Discrimination bill on the right path

The Australian government’s religious discrimination bill is restrained, middle of the road and steady as she goes. Like the Coalition budget, it is pitched at middle Australia, where radicals fear to tread. There is no positive right for religious freedom, no special protection for the faithful. They will be given the same rights as everyone. There is little deviation from international law. There is no sharp turn to the right and no appeasing the hard left. This is a bill for the ’burbs where people want to think and speak freely, worship God or not, and get on with life without extremists imposing their ideology.

The Coalition has come under fire for presenting a bill that neither codifies religious freedom as a positive right nor shields state-designated minority groups from free speech. Some religious groups fear the bill is too weak to protect the faithful from activists who have used taxpayer-funded organisations, violent protests, and boycott and divestment campaigns to stop people expressing their faith in public. There are further concerns that state anti-discrimination laws could prevent the enjoyment of the religious activities outlined in the bill.

Catholic Archbishop of Hobart Julian Porteous has welcomed the bill because it raises the threshold for complaints against religious expression. Porteous was brought before Tasmania’s Anti-Discrimination Commissioner after Greens candidate Martine Delaney objected to a booklet supporting traditional marriage. However, there is concern that the free speech provision is weakened by a lack of definition. A statement is not protected if it “would, or is likely to … vilify … a person or group of persons”. There is no definition of vilify. Who is equipped to judge whether a statement might be “likely to” vilify? It either does or does not.

Other concerns about the bill include the implied right for a court to decide on matters of religious doctrine. In its submission to the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill, the Wilberforce Foundation explained the problems raised by the requirement that the refusal to solemnise a same-sex marriage, for example, were in conformity with religious doctrine. In short, courts are not well equipped to make such judgments. As lawyer and University of Notre Dame academic Mark Fowler explained in The Weekend Australian, such provisions could risk the separation of church and state.

The most problematic part of the bill is a provision that could allow employers to restrict or prevent employees from making a statement of religious belief outside work hours if it creates “unjustifiable financial hardship” for the employer. It’s a Big Brother clause putting workers in the untenable position of having to watch what they say as private citizens for fear their employers are listening. It could render workers vulnerable to boycott and divestment campaigns organised to make businesses toe the politically correct line on sex, gender and sexuality. It could give rise to an illiberal culture where workers of faith are subject to pressure from sponsors and employers on one side and radical activists on the other. It represents a significant departure from the Coalition’s pitch to middle Australia and its election promise to defend religious freedom.

These are not academic matters. There is a documented history of activists using boycotts, violence and social media bullying to silence and destroy the reputations of people who dissent from the PC line, especially on queer politics. For example, church leaders were prevented from meeting at the Mercure Hotel in Sydney after queer activists threatened staff. The Australian Christian Lobby office was attacked by a man who objected to its “position on sexuality”. Activists called for a boycott of Coopers because they objected to a video featuring Liberal MPs discussing different views on same-sex marriage while having a beer. A young woman was fired after her employer saw her social media post supporting traditional marriage. Israel Folau lost his job after paraphrasing biblical scripture online. As I wrote at the time, the most absurd claim in the ongoing saga is the belief that sharing an excerpt from the world’s bestselling book — the Bible — constitutes discrimination.

Much of the government’s draft bill goes towards preventing a future where lawfare, violence, slander and intimidation are used to bully religious believers into silence.

Much of it is uncontentious because it mirrors existing discrimination laws and brings Australia into line with international approaches to the protection of basic religious freedoms. But the government’s attempt to ensure people of faith enjoy equality under law has been met with anger.

Last week, Guardian Australia published a piece on the bill by Neha Madhok, who wants to “decolonise LGBT advocacy in Australia”. Madhok says “far right commentators” are “banking on using people of colour as a wedge, pitting the right to practise our religions and cultures against our LGBTQ identities”.

But the conflict between religion and queer ideology does not stem from the Western right. The (not very white or far right) Australian National Imams Council clarified its position: “From the Islamic standpoint, homosexuality is a forbidden action; a major sin and anyone who partakes in it is considered a disobedient servant to Allah that will acquire his displeasure and disapproval.”

Freedom of religion, properly conceived, is the freedom to exercise religion in society. In a liberal democratic society, it is restrained by the principle of no physical harm. The Constitution sets some limits on state interference in the free exercise of religion but fails to provide protections needed in the 21st century, when persecution of the religious faithful is becoming more violent and extreme.

The ultimate end of any discrimination bill should be formal equality and the flourishing of a culture where fairness, merit and hard work are rewarded justly. The government needs to clarify its terms and avoid unintended consequences, but it is on the right track.