Analysis: the latest review is not a necessary step to legislative action - it’s a stopgap

Religious freedom and LGBT kids: Coalition kicks can down the road with yet another review

The Coalition’s response to the Ruddock review of religious freedom is … wait for it, another review.

The Australian Law Reform Commission will take a look at five of the most contentious Ruddock recommendations, because it’s just too politically difficult to make good on a promise to take away religious schools’ power to expel gay students in a way that pleases both Labor and Coalition conservatives.

The problem is balancing competing rights. How do you balance the right of people not to be discriminated against on the grounds of their sexuality or gender identity, with the right of religious schools to maintain conduct and teaching in accordance with their faith?

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So far, every time somebody has proposed an expansion of “religious freedom”, the Australian public has been horrified by what religious institutions are already legally permitted to do. Each time we’ve arrived at a decision point, the pendulum has swung further in the direction of non-discrimination.

On Thursday, Scott Morrison gave us another review, a promise to introduce a new religious freedom bill, and also fix up some existing regulations.

One of the allegedly smaller fix ups is to clarify that in existing laws – such as the sex and racial discrimination acts – freedom of religion will have “equal status” with the right not to be discriminated against on the prohibited ground.

That could tip the current balance away from the people currently protected from discrimination and towards those who want to discriminate on the grounds of their faith.

Morrison and the attorney general Christian Porter tried to suggest this was an uncontentious proposition. It’s actually highly contentious.

It can be hard to keep up with the twists and turns on this issue. In the last sitting fortnight of the parliamentary year, the government’s priority was ensuring kids didn’t face discrimination. This was urgent business.

Now the order of priority has been flipped. The kids have been sent off to a second review, and the rights of religious people have moved to the front of the queue.

The balance of rights problem has now preoccupied two prime ministers. It was Malcolm Turnbull’s problem when he was fending off party conservatives calling for more religious protections during the marriage equality debate.

Back then, Morrison was one of the most vocal public advocates for “religious freedom” and pushed for the Ruddock review in cabinet. Now it is Morrison’s problem. He’s dealing with his own landmine.

Morrison initially tried to bridge the demands of conservatives in his party with community expectations by proposing a bill that would remove religious exemptions to law that allow discrimination against students, but only if other words that Labor says allow discriminatory school rules are put back in.

Now, we have the second review.

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Coalition conservatives are not too concerned by the delay. After Anglican schools in Sydney were forced into humiliating backdowns over their right to discriminate, they sense the tide of public opinion is not with them.

It’s possible the ALRC will be able to come up with the circuit-breaker the government requires to take religious freedom out of the too-hard basket.

But the question has already been studied: by the ALRC in its report on traditional rights and freedoms, by the parliamentary committee on foreign affairs, defence and trade, by the Ruddock review, by the legal and constitutional affairs references committee, and soon by the legislation committee as well.

None of these have shifted the dial of public opinion back in conservatives’ favour or found a solution that satisfies both sides of the debate.

A further review is not a necessary preparatory step before bold legislative action – it is a stopgap because the best deal religious institutions are likely to get is the status quo.