The fate of the Morrison government's controversial religious discrimination bill is now uncertain, with debate on the bill postponed indefinitely after facing a push to overhaul the legislation.
The laws passed the lower house just before 5am on Thursday morning after five Liberals crossed the floor to back an amendment to abolish the rights of religious schools to discriminate against gay and transgender students.
The bill was due to be introduced to the Senate later that day, but the government voted against imposing a deadline for debate to proceed and it was not considered.
The pathway forward for when the laws could return to the Senate, as a result, has been made unclear, with limited sittings days left before an election is held by May.
This means the prospect of enshrining stronger religious protections - a highly vexed issue - appears increasingly difficult with pressure on both major parties to keep voters of faith on side ahead of this contest.
Attorney-General Michaelia Cash was repeatedly questioned in the Senate about whether the government intended to shelve the bill, but did not offer a direct answer.
“We made a commitment to the Australian people that we would address this issue at the last election and we are progressing the commitment,” she said during Question Time.
"We believe in protecting people of faith from discrimination."
The lower house amendment overnight was significant as the Coalition had only committed to amending these laws for same-sex attracted students who faced the possibility of expulsion, leaving trans students vulnerable to being expelled on the basis of their gender identity.
Seeing the opposition and crossbench successful in repealing section 38(3) of the Sex Discrimination Act that allows religious schools to discriminate against students on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy was a blow to the government.
The Coalition is now facing a position where it is being forced to decide whether to try to knock out the Sex Discrimination Act amendment or accept it.
It says it has referred these matters to the Australian Law Reform Commission to review additional changes within six months that address the issue of discrimination against students.
The two pieces of legislation – the bill to create a new Religious Discrimination Act and the amendment to the Sex Discrimination Act – had been voted on separately.
When could the bill go to the Senate?
Thursday was the last day of the current sitting week, and also the last Senate sitting day before budget week in late March, meaning the deadline is closing in for the bill to proceed.
Labor Leader Anthony Albanese had earlier called on the government to work with the opposition on reforming the proposed laws, but is vowing to continue to push for changes to the bill.
“This should have been something that united the country and took us forward as one with respect for our common humanity,” he told reporters.
“I say to the government that they need to stop looking for division and look for ways in which we can unite the country and take us forward.”
The Senate is not sitting next week, due to estimates hearings, but the lower house will.
Assistant Attorney-General Amanda Stoker told reporters on Thursday the government would consult with religious groups about the impact of amendments to the bill.
"What we’re going to do is consult with all the different groups in our community that are affected by it, get their take, make sure we understand fully the implications for them," she said.
"There are real complexities associated with the accommodation in a sensitive and caring way, of dealing with gender identity in, for instance, single-sex schools."
The government is also citing legal advice that says the amendment to protect transgender students from being expelled from school has not adequately considered the potential "unintended consequences".
The advice says this could enable religious schools to discriminate on the basis of a student’s sex, intersex status or whether they are breastfeeding.
What happens now?
Labor has promised to try again to move further amendments to the bill, if it does return to the Senate.
The opposition wants to overhaul the Morrison government’s bill, including changing a statement of beliefs clause by removing its existing intention to override state-based protections and attempt to change laws to ban religious vilification and prohibit discrimination in the provision of home-aged care services.
But Shadow Attorney-General Mark Dreyfus has refused to confirm whether Labor would ultimately support the bill, should its amendments not be successful.
“The battle is not over,” he told reporters.
“Labor will continue to work to improve this legislation.”
The opposition is hoping the Greens, as well as crossbench senators Rex Patrick, Jacqui Lambie and Stirling Griff, could help it win support for its amendments that were defeated in the lower house.
Liberal Senator Andrew Bragg has also expressed concerns about the bill, raising issues with the proposal for a statement of belief clause and a lack of protections for LGBTIQ+ students and teachers.
The religious discrimination bill seeks to enshrine stronger protections on making statements of belief, as well as giving employers of religious-based institutions the right to preference hiring people of their own faith.
LGBTIQ+ advocates have raised concerns these provisions could further empower discrimination and override existing state-based protections against this.
Australian Christian Lobby director Wendy Francis has also called for the government to now withdraw the legislation because it's against the amendment passed by the lower house.
"Taking away protections for Christian schools is a price too high to pay for the passage of the Religious Discrimination Bill," she said.
“With the amendments so damaging to religious freedom, the Government should immediately withdraw the bills."
Prime Minister Scott Morrison has said the laws are about ensuring people of faith don't face discrimination, following calls for stronger protections from a range of religious communities.
During a speech to parliament on Wednesday evening, he said there would be a “time and place” to discuss potential further reforms to protect transgender students, as well as LGBTIQ+ teachers.
The proposed laws were a key promise for the Coalition at the 2019 election.
