TELL MPS TO PROTECT RELIGIOUS FREEDOMS NOW

The debate over the federal Religious Discrimination Bill has been hijacked by progressive secularists — and neither party is blameless

By Professor Patrick Parkinson

First posted on ABC ‘Religion and Ethics’ webpage on 16 Feb 2022

The failure of the Religious Discrimination Bill was a huge failure of the Parliament. It remains to be seen whether the two main political groupings can do better in the new Parliament.

I find it astonishing how inaccurate or partisan the media reporting has been on the Religious Discrimination Bill. Consider this opening line from the report of a major national newspaper:

Scott Morrison has declared to religious groups that he has “no regrets” about putting up the religious freedoms Bill last week despite it being defeated in the House of Representatives and pulled from the Senate.

It wasn’t a “religious freedom Bill” and it was passed in the House of Representatives with an overwhelming majority. Other reports framed the Bill as presenting a choice between religious liberty and gay and trans rights. That, also, is completely wrong. The Religious Discrimination Bill had no impact whatsoever, one way or another, on gay and trans rights. Those are matters dealt with in an entirely separate piece of legislation — the Sex Discrimination Act. But the campaign against the Religious Discrimination Bill sought to muddy the waters between them, making all kinds of claims about the effect of the Bill that responsible lawyers should never have made.

So, as a Christian lawyer who has been working closely with faith leaders and senior politicians from both sides of politics for a number of years on these issues, and who was part of the informal negotiating team of faith leaders, allow me to explain the debates, and what might be the political fallout in the next election.

How does a Bill fail to pass despite an 84-vote majority?

On present indications, it seems that the federal government has decided to shelve the Religious Discrimination Bill, with too little parliamentary time to resolve various issues prior to the election. That is not because the Bill was criticised by the two parliamentary committees that scrutinised it. After comprehensive inquiries, both committees reported in favour of the legislation, while making limited and sensible amendments. Labor made additional comments in these reports, but supported the Bill. Only the Greens dissented.

Nor is the Bill being shelved because it was defeated on the floor of the House of Representatives. Far from it. The Bill passed the Lower House by 90 votes to 6. Labor members voted for it unanimously, although they had supported some amendments which failed. The only members of the House of Representatives to oppose the legislation were a Liberal (Bridget Archer), the Green member (Adam Bandt), and a handful of independents. 90 votes to 6 would ordinarily be seen as a ringing endorsement of the legislation.

Yet, curiously, the Religious Discrimination Bill failed because of amendments to another Act of Parliament which was not originally on the parliamentary agenda at all — amendments which were not subject to any consideration by a Senate committee in accordance with the usual parliamentary process. This Act was the Sex Discrimination Act, and the amendment concerned the exemption for faith-based educational institutions from the prohibitions otherwise applicable concerning discrimination on the basis of sexual orientation or gender identity. In particular, the dispute in the Parliament concerned what liberty faith-based schools should have in managing the issues arising when students state they are “trans”, “non-binary”, or “genderqueer”.

Why was Labor trying to amend its own legislation?

An amendment to the Sex Discrimination Act was introduced at the eleventh hour to the Human Rights Legislation Amendment Bill, which included some changes to the law consequential on the passing of the Religious Discrimination Bill. This was an attempt by the federal government to win over its dissentient Lower House members.

The amendment it introduced was to address a problem for which the last Labor government had been responsible. In the dying days of that government in 2013, then Attorney-General Mark Dreyfus introduced changes to the Sex Discrimination Act to prohibit discrimination on the basis of sexual orientation and gender identity. There were exemptions for religious organisations, including faith-based schools. However, the legislation was rushed, and there was little consultation with faith communities. The changes concerning religious organisations were poorly worded. The result was that Parliament, led by a Labor government, had implicitly given a legal right to faith-based schools to expel students on the basis of their sexual orientation or gender identity which the schools themselves had never sought, and have not since exercised.

