The Coalition’s ill-conceived religious ‘freedom” legislation has been withdrawn with a promise to revive it after the election. That promise, of course, is practically undeliverable.
Even if, and that’s a very big if, the Coalition gets a government-forming majority in the House of Representatives, it will almost certainly be in a worse position in the Senate after the election.
Remember, that in the Senate, the Coalition in 2022 is defending the very good result it got at the double dissolution in 2016 because senators have six-year terms.
Further, the major parties rigged the system after that election. After a double dissolution, the senators are split (on whatever basis a majority of the Senate decides), with half getting a three-year term and half getting a six-year term. The major parties chose more six-year-term senators for themselves than electoral fairness would warrant.
In short, the Coalition has got a lot to defend. Given it is a bit on the nose at the moment, as evidenced by Saturday’s big by-election swings against it, it would be safe to predict it will lose two, perhaps three Senate seats. They will likely go to the Greens who do not have any senators facing re-election in three states. Or one or two might go to other minor parties or independents.
In any event, even if the Coalition miraculously wins in May, the religious “freedom” legislation is doomed. If the Coalition thought it could not get it through the Senate now, the next election will only make it more difficult.
But the interesting question is what happens to religious freedom if Labor wins. Remember, Labor has supported a separate religion element to discrimination law, but has said it would only agree to that if it comes with separate protection for gay and trans students and possibly teachers.
Labor might be wise not to mention religion during the election campaign and if elected quietly put the legislation into the too-hard basket.
There is another option, however. We saw last week how so-called rights intersect. One person’s right can result in harm to others. This is not limited to religion.
During the pandemic we have seen how freedom of assembly has threatened the health and lives of others because anti-vaxers and anti-lockdown “freedom” fighters have taken to the streets spreading the deadly virus.
Social media has disrupted the balance between freedom of speech and a right to reputation.
National security concerns have eroded due process rights, including the right to public trial.
And xenophobia has quashed the right of refugees not to be imprisoned without a crime being proved at a public trial.
In the case of religion, the passage of same-sex marriage laws has caused some religious people to feel their freedom to practice their religion was under threat.
In short, events in the 21 st century have changed the way rights, protections and security intersect.
Maybe a new Labor Government should not try to deal with religion in isolation, but open up the whole rights and protections issue.
Australia is one of the few liberal democracies in the world without an over-arching charter of rights. Such charters are usually entrenched in some way so that mere transient majorities in a Parliament cannot override them.
Sometimes they are put in Constitutions which require special majorities to alter. Or sometimes, they are passed by a super majority (two-thirds or three-quarters) in Parliament and can only be changed by that same majority.
We saw last week how a transient federal government was willing to ride roughshod over state legislation that protected people against discrimination on grounds of sexuality. It was doing so, not because there was some glaring problem to be addressed, but rather for the short-term political expediency to shore up the vote of religious people.
Short term political imperatives often override long-term human-rights principles. Both major parties have difficulties with the question of religion. Interestingly, in Saturday’s NSW by-elections, Labor got substantial to massive swings in three seats but got no swing (or a slight swing against it) in Strathfield which has a far higher recent migrant (and therefore more religious) population than the NSW average.
Both sides will be looking at that carefully: the Coalition to remain attractive to voters who before same-sex marriage voted Labor and to keep the enthusiasm of the Christian religious right; and Labor not to lose votes among the religious recent arrivals.
Tricky stuff, and all the more reason to shield human rights from the whims of everyday politics.
Religious rights have to be dealt with even more judiciously than other rights because their assertion usually comes with an overriding desire of religions to get universal adherents: to bend everyone to their will.
That desire is obviously not as violently exercised as it was during the Reformation and Counter-Reformation or at the time of the rise of Islam, but proselytising remains core business, even if it means promoting the adherence to discriminatory conduct.
Once a society has freedoms of speech, assembly and association (within the usual limits), it is hard to see what further legal protection the practice of religion needs. People can join together and pray and sing out loud.
The difficulty comes when, in the name of religion, organisations do other things, like educate, provide health care and employment and open their door to all and take public money to do so.
It is one thing for the right to freedom of association to be asserted to refuse communion in a church on grounds of sexuality, but quite another to refuse, on those same grounds, services and employment outside the confines of church services and while taking public money.
Last week’s hurried, last-minute debate over religious freedom to fulfill an election promise before the term ends has at least revealed the complexity of competing rights, freedoms and protections.
It also revealed how unsatisfactory it would be if important existing protections were taken away from one group to appease another on the basis of a simple, narrow majority in the Parliament. At least the five rebelling Liberal MPs had the good sense to reflect the mood of their electorates rather than the misguided leadership to ensure that that did not happen. And given the circumstances made it unlikely for religious bigotry to triumph in that way in the future.
That said, there remains a case for looking at human rights more generally in Australia.
This article first appeared in The Canberra Times and other Australian media on 15 January 2022.
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