James Campbell: Dan Tehan’s move on rights and religion
FRESH from their defeat over gay marriage, the conservative forces ascendant in the Liberal Party have moved on to campaigning for a religious discrimination act, writes James Campbell.
James Campbell
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FRESH from their defeat over gay marriage, the conservative forces ascendant in the Liberal Party have moved on to campaigning for a religious discrimination act.
What exactly such a law might contain depends on who you are talking to of course.
In the wake of the gay marriage defeat, Malcolm Turnbull tasked former attorney-general Philip Ruddock and a panel of experts with examining whether Australian law adequately protects the human right to freedom of religion.
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Their report has been in the Prime Minister’s hands now for almost two months and we have learned from media reports it is going to be a disappointment for Australia’s religious Right.
That’s because while it apparently recommends strengthening federal anti-discrimination laws that presently do not protect the right to religious freedom, it stops short of changes to the law that would allow religion to be used as a justification for discrimination against others.
Despite the trumpeting in the past few days from the Australian Christian lobby and others that Social Services Minister Dan Tehan is on their side, his recent speech on the subject offers them slim pickings.
Australia is almost alone among English-speaking nations in our lack of legal protections for the practice of religion.
The United States constitution says Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” which its Supreme Court has ruled applies equally to its states.
The Canadian Charter of Rights and Freedoms says everyone has “freedom of conscience and religion”.
The UK’s Human Rights Act declares “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”.
Even New Zealand has a bill of rights, which decrees that “every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private”.
In contrast, our Constitution merely says 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”.
According to the submission to the Ruddock review from UNSW academic George Williams, this was no accident as the Constitution “was not drafted with the object of protecting religious freedom, but to prevent the Commonwealth passing laws in this area so as to leave the field open to the States”.
Whether you think this is a shortcoming or a strength, depends I suppose, on your attitude to religion. For my own part I think it is a strength.
That it ought always and everywhere be beyond the power of the state to regulate, or even prohibit particular religions, strikes me as a dangerous idea that we, in what we used to call the West, are going to end up regretting for reasons that should be obvious.
But then, having been raised in the Church of England — a church in that country “by law established” — you would I suppose expect me to think that.
Catholics see things differently of course, even “far from perfect” ones like Tehan, as the ambitious minister makes clear in his lecture last month dedicated to the memory of Sir Thomas More, beheaded in 1535 for his treason in refusing to acknowledge Henry VIII as the head of the church in England.
According to Tehan, More was a man who had “made a stand for religious freedom against the unwarranted interference of the state”, a position that would have come as a surprise to the generations raised on Foxe’s Book of Martyrs, which catalogues the sufferings of Protestants under the reign of Henry VIII, whose Lord Chancellor was Thomas More.
Leaving that eccentricity aside, Tehan’s speech is entirely reasonable.
He calls for an anti-discrimination law for religion but stops short of calling for one that would allow the religious baker to refuse to bake a wedding cake for a same-sex couple or a hotelier the right to refuse to give a room to an unmarried couple — straight or gay.
He also acknowledges and regrets the intolerance the modern secular world shows to the expression of a religious position but there’s not really much the government can do about that — unless it was to pass some sort of law outlawing boycotts, for which Tehan does not argue.
Touching on the vexed matter of whether or not the seal of the confessional ought to be inviolable, as the Catholic Church believes, Tehan is careful to walk between the raindrops.
He acknowledges the deeply held views on the matter and notes Father Frank Brennan’s observations that removing the protection of the confessional would make it less likely that
a child sex abuser would confess, but doesn’t actually say what he thinks about the matter.
Walking between the factional raindrops in the Victorian division of the Liberal Party is something of a Tehan speciality.
He has managed to make it to the Cabinet without offending anyone.
In this speech he has sounded sympathetic to the religious Right without offering them anything.
James Campbell is national politics editor
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