Religious discrimination act would protect Australian freedoms

We now live in a society where tolerance is subjective. A religious discrimination act would guard us against threats to freedom.

Lessons about religious freedom from the days of Sir Thomas More have lost none of their relevance.

St Thomas More made a stand for religious freedom against unwarranted interference from the state. He believed that a church ruled by a king could never be true to itself because it would be a church ruled by the words of men and not the words of God.

What we can learn from the example of More is that inherent in the protection of religious freedom is the protection of all freedoms.

The world has changed greatly since More’s time, yet lessons that were relevant then are as relevant today. And the central lesson that has not changed is this: where religious freedom meets the state, we have got to get the balance right.

All Australians are free to choose their religion, and are entitled to express and practise their religion and their beliefs without intimidation and without interference, as long as those practices are within the framework of Australian law.

That said, when it comes to religious freedom in Australia there are two broad points to make. First, legal protection of religious freedom in Australia is limited.

As Liberal senator David Fawcett noted in his capacity as chairman of the parliamentary inquiry into the status of the human right to freedom of religion or belief: “While a culture of religious freedom has thrived, and the common law has respected religious freedom to a large extent, the legislative framework to ensure this continues is vulnerable.”

Second, Australia is a federation where the states and the commonwealth treat religious freedom differently.

Again, as Fawcett observed: “An imbalance between competing rights and the lack of an appropriate way to resolve conflicts is the greatest legal challenge to the right to freedom of religion. This is most apparent with the advent of non-discrimination laws, which do not allow for lawful differentiation of treatment by religious individuals and organisations.”

While religious exemptions within non-discrimination laws provide some protection, these place religious freedom in a vulnerable position with respect to the right to non-discrimination, and do not acknowledge the fundamental position that freedom of religion has in international human rights law.

All states and territories except NSW and South Australia have anti-discrimination legislation in place that prohibits discrimination on the ground of religious ­belief or activity. All states and territories should be encouraged to work together to agree on a uniform approach to ­enshrining religious freedom in law via anti-discrimination legislation.

At a commonwealth level, there is no explicit protection for religious freedom, although the Constitution provides a narrow protection. Religion also is not an explicitly protected ground under commonwealth anti-discrimination laws. However, religion is a protected ground under the prohibition on discrimination in employment under the Fair Work Act 2009.

The Age Discrimination Act 2004 and the Sex Discrimination Act 1984 also contain a general religious exemption.

Given the ad hoc nature in the way these laws have been legislated across time, I would argue that we need a codified response to this development and that Australia needs a religious discrimination act.

Such an act would have to be crafted with due consideration to other human rights while also seeking to do two things:

• Offer protection against discrimination on the grounds of ­religious belief or activity.

• Ensure nationally that legislation, such as the state-based sex discrimination acts, that limits the right to freedom of religion is no more restrictive than required.

The reality for Australians today is that there is another threat to religious freedom and it does not come from the application of various laws.

Rather, it comes from what former prime minister John Howard calls “minority fundamentalism”, which he describes as “the assumption that long-held custom, practices and beliefs represent or imply an attack on those who do not support (them)”.

The liberal political virtue of tolerance does not legislate for morality.

Instead, it separates law from morality and allows for freedom of conscience and actions, yet Australia has reached an unusual point where the tools of oppression — sowing the seeds of division, conquest, manipulation and cultural division — are being wielded by the minority against the majority.

We now live in a society where tolerance is subjective.

To put it another way, we have not realised Martin Luther King Jr’s dream of a society where you are judged by the content of your character, not the colour of your skin. Instead we have a woken up in a nightmare where the value of your contribution to a debate ­depends on what you claim to be a victim of.

When the forces of political correctness continually marginalise and dismiss contributions to debate informed by a reasonable religious belief, it sends a very clear message: you are not ­welcome here, your views are not welcome here and your religion is not welcome here.

