Flat White

We need a Restoration of Freedoms Bill, not religious freedom legislation

3 July 2019

5:00 AM

3 July 2019

5:00 AM

The Morrison government is promising to introduce a religious discrimination bill. And yet, these reforms are unsatisfactory. They pose a further danger to freedom of speech and freedom of association.

There have been several statements from our Prime Minister which confirm his appalling lack of regard for freedom of speech. According to Morrison, ‘free speech doesn’t create one job, doesn’t open one business, doesn’t give anyone one extra hour. It doesn’t make housing more affordable or energy more affordable.’

In sum, he doesn’t care much about basic freedoms just so long as everyone has a job. Isn’t that remarkably similar to the way communists think?

As for the right to freely discuss religious matters, in an interview with Fairfax Media, in December 2017, the Prime Minister stated:

It all starts when you allow … mockery to be made of your faith or your religious festivals — it always starts innocently and it’s always said it is just a joke — just like most discrimination does. And I’m just gonna call that out …  I’ve just taken the decision more recently, I’m just not going to put up with that any more, I don’t think my colleagues are either. Where I think people are being offensive to religion in this country — whichever religion that might be … well, we will just call it out and we will demand the … respect that people should provide to all religions.

The Prime Minister strongly believes that we are a multicultural society where every religion deserves the same level of legal treatment and protection. In December 2018, he announced that further restrictions to free speech are necessary because of ‘Australia’s booming multicultural communities, stressing that new arrivals tended to have strong religious beliefs and wanted those beliefs protected from harassment or intimidation’.

Apparently, Morrison upholds the false premise of moral equivalence between different religions, so that all religious values and practices are to be afforded the same level of legal protection from strong criticism and condemnation.

However, different religions uphold different values and they also produce different types of society. As stated by the Melbourne Anglican theologian, Dr Mark Durie:

These differences extend to understandings of slavery, cast, marriage (e.g., monogamy, divorce, polygamy), the death penalty, euthanasia, the distribution of wealth, sexual politics, abortion, attitudes to truth, the nature of political representation, the whole legal system, and warfare. Treating religions as merely a matter of [cultural] identity is a recipe for confusion.

The Prime Minister claims to be a Christian.  And yet, he does not even support the right of a fellow believer to exercise free speech. On the contrary, when asked about Rugby Australia’s controversial sacking of Wallabies star Israel Folau, Morrison stated: ‘I don’t want religion to be a point of conflict in Australia’.

Morrison thought his comments on the Bible in his private Facebook were simply not acceptable. ‘I thought they were terribly insensitive and obviously, that is a matter for the ARU and they’ve taken that decision,’ Morrison said.

When asked about GoFundMe’s shutdown of his fundraising page for ‘violation of … terms of service’, the Prime Minister said: ‘I think that the issue has had enough oxygen.’

As Paul Collits puts it ‘[his] failure to see the Folau case as a flagship freedom-of-speech issue is chilling for anyone with a modicum of understanding of how and why freedom is important’.

The Prime Minister should, therefore, be reminded that it is simply impossible to protect any group’s right to not be offended without grievously infringing on the constitutional freedom of political communication of others who strongly disagree with them.

Australia is a society where people of different faiths and of no faith have to relate to one another and develop ways of living together. That being so, everyone should avoid being “uncomfortable” in robust conversations about religion.

Indeed, the idea that any group should be sheltered from criticism is totally inimical to freedom of speech, which is a cardinal precept of every free and democratic society, and an indispensable shelter against totalitarianism.

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.  However, the government’s push for the religious discrimination act could provide a shield to religious extremists and advocates of principles offensive to our liberal democracy, such as blasphemy laws.

It seems, therefore, no mere coincidence that the Australian Federation of Islamic Councils (‘AFIC) is enthusiastically supporting the introduction of a religious discrimination law. IFIC president, Mr Rateb Jneid, argued that this Islamic organisation has been urging the federal government ‘to accept … a religious freedom act,’ he told The Australian newspaper.

I humbly suggest the president of the Islamic Councils begin his campaign for more religious freedom (other than Islam) in all of the countries in the Middle East except of course for the only democracy in the region – namely, Israel.

David Fawcett, in his capacity as chairman of the Parliamentary Inquiry into the Status of the Human Right to Freedom of Religion or Belief, stated: ‘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.’

I certainly agree with him. However, this would be far better guaranteed not by a religious discrimination act, but instead by a new law that restores free speech, freedom of conscience and freedom of association to every Australian citizen, religious or not, so we call all enjoy these fundamental rights.

