The danger of the Australian government’s new religious discrimination bill is that in adding more laws on top of bad laws, Australians of faith could find it is a cure that is worse than the disease.
New laws introduced into the federal parliament by the Morrison government on Thursday have been branded an attempt to secure the freedoms of Christians and other religious Australians. But it is doubtful that the legislation can do as claimed.
Presently the freedoms of religious Australians are under siege from the weaponisation of anti-vilification and anti-discrimination laws, which make it unlawful to say or do something a human rights bureaucrat considers hateful of another person.
To the credit of the federal government, its Religious Discrimination Bill does attempt to add a layer of protection to other anti-discrimination laws, but the protections it offers may be too narrow and vague to be effective.
Dealing with onerous anti-vilification legislation is important. For instance, a religious individual or body which publicly voices traditional beliefs about marriage or sexuality is too often under the threat of being sued by others who regard their words as offensive.
Many have simply allowed themselves to be pushed out of the public square altogether.
But the attempt in the bill to override anti-vilification legislation by creating exemptions for religious expressions still won’t apply to speech which “incites hatred.”
This notoriously ambiguous concept creates an opening for bureaucrats and courts to tie up supposedly legitimate speech in legal limbo.
For example, saying “marriage is between a man and a woman” is something that many religious Australians believe, but saying so could be considered “hateful” by some in the community.
Important too is the ability for religious bodies, such as faith-based schools and hospitals, to conduct themselves in a way that is consistent with the values of their religion.
The protections for these bodies in the bill are again drafted narrowly and depend on the courts to make a determination about whether conduct is undertaken in good faith and accords with the “doctrines, tenets, beliefs, or teachings of that religion.”
Writing faith-based rights into legislation is an inherently difficult task. However, by making it the government’s business to define what is or is not a genuine religious belief and make decisions about what counts as a legitimate religion and what does not, the separation of church and state slides further away.
In so doing, Australians of faith may find that the new protections offered do more harm than good in the long run.
This is especially true when the new anti-discrimination provisions are considered. A prohibition on treating people less favourably in certain circumstances on the basis of their religious belief or activity might be welcomed by Australians of faith.
Many Christians have observed that since every other group appears to be entitled to such protections, why not faith communities too?
One reason is that it may offer only an illusory protection. Because the meaning of “religious belief” also applies to those “not holding a religious belief” or “not engaging in… religious activity.” Christians are just as likely to be targeted by atheists or from another religious denomination as they are to be shielded from unfair treatment.
In other words, the provisions which are meant to act as a shield against Christians being discriminated against could be used as a sword by those who are hostile to religious Australians.
What this exercise exposes is the fundamental conflict between freedom and anti-discrimination law.
Anti-discrimination means curbing natural rights like freedom of speech and giving them back in the form of government-issued privilege through narrow legislative exemptions. It attempts to deal with discrimination by doing something fundamentally discriminatory—by parcelling up legal rights based on certain identities or characteristics.
Far from creating a more tolerant society, discrimination laws create a litigious society where the groups with favoured status in our human rights commissions prevail.
The failure of the Morrison government to engage in these deeper issues and the timing that its bill has been introduced could indicate the government is playing politics with religious liberty as a distraction to internal party divisions.
It is notable that the prime minister has decided now to resurrect the issue of religious discrimination when it is the government’s inability to respond to discriminatory vaccine mandates imposed by the states with anything more than lip service that has caused a split in the Coalition parties.
The Morrison government was right in 2019 to commit to protecting religious freedom for Australians of faith, who deserve to live in a society that tolerates their right to hold a religious conviction and live according to that worldview.
But without a broader approach to protecting the rights and freedoms of Australians, the government will not succeed in making the promise of its 2019 commitment a reality.
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