Religious freedoms are too difficult for political class

It is a sad reflection on the current state of politics that electorally popular reforms to safeguard religious freedoms must be abandoned to avoid inflaming the performative moral outrage of sectional interests. But it is now clear that even the leaders of religious-based schools see maintaining the status quo as the safest best option.

Anthony Albanese effectively has abandoned Labor’s promise to make changes to the Sex Discrimination Act and introduce a religious freedom bill. The Prime Minister is seeking to share the blame by insisting the government will proceed with reforms if it is able to secure bipartisan support from Peter Dutton. This is something Labor declined to provide Scott Morrison when he attempted to safeguard religious freedoms for faith-based schools. The Morrison government’s attempt to legislate fell short in a bid to protect the rights of gay students when the focus then became the treatment of transgender children. The ultimate destination for opponents was to remove exemptions within the Sex Discrimination Act that provided limited exceptions on selection of teachers.

The political difficulties for Mr Albanese were illustrated in the Australian Law Reform Commission’s attempt to balance the laws of anti-discrimination and religious freedom. Rather than finding a way for faith-based schools to continue to employ teachers who shared their religious views, the ALRC’s proposal was to narrow this freedom to cover only a select few, something that is not satisfactory for schools or many in electorates that are significant for Labor.

The Opposition Leader is correct to say the government lacks conviction in its attempt to quash the process before legislation had been released, particularly given the extent to which Labor went to frustrate earlier efforts. But Mr Albanese’s position recognises that even school leaders are alive to the potential of ending up with a worse outcome than what currently exists.

From the other perspective, by backing down Mr Albanese is accused of selling out LGBTQI+ students and teachers, as was Mr Morrison. This goes to the heart of the dilemma. The reality is there is broad public support for changes that would allow faith-based schools to choose to employ people who shared their core values, if not necessarily their religious perspectives. What religious-based schools want to avoid is being unable to screen out individuals who actively would campaign against the moral, ethical and religious beliefs of the organisation.

The difficulty is that providing that right in law would breach anti-discrimination laws. To succeed, the changes would need to balance the competing claims for protection by the schools against claims of discrimination by those who are considered to be unsuitable.

Ultimately, any attempt to legislate would become a rerun of the argument about the repeal of section 38 of the Sex Discrimination Act, which says it is not unlawful for educational institutions established for religious purposes to discriminate against employees and contract workers on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy, on two grounds. These are when the educational institution is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and the person who discriminates does so in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Section 38 also says it is not unlawful for one person to discriminate against another person on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy in relation to the provision of education or training if the two conditions are satisfied.

The realpolitik of the situation is that we are in a period after the voice to parliament debate that moral issues are almost beyond the ability of the political sphere to intervene. This is demonstrated across a range of issues, from climate change to Israel’s response to the October 7 terror attacks launched against it by Hamas. In this instance, the least worse outcome has become the status quo. It is a situation that reflects poorly on the qualities and authority of our current political leadership from all sides.