Last week, the conservative faction of the Liberal Party kicked an astonishing own goal when the report on its review into religious freedoms was leaked, some five months after it was provided to our then Prime Minister, Malcolm Turnbull.
The report looked at, among other things, the protections that religious institutions currently enjoy under anti-discrimination legislation. With a particular focus on the federal law, the Sex Discrimination Act, it highlighted that religious institutions are exempt from laws that stop employers and education providers from discrimination against students, parents and staff on the basis of sexuality, sexual identity, marital status and intersex status.
Basically, under the current regime of exemptions, religious institutions can exclude students who identify as lesbian, gay, bisexual, transgender or intersex (LGBTI). They can also exclude employees who identify as LGBTI or are divorced, unwed or cohabitating with a defacto partner.
Many of those exemptions are then mirrored in state laws across the country, with some variations. For example, under Queensland law, a student cannot be excluded because of their LGBTI status, but a staff member can be. In Victoria, its open slather: the anti-discrimination laws as they relate to marital status, sexuality, gender, gender identity and pregnancy do not apply to anyone as long as the discrimination is necessary to comply with one’s religious doctrines, tenets and beliefs.
As a member of the LGBTI community, and an employment lawyer, these exemptions have frustrated me for a very long time. The lack of collective rage about them has also been frustrating. Anti-discrimination laws are supposed to recognise attributes that make people vulnerable to unfair treatment, and provide legal protection. How is it that the very laws designed to protect people expressly permit the unfair treatment of them? It is especially egregious when it applies to education and employment, two things we as a society treat as basic rights that are accessible to all.
Nevertheless, following the passing of the marriage equality laws, and spurred on by the conservative faction of his party, Malcom Turnbull engaged Philip Ruddock to conduct a review into whether the exemptions go far enough. It is unclear whether the purpose of the review was an attempt to claw back some of the faction’s political power after the resounding marriage equality defeat, or if it was intended to be a stalking horse for waving in a new raft of protections for the alt-right, or a combination of both.
Either way, it was stunningly unsuccessful. After the leak, the public debate immediately moved away from being about protecting religious institutions’ right to discriminate (one that has been enshrined in anti-discrimination laws since their inception) and had Australia asking a very pertinent question: “why are we giving public funds to organisations who discriminate against people?”
The political responses have been steadfast: Bill Shorten has offered to support amendments to the Sex Discrimination Act to remove the right to exclude LGBTI students. After an initial fumble, Scott Morrison is onboard too. Shorten has now extended the proposal to apply to LGBTI teachers. They would have you believe that solves the problem, and now we can refocus our rage on some other topic.
However, the proposed changes ignore an elephant in the room: staff who are divorced, unwed or cohabitating with a defacto partner. Theoretically, a teacher at a Catholic school could still get divorced, then lose their job because of it. An IT support worker at an Anglican school could move in with their partner (including of the opposite sex) and get sacked. A health professional contracted to a Lutheran institution could fall pregnant to their boyfriend and have their contract terminated.
Sadly, the biggest issue with the proposed changes is that their effect will be minimal. Most Catholic and other religious institutions have complex corporate structures which leave them outside of the purview of the Sex Discrimination Act. They are usually unincorporated entities that are covered by state anti-discrimination laws. The result being that any change to the Sex Discrimination Act will not represent any change to the rights, freedoms and exemptions that many currently enjoy. A cynical person would suspect that Shorten, Morrison and the religious institutions who are staying quiet, know this. It explains the quick proposal from Shorten, the immediate agreement from Morrison and the lack of objection from the institutions.
There are only two ways to ensure religious education providers cannot discriminate against students and staff because of their LGBTI status: first, the state laws must change. This would require co-operation from the state parliaments. Given the leaders of both parties have expressed their desire for such change, this should not be an insurmountable task.
Second, we must not publicly fund institutions who discriminate against people. In 2013, the then Labor government passed legislation prohibiting Commonwealth-funded aged care providers from discriminating against LGBTI patients and staff. There is nothing preventing this government from applying the same measure to Commonwealth-funded education providers. If an organisation wants to provide a public service using public funds, it ought to be required to adhere to our laws and respect our civil rights.
Whether Mr Shorten and Mr Morrison support the above measures will be a true test of whether its meaningful change they are after, or just a cynical ploy to quiet the rage.
Alana Heffernan is the National Legal Counsel, CEPU – Electrical Trades Union