Moderate Liberals still concerned about religious freedom laws despite PM’s push

Key moderate Liberals are still refusing to back the government’s religious freedom laws over concerns they will leave LGBTIQ Australians vulnerable to discrimination, despite Prime Minister Scott Morrison vowing to fast-track protections for students at church schools.

The government’s case for legislating its religious discrimination bill in the next sitting fortnight was bolstered by the findings of two separate parliamentary inquiries on Friday, with Labor MPs and Senators joining Coalition committee members in calling for the proposed laws to be passed, despite expressing concerns with core provisions.

Attorney-General Michaelia Cash says proposed religious freedom laws will protect religious minorities.Credit: Dominic Lorrimer

Attorney General Michaelia Cash said the majority view of both committees – the Parliament’s joint human rights committee and the Senate’s legal and constitutional affairs committee – meant the bills should be passed.

“We know we need this bill because Australians of faith deserve the same protections as everyone else. We have heard countless stories of discrimination of Australians with religious beliefs, particularly those in religious minorities,” Senator Cash said in a statement.

Shadow Attorney-General Mark Dreyfus said the inquires had raised a “number of complex issues” and Labor would consider the reports before the party room finalised its position on the bill.

In a bid to gain the support of concerned backbenchers, Mr Morrison confirmed on Friday that the government would amend the bill to abolish legal exemptions that allow church schools to expel LGBTIQ students. He said the government’s intention was to do this before the election, which can be held no later than May.

This would be done by amending s38(3) of the Sex Discrimination Act, which gives church schools a legal exemption to discriminate against students on the basis of sexual orientation and gender identity, including by expelling them.

But several Liberal MPs from the party’s moderate ranks have indicated the repeal of s38(3) would not be enough to win their support for the bill.

NSW Liberal MP Dave Sharma said he had made clear that discrimination against teachers on the same basis must also be addressed as well as his concerns about the wide scope of the “statement of belief” provisions.

Tasmanian Liberal MP Bridget Archer said she had serious concerns about the intent of the bill to “explicitly override Tasmania’s gold-standard anti-discrimination laws”.

“As I have said previously, while I agree there should be freedom from discrimination on any attribute including religion, I’m not prepared to stand by and see our state laws eroded to privilege one group over another,” she said.

However, Queensland Liberal Angie Bell, who had been another key hold out within the party, indicated she would now support the bill, saying amending the Sex Discrimination Act “while legislating the Religious Discrimination Bill is a big step forward in achieving an Australia free from discrimination.”

The Greens dissented to the findings of both committees, with leader Adam Bandt calling on Labor to help block the bill.

“Moderate Liberals have been taking the fight to their leader, and Labor needs to join the Greens and back LGBTQ+ communities,” he said.

The two committees, while ultimately endorsing the passage of the bill, noted there had been significant controversy and concern over the scope of two key provisions – the “statement of beliefs” in clause 12, and the right of religious education institutions to discriminate in hiring practices in clause 11. Both clauses seek to trump existing state and territory anti-discrimination laws, which some legal experts, equality advocates and MPs argue will prioritise religious freedom at the expense of other rights.

The statement of belief provision will provide legal protection to written or spoken religious comments providing they are made in good faith, and are not malicious, threatening, harassing or vilifying.

The Senate committee, in its majority view, urged the government to address the constitutional concerns raised by legal expert Professor Anne Twomey, who described the drafting of clause 11 and 12 as “confounding” and advised they be amended to secure the law against a future constitutional challenge. It recommended the government consider minor drafting changes proposed by Professor Nicholas Aroney to clarify the clauses and remove the constitutional uncertainty.

In additional comments to the Senate committee report, Liberal Andrew Bragg said he could find “no clear case for the statement of belief clause” and said the bill “proposes to privilege religion over other attributes in our laws”.

The joint human rights committee made a number of technical recommendations aimed at clarifying aspects of the bill, but concluded that: “the religious discrimination legislative package is, on the whole, a sensible and balanced approach to protect the right to freedom of religion.”

Labor committee members detailed their ongoing reservations about the bill in separate remarks to both reports, while recognising the need to protect people of faith from discrimination. The four Labor members on the human rights committee urged the government “to work across the parliament” to address the “serious concerns” about the statements of belief provision.

The Public Interest Advocacy Centre and LGBTIQ groups said the committees had failed to address the bill’s complex legal issues and flaws.

“Amongst the biggest losers will be Muslim, Jewish, Hindu, Buddhist, agnostic and atheist workers in religious hospitals, housing, aged care and disability services, who will be able to be discriminated against on the basis of their faith,” PIAC policy manager Alastair Lawrie said.