Michaelia Cash appears to have reneged on a deal with Liberal moderates on religious discrimination, revealing broad protections for LGBTQ+ students will have to wait for 12 months.
Banning the expulsion of LGBTQ+ students could be enacted immediately, but reforms preventing students being punished in other ways will have to wait for the Australian Law Reform Commission (ALRC) review, the attorney general said in a webinar to Christian lobby group FamilyVoice on Wednesday.
The comments appear to contradict a deal struck in the last days of parliament with four Liberal MPs – Katie Allen, Fiona Martin, Angie Bell and Dave Sharma – to amend the Sex Discrimination Act to protect students against all forms of discrimination.
In response, Allen sought a meeting with the attorney-general to clarify the deal. Sharma told Guardian Australia: “I’ve made clear that my support of the bill is contingent upon dealing with students.”
Cash had offered the concession as the government was struggling to win votes from its own MPs to pass the bill in the lower house, but it prompted furious reaction from the Australian Christian Lobby and Christian Schools Australia, which threatened to withdraw their support over the deal.
On Wednesday, Cash was asked how the religious discrimination bill would protect schools against litigation if they attempted to discipline a transgender student who wants “to wear a dress, or use a female bathroom although he’s biologically a male, or be called Steve instead of Eve” in breach of religious teachings.
Cash replied: “The bill does not change the existing status quo for this issue … Because those exemptions already exist in the Sex Discrimination Act, they’re longstanding.”
The deal with the moderates included removing section 38(3) of the SDA which allows religious schools to discriminate against another person on the grounds of sexual orientation, gender identity, marital or relationship status or pregnancy.
In a statement on 1 December, the moderates described this as a “consequential” amendment, while Martin argued it would mitigate “unintended consequences” of the religious discrimination bill.
But on Wednesday Cash said “they are two very separate issues and they should not be confused”.
“This bill is all about discrimination on religious belief or activity. When people raise those, they’re talking about the wrong act, they’re in the realm of the Sex Discrimination Act.”
Asked specifically about removing section 38(3), Cash said exemptions “have always been intended to be considered separately” to the religious discrimination bill.
“I really wanted to make that distinction clear: this is a bill to protect against religious discrimination.”
“In relation to the Sex Discrimination Act, that is an ALRC referral … They will report back to the government 12 months after the passage of the bill.”
Cash noted that Labor had raised the issue of making an amendment at the same time, and conceded that the prime minister, Scott Morrison, had agreed gay students should not be expelled and “we all agree with that”.
But the broader issue of removing the religious exemption was “squarely within the ALRC review”, she said.
A spokesman for Cash insisted there had been no change of approach and amendments would be considered “through appropriate parliamentary processes” after two inquiries.
Despite the deal with the four moderates, the Morrison government failed to win enough lower house support due to another trio of its own MPs – Trent Zimmerman, Warren Entsch and Bridget Archer – holding out, and Labor first insisting on an inquiry.
The bill faces an uncertain future, with two inquiries by parliamentary committee to consider it over summer before reporting back on 4 February.
On Wednesday, Cash heaped pressure on Labor to support the bill describing it as “very sensible” and saying it “should command support of both major parties”.
Cash also suggested that further amendments could be made to appease religious groups that want to bolster protection against discrimination by reversing the onus of proving allegedly discriminatory conduct was reasonable.
The New South Wales state director of FamilyVoice, Greg Bondar, said the bill currently requires a religious person to prove they have been discriminated against and the conduct was unreasonable, rather than “the original clause for the discriminator to prove they were being reasonable”.
Cash said this was a change that she was “more than inclined to accept”, urging FamilyVoice to make submissions which she would be “very minded to accept” if recommended by the inquiries.
Cash also suggested that despite removing a clause allowing medical practitioners to conscientiously object to performing certain procedures, the bill could nevertheless protect them by allowing them to argue punishing them for doing so could constitute “indirect discrimination”.
This would allow a “health practitioner who believes they are subject of discriminatory conduct by their employer” to make a claim if they objected to providing a treatment and doing so was consistent with the relevant code of conduct, she said.
“We’re not saying there is no claim. What we’re saying is we’re not shortcutting it – you are still able to make a claim, but on the basis that the relevant professional codes of conduct already provide for it [conscientious objection].”