Downside of religious freedom is sects have same rights as mainstream

Death sects will have the same rights as mainstream religion under the religious freedom laws.

The discomfiture of modern politics dealing with laws surrounding religion is there for all to see.

On the ABC’s 7.30 program last night, Attorney-General Christian Porter provided succinct responses to questions put by Leigh Sales on the so-called hot issues surrounding the release of the religious freedom bill.

What might happen in the case of Israel Folau and Rugby Australia was unclear but probably under what is proposed, Rugby Australia could mount an argument for financial loss.

The old chestnut of the baker refusing to provide a wedding cake to a same sex couple was not subject to the proposed laws, Mr Porter said. If the baker was a priest or an imam, he might get away with it but if he was a mere baker, he was required to cream the butter and sugar and do some serious fondant modelling.

We are talking about a bill which is a work in progress but progress has to be made because the government has got itself in a situation from which there is now no chance of doing nothing.

MORE: Churches mount revolt | Folau saga hurt rugby — AG

What interested me was that Mr Porter referred to case law in Australia which defines religion. It is worth considering what the Attorney-General was referring to.

His remark presumably relates to a High Court challenge made by Scientology (called then The Church of the New Faith) appealing a ruling where the full bench of the Victorian Supreme Court had found it was a bogus religion.

The judgment was handed down in 1983, on the heels of a long dispute between the cult and the Victorian government over non-payment of state payroll taxes.

In the same year, however, the High Court found that Scientology was a religion not because it said so or had adopted practices in an attempt to create an aura of spirituality but because its adherents believed it was.

In effect the judgment was a judicial expression of: “Look, this is not really an area judges should be dabbling in.”

And in that respect, it was a particularly wise one. Not so much in regard to Scientology but if the High Court endorsed the judgment of Victoria’s highest court, we would have seen the creation of a legal checklist for the definition of all religions and faith-based groups.

It’s an intriguing judgment which included this acknowledgment from Justices Anthony Mason and Gerard Brennan:

“Charlatanism is a necessary price of religious freedom, and if a self-proclaimed teacher persuades others to believe in a religion which he propounds, lack of sincerity or integrity on his part is not incompatible with the religious character of the beliefs, practices and observances accepted by his followers.”

The downside is the judgment has given aid and comfort to cults, sects and other damaging groups in Australia who operate under the guise of religion. These groups are not above the law, but the High Court judgment determines that if their followers believe they are part of a religion then it is one and thus qualifies for all the tax-free goodies. Not just that but as a religious organisation its finances are not public nor can be subject to independent audit.

It is one of the reasons Australia has literally hundreds of cults running around, largely unseen. Scientology continues hawking its bizarre view of the world and calls itself a church in Australia.

And now those groups will be subject to the provisions of the federal government’s proposed religious freedom laws, along with mainstream religions.

At the end of the day, legislators need to also consider faith-based beliefs in their most extreme forms. Fundamentalist expressions of mainstream faiths, evangelicals who advance Old Testament literalism, even death cults will be subject to these new laws.

There is a terrible intolerance of religion from certain sectors of the Australian community, driven by hard core atheist statists who ironically, behave in much the same way as fundamentalist religious groups. Christianity is the target while other religions get a pass.

Legislating to prevent discrimination is one thing, but laws designed to remove intolerance can never succeed and are likely to create not just a lawyers' picnic but a smorgasbord the like of which we haven’t seen since The Swagman closed its doors.

Religious groups already enjoy benefits in industrial laws. Being a gay teacher in a religious school or even a teacher who is in a de facto heterosexual relationship may be enough to see the teacher sent packing with no prospect of legal redress. Again, in most religious schools this is rarely exercised but the same loopholes apply in Islamic schools or schools run by the Exclusive Brethren.

The business of legislating religious freedom is vexed. New laws will never be perfect. Even in its most well-intentioned form, what hits the floor of the parliament in the months ahead can only offer slightly less bad outcomes than what prevails today.

In the discussion phase, religious groups will fight tooth and nail with secularists. Mainstream religions appear unwilling to compromise and want harsher provisions to anti-discrimination laws. Oddly, many of those who want 18c gone are now opting for a facsimile albeit on religious grounds. A genuine conservative would look at the issue and oppose government intrusion.

Politically, it is a profound risk for any government to undertake. There is no pleasing everyone in politics, but vested interests have muscle and can move great swathes of votes one way or another. The government treads a fine line, unable now to not do nothing but having to do something and has come up with laws that have a light touch.

The government has talked itself into this problem. Christian Porter’s bill is not a bad offering but it has opened a can of worms and the government will be hard pressed to put the lid back on.