Unveiling the government’s long-awaited response to Philip Ruddock’s religious freedom review on Thursday, the Prime Minister has promised a new ‘Freedom of Religion Commissioner’, despite Mr Ruddock recommending against such an office.

The introduction of a federal religious discrimination bill could make criticism of religion unlawful discrimination, and create a dangerously powerful statutory position of religious commissioner in the Australian Human Rights Commission.

As Morgan Begg correctly explained in The Spectator Australia:

The current proposal from the Morrison government is to introduce a religious discrimination act and to establish the position of religious freedom commissioner within the Australian Human Rights Commission. Further details about these reforms are urgently needed, but the thought of the AHRC being given more laws to administer is a troubling prospect – given its history administering laws like section 18C of the Racial Discrimination Act there is sufficient reason to consider that a pessimistic prospect for freedom… A healthy liberal democracy depends on the good faith of its members to tolerate speech they may find disagreeable – and to disagree in open debate.

Although it is broadly accepted that religious freedom is increasingly vulnerable in Australia, I have serious doubts about the introduction of religious discrimination law that further impinges on free speech, being the solution.

As stated by the ACL managing director, Martyn Iles:

The law firm I helped establish has handled more than 60 cases where Australians have lost their jobs, were stripped of their professional accreditations, were hauled up for hate speech, booted out of university, denied the right to be foster parents, and generally bullied every which way imaginable by activists wielding reams of legislation, backed by a discrimination commissioner with an Orwellian mindset.

Meanwhile, the government is holding out a few shrivelled fig leaves to solve the problem — running away, as usual. On offer is another anti-discrimination act (this time for religion) and a review of exemptions to anti-discrimination laws to be done by the Australian Law Reform Commission — no doubt destined to say much, do little and ultimately gather dust in the parliamentary library.

Where is the real answer?

First of all, there is no need to protect any religious group in particular. Like myself, Mr Iles argues that a much better way to proceed is to look at repealing the existing provisions in anti-discrimination laws that seriously impinge on free speech and freedom of association, in a way that strengthens the protection of religious freedom and, in fact, attempts to ensure that the widest scope of personal freedom is maintained when balancing conflicting human rights.

Above all, nothing excuses undermining the basic rights of some people in order to advance the supposed rights of others. And yet, for the last twenty years or so anti-discrimination laws no doubt have contributed to a remarkable muzzling of freedom of speech and freedom of association.

The Morrison government would go a long way in protecting religious freedom by restoring freedom of speech and freedom of association in this country, rather than further undermining free speech and equality before the law.

This may involve the enactment of a Restoration of Freedoms Act that re-calibrates the relationship between the conflicting human rights, and it does so by using language that does not suggest that the freedom of religion (and criticism of religion) is an inferior or secondary right.

Apart from a legislative act that restores free speech and freedom of association for all, a law against the incitement of religious violence would also do more good than one against religious discrimination, in my opinion.

After all, religious freedom is not an absolute right and it is necessarily subject to several limitations. As authoritatively stated by the Australian High Court, religious freedom needs to remain ‘subject to powers and restrictions of government essential to the reservation of the community’ (Justice Rich) or ‘subject to [such] limitations … as are reasonably necessary for the protection of the community and in the interests of the social order’ (Justice Starke).

Of course, any act or threat of violence, or incitement to violence, is already a criminal offence. And yet, if it is done as an expression of religious faith, or as an attempt to coerce anyone to change their religious beliefs, this form of religiously motivated violence should be in a special class of aggravated offences and with higher maximum sentences.

But the Morrison government is clearly headed in the wrong direction when it comes to the legal protection of individual rights and freedoms.

And let’s not forget that the Liberal Party even dumped a conservative candidate in Victoria simply because he dared to raise concerns about radical Islam.  Indeed, when this candidate dared to ask key questions about the link between radical Islam and terrorism without fear or favour, the ruling elite in the Victorian Liberal Party dismissed these concerns and accused him of anti-Muslim hatred or bigotry.

We need to inform the Prime Minister that we certainly don’t support any further anti-discrimination laws, and this time on religious grounds. This would be going the wrong way in terms of upholding our individual rights and freedoms.

Instead, we must urge the Morrison government to pass a Restoration of Freedoms Act. This would involve federal legislation being enacted that fully restores the basic rights of all the Australian citizens to free speech, freedom of conscience, and freedom of association.

Augusto Zimmermann is Professor and Head of Law at Sheridan College in Perth, Western Australia, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus.

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