To The Victim, Belong The Spoils Of (This) Law

Written by:
6 March 2020
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The government’s proposed religious discrimination bill puts the shoe on the other foot, and now the activists who championed every other discrimination law are bemoaning the “divisiveness” of this one.

It is divisive, but so is all discrimination law.

The public consultation period for the second draft of the religious discrimination bill, which prohibits discrimination based on someone’s beliefs (or lack thereof), has closed.

People from former High Court judge Michael Kirby to Olympic swimmer Ian Thorpe have given their two cents’ worth of outrage.

ACT Chief Minister Andrew Barr complained that it threatened human rights. He goes on to ask why you would enshrine in legislation a particular privilege for a group of people to be able to espouse a view that will offend many, and to grant that legal privilege?

He is not wrong that this bill is a threat, but he is incorrect if he thinks basic liberties, such as the freedom to espouse views, be they religious or otherwise, are indeed a privilege.

This law, at least in part, originated because state and federal anti-discrimination laws systemically infringe freedom of speech (and particularly expression of religious ideas).

Instead of abolishing laws that violate basic freedoms, the government has decided that it is going to fix the problem of illiberal, convoluted anti-discrimination laws by enacting yet another illiberal, convoluted anti-discrimination law.

Doing the same thing over and again but expecting a different result was Albert Einstein’s definition of insanity. History will repeat itself and, just like the notorious section 18C of the Racial Discrimination Act, it soon will become a bureaucratic goliath that no government can or wants to control.

Discrimination laws are inherently discriminatory. Discrimination laws operate by granting a right of action to one group against another, meanwhile carving out exemptions for some but not others.

Moreover, it fundamentally misunderstands the nature of individual rights. It reverses the presumption that all Australians are entitled to be equally free, making some of us more free than others. The Coalition may think it is giving religious freedom in this bill but in reality it is confiscating it.

The only way to protect religious freedom is by protecting the freedom of all Australians to think, speak and associate. Freedom of religion is simply the use of these most fundamental freedoms for a religious purpose. If the government truly wants to protect religious freedom it should repeal the laws that prohibit expression of religious and all other ideas (regardless of their origin) in the first instance.

The activists who initially were protesting against this bill because it would victimise people on the basis of gender and sexual orientation have found a new victim group — religious people. The newest complaint is that the religious discrimination bill indeed permits religious discrimination. Again, they are not wrong. However, if this bill didn’t allow places where religious people could associate exclusively with members of their religion, it would not protect religious people at all.

Freedom of association is intrinsic to the exercise of religion and civil society in general. The issue is not that this bill allows too much freedom of association but that it limits it.

The ability to create a space exclusive to the exercise of one religion is contingent on meeting the criteria set out in the bill, as follows: a religious body does not discriminate against a person under this act by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.

This vague and subjective wording does not properly protect freedom of association but is a recipe for litigation.

The Noosa Temple of Satan’s submission amusingly demonstrates the problem with this bill. The Noosa temple says it is a “waste of the federal government’s time”, but if it is passed the temple will use it “aggressively”.

This bill could inflame sectarian tensions between different religious communities and non-religious groups. Far from creating a society of religious tolerance, it could create a society of religious lawfare and one where the most sensitive win.

Anglicare Victoria tweeted that it opposes “the #ReligiousDiscriminationBill because it allows people to use faith as a means to cause harm to others”.

Anglicare is right to oppose this bill but, as with all laws of this kind, the problem is not that it permits bigotry — it weaponises it.

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