Dead­lock on re­li­gious free­dom is a sham­bles

Blame game be­tween par­ties ex­poses paral­y­sis and poi­son in our pol­i­tics

The Weekend Australian - - INQUIRER - PAUL KELLY ED­I­TOR-AT-LARGE

The pro­gres­sive trans­for­ma­tion of Aus­tralia has brought the Lib­eral and La­bor par­ties into fun­da­men­tal con­flict on the philo­soph­i­cal but prac­ti­cal task of rec­on­cil­ing re­li­gious free­dom with pro­tect­ing LGBTIQ rights from dis­crim­i­na­tion.

The grand mythol­ogy be­fore, dur­ing and af­ter the same-sex mar­riage de­bate that this ad­vance had no im­pli­ca­tions for re­li­gious free­dom is now ex­posed — the con­flict is undis­guised, the dead­lock in the fed­eral par­lia­ment is a na­tional em­bar­rass­ment and the hopes for a ra­tio­nal set­tle­ment have been dam­aged.

Par­lia­ment has now bro­ken for the year. The up­shot is that re­li­gious schools in Aus­tralia are threat­ened in the dis­charge of their mis­sion and LGBTIQ stu­dents promised by Scott Mor­ri­son and Bill Shorten to have guar­an­teed le­gal pro­tec­tions are still de­nied. The sit­u­a­tion is a sham­bles. This lu­di­crous stale­mate has no prece­dent in our his­tory.

It ex­poses the paral­y­sis, poi­son and lack of good­will in our pol­i­tics. The year should not have ended this way. Fa­ther Frank Bren­nan, a mem­ber of the Rud­dock re­view into re­li­gious free­dom, called in on Wed­nes­day to try to me­di­ate be­tween Lib­er­als and La­bor, left the build­ing nau­se­ated. “There was no prospect of rea­soned di­a­logue to reach an agree­ment,” he told In­quirer.

Thurs­day’s tac­ti­cal may­hem over asy­lum-seek­ers and an­titer­ror en­cryp­tion laws il­lus­trated the dis­re­pute that stamps this mi­nor­ity gov­ern­ment par­lia­ment, but the Wed­nes­day dead­lock over re­li­gion and gay rights had ear­lier demon­strated this sad re­al­ity.

There is one cer­tainty — the is­sue will be re­solved in the po­lit­i­cal arena by a com­pro­mise deal un­der the Mor­ri­son gov­ern­ment early next year or by im­po­si­tion un­der a Shorten gov­ern­ment based on a LaborGreens-pro­gres­sive par­lia­men­tary ma­jor­ity.

It is tempt­ing to think the Lib­eral-La­bor dead­lock is merely about dif­fer­ent le­gal in­ter­pre­ta­tions or dis­putes about the most prefer­able mech­a­nism to rec­on­cile the stake­hold­ers. Tempt­ing but false, since this con­flict is about com­pet­ing world views. It is a con­flict be­tween how Aus­tralia re­solves sec­u­lar and re­li­gious norms. Are re­li­gious schools to be al­lowed to teach mar­riage is a union be­tween a man and a woman or in­sist all stu­dents at­tend chapel or pro­pound tra­di­tional bib­li­cal nar­ra­tives — or will the state im­pose cen­sor­ship on such teach­ing and ac­tiv­ity by say­ing it dis­crim­i­nates against LGBTIQ stu­dents who must have le­gal

re­sort against dis­crim­i­na­tion? There is an alarm­ing sce­nario — that the con­flict is un­re­solved un­til the elec­tion and trig­gers a de­scent into in­flamed emo­tion and prej­u­dice.

This must not be al­lowed to hap­pen. The stakes for both Mor­ri­son and Shorten are high.

The Prime Min­is­ter was keen to cut a deal to hon­our his Went­worth by-elec­tion pledge but would not sell out re­li­gious free­dom. The Op­po­si­tion Leader was keen to be con­struc­tive, made ges­tures to the churches but made clear that for La­bor the cause of LGBTIQ stu­dents and “dis­crim­i­na­tion against kids” was the No 1 is­sue.

The dead­lock has opened up the blame game. Both sides agree LGBTIQ kids must be pro­tected and both pro­pose their own bills. The real dif­fer­ence is ri­val views on how re­li­gious in­sti­tu­tions have their mis­sion pre­served.

