Attorney-General Christian Porter recently released a package of proposed religious freedom legislation. But do we really need these laws?

Quizzing Attorney-General Christian Porter about his shiny new set of religious freedom draft bills during The 7:30 Report Leigh Sales did not neglect to dump at his feet the inevitable bakery-shop example. It’s all well and good to say that Employer A may not discriminate against Employee X on the basis of latter’s religion. But would the good old Christian baker be able to refuse his wedding-cake services or whatnot to a gay couple that was becoming truculently insistent?

AG: “No, because a commercial operation is a commercial operation. It’s not a religious organisation.”

Such stuff is illustrative of the way in which, to my mind, the government is grabbing the idea of liberty by the wrong end. Instead of adopting a minimalist, liberal, approach to reform in this domain, they’re pasting on yet another piece of non-discrimination legislation along the lines of ‘Thou Shalt Not’.

Recently I’ve been thumbing my way, bored, through the House of Representatives Joint Standing Committee on Foreign Affairs, Defence and Trade’s “Second Interim Report” into “the status of the human right to freedom of religion or belief”, blah blah.

The thing is serviceable enough as these things go, and provides summary not only of its previous “First Interim Report” but also the separate review into religious freedom overseen by Phillip Ruddock in wake of the pro gay marriage vote. With the promise of yet another report to come – perhaps a concluding report this time – it’s apparent that the Liberal Party are having a thumping good time throwing together these sorts of things.

The climax of this otherwise mirthless reading experience did, however, elicit quite a hoot from your humble servant. The Ruddock report managed twenty substantial recommendations that the government is currently labouring to put (largely) into effect. This “Second Interim Report”, however, has only two things to say on the subject of “recommendations”. The first is a recommendation to find a way to “give effect” to Australia’s already existing international obligations apropos of religious freedom; which, given the report spends such time wondering aloud just how this might be done, may fairly be categorised as an unhelpful suggestion. The second recommendation – one is shocked to discover – is that the Sub-Committee be allowed to continue its mind-expanding investigations in the succeeding parliament.

I shouldn’t think it proper to recede, at this point, from my long-held position that the authors of such recommendations are simply taking the piss.

Be that as it may, the bulk of the text of this “Second Interim Report” does provide helpful background reading on the state of its purported subject and it clarified my own thinking on the issue. Or rather, it clarified my thinking on the question. Namely, ‘How ought religious freedoms to be protected?’ Which cannot be answered adequately unless one has a general theory on the protection of civil liberties.

It has been a long held prejudice of mine that Australia ought to have a Bill of Rights or what-have-you enshrining a few essentials. Freedom of speech, association, assembly, the press, et cetera. Grandly calling myself, as I do, a ‘limited government conservative’, I wouldn’t mind such limitations on our government being inscribed in rather more lapidary and accessible form than the opaque ways in which they currently manifest themselves (assuming, of course, said limitations are really there at all).

Given the byzantine architecture of our laws and regulations it would if nothing else provide a bit of a boost for civic enthusiasm (I humbly submit) if Johnnie Citizen had a few phrases he could point to so as to intone: “Here, Government, and no further.”

Approached from this angle, it’s unclear to me why there should be any special reference to protection of religious speech or religious practice other than the general prohibition on the state establishing a religion or positively or negatively legislating for one religion or another.

Section 116 of Australia’s Constitution reads:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Which sounds all well and good. And in fact is all well and good. Except for the niggling issue that, as the authors of our “Second Interim Report” point out:

Although the Constitution does go some way to preventing the Commonwealth Government from restricting religious practice, it does not prevent states and territories from restricting religion or belief.

The authors also note that there is little to speak of in terms of federal legislation protecting religion. Putting these considerations together, I should have thought the easiest thing to do would simply be to extend the ambit of s 116 to all levels of government.

Surely such a prohibition, together with federal protections of the freedom of speech and the freedom to peaceably assemble, would do all that needs to be done with respect to the religion issue.

I confess to holding fast to the antiquated notion that businesses and individuals – as consenting adults with requisite grey matter stuffed between their ears – ought to be able to do much what they like. To return to the hackneyed bakery-shop motif, I would defend the right of the good old Christian baker to refuse to produce wedding cake for the gay couple.