No one seemed even to be aware of the implicit power to expel gay students, or were remotely bothered by it, until the Wentworth by-election in 2018 when, following the Religious Freedom Review (chaired by Philip Ruddock), the mainstream press made this a huge issue. Suddenly, it was a national emergency, and legislation had to be passed before the 2019 election. Labor hurriedly introduced a Bill to reverse its own legislation. The Greens did as well, and so did Scott Morrison for the Coalition. However, the Parliament couldn’t agree on how to amend the legislation and the Bills lapsed when the 2019 election was called.

No attempt has been made in the three years of the current Parliament to address the issue until the deal was done with the Liberal dissentients to win their support for the Religious Discrimination Bill. A week out from the parliamentary debate, the issue was given further oxygen by the very unwise “contract” with parents introduced by a Christian school in Brisbane — albeit a contract that was quickly withdrawn. However, the record seems clear enough since 2013 that faith-based schools have not sought to discipline or expel students on the basis of their sexual orientation or gender identity. On the contrary, many faith-based schools have exemplary records of pastoral care, which is one reason why so many non-religious or only nominally religious parents send their children to these schools.

The last-minute government amendment to fix the problem caused by the Labor legislation in 2013 was a limited one. It proposed to amend the Sex Discrimination Act to make it unlawful to expel students on the basis of their sexual orientation. The federal government argued, rightly, that the transgender issues were too complex to be dealt with by a rushed amendment and should be addressed by the Australian Law Reform Commission.

Labor and the Liberal dissentients weren’t happy with this. They wanted the section providing exemptions to faith-based schools in relation to students to be removed entirely. Many also wanted Labor’s religious exemptions in relation to staffing matters removed as well.

Labor had been assiduous about consulting with faith leaders on the Religious Discrimination Bill, and genuinely sought to listen to our views and concerns. Faith leaders in turn have been working hard to build bridges with Labor and to reconcile differences, because we want to work with all sides of politics for the common good on the great number of issues that are not divisive, and where Christian organisations are in the front-line of service delivery. On the matter of the Sex Discrimination Act, however, there was no consultation with us on the proposed amendments which were moved, successfully, in the House of Representatives. These have now scuttled the Religious Discrimination Bill because, in the form they passed, they took no account of the legitimate concerns of faith groups about how to manage a very complex medical and social policy issue.

In short: the story of LGBTIQ+ amendments to the Sex Discrimination Act is that they were rushed through Parliament without adequate consideration or consultation just before an election in 2013; there was a flurry of activity again just before an election in 2019, which failed to resolve the matter of religious exemptions; and now there has been a further flurry of activity without adequate consideration or consultation again, just before an election in 2022. Can anyone else see a pattern here?

Progressive secularism versus multiculturalism

Why did Labor so emphatically reverse its position on exemptions for religious schools in less than nine years between 2013 and 2022? The reason is that the balance of power has shifted within the Labor Party from those committed to a “live and let live” philosophy of multiculturalism, accepting that in an ethnically and religiously diverse society there will be a range of different beliefs and values, in favour of those committed to a progressive, and sometimes very aggressive, secularism. This, however, is not a line dividing the left from the right of politics. There are multiculturalists within Labor, particularly the older and more senior leaders who held Cabinet positions in the Rudd/Gillard governments. There are progressive secularists within the Liberal Party, though probably not among the Nationals. There are other Liberals — notably in some state parliaments — who hold only a very weak degree of support for multiculturalism and have not resisted progressive secularist moves to limit freedom of religion and speech.

Multiculturalism, understood in this way, is not only a policy which recognises and values racial and ethnic diversity. It also recognises and respects diversity of belief across the whole society, including differences of view on religious matters and on whether there is any kind of divine being or power. The difference between the two positions can be illustrated by this contentious issue of religious exemptions in relation to discrimination on the basis of sexual orientation and gender identity. The multiculturalist may hold the same views on such issues as the most progressive LGBTIQ+ activist, but consider that in a multicultural society it is necessary to respect the fact that people have different views and beliefs.