On dis­play are many of the dy­namic and trau­matic el­e­ments chang­ing our coun­try. Wit­ness the his­toric shift of La­bor into a pro­gres­sive party that puts a premium on mi­nor­ity rights; the in­ep­ti­tude of the Lib­er­als across sev­eral years in their quest to pro­tect re­li­gious free­doms and their lat­est tac­ti­cal fail­ure on this front; the de­mor­al­i­sa­tion of the churches over the sex­ual abuse scan­dals and their re­duced in­flu­ence in the na­tion; the hypocrisy of the Catholic Church that can run an ef­fec­tive cam­paign to get more money from gov­ern­ment but can­not run a cam­paign to de­fend its re­li­gious mis­sion; and the vi­cious lack of good­will across the par­lia­men­tary di­vide that di­min­ishes the par­lia­ment and na­tion.

At­tor­ney-Gen­eral Chris­tian Porter said La­bor’s un­com­pro­mis­ing stance was “an ex­tra­or­di­nary and un­prece­dented in­cur­sion on re­li­gious free­dom in this coun­try”. He said La­bor’s po­si­tion “would out­law all prac­tices of a teach­ing and in­struc­tive na­ture in all re­li­gious or­gan­i­sa­tions that any­one con­sid­ered to be dis­crim­i­na­tory”. The At­tor­ney-Gen­eral said the ef­fect of La­bor’s amend­ments ex­tended far be­yond class­rooms into the heart­land of re­li­gious faith — “into churches, syn­a­gogues, mosques and tem­ples na­tion­wide”.

“I think un­der what La­bor are do­ing it would be dis­crim­i­na­tory and open to com­plaint at the hu­man rights to teach Adam and Eve.” Porter, for the record, said he was speak­ing as a lawyer since he was not a re­li­gious per­son.

Shorten said: “I get that all sides of pol­i­tics gen­uinely, I think in most cases, want to re­move dis­crim­i­na­tion off the law books. I also un­der­stand the im­por­tance a lot of peo­ple feel that re­li­gious faith should be able to be taught in schools. I don’t see these two goals as ir­rec­on­cil­able.”

But the Op­po­si­tion Leader re­jected the gov­ern­ment’s po­si­tion. He said its amend­ments to pro­tect re­li­gion “re­places one form of dis­crim­i­na­tion with an­other”. He ac­cused the Prime Min­is­ter of seek­ing to “weaponise this dis­pute” and “propos­ing a mech­a­nism which will lead to greater di­vi­sion in the com­mu­nity”.

La­bor re­jects com­pletely the cen­tral amend­ment pro­posed by the gov­ern­ment to pro­tect re­li­gious free­dom. This is an amend­ment to the Sex Dis­crim­i­na­tion Act say­ing it is not un­law­ful to en­gage in teach­ing ac­tiv­ity if that ac­tiv­ity “(a) is in good faith in ac­cor­dance with the doc­trines, tenets, be­liefs or teach­ings of a par­tic­u­lar re­li­gion or creed; and (b) is done by, or with the au­thor­ity of, an ed­u­ca­tional in­sti­tu­tion that is con­ducted in ac­cor­dance with those doc­trines, tenets, be­liefs or teach­ings”.

The gov­ern­ment says this amend­ment is es­sen­tial to pro­tect re­li­gious ed­u­ca­tion. La­bor says it will make dis­crim­i­na­tion against gays even worse. Mor­ri­son said the gov­ern­ment’s pro­pos­als were “un­con­tentious prin­ci­ples”. Shorten re­leased a le­gal opin­ion from Mark Gib­ian SC say­ing of the gov­ern­ment’s core amend­ment that it “has the po­ten­tial to per­mit dis­crim­i­na­tion against stu­dents in schools, both di­rect and in­di­rect”. Shorten took his stand on this le­gal ad­vice, say­ing Mor­ri­son’s po­si­tion “doesn’t solve any­thing”.

Lib­eral sen­a­tor Amanda Stoker told the Se­nate this core gov­ern­ment amend­ment was “ut­terly non-ne­go­tiable in a free so­ci­ety”. She said it was ex­tra­or­di­nary “that a sim­ple amend­ment stat­ing that it is not un­law­ful to teach the doc­trines of a re­li­gion in good faith is so ab­hor­rent to La­bor”. Stoker said La­bor’s real agenda had been ex­posed. It was “to gut re­li­gious schools of their foun­da­tion” and that con­sti­tuted “an as­sault on free­dom that should dis­turb all Aus­tralians no mat­ter their po­lit­i­cal views”.

