The past fortnight’s “debate” on religious freedom has a subtle irony about it. Australian law at present makes it unlawful to discriminate against people when dealing with them in the public sphere on a range of attributes.
These attributes are basically what “God” or “Fate” or the vicissitudes of life gave people over which they have virtually no control: gender, sexuality, disability, skin colour, age. But the religious freedom Bill is going to make it unlawful to discriminate against people for belief in a human-made construct: religion.
The Bill will spark some troubling jurisprudence. What precisely is a religion?
The leading case in Australia is the 1983 High Court case of Church of the New Faith v Commissioner of Payroll Tax.
Scientologists claimed that as the “Church of the New Faith” they were a religion and should not have to pay Victorian payroll tax.
All five High Court judges held that Scientology was a religion.
Justices Mason and Brennan responded to claims that Scientology’s founder L Ron Hubbard was in it for the money by saying: “Charlatanism is a necessary price of religious freedom, and if a self-proclaimed teacher persuades others to believe in a religion which he propounds, lack of sincerity or integrity on his part is not incompatible with the religious character of the beliefs, practices and observances accepted by his followers.”
Justice Murphy said: “Most organised religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power . . . . The amassing of wealth by organised religions often means that the leaders live richly (sometimes in palaces) even though many of the believers live in poverty. Many religions have been notorious for corrupt trafficking in relics, other sacred objects, and religious offices, as well as for condoning “sin” even in advance, for money. The great organised religions are big business.”
So, the legal test in Australia for “religion” is not the motives of the founders and leaders of it, but the gullibility or faith of the followers.
This case was about tax exemption. The new Bill, however, goes much further.
Morrison’s new law, in the name of religious freedom, presumably is to give “religions” exemptions not only from tax, but also from other laws such as discrimination in employment on grounds of sexuality because homosexuality offends their “religion”.
This presents the legislature with a problem. The legislation could be cast widely to give “religions” exemptions against almost any law that is contrary to their religion. The door is open for charlatans to gather genuinely believing followers to say their “religion” demands they engage in what would otherwise be unlawful conduct (smoking dope, having bonfires on beaches, discriminating against homosexuals, marrying while you are already married) or that their religion demands that they do not engage in conduct which the law otherwise demands (sending your children to school, having them vaccinated, paying taxes which might be spent on the military etc).
The sticking point with the Bill has been whether it would give religious organisations legal sanction to discriminate against homosexual students and staff, either in refusing to engage them or in expelling or sacking them.
Another sticking point has been whether the Bill should give a remedy for people who are sacked or otherwise acted against on the grounds of expressing religious dogma. The prime example being the cancellation of Israel Folau’s football contract after his social media post that homosexuals and adulterers would burn in hell.
You have to ask, tough, why all the fuss? Australians are not being discriminated against on the grounds of religion. Even Folau’s case is not a freedom-of-religion matter. It is a matter of freedom of speech.
Herein lies the bigger problem with human rights in Australia.
Australia is one of the very few liberal democracies without a general bill of rights. We need one. Australia’s defamation laws are appallingly restrictive.
A general bill of rights, including freedom of speech and assembly and freedom from arbitrary arrest and search and seizure, would of itself ensure freedom of religion and a separate law would be unnecessary.
What more would religious people need to practice their religion than to assemble and speak free from arrest and free from their property being confiscated? If they do want more, what? The “right” to take public money and ignore community standards on discrimination. If people want to form a private exclusive religious club and exclude people on grounds of sexuality or race, they should be able to do so, but not when they take public money.
Historically, the usual forms of religious discrimination have been to confiscate property, break up services and gag religious proponents.
That is not happening in Australia. To the contrary, religions are getting a huge level of undeserved government support in tax exemptions and grants to religious schools and hospitals and the chaplaincy program in state schools.
Perhaps the reason religious organisations feel they are being put upon is their growing irrelevancy. Fewer people care what church leaders say, these days, compared to the 1950s when politicians supplicated on their every word.
The religious freedom Bill should be dropped and the question of religious and other freedoms be dealt with through a more broadly encompassing bill of rights.
IN the past few weeks, I have condemned the Government for being a do-nothing government on emissions reduction. I was wrong. Revelations in the past week show it is worse than that. Far from doing nothing, the Government is actively sabotaging efforts to reduce emissions.
It has abused its foreign-affairs power by cancelling states’ and territories’ memberships of an international agreement, the Under2 coalition which comprises 267 sub-national governments representing 1.75 billion people and half of the global economy.
And then it changed the electricity grid rules to force battery and hydro companies to pay for electricity that had previously been sent to them for free because it was over-capacity electricity that would otherwise have been wasted.
It will make investment in those renewables less attractive in favour of gas.
Two acts of deliberate shameful sabotage.
This article first appeared in The Canberra Times and other Australian media on 4 December 2021.
Crispin Hull BA, LLB (Hons) | Property Convenor | ANU School of Legal Practice Lawyer of the Supreme Court of the ACT, on the Register of Practitioners kept by the High Court of Australia