In a multiculturalist view, the balance is to be found by insisting on non-discrimination in government, commerce, state schools, and other aspects of our shared communal life, while accepting diversity and freedom of association in ethnic or religious organisations and communities, including faith-based schools, and making concessions to freedom of conscience. That view was in evidence recently in the support given to a female Muslim AFL player who chose not to play in a match rather than wear a Pride jersey which conflicted with her religious values. Her conscientious objection was respected by most people.

Until very recently, this approach to social policy was widely held, and represented a shared consensus between the major parties. All state and federal anti-discrimination laws used to have exemptions in quite similar terms to respect the moral or theological objections of people of faith in relation to certain prohibitions, and to acknowledge the right of faith-based organisations to maintain their religious identity and ethos. Such exceptions are not just given to people of faith. Anti-discrimination laws contain many exemptions — for example, to allow single sex schools and female-only accommodation to operate, notwithstanding laws prohibiting sex discrimination. Labor’s 2013 amendments to the Sex Discrimination Act, prohibiting discrimination on the basis of sexual orientation and gender identity and providing for religious exemptions, reflected that consensus on social policy.

Progressive secularists are generally opposed to religious exemptions for people of faith, except where concessions need to be made to theological positions, such as having an all-male priesthood. This position has increasingly gained strength on the left of politics. Progressive secularism, in its most aggressive form, is evident in recent amendments by the Victorian Parliament to remove most faith-based exemptions in Victoria’s anti-discrimination laws, greatly impairing the right of faith-based schools, for example, to maintain their identity and ethos in their staffing policies. These changes to the law were not only made to advance LGBTIQ+ rights. Victorian law prohibits discrimination on the basis of any lawful sexual activity, and faith-based organisations now only have narrow exemptions. The message is clear: faith-based organisations in Daniel Andrews’ Victoria are still allowed to have their religious beliefs, but they are not entitled to their own sexual morality — even for heterosexual relationships.

While these reforms seem to be targeted mainly at Christian schools and other faith-based organisations, they can also send a chilling message to religiously devout refugees and migrants from ethnic minorities, almost all of whom come from countries with conservative religious values.

The rise of progressive secularism has some very negative long-term implications for the future of multiculturalism. The federal Religious Discrimination Bill represents a classic commitment to multiculturalism, allowing religious organisations to maintain their identity and ethos, while prohibiting discrimination on the basis of religious belief in public life. It was supported, in a unified way, by Christian, Jewish, and Muslim faith leaders who worked together harmoniously in discussions with the federal government and in support of the Bill.

A few years ago, such legislation would have been entirely uncontroversial. However, there was a virulent campaign against the federal Religious Discrimination Bill from people and organisations that claim to support equality and human rights. This was overtly an anti-Christian campaign in the examples used to warn of the dangers of permitting even moderate and non-vilifying statements of belief. However, it demonstrated hostility to all people of faith, as well as a gross misunderstanding of the present law.

Except perhaps in Tasmania, where it is lawful to be grossly offensive to people of faith but not to express opinions on matters of public policy that may offend people with certain other characteristics, no laws currently prohibit the expression of moderate and non-vilifying statements of belief. The Coalition’s provision on statements of belief in the Religious Discrimination Bill, which was so bitterly opposed, provided that the expression of moderate statements of belief is not discrimination. That was, at most, a marginal change to the law, essentially clarifying the current legal position, since discrimination arises from what you do or fail to do, not what you say. Moderate and non-vilifying statements of belief, whether expressed in a workplace or elsewhere, will not ordinarily lead to a successful discrimination action. They may, at most, be evidence of discriminatory attitudes that demonstrate the motivation for the discriminatory acts of which complaint is made.

Federal Labor has not embraced progressive secularism to nearly the same extent as Victoria, and Shadow Cabinet managed to maintain party discipline for the most part in supporting the Religious Discrimination Bill, while moving amendments demanded by the progressive secularists within its ranks. However, federal Labor is highly ambivalent about multiculturalism when it comes to allowing exemptions in relation to LGBTIQ+ issues. It showed, through the amendments moved by Mark Dreyfus in the House of Representatives, that it was not prepared to shore up legislative protection of freedom of speech on religious matters, even to the very limited extent that the federal government proposed.