The gov­ern­ment and most re­li­gious schools do not ac­cept La­bor’s as­sur­ances on re­li­gious free­dom and the le­gal ad­vice on which it is premised. Porter’s pub­lic re­marks re­veal his view that La­bor’s stance points to the grim ero­sion of re­li­gious ed­u­ca­tion and prac­tice rights in this coun­try. This claim in­fu­ri­ates La­bor, yet its pri­or­ity for con­fronting gay dis­crim­i­na­tion over faith rights has been ap­par­ent for sev­eral years, no­tably dur­ing the same-sex mar­riage de­bate. Its in­tran­si­gence this week re­in­forces the point.

The re­al­ity is that the Coali­tion par­ties and re­li­gious schools will not ac­cept La­bor’s le­gal po­si­tion in this par­lia­ment or the next, where La­bor is likely to have suf­fi­cient sup­port from the Greens and in­de­pen­dents to leg­is­late its stance. The sit­u­a­tion now evolv­ing was ap­par­ent at the time of the le­gal­i­sa­tion of same-sex mar­riage — the real im­port of this is­sue was not about mar­riage it­self but the con­flict it would trig­ger be­tween the sec­u­lar and re­li­gious do­mains and how to rec­on­cile them. It is surely im­pos­si­ble to deny the re­al­ity of this prob­lem any longer given the na­tional par­lia­ment is dead­locked on this pre­cise is­sue.

Con­sider the cur­rent sit­u­a­tion: the is­sue of pro­tect­ing gay kids at schools is con­signed to stale­mate; the gov­ern­ment, given this stale­mate, be­lieves no early ac­tion can be taken in re­la­tion to dis­crim­i­na­tion con­cern­ing teach­ers; and the gov­ern­ment will pro­ceed dur­ing the next fort­night to de­cide on a re­li­gious dis­crim­i­na­tion act in its con­sid­er­a­tion of the Rud­dock re­port.

Mor­ri­son set out his po­si­tion mid­week: “No Aus­tralian frankly, be­cause of their sex­ual iden­tity or their sex­u­al­ity, their faith, their race, their eth­nic­ity, should be dis­crim­i­nated against — that’s my view — be­cause of who they are. But it’s not un­rea­son­able that if you go along to a sy­n­a­gogue or a tem­ple, or you go to a church or a mosque, that some­one would ac­tu­ally teach what that re­li­gion teaches.”

Bren­nan said: “Both sides agree on two prin­ci­ples — that no school should have the le­gal right to ex­pel a gay stu­dent and that re­li­gious schools must be able to teach their faith as they see fit. Yet agree­ment on how to pro­ceed is im­pos­si­ble.”

In the end Mor­ri­son, des­per­ate to show his cre­den­tials on end­ing dis­crim­i­na­tion and alert to the com­ing blame game, of­fered Shorten a con­science vote for MPs on a pri­vate bill that Mor­ri­son was ready to move. But this had no chance. It was im­me­di­ately re­jected by La­bor. For La­bor, is­sues of dis­crim­i­na­tion and re­li­gion are pol­icy mat­ters, not con­science is­sues, and party dis­ci­pline will ap­ply. This is now firm ALP dogma. The tiny num­ber of La­bor MPs wor­ried about the re­li­gious free­dom is­sue has no op­tion but to fall into line.

La­bor deputy leader and ed­u­ca­tion spokes­woman Tanya Plibersek took a tougher stand than Shorten. Plibersek de­nied the le­git­i­macy of the gov­ern­ment po­si­tion, at­tribut­ing the dead­lock to “a very nasty cam­paign be­ing run by the right wing of the Lib­eral Party”. Plibersek said the re­li­gious is­sue was be­ing used by the Lib­er­als to “pre­vent” the re­moval of dis­crim­i­na­tion against gay kids — that is, that the gov­ern­ment’s real in­tent was to re­tain the dis­crim­i­na­tion just as it had wanted to re­tain mar­riage as a man­woman con­cept.

In­sist­ing that “the so­lu­tion is sim­ple” and that “it’s not hard to do” Plibersek, in ef­fect, is put­ting re­li­gious in­sti­tu­tions in Aus­tralia on no­tice of La­bor’s in­ten­tions.

The more re­cent Lib­er­alLa­bor con­flict on this is­sue emerged from the Se­nate’s Novem­ber 13 re­fer­ral of ex­emp­tions from dis­crim­i­na­tion for re­li­gious in­sti­tu­tions to the Le­gal and Con­sti­tu­tional Af­fairs Ref­er­ences Com­mit­tee. This fol­lowed the in­tro­duc­tion of the Dis­crim­i­na­tion Free Schools Bill 2018 by the Greens.

