Flat White

A religious freedom commissioner: not just worse than doing nothing, but the wrong thing

19 July 2019

5:00 AM

19 July 2019

5:00 AM

Attorney-General Christian Porter intends to put the proposed religious discrimination bill to Parliament in the near future. Unveiling the government’s long-awaited response to Philip Ruddock’s religious freedom review, Prime Minister Scott Morrison has promised a new ‘Freedom of Religion Commissioner’, despite Ruddock and his team recommending against such an office.

Speaking to Guardian Australia, Porter stated that such a ‘legislation would include a clause relating to indirect discrimination, mirrored on section 7b of the sex discrimination act’. The Attorney General believes that such a provision could prevent employers from putting in place a binding condition on all employees that restrict their expression of religious views.

The Sex Discrimination Act is invariably used against men. The Racial Discrimination Act is invariably used against white people. We can therefore only guess against whom the Religious Discrimination Act will be used for.

The problem is aggravated by the fact that the government intends to establish the position of religious freedom commissioner in the Australian Human Rights Commission. Writing for The Australian, Angela Shanahan believes that this is ‘about widening the power of the identity-obsessed elites trying to set up competing ideas of human rights, defined and policed by the growing power of extra-parliamentary instruments such as the Australian Human Rights Commission’. She believes such an idea is intrinsically anti-democratic and it can potentially further undermine human rights.

Shanahan cites the case in Tasmania of Catholic Archbishop Julian Porteous, who was brought to a similar commission simply because he authorised the distribution of a very mild booklet that expresses the church’s respect for the dignity of homosexuals, while at the same time promoting the goodness of traditional marriage and why children are adversely affected if they miss out on a mother and father. According to her, that case in Tasmania demonstrates that such commissions are certainly not used to necessarily protect “real” human rights. ‘These commissions have been used to actually narrow our rights’, she says.

Some Christian individuals and organisations put submissions into the Ruddock Review calling for the establishment of a religious freedom commissioner. And yet, this could completely backfire and I would go so far as to state that such an idea is extremely dangerous. These organisations naively believe that the answer to the problems created by discrimination laws is to ask for more such laws. And then they trust the government, which has shown no interest to protect free speech and freedom of association, to protect these rights of Christians to discriminate against others on the grounds of religious convictions.

In recent years this country has experienced a dramatic restriction of freedom of speech, most often in the name of encouraging “tolerance” and “responsible” public debate. If a 2012 bill introduced by the then Labor government had been passed, the scope of discrimination laws would be considerably expanded. As a result, greater restrictions on free speech would be imposed at the same time that procedural burdens on respondents seeking to defend themselves would be decreased.

The scheme outlined was so draconian that it even reversed the onus of the proof. The burden of proof would rest with those who had been charged rather than staying with those who felt offended or humiliated by any particular statement. According to Simon Breheny, ‘[t]hat such a dangerous and draconian legislation could even have been contemplated in a free and democratic country such as Australia is alarming … No less alarming is that the bill was enthusiastically supported by the Australian Human Rights Commission’.

This is the same organisation that the government is just about to confer further powers in order to define matters of religion and religious discrimination. I can easily predict that it is only a matter of time before some unorthodox Church leader is appointed as the religious freedom commissioner in this Commission.

Based on her deeply creative and personal understanding of the Christian faith, she would be most tempted to make an authoritative decision that statements such as “marriage is between a man and a woman” are not protected under religious freedom laws because such a statement is no longer universally held by Christian denominations.

Muslims, of course, would be legally protected in their rights to discriminate against homosexuals, because they are a so-called “discriminated minority” and such a statement is in full conformity with Islamic doctrine.

Then the ‘exemptions’ for Christians would be removed by further legislation. And then the federal courts would follow precedent of the Racial Discrimination Act and find that statements against Christians do not constitute vilification because Christianity is arguably not a minority religion in Australia.

And then all that would be left is a law that protects a few minorities chosen by the identity-possessed political and intellectual elites to be the recipients of special legal privileges, but not the majority Christian population.

Michael Stead, Anglican Bishop of South Sydney, reminds that the issue has been falsely construed by the government as a right of religious people and organisations to discriminate on the basis of religious values and convictions. In other words, such a debate is being inaccurately construed as a religious “right to be a bigot”.

However, as Bishop Stead correctly points out, Christians don’t want the right to discriminate against anybody. The right that they want is the right to manifest their belief in public ‘and for that not to be caught up in anti-discrimination law’. He is quite correct to comment that the Morrison government should ‘move the debate away from discrimination’.

Unfortunately this is exactly the opposite of what the government intends to do. Rather than expanding the scope of unelected bodies and creating more discrimination laws, this government should enact legislation that would give effect to Australia’s international obligations to protect religious freedom and in the context of other fundamental rights of the individual, including free speech, freedom of association, freedom of conscience, and the right to peaceful assembly.

In this sense, handing over the definition of religion to the Human Rights Commission is a terrible idea that risks further undermining our individual rights and freedoms. Wanting to be seen to do something, this government is just about to hand over a vast array of powers to a controversial body of unelected lawyers that have an appalling record of disregard for freedom of speech.

Although it is broadly accepted that religious freedom is increasingly vulnerable in Australia, I have quite serious doubts about the desirability of more discrimination law that further impinges on freedom of speech. Of course, we must be able to exercise the democratic right to freely talk about religion and to criticise any religion whatsoever. And yet, this is not exactly what the Morrison government is considering to do, and quite to the contrary.

Worse than doing nothing is to actually end up doing the wrong thing.

Dr Augusto Zimmermann is Professor and Head of Law at Sheridan College, Perth/WA. He is also adjunct law professor at The University of Notre Dame Australia (Sydney campus) and President of the Western Australian Legal Theory Association (WALTA).

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