Scott Morrison brandishes the religious discrimination bill in the lower house (Image: AAP/Mick Tsikas)

It was a big night in the House of Representatives. Well after 4am, the government’s religious discrimination bill passed the lower house. But it was a defeat for the Coalition because five government MPs crossed the floor to vote for an amendment to provide greater protection for LGBTIQA+ students.

Here’s what happened.

Religious discrimination bill passes with Labor support

The bill passed — just.

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Broadly speaking the religious discrimination bill fills a gap in existing federal discrimination law architecture. There is legislation prohibiting discrimination on the basis of age, sex, sexual orientation, gender identity, disability and race — but no analogous protection for religion.

The government’s current model does that and then more, giving religious people an additional degree of protection, and creating potential to override existing anti-discrimination laws.

Labor moved three amendments during last night’s long sitting, challenging some of the most contentious elements of the bill. Each narrowly failed.

The first related to the statements of belief clause, one of the most controversial elements. This allows any statement which is a “genuinely held religious belief” to override other state and federal anti-discrimination laws. It effectively privileges religion over other protected attributes, including race, gender, age and disability and provides a defence against anti-discrimination laws for potentially insulting and humiliating statements made in a variety of public settings.

Labor’s amendment won support from two Liberals — Trent Zimmerman and Bridget Archer — which was enough to secure a deadlock 62-62. Speaker Andrew Wallace cast the tie-breaking vote to defeat it. 

Labor moved two additional amendments: to ban discrimination in providing in-home aged care services, and to insert an anti-vilification clause. Both were defeated — Zimmerman voted with the government and Archer remained with Labor.

Sex discrimination amendments added

This is where things got more complicated.

An amendment to s38(3) of the Sex Discrimination Act, a totally separate piece of legislation, succeeded.That section makes it lawful for a religious educational institution to discriminate on the grounds of sexual orientation, gender identity, marital/relationship status or pregnancy, so long as it is done “in good faith” on the basis of “doctrines, tenets, beliefs or teachings” of a religion.

Within that word salad is a broad-ranging ability for religious schools to discriminate against, and expel, gay students. In 2018 Prime Minister Scott Morrison promised to reform the section and remove the ability for schools to expel LGBTIQA+ students. That never happened.

The section became a major sticking point during discussions over the government’s separate, new bill. Liberal moderates warned its removal was a condition of them supporting the religious discrimination bill.

After a bit of confusion over when the amendments to the act would be introduced, the government put forward a narrow change to s38(3). This would have removed the ability of religious schools to expel gay students, but it wouldn’t have provided the same protection to transgender students. Nor would it have stopped schools engaging in other forms of discrimination against gay students.

Overnight an amendment moved by Centre Alliance MP Rebekha Sharkie, which removed the right of schools to engage in all forms of discrimination on the grounds of sexuality and gender identity, passed resoundingly. Five Liberal MPs — Archer and Zimmerman, Katie Allen, Fiona Martin and Dave Sharma — all voted with Labor and some of the crossbench 65-59.

Now the whole package will go to the Senate today. The government promises to move counter-amendments to remove the changes to the Sex Discrimination Act, and Labor will again try to make changes to the religious discrimination bill.

Watch this space.

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Peter Fray
Peter Fray
Editor-in-chief
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