The Religious Discrimination Bill would have passed the Parliament with huge majorities in both Houses if Labor had been prepared to accept that, for now, the Sex Discrimination Act should be amended just to prevent the expulsion of gay students (in practice, a non-existent problem). That would have left the very complex issues concerning young people who identify as “trans” or “non-binary” for further inquiry by the Australian Law Reform Commission.

The legislative package was scuttled because Labor, and five Liberal MPs, voted for the complete repeal of all religious exemptions for faith-based educational institutions in relation to students. That involved taking a very simplistic approach to the complex issues of gender identity, seeing it simply as a human rights issue that children and young people not be discriminated against for being “trans” or “non-binary” in any school.

An amendment limited to a prohibition on expelling students on the basis of sexual orientation or gender identity would not have caused difficulties. However, there are other problems which need to be addressed — for example, affirming the right of faith-based schools to teach their beliefs without facing lawsuits. These beliefs include the orthodox scientific understanding of Homo sapiens as a sexually dimorphic species. Faith-based schools are also unlikely to embrace the belief that there are multiple genders or that sex (being male or female) is a social construct.

There is, in particular, a need to clarify what it means in law to “discriminate” against a student who is at a stage of life when identity exploration is common and some identities may prove transient. Is a school under a legal obligation simply to accept and affirm a young person’s new gender identity when it is aware that the adolescent has other very significant mental health difficulties which may lead them to embrace a “trans” identity as a solution to their distress? Does the law permit a cautious and pastoral approach?

There are sensitive and difficult pastoral issues here. A young person who goes down the path of “social transition” — that is, adopting a new name, gender identity, and pronouns — is also more likely to embark down the pathway of irreversible and high-risk sexual reassignment treatments such as taking cross-sex hormones and surgery to remove breasts. Some young people later regret these changes, wishing that they had not been supported to make such irreversible changes without a thorough exploration of the reasons for their gender dysphoria, and expert mental health support.

This is an area where anti-discrimination law is a very crude instrument, and the Sex Discrimination Act, in its current form, may be doing more harm than good.

Is an informed, nuanced discussion on gender identity impossible?

There was a lot of emotion in the discussion of transgender issues in the parliamentary debate on the amendments to the Sex Discrimination Act, but a dearth of nuanced and respectful discussion of why faith-based organisations might have a problem with the repeal of all exemptions in relation to students. If Parliament had followed its normal processes of careful consideration and consultation by the public service or an independent inquiry, followed by a parliamentary committee inviting submissions and holding oral hearings, it would have been much better informed on the complex issues.

I suspect that the reason why Labor and the five Liberals refused to listen to the concerns of church leaders and heads of faith-based schools is that they see the matter at hand simply as a moral issue. Bigoted and uncaring religious people want to discriminate against vulnerable, potentially even suicidal, “trans” or “non-binary” students. Concern for the wellbeing of vulnerable students should trump religious belief. What’s complicated about that? Such a distortion of the issues may play well in parts of the electorate, but it ignores the serious medical and mental health issues at stake.

There has been a significant increase in transgender identification among young people over the last decade, and this is reflected in the number who are now seeking puberty blockers, cross-sex hormone treatment and surgery — with some countries reporting a 4,000 per cent increase in little more than a decade. A substantial majority are teenage girls, in contrast to a couple of decades ago when gender dysphoria was quite rare, and mostly experienced by natal males from early childhood.

There is growing concern that many of the young people who now present to gender clinics, identifying as “trans” or “genderqueer”, also have mental health issues or neurobiological diagnoses. Being transgender is often associated not only with depression and suicidal ideation, but a range of other factors that cannot simply be explained by bullying or discrimination. It has long been recognised that these young people are at least five times as likely to be on the autism spectrum. There is also evidence, from a study at Westmead Children’s Hospital, indicating that children and young people seeking to transition medically to a new gender identity are disproportionately more likely to have experienced childhood abuse and trauma and to have attachment disorders.