The ex­tremely brief in­quiry brought down a ma­jor­ity rec­om­men­da­tion seek­ing re­moval of any dis­crim­i­na­tion ap­ply­ing to kids and teach­ers and prompted a dis­sent­ing re­port from Coali­tion sen­a­tors. They ar­gued the ma­jor­ity re­port would deny faith-based schools the abil­ity to op­er­ate ac­cord­ing to their re­li­gious be­lief and con­sti­tuted dis­crim­i­na­tion against them.

The up­shot was that La­bor Se­nate leader Penny Wong in­tro­duced a La­bor bill to hon­our the com­mit­ment made by Mor­ri­son dur­ing the Went­worth by-elec­tion to elim­i­nate dis­crim­i­na­tion against gay stu­dents fol­low­ing the leak­ing of the Rud­dock re­port.

Wong said of the bill: “If this gov­ern­ment won’t act, La­bor will. Aus­tralians sup­port this change, the par­lia­ment sup­ports this change and the Mor­ri­son gov­ern­ment claimed that it sup­ports this change. Let’s get this done be­fore Christ­mas. La­bor wants to be clear — noth­ing in this bill would com­pro­mise the abil­ity of churches to con­tinue to up­hold their re­li­gious teach­ings.”

Porter launched a frontal as­sault on La­bor’s claims, no­tably its pro­posed amend­ment to sec­tion 37 of the Sex Dis­crim­i­na­tion Act. He said this amend­ment ap­plied to “all bod­ies es­tab­lished for re­li­gious pur­poses” and meant any ed­u­ca­tion re­garded as “dis­crim­i­na­tory” would be un­law­ful — this would in­clude in­struc­tions in churches, mosques, syn­a­gogues, Sun­day schools, Bi­ble/ Ko­ran/Tal­mud study ses­sions and the like. He ac­cused La­bor of “grand­stand­ing without con­sid­er­ing the le­git­i­mate con­cerns of faith-based schools and their fam­i­lies” and warned this con­stituency num­bered a sig­nif­i­cant part of Aus­tralian so­ci­ety.

Porter said the only as­pect of the cur­rent re­li­gious ex­emp­tions that La­bor would re­tain was the abil­ity to dis­crim­i­nate in em­ploy­ment. The At­tor­ney-Gen­eral’s ar­gu­ment is that La­bor’s de­nial of re­li­gious rights went far be­yond schools. It stretched into dis­crim­i­na­tion by any re­li­gious body where that body en­gaged in ed­u­ca­tion; that is, in places of wor­ship. It re­pu­di­ated the prin­ci­ple that the state does not in­ter­fere with di­rect re­li­gious prac­tice.

A fort­night ago Mor­ri­son had con­ducted a meet­ing with key con­ser­va­tive MPs to de­mand their sup­port for any agreed Lib­eral-La­bor bill to solve the prob­lem. He knew an agreed mea­sure would fall short of the pre­ferred con­ser­va­tive po­si­tion. The con­ser­va­tives agreed — pro­vided they were al­lowed to help shape the gov­ern­ment’s own amend­ments. In the end, how­ever, it didn’t mat­ter.

The vi­tal event came in the Se­nate when Cen­tre Al­liance sen­a­tors Stir­ling Griff and Rex Patrick made clear they would sup­port the gov­ern­ment’s amend­ments to La­bor’s bill. Wong said: “This amend­ment, passed with the sup­port of sen­a­tors Griff and Patrick, would de­stroy the in­tent of the bill — that is, to re­move dis­crim­i­na­tion against LGBTIQ stu­dents. Worst still, the ad­vice is that the gov­ern­ment’s amend­ment which would pass with the sup­port of Cen­tre Al­liance would worsen dis­crim­i­na­tion against LGBTIQ stu­dents.”

With La­bor re­fus­ing to sup­port Mor­ri­son’s pro­posed bill, the dead­lock was sealed.

The gulf be­tween ri­val world views of La­bor and Lib­eral is sig­nif­i­cant. What sort of na­tion will Aus­tralia be­come? The stakes are high — for the LGBTIQ com­mu­nity and for the way re­li­gious in­sti­tu­tions have func­tioned in Aus­tralia.

‘Both sides agree on two prin­ci­ples … Yet agree­ment on how to pro­ceed is im­pos­si­ble’ FRANK BREN­NAN RUD­DOCK RE­VIEW MEM­BER


At­tor­ney-Gen­eral Chris­tian Porter

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