Religious discrimination bill to return, but will it get through Parliament?

The Morrison government wants to have a third crack at passing contentious religious discrimination laws — first promised in 2017 — before the election.

Attorney-General Michaelia Cash hopes to introduce a bill next week in the final parliamentary sitting fortnight of the year. From what we know, the latest draft will avoid some of the major, disproportionate protections offered to religious people in past drafts, but even a watered-down version will struggle to pass the Coalition partyroom, let alone the lower house.

What’s changed?

We haven’t seen Cash’s draft but it follows two versions released by her predecessor Christian Porter. Both were incredibly divisive. Conservative religious groups like the Australian Christian Lobby felt they didn’t give them enough license to discriminate (even though the faithful were given more protection than any other group) and big business found them unworkable.

Because the push for religious discrimination had its roots in a culture war, the most contentious section was the “Folau clause”, a response to the former rugby union player Israel Folau being sacked over homophobic social media posts. The clause essentially deemed any restriction made by an employer on statements of belief made outside work hours an indirect religious discrimination. It featured in both Porter drafts. It’s been scrapped.

Just two weeks ago, ACL boss Martyn Iles told Christian radio the draft would include a Folau clause. The ACL and other Christian groups have been lobbying hard for religious discrimination laws to be passed this term.

Cash’s draft will also remove elements which allowed medical providers to refuse treatment on the basis of conscientious objection.

Those backdowns might disappoint the Christian right who hoped Cash’s appointment as attorney-general would see a favourable bill introduced, but there’s some indication the faithful will still get significant protections. The Folau clause is gone, but a similar exemption limiting the ability of professional or qualifying bodies to take action against someone in Folau’s position will remain. It also retains a clause which allows a “statement of belief” to override any state or territory anti-discrimination law. 

It’s why Equality Australia CEO Anna Brown is still concerned about the bill.

“According to the reports, the Morrison government has retained some of the worst provisions of the bill, retaining damaging statements of belief provisions that would override existing state and territory anti-discrimination protections,” she said.

“These provisions undermine everyone’s right to respect and dignity at work, school and whenever they access goods and services like healthcare.”

A difficult passage

All of this might be academic, because the bill’s passage is far from assured.

The Coalition itself is divided. The bill will be put to the joint partyroom on Tuesday, where debate will be heated. It may struggle even in the lower house. In June, moderate Liberal MPs blasted proposed religious discrimination laws as a “Christian bill of rights” and vowed to cross the floor. Warren Entsch, along with fellow moderates Katie Allen and Trent Zimmerman, could cross the floor. That’s enough to rob the government of a lower house majority. George Christensen might vote against it because it doesn’t go far enough to protect religious people. 

Cash is likely to introduce the bill in the Senate, where it is likely to be put to an inquiry. That means getting it passed this year is unlikely, diminishing its chances of being legislated in time for an election early in 2022. 

Meanwhile, the opposition and crossbench have been left largely in the dark. Labor is yet to be shown any draft legislation, or be approached by the government.

“As we have repeatedly made clear to the attorney-general and her predecessor Christian Porter, we are ready to work with the government on a religious discrimination bill,” shadow attorney-general Mark Dreyfus said.

Dreyfus wrote to Cash in June and received a vague response a month later. 

Most of the Senate crossbench have not been approached about the bill or seen drafts. Greens Senator Janet Rice says the proposed laws need transparent assessment through a Senate inquiry.

 “Australians deserve a genuinely transparent process, not leaks out of cabinet, especially with a bill as fraught and friendless as this one,” she said. 

Independent Senator Rex Patrick has seen Cash’s draft, but noted every politician would have a different view on such a complex area: “This bill opened a can of worms last time around, and the prime minister had difficulty putting the lid back on. I don’t know understand why he’d do that again.”