The question is whether their gender dysphoria could be secondary to, or better explained by, other comorbidities and adverse childhood experiences. Put simply, they may have other reasons for wanting to embrace a “trans” or “non-binary” identity than that they are, and have been from birth, “trans” and will remain so for life. As research in clinical practice settings shows, counselling treatment for these other mental health difficulties may ameliorate some young people’s felt need to alter their bodies. Even the researchers who developed the “Dutch Protocol” of placing children on puberty blockers and then providing them with cross-sex hormones from the age of 16, recognise how different is the cohort of young people now attending gender clinics, with the consequence that earlier research findings and treatment protocols may not be applicable.

In the medical and scientific literature, there is now serious debate about how the medical profession should respond to the changing demographics of the children and young people who identify as “trans”. The evidence has been clear for many years that the great majority of children who present with gender identity issues will resolve their gender incongruence before or while going through puberty if they are not placed upon a pathway towards cross-sex hormones and surgery. Most will grow up to be gay and lesbian adults. According to a recent survey of one hundred “detransitioners”, nearly a quarter reported discomfort with their gay or lesbian sexual orientation as a contributing factor for why they embarked upon the pathway of making irreversible changes to their bodies, wishing to present as heterosexual. So this is not an issue on which gay, lesbian, and “trans” advocates necessarily see things the same way.

For these reasons, a number of specialists in transgender medicine are advising the greatest caution before supporting young people to identify as “trans”. Treatment needs to be preceded by an individualised and comprehensive evaluation, exploring the reasons why the young person has such discomfort with his or her body. A conclusion that gender-transition medication and surgery is warranted should only be made at the end of a thorough process of gender exploration. As two leading experts have said:

The process, done conscientiously, can take a few months (when a young person’s gender has been persistent and there are no simultaneous mental health issues) or up to several years in complicated cases.

This contrasts with the position of activists who argue that we should simply affirm a child or young person’s declared gender identity and accept without question their new name and pronouns, encouraging them on a medical and surgical pathway that may well involve loss of fertility and numerous adverse health effects. Many of these activists urging such immediate social transition are medically unqualified young people who exercise a lot of influence on YouTube and through other social media.

What, then, is a responsible school to do when a distressed teenage girl announces she is “trans”? What does the law require? The federal Sex Discrimination Act, as amended by the Labor Government in 2013, offers little guidance. It is alright to have single sex schools and facilities, and sex and gender identity are two different concepts in the legislation. A girls’ school is not required to accept the application of a natal male who now identifies as female and wishes to enrol in a girls’ school; but is a co-educational school discriminating if it doesn’t unequivocally accept a boy’s new identification as a girl or vice-versa?

Clearly, the law prohibits treating young people adversely on the basis of their gender identity, but does it require the adults to affirm the new gender identity of the young person and to treat them as the sex they believe themselves to be? Where do parents’ views and rights fit into the picture? What if one parent affirms while the other wants to slow the “trans train” down and proceed far more cautiously? What about the new and very popular category of “non-binary”, which scarcely existed when Labor pushed through its amendments to the Sex Discrimination Act in 2013?

When, in law, does a child have a settled gender identity which is protected by the legislation, given that adolescence can be a time when adolescents adopt identities that are quite transient? Is it legitimate for the school to say the child should wait a year before taking any steps to change his or her name or gender identity at school, and to get a certification from an experienced mental health professional that he or she has persistent gender dysphoria, after long and careful evaluation? None of these questions are answered by the Sex Discrimination Act, or by equivalent state laws, and confusion abounds.

Repealing the exemption for faith-based schools without addressing the broader issues and vagueness of the legislation would have magnified the current problems. However, the Parliament does not seem ready yet for a careful examination of these issues informed by experts. Labor, and the five dissentient Liberals, adopted the simplistic analysis that it was all an issue of discrimination — and, of course, discrimination is bad. Their position appears to have been reached largely in ignorance of the medical, scientific, and religious issues and debates.

