DAVID SOLOMON. Religious freedom.

Just 10 days after the Sydney Morning Herald/Age revealed at the end of last month that the major religious groups had rejected the draft Religious Discrimination Act circulated for public comment by the Morrison Government, the Prime Minister made public a new draft, that will go a long way towards meeting their demands. Its purpose and content would be better understood if its title were the Religious Protection and Licence to Discriminate Bill

 The religious groups, including representatives of the Roman Catholic, Anglican, Greek Orthodox, Muslim and Jewish faiths, warned in their letter to the government ‘We take the view that it would be better to have no Religious Discrimination Act rather than a flawed one.’ There will be many people who will take the view that it would be much better to have no Act than have the Bill that will now give to the religious groups virtually every right to discriminate against people who do not adhere to their particular faith, that they have demanded. 

The first question that needs to be addressed is whether any such legislation is necessary. The Commonwealth has prospered without it for 119 years, under the umbrella of section 116 of the Constitution, which provides: 

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.

 That has been interpreted by the High Court in such a way as to permit ‘State aid’ – allowing the Commonwealth to provide (in particular) financial assistance to catholic schools. The High Court in the Scientology case interpreted ‘religion’ in very broad terms. 

An (unsuccessful) attempt to change the Constitution in 1988 to bring all the States under the restrictions this section imposes on the Commonwealth was opposed by the Catholic bishops, partly because they feared that State aid might again be challenged. They also feared any changes might open the way for unnecessary litigation. They declared ‘

There is no widespread discontent among ordinary Australians with the present religious freedoms that exist. 

That would be equally true today. Even if you substitute ‘quiet’ for ‘ordinary’ Australians. 

What brought on the Morrison Government’s determination to give legislative protection to religion (including in the States) was the political battle over same sex marriage. Gay marriage offended the religious beliefs of some people, including Morrison and many of the minority muppets and zealots in the Liberal Party who opposed the same sex marriage plebiscite, and then the vote to give effect to the legislation to implement the strong mandate for change that it provided – though some, like Morrison, merely abstained from that vote, notwithstanding the views of the people in their own electorates. 

The religious discrimination legislation is a pay-off to those on the losing side of the same-sex marriage conflict. Why on earth the losers must be rewarded has not been explained. 

During the battle over the plebiscite, we were constantly warned that if it went through cake makers and florists would be forced to produce supply their goods to help celebrate marriages to which they held a conscientious objection. But this proposed law will still leave them without a remedy. Sorry about that, the government can’t help you. 

Instead the government is going to bring in legislation that will allow religious bodies (very broadly defined to include schools, charities, hospitals, aged-care homes and other entities affiliated with any organised religion) to discriminate in employment or catering for people who do not share their particular religious beliefs. Some such discrimination is already permitted under various laws. 

The proposed bill has two major parts. The first is relatively uncontroversial. It would protect against discrimination on grounds of religious belief or activity, briefly defined as holding or not holding a religious belief, or engaging, not engaging or refusing to engage in lawful religious activity.  Religious belief is not defined but (taking up what has been said in the High Court) is intended to include beliefs associated not only with the major faiths but also ‘the beliefs of smaller and emerging faith traditions and Indigenous spirituality’ – as the explanatory memorandum puts it. 

The second part of the bill covers conduct which is not protected against discrimination. This is the crucial area which details the way in which religious bodies will be able to discriminate on grounds of their particular religious beliefs (though not if this involves sex discrimination). 

Additionally doctors, pharmacists nurses and related professionals will be able to refuse to provide particular treatments (but not to discriminate as to who they treat) where to do so would offend their religious beliefs. So, for example, a doctor could refuse to prescribe to anyone, and a pharmacist similarly refuse to supply, contraceptive aids. 

The draft legislation implements some, but not all, of the recommendations of the religious freedom review panel, headed by Philip Ruddock, established by the Turnbull government. But in establishing the position of Freedom of Religion Commissioner in the Human Rights Commission, it specifically rejects one of that panel’s firm recommendations. 

This would be the fifth in the series of Commonwealth anti-discrimination Acts that began with the Racial Discrimination Act in 1975. (The others cover age, disability and sex.) All owe their constitutional validity primarily to the Commonwealth’s external affairs power and make laws to give effect to international treaties including the International Covenant on Civil and Political Rights. 

