Religious freedoms need courage

Many voters will deplore any legislation changing the Sex Discrimination Act because it goes too far; others will abhor anything other than unqualified adoption of the Australian Law Reform Commission’s recommendations. And so, Anthony Albanese wants to avoid the issue by suggesting he needs the opposition’s support. This is too cute by half. The Prime Minister has committed to addressing the concerns of both religious and LGBTQI+ communities but now wants the opposition to share the political pain of an immensely difficult political task. If Mr Albanese wants to settle an active dispute of his own making he will accept the call by deputy opposition leader Sussan Ley for the government to bring a bill to the parliament and for it to be considered by a Senate committee – normal practice for major legislation.

It is hard to imagine legislation more major for members of faith-based school communities, on the one hand, and LGBTQI+ people and supporters who believe they now can be discriminated against in education. The ALRC reports 41,000 survey responses to its inquiry on faith-based education institutions and anti-discrimination law. For all responders the core issue from the commission was surely the recommended repeal of section 38 of the existing act, which allows education institutions to discriminate for employment on the basis of sex, sexual orientation, gender identity, marital/relationship status or pregnancy.

The ALRC states that such change “may limit, for some people, the freedom to manifest religion or belief in community with others” but it adds that it “would be justifiable under international law”. It also makes clear that this is what the government wanted done and that while the inquiry’s terms of reference allow schools to preference people of the same religion, they cannot continue to have the power to discriminate against staff or students.

Before the government commissioned the ALRC report, there was a case for leaving the act alone. There still is. After the Indigenous voice debate, the nation wants the government to govern rather than catalyse conflict over an intractable issue that cannot be quickly or easily settled and when any change will create understandable anguish for those who feel betrayed. Faith-based school communities are hardly likely to accept being required to employ people who may speak out against their beliefs and values. But the right of LGBTQI+ people to equal employment rights everywhere, however symbolic in the case of private education, is held with equal conviction.

Having this most vexed of issues on the agenda also involves a particular problem for the government. Labor MPs feeling Greens heat in inner-city seats will not want to upset voters for whom LGBTQI+ rights are a first-order issue. Labor members representing electorates with socially conservative Muslim communities will not want to offend voters angry with the government over Gaza and who did not support the successful national gay marriage survey in 2017. But change to the Sex Discrimination Act is now on the agenda and Mr Albanese must address it. He can duck a decision and implausibly allege it is the opposition’s fault. He can announce the ALRC’s recommendations will be adopted or rejected and deal with the uproar. Or he can do what the government does on every other controversial issue – pass a bill in the House of Representatives and send it to the Senate where, without a majority, Labor will have to negotiate with the opposition, minor parties and independents. If Mr Albanese is committed to change, the third is the only option – even if turns out to be not exactly as the ALRC intended.