Implications for the federal election

Journalists, understandably, have responded to the failure to pass the Religious Discrimination Bill by saying that it will now become an election issue — but will it? There are three ways in which it could become an issue. First, perceptions; second, the effect it may have in certain marginal constituencies; third, the implications for policies and election commitments.

Labor has most to lose from the perception that it scuttled the Religious Discrimination Bill for the sake of passing an amendment to the Sex Discrimination Act which has not been passed in any event. That is, Labor’s vote led to the abandonment of a Bill that it supported, for the sake of voting to amend another piece of legislation — its own — which it failed to achieve. That looks like a double failure: letting go of the bird in the hand while failing to capture the bird in the bush.

It is also a political own goal. The Labor leadership said it wanted to see the Religious Discrimination Bill passed, and did not want it to be an election issue. Labor could have achieved its goals if it had carefully distinguished between the separate issues of discrimination on the basis of religion and discrimination on the basis of sexual orientation and gender identity.

Labor is also vulnerable because of the perception that a significant proportion of its backbench will vote for progressive secularism over multiculturalism, and that many also share the views of the most vocal opponents of the Religious Discrimination Bill. It is impossible to overstate how much damage Daniel Andrews’s war on faith in Victoria has done to religious people’s trust in Labor nationally. The Coalition can, at this stage, claim to have a much greater commitment to multiculturalism and religious freedom than Labor.

However, the Liberal Party should also be concerned about its record at both state and federal levels. In nearly nine years in office as the federal government, it has done virtually nothing to shore up religious freedom and to respond to the concerns of its very large religious support base. Despite the press reporting at times that the Religious Discrimination Bill was a “religious freedom” Bill, the legislation was in essence, just a religious discrimination Bill. If enacted, it would have given people affected by religious discrimination a right to complain to the federal Human Rights Commission as an alternative to the bodies established under state or territory law. That is really not much of a change, despite all the fuss. Discrimination on the basis of religious belief is already prohibited in six states and territories. The exceptions are New South Wales and South Australia, but New South Wales is contemplating passing its own religious discrimination law. Religious discrimination is also prohibited under the federal Fair Work Act, to a certain extent.

The Coalition is also vulnerable in some of its marginal constituencies as a result of the decision of the five Liberal dissentients to help scuttle the Religious Discrimination Bill. Most vulnerable is Bridget Archer, who won the Tasmanian seat of Bass in 2019 with less than 600 votes. Archer voted with Labor on every single division to amend the Religious Discrimination Bill, as well as voting with Labor to amend the Sex Discrimination Act. Then she voted against the enactment of the Bill, in contrast to Labor which voted in favour.

That places the many religious voters in Bass who usually vote Liberal in quite a predicament. Do they vote for the Labor candidate, Ross Hart, who will reliably vote with his party on such matters, and whose track record is known from previously holding the seat, or do they vote for Bridget Archer who can be relied upon not to support her party’s policies on religious freedom and multiculturalism, and to vote with the Greens on issues important to religious voters? No doubt strategists are hoping that religious voters who supported Archer in 2019 will either vote for her party even if they are unhappy with her as a candidate, or vote for a minor party with the Liberals harvesting their preferences. Maybe that will happen, but there is a reasonable moral and pragmatic case now for religious voters in Bass who don’t want to support Labor to vote informally in the Lower House as a protest, while still supporting the Liberals in the Senate.

Two other Liberal dissentients, Dave Sharma and Fiona Martin, are also in marginal Liberal seats. They are vulnerable to the criticism that they forced the abandonment of a Bill which was important to the religious voters in their constituencies while failing to make any difference to sexual minority students. They too may experience protest votes or find that religious voters choose their candidate on the basis of other issues. That could well favour independents. Dave Sharma, in particular, faces a substantial challenge from an independent, and has sacrificed support from his Liberal base without achieving what he sought to achieve in terms of amendments to the Sex Discrimination Act. That too, looks like an own goal.

