Is it time for Australia to legislate for a minimalist bill of rights? Now, before you scream ‘Not as long as one conservative still draws breath’ and flip over to the next page, let me see if I can make a case.
NSW Liberal Senator Concetta Fierravanti-Wells is supporting Christian leaders, lawyers and lobbyists across Australia in putting together and presenting to the federal parliament a petition arguing for a Religious Freedom Bill. This takes the debate started by the Israel Folau case in a different direction from the Morrison government’s proposed ‘Religious Discrimination Act’.
Instead this petition argues that Australia needs something more positive—legislation that positively enshrines religious freedom—rather than an act focused solely on cases of religious discrimination.
So what, exactly, is it these petitioners want? Basically it is a one-issue bill of rights—a positive declaration of the right of religious freedom. They want the Morrison government to legislate that: ‘Everyone shall have the right to freedom of speech, thought, conscience and religion including the freedom to have or to adopt a religion or belief of one’s choice, and the freedom, either individually or in community with others and in public or private, to manifest their religion or belief in worship, observance, practice and teaching.’
Their point is that a mere ‘Religious Discrimination Act’ might (or might not) have protected Israel Folau (had it existed) but it would not have helped, for example, in the case of Julian Porteous.
In 2015 in his role as Catholic Archbishop of Hobart Porteous distributed a booklet to 12,000 families of children in Catholic schools across Tasmania entitled Don’t Mess With Marriage. The booklet, drawn up by the Australian Catholic Bishops’ Conference, argued for the Christian view of marriage and against same-sex marriage. A complaint was lodged with the Tasmanian Anti-Discrimination Commission by transgender activist Martine Delaney. The Commissioner ruled that Porteous had a case to answer. However, the matter fizzled when Delaney withdrew the complaint.
Clearly discrimination didn’t come into this—Delaney’s complaint was that Porteous should be denied the freedom ‘in public… to manifest (his) religion… in… teaching.’ Delaney claimed that her feelings (and the feelings of others in the LGBTQ+ community) had been hurt by the teaching in the booklet Porteous distributed. No claim of discrimination is involved. Just that these hurt feelings trump Porteous’s religious freedom.
You see the problem. Whether distasteful or not the time may well have come when we need to start staking out our claim in the territory of freedom or we shall lose it.
My inspiration for this idea comes from the First Amendment to the US Constitution which, in a single sentence, covers four basic freedoms: freedom of religion, freedom of speech, freedom of the press and freedom of assembly
So why not take Fierravanti-Wells’ petition that deals with the first of these and add the other three? A piece of legislation called ‘Four Basic Freedoms’ would do the trick. And given recent headlines, number three on that short list is also a hot topic at the moment.
All four freedoms would have common-sense boundaries. They would fall within the entirely uncontroversial boundaries of the law of the land. So the second and third freedoms would be bound by the laws of defamation and plagiarism, the fourth by laws against riotous assembly, and the first by laws against polygamy and child marriage (for example). But within those boundaries a positive right to freedom is established.
What is the counter-argument?
Well, conservatives have long argued that any bill of rights simply takes power away from the elected parliament and puts it into the hands of unelected judges, resulting in activist judges doing their own bit of ‘judicial legislating’ from the bench. It’s called ‘reading down’ the legislation.
There is, of course, cogency in that argument. But—you knew there was a ‘but’ didn’t you?—it is looking weaker and weaker all the time. Here are three reasons.
First, we already have judicial activism so it’s too late to shut the barn door. Even without a bill of rights judicial activists are imposing their decisions, and setting precedents that change the interpretation of legislation. It’s happening now. There’s no point in pretending that this disease has not hit our shores. It’s here. Or, to change the metaphor, that horse has bolted. Hard to know what to do about this except to appoint better judges (Trump is a good model of how to do this).
Second, what I’m proposing is a minimalist bill of rights that does no more that attempt to protect four really basic and fundamental freedoms. The shorter, simpler and more direct the list the harder it is going to be for the green Left to oppose them and activist judges to misuse them. Not impossible, but harder. Rather than pushing for some massive, comprehensive bill of rights (which would take forever) why not just protect a small number of key things that are, clearly, already under threat? A minimalist list of four.
Thirdly, our freedoms are being eaten away daily. People are denied the right to pray in the vicinity of abortion clinics; to protest about climate change lunacy or transgender orthodoxy. Inch by inch the lunatic Left will take the lot. If we do nothing our children will wake up one morning and discover the walls have closed in. And the way ahead is not to give more powers to a Human Rights Commission, but to lay out our claim to some key basic freedoms.
The paradise of freedom is already slipping away; it is already disputed territory. The inner-city living, latte-drinking, bicycle-riding, green-voting, basket-weavers are already trying to ‘pave paradise to put up a parking lot’ (as Joni Mitchell might have put it). We should start driving in some pegs and filing our claim to Freedom Land before the cultural Marxists do any more damage.
So, a minimalist bill of rights, anyone? I look forward to your response.
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