial, Canberra. Image © Lukas Coch / AAP Images

Remembrance or forgetting?

The Australian War Memorial and the Great Australian Silence