What, then, about policy? There is actually very little difference now between the Coalition and federal Labor. Both support having religious discrimination legislation, but that is very different to shoring up religious freedom in the face of the progressive secularist challenge.

It was the Islamic community in New South Wales that most wanted a religious discrimination Bill, since there is no such state legislation currently. The Jewish community is at least covered clearly by racial discrimination laws. For the Christian churches, a religious discrimination Bill was a much lower order priority. Our primary concern, as we told both parties over and over again, was to ensure that faith-based organisations continue to have the right to select or prefer people who adhere to their faith and values when making employment decisions. That right has largely been taken away in Victoria, which has taken the progressive secularism path, without much opposition from state Liberals.

It is a minimum standard for commitment to multiculturalism, and indeed to fulfil our international human rights obligations, that ethnic and religious organisations be permitted, through their staffing policies, to maintain their ethnic or religious identities. It is very surprising that this is remotely contentious.

So what differences are there on this issue between the parties? Both sides of federal politics say that they support the right of faith-based organisations to maintain their identity and ethos. However, the Coalition has persistently refused to enact legislation to achieve this on a national basis. First, when Malcolm Turnbull was Prime Minister, and then when Scott Morrison took over, we urged the government to enact legislation to this effect. The obvious way to do so is through the federal Fair Work Act, which already contains many provisions on employment in faith-based organisations. The federal government repeatedly declined to do so. This is not a great track record in supporting religious freedom.

At the last minute, the Coalition did agree to override Victoria’s legislation to the extent it prohibited religious schools from selecting or preferring staff who adhere to the beliefs and values of the faith. It also created a mechanism to extend that to other states through regulation — but regulations are subject to disallowance in the Senate. The government also refused to extend this protection to other faith-based organisations apart from schools.

To its great credit, federal Labor supported the override of Victoria’s legislation on employment in faith-based schools and did not seek to amend this part of the legislation in the House of Representatives. However, it has so far not promised to implement its commitment to support the right of faith-based organisations to maintain their identity and ethos through their staffing policies by enacting this in federal legislation. Nor has the Coalition. It is not even clear whether the Coalition will try again to pass a religious discrimination law. Even if it does, and if that is all it is offering to faith-based voters, that will not shore up its political support, given that most states and territories prohibit religious discrimination anyway.

There is a deficit, then, in the willingness of both major political parties to enact national legislation that gives effect to their stated policies. No doubt this is because of the influence of progressive secularists in both parties.

So what promises will each take to the election to differentiate themselves from the other? The vast majority of Australians support the right of religious organisations to maintain their identity and ethos through their staffing policies. That was demonstrated in a survey conducted by the Parliament on the Religious Discrimination Bill that showed 80 per cent or more in favour on every issue canvassed.

Federal Labor has an opportunity to win back the trust of religious voters if it is prepared, in government, to enact a nationally consistent law to give effect to what it says in its policy platform. That will, necessarily, involve overriding Victoria’s law to the extent of inconsistency. The Coalition will need to think long and hard, and in a fresh way, about what promises it will take to the election. Offering more of the same will not be very convincing, given that it could not achieve united support for such a policy within its ranks. Bridget Archer, and other dissentient Liberal MPs, may also have great difficulty convincing electors in their constituencies that they support whatever promises the Coalition makes. This is the Coalition’s great quandary.

If neither side is prepared to go into the election offering more to address the concerns of religious voters, there could well be a drift towards the minor parties, especially in the Senate. There is also a risk of growing disillusionment with both sides of politics, and a perception that they are out of touch with voters, more concerned with what is trending on Twitter than what really matters to the 94 per cent of the population who are not politically engaged.

The failure of the Religious Discrimination Bill was a huge failure of the Parliament. It remains to be seen whether the two main political groupings can do better in the new Parliament.

  • Patrick Parkinson is a Professor in the T.C. Beirne School of Law at the University of Queensland.

TELL MPS TO PROTECT RELIGIOUS FREEDOMS NOW