Following last week’s cabinet meeting, the Attorney-General said there would be finetuning to the government’s bill to bolster religious freedom before it goes to the Coalition partyroom on September 10. That gives MPs time to dust off some works by John Locke or Thomas Jefferson on the nature of rights.
The demand by a handful of conservatives for something akin to a charter of religious rights is both myopic and misplaced. If they get their way, they will be cheered by every left-wing legal academic who has been pushing for a broad-ranging charter of rights for two decades. That alone should stop these misguided conservatives in their tracks.
In case it doesn’t, here are other reasons they are wrong. There is no quick fix to bolstering religious freedom in this country. It is a long game, not for the impatient, the imprudent or the faint-hearted. Religious freedom in Australia has been curtailed by myriad laws, introduced over decades by legislators who had little interest in protecting religious freedom and did not value free speech either.
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For a half-century, there has been an unsuitably named “progressive” project to treat certain groups of people, distinguished by sex, race and sexuality, and a long list of other legislated characteristics, as victims in need of protection from speech deemed offensive.
The resulting laws are regressive, up-ending what has been called a “delicate ecosystem of liberties” where freedom of conscience and freedom of religion cannot exist without the right to speak freely.
None of this will be fixed by a single new law giving religious freedom to Australians. Religious freedom can be fully restored only by going to the source of what has taken away our liberty.
And the sources are many.
They include a raft of state anti-discrimination laws that prohibit speech that “offends, humiliates, intimidates, insults or ridicules” a person on the basis of a listed attribute. While these provisions are not always direct curbs on religious freedom, that is their effect when laws limit what we can say.
When Catholic Archbishop of Hobart Julian Porteous distributed a pamphlet setting out Catholic teaching on marriage, Tasmania’s Anti-Discrimination Commissioner decided he had a case to answer under the state’s anti-discrimination laws. And that remains the state of play; the woman complainant dropped the case before it was determined.
The Attorney-General’s plan to address the Porteous problem will be a major win for religious freedom in this country. But it will not, and should not, be done by passing a religious bill of rights.
The Australian understands Christian Porter has in mind a new federal provision making it unlawful to drag someone to an anti-discrimination tribunal for expressing a religious belief.
That would be an important start to unwinding the morass of anti-discrimination laws stifling freedom of expression and religious freedom.
The Australian also has been told that Porter wants laws to address the legal saga entangling Israel Folau. That could be done by providing a new act, separate to provisions in the Fair Work Act the rugby player is relying on in his stoush with Rugby Australia. These provisions could prohibit sections of a workplace code of conduct that have a disproportionate effect on a particular employee because of their religious beliefs.
These reforms, and others planned, could give the ambitious Attorney-General the chance to prove his leadership, by meshing political nous with sound legal judgment.
Politically, Porter has framed the proposed reforms as part of a new but entirely orthodox anti-discrimination law to protect people of faith. That will satisfy voters that the Morrison government is keeping its election promise.
But legally, Porter must know the last thing we need is another layer of anti-discrimination laws. It would add insult to the injury of identity politics to add another anti-discrimination law, creating another category of victim — the person of faith — requiring special protection. Given that there is no prospect of the states and territories repealing their various anti-discrimination laws, Porter will prove that he understands the hindrances to the exercise of faith if he punches sizable holes in today’s anti-discrimination laws — in other words, legislating a series of carefully targeted exemptions to present laws to bolster religious freedom, rather than cementing into society another new layer of anti-discrimination laws.
If that is his plan, keep punching, Attorney-General. And don’t lose sleep over earlier assurances that new federal laws will not override state laws.
That is a passing scuffle compared with the long game that Porter can lay claim to: the first federal attorney-general to start a long-term liberty project to unwind, with a series of tactical and targeted exemptions, anti-discrimination laws that have multiplied since the 1970s.
By contrast, the demand by some conservatives that the Morrison government legislate a religious bill of rights is wrong on so many levels. It is a concession of defeat, an admission by them that they will no longer argue from first principles.
And that first principle — that our fundamental rights are inalienable to us as human beings — is a dangerous one to throw out in the rush to find a quick fix.
This country has fought tyranny when tyrants stripped people of their inalienable rights: Hitler, communism, Saddam Hussein, Islamic State. It is not up to governments, no matter how benevolent, to give fundamental rights to people. The essence of liberty is that elected government makes the case to voters why our inalienable rights should be curbed.
Test it this way. Consider how each scenario looks in another 50 years. In the first scenario, various Australian governments (even Labor governments after the party was punished by voters back in 2019 for ignoring people of faith) have worked assiduously to return fundamental rights to Australians by dismantling, section by section, laws that unreasonably limit religious freedom and freedom of expression. Legislators understood that their project to restore liberty would take time, just as the previous project by “progressives” took decades to distort our liberties.
In the alternative scenario, the Morrison government legislated a religious charter of rights. And when it comes to power, the next Labor government passes a wide-ranging charter of rights converting all kinds of claims into rights. Crackpot cases clog up the Human Rights Commission, like the transgender woman complaining after a beautician refuses to wax her testicles. Turns out there is no human right to a sac wax. But still, we kick ourselves for not learning, all those years ago, from Canada’s mistakes.
Within 20 years, there is a transfer of power from parliament (meaning we, the people) to judges who determine the limits of our fundamental rights.
If the plan is to punch holes in existing laws, Porter’s liberty restoration project is the best chance of returning lasting freedoms to Australians. And perhaps the misguided conservatives are merely positioning themselves, asking for much more, but happy if a few minor tweaks go their way.
If, on the other hand, they are serious about demanding a religious freedom act, then, as one Liberal MP told The Australian this week, “they really have lost their marbles”.
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