Morrison's religious discrimination package couldn't fly on a wing and a prayer

Scott Morrison made three foolish and arrogant assumptions this week when he embarked on trying to push his controversial religious discrimination legislation through parliament.

As a result, he failed in the mission and emerged from Wednesday’s all-night sitting with his authority diminished. With time almost out before the election, this legislation, which he claimed was “very important”, has reached a dead end.

First, Morrison thought he could tactically outplay Anthony Albanese, wedging Labor on an electorally sensitive issue. This smacked of hubris – it is safer to think your opponent just might be smarter than you are.

Second, he underestimated the spine of the moderates in his own party. He was not properly tapped into his backbench, especially those in the leafy suburbs who are under pressure from independent candidates. The moderates have been acquiring a louder voice recently, which became obvious in last year’s climate change debate.

Third, Morrison believed he could rush a complex issue – which he’s had years to deal with – in the high-pressured dying days of the electoral term. The “I am PM – therefore I can” principle doesn’t always work in a close parliament.

This has been another political shambles for Morrison, already beset by bad polling, a crisis in aged care, and leaked texts.

NSW Premier Dominic Perrottet – incidentally, a dedicated Catholic – had some prescient words on Wednesday as the federal government prepared for votes on the religious discrimination and associated legislation.

“I’ve made it very clear that I don’t believe legislation in this space is necessary and I think it can end up creating more problems than it solves,” Perrottet said.

As well as arguing it is needed, Morrison said he was committed to the legislation because he promised it before the last election.

In reality, he has been substantially driven by a quest to keep or win faith-based conservative voters, particularly in ethnic areas in western Sydney. Some Coalition sources believe these votes were an essential component in his 2019 victory.

Albanese desperately requires these votes too – Labor identified after the 2019 election that it had a problem with them – and he certainly can’t afford to lose those already in the ALP’s camp.

So although many in Labor and its base didn’t want a bar of the religious discrimination legislation – Bill Shorten told Parliament “We will rue the day if this legislation passes the Senate” – the opposition leader wrangled a divided frontbench and caucus into supporting it, while pressing amendments.

The government’s package included an amendment to the Sex Discrimination Act to prevent gay students being expelled from religious schools.

But that was narrower than an earlier undertaking Morrison gave and it didn’t cover transgender students. The government said it wanted a report from the Law Reform Commission before acting on them, because of what it insisted were the complexities of religious schools dealing with trans students.

The exclusion of transgender children turned out to be a serious flaw in the eyes of some in Liberal ranks.

The moderates asserted themselves, in negotiations on the package before the parliamentary debate, and in the chamber. They were driven by principle but also by their own political imperatives.

Some moderate critics of the bill share Perrottet’s view about the unwisdom of stirring up the religious discrimination issue. They were even more exercised about transgender students being left in limbo.

Morrison twisted arms and gave some sops to try to corral his followers. Perhaps he thought when push came to shove, his authority would get him through.

Read more: Liberal revolt removes all discrimination against gay and transgender children

It didn’t. Two Liberal defectors, Bridget Archer and Trent Zimmerman, raised their heads in votes on the main bill, although it eventually passed the House of Representatives unamended.

It was a much worse story for the government on the bill to amend the Sex Discrimination Act. Three more Liberal rebels – Katie Allen, Fiona Martin and Dave Sharma – joined Archer and Zimmerman. The five supported a successful amendment for all students – including transgender – to be protected.

Morrison was left flummoxed and no doubt furious. The government was uncertain how votes would go if the legislation went immediately to the Senate. For hours on Thursday it mulled over its next step.

It was consulting stakeholders, according to Assistant Minister to the Attorney-General Amanda Stoker. And counting its numbers, obviously, in this hostile chamber. One of its senators, Andrew Bragg, would have crossed the floor. But in fact, non-government Senate leaders had already decided late Wednesday there wouldn’t be enough time to deal with the legislation on Thursday.

Meanwhile the Australian Christian Lobby declared the government should withdraw the package, saying: “Taking away protections for Christian schools is a price too high to pay for the passage of the Religious Discrimination Bill.”

After a few hours the government shelved the package, and lashed out. Attorney-General Michaelia Cash argued in a letter to her Labor counterpart, Mark Dreyfus, and crossbencher Rebekha Sharkie, who moved the successful amendment, that the change could in fact allow – rather than prohibit – discrimination in religious schools.

The government said this was based on advice from the government solicitor, although the letter did not reference the advice.

Sharkie was unimpressed, describing Cash’s letter as a “ruse”. “Let’s see what’s behind it,” she said, challenging Cash to table the legal advice.

Sharkie smells the same game as the government played years ago when the crossbench rolled it to pass the Medevac law to facilitate the transfer of offshore asylum seekers and refugees to Australia for treatment.

The consensus is the religious discrimination package won’t get through this term. There are only a couple of Senate sitting days left (in budget week), the government doesn’t have the numbers, and the political caravan will have moved on.

As for now, Morrison might argue he tried but was thwarted by Labor. But that can be countered with a question and a proposition.

The question is: “Why did you leave it so late?” The proposition is that, regardless of the legal argy-bargy, when you are promoting anti-discrimination it is difficult to complain you have been stymied by the House of Representatives insisting on removing discrimination against trans kids.

This botched bid to legislate against religious discrimination has been a textbook example of poor policymaking. And that’s leaving aside the problematic nature of the case for the policy in the first place.