DAVID SOLOMON. Religious freedom.

Dec 20, 2019

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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