On Wednesday, it was reported that the federal cabinet had given its support to Attorney-General Christian Porter’s proposal for a religious discrimination act, which would enshrine “positive rights” protections against discrimination for Australians of faith.
The proposed laws, which are due to be voted on in parliament by the end of the year, will add to the vast legal framework of positive rights that provide an avenue to complain to an anti-discrimination commissioner when they perceive an unfavourable action has been taken against them on the basis of their “protected status”. So far, that includes gender, sexual orientation, race, age and disability. Federal law currently does not include religious affiliation as a protected attribute.
The intent of such laws is to ensure people are not treated unfairly based on their innate personal characteristics. An inoffensive notion on the face of it. However, the effect has been the imposition of broad limitations on freedom of speech and freedom of association.
Religious Australians are under threat whenever they run a business or civil society organisation in alignment with their values, since those values can potentially conflict with the goals of anti-discrimination laws. As florists, bakers and venue operators in the United States have found when they refuse clients for same-sex weddings, the cost of not participating has been punishing.
Religious freedom is meaningless if people of faith are prohibited from manifesting their beliefs in their daily lives, or are forced to undertake actions inconsistent with their conscience.
Yet as our culture becomes more aggressively secular, religious Australians raise the argument that religion should be included in anti-discrimination legislation. In the past week, the Catholic Church and the Archbishop of Hobart, Julian Porteous, called on the federal government to introduce a religious discrimination act.
Archbishop Porteous’s involvement is noteworthy. In 2015, the high-ranking clergyman was pulled in front of Tasmania’s Anti-Discrimination Commission to answer for a booklet distributed among state catholic school students outlining the church’s definition of marriage. That the archbishop would support expanding discrimination laws illustrates how defensive churches are right now.
Hostility to religion and anti-Christian activism is to blame. In recent years, the Labor party has emulated hard-left activists and strongly opposed exemptions for faith-based institutions in anti-discrimination laws. The Labor Party went to the 2019 election promising to legislate against “anti-gay speech” by prohibiting “harmful harassment” (a highly ambiguous term) as “an unacceptable abuse of the responsibilities that come with freedom of speech” which must be subject to “effective sanctions.”
Such a proposal would have fallen disproportionately on Australians of faith. At the same time, most of the secular intelligentsia has treated issues like the complaint against Archbishop Porteous or Rugby Australia’s termination of Israel Folau’s contract with evasive indifference at best. The proposals we are seeing now are an inevitable result as churches adopt a minority mentality in response to the prevailing secularism in our political, corporate and media institutions.
Archbishop Porteous is correct to say that what Australia needs is “a religious freedom act that recognises religion as a good for society and something that must be protected in light of the contribution it has made and continues to make to society.” However, anti-discrimination laws are not the ideal mechanism to achieve this. Indeed, it is anti-discrimination laws themselves which have eroded religious freedom in Australia. New laws to protect religious Australians could likely be used against followers of different religions, since different faiths often contradict each other. Promoting the tenets of one faith can reject the tenets of other faiths and giving one party the right to take legal action because of this risks the law being used as cudgel to batter one’s religious opponents. It’s not difficult to see how religious anti-discrimination laws could spiral into sectarian conflict.
A better way of recognising the value of religion would be to draft a religious freedom act that ensures there are fewer laws that restrict the ability of religious Australians to express their beliefs and live in accordance with their conscience.
Calls for protection in discrimination laws is not a solution to the underlying cultural problem that is threatening religious freedom. All it will do is give the government and illiberal institutions such as the Australian Human Rights Commission more power to regulate what we say and who we associate with.
Morgan Begg is a research fellow at the Institute of Public Affairs