It is unlike the others in devoting most of its provisions not to what is prohibited, but to what is permitted. Its not so much about freedom from discrimination, as freedom to discriminate. 

It comes at a time when Queensland has joined Victoria and the ACT in enacting human rights legislation (though of a very modest kind). What a shame that the Commonwealth has not devoted its efforts to legislating for human rights generally – including a more urgent need, the right to free speech. 

David Solomon is a former political and legal journalist.

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8 Responses to DAVID SOLOMON. Religious freedom.

  1. Jerry Roberts says:

    Peter, can you imagine what the lawyers will do with legislation in such a complex area? Meanwhile the patient dies. Let us hope the nurses, doctors and paramedics are more sensible than the politicians and priests.

  2. Peter Johnstone says:

    I can possibly accept that a person should not be required by law to provide a service where their religion condemns the intrinsic nature of the otherwise legal service (the service not the consumer). However if that person belongs to a profession where consumers reasonably expect to receive such services, e.g. contraception, surely the professional has an obligation to advertise that they will not provide the service by say a notice in the doctor’s surgery or a sign in the pharmacy? The religious importance of the issue to the professional would no doubt be tested by the reaction of the marketplace.
    On the other hand, a religious person constrained in their employment by their religious beliefs should not expect to be employed by say a doctor’s practice or a pharmacy not prepared to limit legal services to their customers.

  3. Graham English says:

    Several large hospitals in Sydney that are conducted by religions, Catholic and Seventh Day Adventist for example would have trouble surviving if they did not employ people who did not share their faith or some of their moral stances. I spent all my career in Catholic education and know that most people in authority there are quite pragmatic. They try to employ the best staff they can find and in the case of subjects difficult to find teachers for, maths and science for example they are more pragmatic than usual. I suspect that those Catholics who think this bill is a great idea are conservative culture warriors. The rest are just going about their lives as they see fit.

  4. Felix MacNeill says:

    It would appear we have a government that, following their demonstrated inability to fix things that actually ARE broken, such as the climate energency, has decided to turn to what it does best and fix things that aren’t broken at all.
    Perhaps “doing things that don’t need doing” is a form of “doing nothing” – which would certainly fit within their proven sphere of expertise.

    • Richard Ure says:

      So why are they going to the barricades and using up political capital to support laws they would not want to rely upon? Surely there isn’t a secret agenda to make life hard for the PM?

  5. Jim KABLE says:

    I have referred elsewhere to being raised in a fundamentalist Protestant sect – of some weirdness it has to be said – when measured against the more mainstream of then other Christian faiths. (There was then little reference to Muslims or Buddhists, Jains, Sikhs – or even those of Jewish background (except of some sympathy re the Nazi era/the extermination/Holocaust – we had survivor friends with tattoos on inner left arms – ugh)!) As weird and as IN the World but not OF the World – being Separate FROM the World as was my then adherence – I can quite frankly state that there was NO instance when I felt disrespected in any way. Occasionally our preachers drew our attention to Sabbath observance being difficult for some people – though I think God was usually blessed for his guidance and happy outcomes – and I know I avoided instances during my school days where I might have found myself in similarly difficult circumstance – i.e. for sport and competition meets on Saturdays or debating competitions – often held on Friday evenings. But no – no reason for legislation even all those years ago (I am 70) to “protect” me and that faith (now long since abandoned, I hasten to say)! This truly is legislation designed to permit bigotry to flourish – and to protect the vested-interest money-making concerns of some of the more powerful and some of the more secretive of loosely-defined faith-based services (and thanks – John “Dubya” HOWARD – the wedger-supremo of the past)!

  6. Jerry Roberts says:

    This is a good and fair outline of the story, thanks David. In my reading of Section 116 the draft bill is unconstitutional. If Labor is weak and the legislation gets through there should be a legal challenge. The speed of the turn-around in re-drafting is unprecedented in my memory. This is not about religion. It is about politics. The Government is trying to break Labor away from solidarity with the LGBQIT community and chase redneck religious votes. I am advising Labor to maintain solidarity. The rednecks will vote Liberal anyway. It is another chapter in the dumbed-down race to the bottom that is the story of our times, always heading to the Right.

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