Great political leaders risk unpopularity, patiently explain their case and confront prejudice, bigotry and vested interests.

Ann Widdecombe

The Federal Government’s religious discrimination bill has been presented to the House and the Labor Party have stated they will put up amendments, but ultimately pass the bill through the House to take up the fight in the Senate. Twitter, unsurprisingly, has exploded.

There are a few trains of thought running through the progressive side of Twitter and I’ll try and run through many of them here. The main arguments are that the legislation is unconstitutional, the Labor party support the legislation if they vote for it in the House, and the Labor party is selling out their own voters.

It’s unconstitutional

Section 116 of the Australian Constitution reads (Emphasis has been added to highlight key language.)

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Sect 116. Australian Constitution

This has lead to a lot of reading of the constitution as barring any and all laws on religion completely, which is a misreading of the sections intent, and has been tested in the High Court on three separate occasions.

Firstly, the parliament already has laws on its statutes regarding religion – whether that be around funding for religious education providers, or anti-discrimination laws, or many others. So it is clear that the parliament has the power to legislate regarding religion in broad terms.

This has been tested in the High Court. In 1981, the case Attorney-General (Vic) (Ex rel Black) v Commonwealth (the DOGS case), the Court held that the Government has the power to legislate funding for religious schools and in doing so, was not in contravention of Sect. 116

Secondly, the language in the Constitution is fairly narrow. The Act currently before the House, as it stands, would not contravene Sect 116, and certainly not the three highlighted phrases above (which is what the High Court has considered in the three challenges to date – all of which have failed).

It would be almost certain, or at least highly likely, that the legislation was crafted with the assistance of constitutional experts such that it would survive a High Court challenge. Governments do this regularly, particularly with contentious legislation.

Parliamentary Tactics

The ALP have set forth their tactics of moving amendments in the House, and if those fail to get up, passing the legislation in the House to take up the fight in the Senate where they have a decent shot at getting crossbench support for their amendments, sending the amended bill back to the House where the Government will almost certainly kill it.

There’s nuance here.

Firstly, it’s important to understand how the Parliament works. A bill presented to the House does not become law until it is passed by both houses. It must pass the House first (or the Senate if presented directly there), then the Senate, then pass the House a second time before being signed into law by the Governor-General to resolve any changes to the bill (via amendments) introduced in the Senate.

So as such, voting to pass a bill from one chamber to another is not the same as voting for that bill to become law, until it is presented back to the House via the Senate.

Labor’s miscalculation here is that people either do not know, or do not care, how the Parliament works. This is currently being played out on social media and the uproar that “Labor supports the legislation” from the progressive left is as predictable as it is a sad state of affairs for Australian politics.

The optics here, it must be said, are pretty terrible.

But the longer game plays to Labor’s strengths. They get to move to a venue where they have a better chance for success at passing amendments where they can vote en-bloc with the Greens and Crossbench and then send a (presumably) better piece of legislation back to the House for approval.

There is an (unlikely) chance that the bill will be passed unamended. I think that is pretty unlikely as most bills get some ‘treatment’ in the Senate, so whilst it is possible I’m not factoring it into the thinking here, and I’m sure the ALP isn’t either.

Back in the House

Interestingly, as I’m writing this, there is a chance that some Labor amendments might get up in the House.

If the amendments do get up, then that will place the Government in an unenviable position. Either they accept the amendments and progress the bill in the Senate, then again in the House if it comes back further amended; or they drop the bill in the Senate quietly by not putting it on the notice paper and therefore up for a debate and vote.

The Government is in this position after two of its MPs announced they will ‘cross the floor’ to vote with Labor’s amendments. This effectively makes any potential vote on those amendments very close. A lot will depend with how the cross-bench (some of whom have moved their own amendments) will vote if their amendments get up. The most unlikely scenario is that Labor votes for the cross-bench amendments, so those members will need to decide if they accept Labor’s proposal.

So the final passage of this piece of legislation is uncertain, at best, and the next few days will be interesting to say the least. If Labor gets its amendments up, this will be yet another embarrassment for a Government that, well, has had a lot of them recently.

Labor sell outs

Finally, is the ALP selling out it’s own voter base?

Well, this one is hard because, let’s be frank, it’s voter base is not the progressive Twitterati.

It all depends on what happens from here. There will be some that won’t be happy regardless of the success or otherwise of Labor’s amendments to the bill. The ‘simply vote no’ camp is hard to discern if they are true Labor base, or progressives who feel affinity to Labor, but vote others as their primary vote.

The will be others who are more circumspect with Labor’s position, realise that they’re trying to do what they can with an initially bad bill and make it a better piece of legislation. The rusted on ‘True Believers’ probably will still vote Labor anyway.

In a Two-Party-Preferred voting system, it’s hard to see a situation where any of the above negatively effects Labor’s vote meaningfully. Simply put, they won’t cost them the election.

The difficulty is those voters, the 2-3% of religious minded voters, for whom this is a vote changed. This is the wedge the Coalition is trying to create. That voting bloc (as a bloc) is large enough to deny Labor the chance at forming government in the overall national election picture.

Labor is playing a smart game, even if the optics look terrible for the progressive left.

Where to from here?

Hard to know with so many moving parts. The crossing the floor has changed the maths, perhaps not enough, but probably enough to scare the Government. One more MP to do so would almost certainly be a catastrophic end to the day in which they surely though they had the ALP over a barrel.

Either way, the next few days are going to be fascinating.