Owing to my delicate modern sensibility I probably wouldn’t shop there. (Not that I frequent Christian bakers on the regular, anyway.) And doubtless, if a gap existed in the market for a purveyor of wedding cakes to gay couples, it would shortly be plugged. But gently holding to one’s religious convictions (say, by not producing the cake in this instance) is some distance from out-and-out in-your-face religiously motivated bigotry; and I think it fair enough that business owners and the like should be free to do what they like in these matters.

At this juncture the ever-vigilant reader may be tempted to object: ‘Surely, you cannot believe that businesses can just bloody well do whatever they want!’

Granted. And I suppose I’d have to plead guilty to being a bit of a wet, then. I’m not a pugnacious, black-and-white, ideological libertarian. I’m not averse to a bit of mushy compromise here and there in interest of the general comity of man.

So, in addition to my preference for a Bill of Rights – federally legislated and later incorporated into the Constitution when everyone is smiling and nodding about the whole idea – I’d add the following sorts of caveats in connection with the employment scenario:

  • Businesses and schools can run themselves how they like (if they’re not receiving government funding);
  • When someone is on the job they need to espouse the values of the firm (provided they aren’t too crackers), when they’re not on the job they don’t;
  • Questions of sex, gender, sexual orientation, race, religion, and all that should strictly be irrelevant – not able to be considered, either for positive or negative discrimination in determining an employment agreement.

But instead what Mr. Porter has delivered us is another Band-Aid job to soothe one segment of the electorate while doing nothing to resolve more fundamental problems.

The proposed bills include the establishment of a ‘Freedom of Religion Commissioner’ within the Human Rights Commission. I am opposed to the creation of such offices, because they are liable to be unduly influenced by particularly noisy and bothersome elements of the relevant riff-raff.

According to an “outline” of the proposed legislation provided by the AG’s department:

Complaints of discrimination under this Bill can be made to the Australian Human Rights Commission. The Commission may inquire into and attempt to conciliate complaints under this Bill. Where a complaint cannot be successfully conciliated, an individual may apply to the Federal Court or Federal Circuit Court.

It continues:

Under this Bill, a person will be entitled to make a complaint to the Commission alleging that they have been subject to unlawful discrimination on the basis of their religious belief or activity if the:

  • person has or engages in a religious belief or activity
  • person has been subject to direct or indirect discrimination on the basis of their religious belief or activity
  • discrimination occurs in a specified area of public life, and
  • conduct is covered by this Bill and an exception does not apply.

It seems to me that a simpler, more user friendly, and civic-oriented regime based on principles such as my own (hastily sketched) above would be far better stuff than this.

But the proposed bills become particularly dicey when it comes to the issue of so-called “indirect discrimination”. From the outline again:

Indirect discrimination is where an apparently neutral condition has the effect of disadvantaging people of a particular religious belief or who engage in a particular religious activity. However, a person does not indirectly discriminate against another person by imposing a condition, requirement or practice that is reasonable in all the circumstances.

For example, it may be indirect discrimination for an employer to require all employees to attend meetings on Friday afternoons, if that requirement is unreasonable in all the circumstances. This requirement could disadvantage Jewish employees who leave early on Fridays to observe the Sabbath.

One winces at how potentially onerous this could become for businesses. It also seems ripe for exploitation. Once a vague category is legislated, definition- and category-creep is inevitable. What is and is not “reasonable in all the circumstances” remains to be seen.

But my deepest reservation about this proposed legislation isn’t really about the bills at all. Rather, it’s my suspicion that the religious freedom issue is a red herring. The Liberal Party isn’t especially liberal, and both sides of politics seem happy to continually roll back our civil liberties. Australians (myself included) have been fairly complacent as these things go – whether in response to the metadata laws or the recent raids on journalists’ offices.

One gets the feeling that the Liberal Party is gesturing to the civil liberties of one part of the electorate in attempt to distract everyone from the depredations they – and the Labor Party – have been undertaking on Australian civil liberties more broadly. The citizenry ought to be more proactive in bringing these nosey-parkers to heel.

Edward Cranswick is the editor of The Stone and a self-styled ‘limited government conservative’.


References and further reading

Draft Religious Freedom Bills

Christian Porter interviewed on 7:30

Second Interim Report

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