Is Labor moving to weaken anti-discrimination laws?

April 24, 2024
Trans day of visibility protest in Newtown, Gadigal/Sydney, April 2023. Photo: Zebedee Parkes

A debate around Labor’s proposed religious discrimination law has flared up following the Australian Law Reform Commission’s (ALRC) report, which was made public on March 21.

The long-awaited report, presented to the government last December, details the situation in religious schools regarding the loopholes they exploit to legally discriminate against LGBTIQ staff and students.

Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws said the exemptions allowing religious schools to discriminate against staff and students on the basis of sexuality and gender identity should be repealed.

However, the ALRC report also contradicted that, saying, religious educational institutions should be able to “retain sufficient capacity to uphold their religious character”.

It said religious institutions should be allowed to hire staff in line with their beliefs, as long as it is deemed “reasonably necessary” and does not breach existing discrimination laws.

The ALRC report gives recommendations on how to fix the power imbalance faith-based schools hold over students and staff, specifically LGBTIQ and women who, in any other job, have legal protections against discrimination.

Labor wants to use the ALRC report and recommendations, at least in part, to enact a new law, ostensibly, to prohibit religious discrimination.

This idea was first proposed in 2017 by the Malcolm Turnbull-led Coalition government. Turnbull promised conservatives who opposed equal marriage he had something for them too.

But protecting religious institutions’ right to discriminate would, essentially, legalise homophobic discrimination — a tricky sell.

The plan was scrapped, until Prime Minister Scott Morrison revived them. He added protections for gay staff and students in an attempt to make the bill more palatable. However, noticeably absent were protections for transgender people.

Liberal MPs Bridget Archer and Trent Zimmerman opposed that bill.

Anthony Albanese, then Opposition Leader, warned in 2022 that it was “flawed”. He said he supported prohibiting discrimination on the grounds of religion adding, “I don’t support doing it at the expense of increasing discrimination against others”.

The Guardian in February that year said Morrison had given Albanese a commitment to prevent “any form of discrimination against a student on the basis of sexuality or gender identity”, which Albanese said the bill “does not do”.

The omission of protections for transgender people led several Coalition backbenchers to cross the floor and vote with Labor to introduce them.

Morrison then shelved the bill.

Labor promises new protections

Albanese went to the 2022 federal election promising a new anti-discrimination law.

Attorney-General Mark Dreyfus asked the ALRC to advise the government on how best to deal with LGBTIQ staff and students in religious schools.

The report came back with 11 recommendations, including removing exemptions held by religious schools in the Sex Discrimination Act 1984, to allow them to discriminate against staff or students on the basis of “sex, sexual orientation, gender identity, marital or relationship status, or pregnancy”.

The ALRC said the policy can be implemented “in a manner that is consistent with Australia’s international legal obligations” by amending the Sex Discrimination Act, the Fair Work Act and the Australian Human Rights Commission Act 1986.

It said its reforms would “maximise” human rights overall but “where the reforms may restrict the realisation of some rights to some extent, the reforms would do so in a way that is justifiable under international law”.

In other words, it proposes to reduce protections.

The key ALRC recommendations include “narrowing” the circumstances in which it would be “lawful to discriminate against students or staff at religious educational institutions on SDA [Sex Discrimination Act] grounds”.

It “narrows” the circumstances in which it would be “lawful to treat staff (particularly existing employees) at religious educational institutions differently on the ground of religion; to ensure that differential treatment on the basis of religion does not allow for discrimination on SDA grounds; and to allow religious educational institutions to give preference to persons of the same religion in selecting employees, in order to build and maintain a community of faith”. [Emphasis added.]

The ALRC also recommended protections from discrimination under the Sex Discrimination Act for “personal associates”. This would protect children of LGBTIQ parents, as well as children of divorcees or from single parent homes, from being discriminated against by religious institutions.

However, the ALRC report did recommend that faith-based schools still be allowed to discriminate in their hiring. It said they should be allowed to preference people of their own faith for positions, as long as it did not conflict with the Sex Discrimination Act.

The ALRC suggested amending the Fair Work Act to reflect these changes.

The release of the ALRC report shows that Labor is keen to make good on its contradictory election promises from 2022.

Contradictory promises

Albanese said during the election campaign that he would introduce measures that would protect LGBTIQ individuals in religious schools from discrimination.

At the same time he said he would strengthen or, at least not remove, existing protections for religious institutions.

Labor’s religious discrimination bill has not been made public or given to the opposition. Albanese said he would not release details until it had bipartisan support — a threat to again shelve the bill.

After Opposition Leader Peter Dutton accused Albanese of trying to ditch an election promise and blame the Coalition, the PM said he could work with the Greens on the new bill.

“If the Greens are willing to support the rights of people to practice their faith, then that would be a way forward,” Albanese said.

“Anti-discrimination laws can’t be a trojan horse for other kinds of discrimination. Right now, religious institutions running schools, aged care, disability services, social housing and hospitals deny people of their rights to be themselves or access to services they’re entitled to,” Stephen Bate, Greens spokesperson, said on March 18.

Senator Penny Allman-Payne, Australian Greens schools spokesperson, said private schools, which received $20 billion in funding in 2022 “should not be exempted from rules that apply to public schools”.

“Allowing some of the most privileged schools in the country to discriminate against staff on the grounds of their gender or sexual orientation perpetuates prejudice and division and must be consigned to the dustbin of history.”

About 40 prominent religious leaders sent a letter to Albanese declaring it would be seen as a “betrayal of trust” if Labor was to work with the Greens on the bill.

Christian, Jewish, Islamic and other faith leaders from across the country urged the PM to work with the Coalition.

“We ask you to continue to work towards a bipartisan approach to this matter, in consultation with religious communities,” they said.

“We expect that any proposal supported by the Greens will be unfavourable to faith communities.”

They also reminded Albanese of his election promise: “We expect you to uphold your election commitment … and not to compromise this to secure the support of the Greens”.

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