It’s Hard To Write Rules About Religion

Written by:
18 November 2021
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At the last federal election, Labor’s policies were nothing if not ambitious and bold. And with the benefit of hindsight, foolhardy. As one Labor MP subsequently put it, “we made ourselves so big a target you could see us from the moon”.

For next year’s election, Labor is going to try something different as it goes from one extreme to the other. It appears the ALP is determined to present Scott Morrison with a target to be measured in molecular or even atomic terms.

You can tell this from the response of Labor’s shadow attorney-general, Mark Dreyfus, this week to the Coalition’s proposed religious discrimination legislation.

While the details of the law are not yet public, the legislation deals with two questions. The first is whether an employee can be sacked for the expression of religious belief (which, arguably, is what happened to Israel Folau); the second is whether faith-based institutions such as schools and hospitals can select staff on the basis of their religion.

The latter question is particularly relevant as the Victorian government is proposing to abolish the exemption from anti-discrimination laws provided to faith organisations that allows them to make the religion of their staff a condition of employment.

Just a few years ago, a Labor shadow attorney-general would have loudly proclaimed that the only rights the Coalition ever wants to protect are those of bigots, that any form of “discrimination” is bad, and that everyone is entitled to feel “safe” all the time and everywhere. For good measure there might even have been a sly reference to the prime minister being a practising Christian. But not now.

When asked about Labor’s position on the protection of the expression of religious views, Dreyfus “declined to comment on the foreshadowed elements of the bill”, saying “the party would wait for it to be introduced into the Parliament before determining its position”. He was at pains to stress: “As we have repeatedly made clear to the Attorney-General [Michaelia Cash] and her predecessor, Christian Porter, we are ready to work with the government on a religious discrimination bill.”

Clearly, it’s not only the Coalition that is afraid of starting a political war about culture and religion.

The aim of the Coalition is worthy and necessary. The view that in Australia in 2021 no-one can be discriminated against unless they’re Christian (or conservative) is not entirely unfounded. But in all likelihood the Coalition’s proposals will not achieve their objective because turning the ideal of “protecting religious freedom” is incredibly difficult to put into effect through legislation.

In addition, there are issues of principle the Coalition appears to have barely started to grapple with.

For a government to protect “religion” requires a determination of what is “religion”. Previous efforts from the Coalition government to frame religious protection laws have failed on precisely this point. It was appreciated that leaving it to a tribunal or a court to judge what qualifies as a religion, and therefore what statements are “religious”, comes perilously close to enshrining state-sanctioned religious denominations.

Its adherents would claim that Jediism (after the movie Star Wars) is a religion, but in 2016 the UK Charity Commission said it was not.

Beyond the problem of definition is the problem of principle. If it’s accepted that discrimination law should protect people from being hurt or offended, it’s unclear why a hurtful or offensive statement made for political purposes should be unlawful, but it is lawful to make exactly the same statement if it’s motivated by a genuine religious conviction. It’s a simple question that the Coalition is yet to answer.

Of course, for freedom of speech advocates, the problem doesn’t exist because free speech will always have the potential to be hurtful or offensive and that’s a consequence of living in a free society. The reason why something is said should be irrelevant.

Unfortunately, the answers to how best to protect our basic freedoms don’t readily emerge from the narrow political calculus both Morrison and Opposition Leader Anthony Albanese appear to be employing. With six months to go to the federal election, the Coalition and Labor will find it easier to talk about protecting religious freedom than to do something about it.

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