During the same-sex marriage campaign last year, Coopers Brewery was subjected to a boycott of its products for the crime of sponsoring a debate between both sides of the argument, in which my colleagues Tim Wilson and Andrew Hastie agreed to disagree in a “civil and respectful way”.

One Sydney pub, the Union Hotel Newtown, led the boycott by posting the following on its Facebook page: “We’re huge fans of the beer, but nothing short of genuine public support from Coopers for marriage equality would get us back to pouring their good stuff.”

The Coopers family, long-time supporters of the Bible Society, weren’t promoting hatred or homo­phobia, they weren’t advocating for people to choose one side of the debate over another, they just wanted a peaceful and respectful discussion. And they were clearly religious.

More recently, rugby union star Israel Folau faced a similar ­attack after he posted his strong views on homosexuality and ­redemption. Folau, who is an active member of the Assemblies of God fellowship, said his belief was formed by his understanding of the Bible, specifically a passage in Corinthians.

Folau gave a nuanced explanation of his social media post, saying: “There are many sins outlined in that passage from 1 Corinthians and I have been guilty of committing some of them myself … if you sin, which we all do, and do not repent and seek forgiveness, you will not inherit the kingdom of God.”

His critics called it bullying and tried to have him sacked.

One of New Zealand’s former immigration ministers said he should be denied entry into the country.

Former player and journalist Peter FitzSimons was particularly vicious, describing people of faith as being “brainwashed” and questioning whether there was a place in the sport for Folau.

This is not to defend what Folau said or to argue that religion should be above criticism.

In a liberal democracy, people must have the freedom to air ­unpopular views, including those informed by their faith, and those views must be open to challenge.

My observation, however, is that there is more disrespect ­directed at people who share their faith publicly, and that is to the detriment of us all.

We are out of balance.

As Peter Kurti, an Anglican minister and head of the religious and civil society program for the Centre for Independent Studies, observed: “Tolerance is about putting up with things you don’t like.”

For people of faith, the centrality of religion to their character needs to be recognised.

The 2016 census revealed an interesting picture when it comes to Australians and religion.

Christianity remains the most common religion, practised by 52 per cent of the population; however, the proportion is decreasing.

The change is especially stark among young adults aged 18 to 34, 39 per cent of whom indicate “no religion” — more than three times the number who identify as Christian. If this trend continues, and there is no reason to believe it won’t, then one day Australians who are part of any religion will become a minority.

In preparation for that day, we need to consider how we will defend religious rights in this country from political correctness.

As I said earlier, a religious discrimination act is clearly the best way forward.

But, I would also argue, it is the responsibility of all Australians of faith, and those who respect people of faith, to take a stand.

Where it is needed, we must strongly defend our rights and responsibilities to take part in debates of national significance and to make contributions informed by our beliefs.

The Judeo-Christian faiths have been intrinsic to the development of Western civilisation.

To deny this faith-based perspective is to deny not only our history but also a perspective that has helped create societies with the most freedom, happiness, peace and prosperity in history.

We must defend a society that allows people the freedom to thoughtfully and peacefully honour their own faith.

As Christians taking part in public debate, we must be mindful of our faith and respectful of other people. If we ask for tolerance, we must be tolerant. It is possible to disagree with another person without recourse to abuse.

Citizens in a liberal democracy must enjoy equal standing before the law. When the free exercise of religious belief and practice is threatened in the name of ­equality, the roots of our commitment to equality under the law are threatened.

In conclusion, protecting religious freedoms does not discount the freedoms of other people. Rather, it enhances the tapestry of Australian society and ensures everyone is free to practise their views in an open and tolerant country.

Given the changing nature of the law in Australia, and including the flow towards increasing secularism, we need a religious discrimination act.

Dan Tehan is the federal Minister for Social Affairs. This is an edited version of his recent St Thomas More Forum Lecture, Lessons from St Thomas More and the Freedom of Religion in Australia Today.