An article in The Australian titled, “Amended religious freedom bill ‘deeply flawed’, says Law Council”, reports the Law Council of Australia president Arthur Moses SC is highly critical of the second exposure draft of the Religious Discrimination Bill (RDB2).
The planned legislation is an attempt at the fulfilment of promises by the Turnbull Government which undefined marriage without building in the necessary protections for those whose deeply held convictions were suddenly at conflict with the official, novel beliefs about marriage. That failure is in a legal environment where radical fringe activists have increasingly sought to weaponise anti-discrimination tribunals against people who disagreed with them.
From the article:
“The important question is whether it is in the best interests of all Australians and harmony in Australian society,” Mr Moses said. “It remains a deeply flawed piece of legislation. Our strength as a nation is our belief in the rights and freedoms of all Australians. Laws which favour one right over another, as the proposed religious discrimination bill does, weaken the rights of everybody, and should be a major concern for all Australians.”
Mr Moses’ opinion is not a legal opinion, but the political opinion of a lawyer. He is not criticising the mechanics or engineering of the legislation, but the intended purpose and effect which the Government promised in the election campaign. Couching his criticism in vague motherhood statements no one can disagree with, he pretends the RDB2 will damage social harmony and natural law freedoms.
If not confected, his concerns are evidence of ignorance of such problems already existing which need urgent intervention.
“Prioritising the freedom of religious expression over other human rights, such as protections against discrimination based on gender, race, disability, age or sexual orientation, is difficult to justify in modern Australia,” Mr Moses said.
What Mr Moses proves with this opinion is that the law already favours “one right over another”: that of minority groups (such as people who choose to identify as LGBTIQAX+) to be free from hurt feelings over the natural law right to hold, express and live by sincerely held religious beliefs suddenly unapproved of by the State.
It is a fact of life that some rights need to be held in tension. There is often a balance to be struck between competing rights without there being a problem to be solved by making one permanently deferred to the other. For example, the right to health care and education is universal, yet discrimination against boys and men by hospitals and schools which deliberately exclude them on the basis of their gender alone is not an injustice or problem that needs to be fixed.
If all discrimination is always bad the Law Council of Australia and Mr Moses should mount a crusade against the ‘evils’ of girls’ schools and women’s hospitals, gyms and legal services, especially where any public funding is involved.
But discrimination is not always bad, especially where there is no objective harm and the excluded person suffers little more than inconvenience or indignity. The right to freedom from discrimination must be held in tension with the right to freedom of association, even if one doesn’t approve of the reasons for associating. Because of my religious and political beliefs, I would be naturally excluded from employment in most trade unions and political parties left of centre, regardless of my qualifications and ability to do the job.
This is right and good because it protects their freedom to believe ideas I reject and their freedom to associate with people congruent with their reason for being. It is good they may exclude me specifically because I would predictably not support their ideas.
Their freedom of political expression is already favoured over my “human rights, such as protections against discrimination.”
The problem is there is no managed tension between freedom of religion and freedom from discrimination (including subjectively hurt feelings), and harmony is at best illusory if not shattered by the artificial dominance of “one right over another” impeding the natural right to religious freedom in Australia.
Thanks to a confidential settlement out of court and subsequently no definitive decision in law by the High Court, we still don’t know if an employer like Rugby Australia can have and enforce a code of conduct for employees like Israel Folau which prohibits employees expressing sincerely held beliefs in their own time.
Thanks to the complaint being withdrawn before a decision could be made but not before inflicting considerable financial and emotional cost to the target, we still don’t know if the Tasmanian Anti-Discrimination Tribunal agrees the Tasmanian Catholic Archbishop can teach Catholics what Catholics have always believed about marriage and sexuality.
We do know punishment by process can be inflicted at will and completely at the taxpayer’s expense by fringe activists with publicly declared social and political agendas at no cost or risk to themselves.
Just one complaint accepted by an anti-discrimination tribunal will cost untold emotional and legal expense to its target but absolutely nothing more to a person wishing to wield the current legal system as a cudgel against anyone daring to express a contrary but sincerely held religious belief. The average person cannot financially withstand such a process, but a part-time occupation in generating out of court and confidential settlements could be quite lucrative.
One serial litigant who has described himself as an “anti-discrimination campaigner and public interest litigant” has lodged hundreds of complaints all by himself, making a mockery of anti-discrimination laws as well as Mr Moses’s claims that we currently have harmony in Australian society, rights and freedoms for all Australians, and laws which don’t already favour one right over another.
My final criticism of Mr Moses’ political opinion, though many more are available, is of this assertion.
“Put simply, a person would be able to state views that would otherwise be considered unlawfully discriminatory but claim it as a statement of belief and be protected. They may say that women are ‘deficient in intelligence and religion’ but as a statement of belief this would be protected, given its origin in religious texts.”
The first sentence is stating the obvious. That is the desired and necessary outcome and Mr Moses simply disagrees politically. Of course, the right to express statements of sincerely held religious belief should not be subjected to approval by the subjective test of another person’s feelings.
News flash: the Bible teaches that sinners go to hell. Objecting to holy Scripture classifying homosexual or other behaviours as sin with predictable consequences would then make public Christianity effectively illegal by the subjective “feelings test” Mr Moses proposes – which as it happens is the case currently, and a problem the RDB2 is attempting to solve.
He then contructs a strawman argument and attempts to criticise the proposed solution (RDB2) by it, revealing the logical fragility of his political opinion. Under the currently proposed Religious Discrimination Bill, it is not true that “a person would be able to state views that would otherwise be considered unlawfully discriminatory but claim it as a statement of belief and be protected.” And there’s the strawman.
A “statement of belief” is not defined by the proposed legislation as Mr Moses would have us believe: a cynical appeal by bigots to justify otherwise illegal opinions. It is defined by the Bill as a statement that:
(i) is of a religious belief held by a person (the first person); and
(ii) is made, in good faith, by written or spoken words by the first person; and
(iii) is of a belief that a person of the same religion as the first person could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion…
Clause three is of utmost importance and should be of great comfort to a sincere advocate of social harmony and equally balanced rights for all Australians. In essence, we don’t get to make things up. If another person of the same religion couldn’t consider what was said or written to be consistent with their religion, it would not be protected.
And of course, any objective harm or a serious crime is not suddenly legalised by freedom of religion generally or this draft bill specifically.
In the next few months, there will be much debate over this bill with simplistic political opinions like Mr Moses’ being forcefully put. It is vitally important that right-thinking people become and remain engaged in this process to restore equality and balance of rights for all Australians and not just a minority, to remove or reduce the abuses of our weaponised legal system and anti-discrimination frameworks, and to promote “the best interests of all Australians and harmony in Australian society”.
