Caleb Bond: The Bill is a threat to freedom and should never be spoken of again

The discrimination bill is already an unmitigated disaster for the government. Don’t make it a disaster for society and the courts as well, writes Caleb Bond.

The poorly executed Religious Discrimination Bill has been taken off the agenda for the time being – but it ought to be shelved forever.

This piece of legislation is unnecessary and has been an unmitigated disaster.

The biggest problem with enshrining a person’s rights in law is that those “rights” inevitably impinge upon someone else’s rights.

That is exactly where the federal government has found itself, having to come up with other law changes to make sure some people’s religious rights don’t trump other people’s gender and sexuality rights.

So some rights are apparently more important than others. And herein lies the problem – making a “right” a legal concept usually results in it being more restricted rather than more free.

We have legal protection against discrimination for obviously provable things such as one’s sexuality, gender or race. That is an essential part of a civil society because its objective is to make everyone equal rather than highlight difference.

But it’s a little murkier when it comes to religion.

Why should someone’s religious right, which is fundamentally based on a belief, come before the rights of those who are in a physical state of being that goes against that religion?

Prime Minister Scott Morrison during Question Time in the House of Representatives. Picture: NCA Newswire/Gary Ramage

You can be gay or you can be transgender or whatever else. They are facts. The idea that someone’s thoughts and beliefs – not facts – would allow them to actively discriminate against other people should be a concern to any civil society.

This Religious Discrimination Bill essentially aims to elevate belief to the same level of importance and protection as people’s actual physical and mental attributes.

The Australian Human Rights Commission succinctly highlighted this issue two years ago.

“The provision for ‘statements of belief’ would undermine the principle, recognised by the bill itself, that human rights are universal and indivisible,” commissioner Edward Santow said.

“An exemption for discriminatory statements of belief sets a dangerous precedent.”

And once you have done that for religion, there is really no argument against extending it to all forms of belief.

Should an employer be able to refuse to employ left-handed people because he believes they communicate with aliens on Jupiter who want to seize his business?

It sounds ridiculous but that may well be someone’s genuinely held belief.

Why should the law consider that man’s belief any more or less legitimate than those derived from a religion?

Which is the next place that this bill falls down. Should a person or organisation feel aggrieved by the way they have been treated, they will have to challenge it in court or through an organisation such as the Fair Work Commission.

This would effectively put our courts and tribunals in the position of having to decide what is or isn’t a legitimate religion which is, itself, a major threat to religious freedom.

No court or commissioner in this country should be able to tell someone that their religion is illegitimate.

It opens up the possibility that a court could rule an employer was not able to invoke religious freedom to sack a gay employee because his religion, whatever that may be, only had 10 known followers.

Conversely, it could mean that 10 people could band together to create a religion and then use that as they see fit to discriminate against their staff.

The Buddhist Council of NSW, in its submission to a parliamentary joint committee last year, warned that the bill could result in worse discrimination against minority religions such as theirs.

“Religious exceptions should be limited, not create a positive right to discriminate,” they wrote.

Former Australian professional rugby league player Israel Folau and wife Maria Folau leave the Federal Circuit Court in Melbourne. Picture: David Crosling

This is what happens when you start legislating some people’s rights above others.

In an earlier version of the bill there was a statement of belief clause, also known as the “Israel Folau clause” after he was sacked by Rugby Australia for expressing his religious beliefs online, that would have protected employees from termination on the basis of genuinely held beliefs.

So you could have found a job in a Christian organisation and a few months later begun publicly denouncing the religion because you were a Muslim fundamentalist – and your employer wouldn’t be able to do a thing about it, even though you clearly didn’t believe in the ethos of the religion for which you were working, because you genuinely believed it.

Again – how is this actually good for religious freedom?

There is no doubt that people should not be discriminated against on the basis of their religion in the same way that people should not be discriminated against because they are homosexual or black.

One’s religion should not preclude them from employment or entry to a bar.

But it absolutely should not – as this bill seeks to do – allow them to wield the exact same sort of discrimination against others.

The Australian Human Rights Commission Act already recognises “distinction, exclusion or preference” on the basis of religion as discrimination.

Freedom of religion is already guaranteed by the Australian Constitution. The commonwealth is not able to create laws that create, enforce or prohibit any religion – ensuring Australia is a secular country where its citizens can practise whatever religion they wish without fear.

The bill was born out of a review into religious freedom that was commissioned by Malcolm Turnbull as part of his wheeling and dealing to get a same-sex marriage plebiscite over the line.

It has simply opened a can of worms that has done more harm than good – to those religious or otherwise.

It is a bigger threat to freedom than it is a remedy and should never be spoken of again.