Even in liberal democracies, the policymaking process is rarely based on evidence alone or informed by reasoned debate.
Whenever the law and religion come into conflict with each other, the ensuing battle is a toxic and ideologically charged one, calling to arms the most hardened and unrelenting warriors of our modern age; both sides relish the fight equally.
The push by the Prime Minister, himself a religious man, and his government for new legislative measures to strengthen religious freedom in Australia is not quite as innovative as it may seem. After all, religion has always played a significant role in Australian public life. Whilst scientifically difficult to measure, plenty of anecdotal evidence is now out there, suggesting that religious affiliations have been rather influential in shaping voters attitudes in the previous general election; this commonly accepted narrative has taken firm roots in Canberra and beyond, and the government reckons it has a lot to gain by moving forward with legislation. Indeed, if Morrison would merely want to take advantage of this particular issue to just solidify his voting base, he would have plenty of other policy items at his disposal, but moving aggressively on religion, even if more rhetorically than legally, fits nicely into the wider strategy of wedging Labor. Even if Anthony Albanese plays his cards exceptionally well, Labor’s perceived hostility toward religion will linger on for quite some time, and in this context it doesn’t really matter how the party positions itself on this particular subject.
Wounds meant to heal slowly are best left undisturbed. But the way Morrison rose to the top, intriguingly spelled out in this nonfictional political thriller matters, of course. Pressing so hard on religion might be a way for him to prove his own conservative credentials and endear himself to those colleagues who may have preferred Dutton at the helm. In fact, legislating in this area has eluded successive governments not so much for political reasons, but rather because of all the legal complexities and fine-print involved. Thus, the PM’s political undertaking is not entirely risk free either. Having to navigate the tensions between those who want to see freedom of religion as a positive right, and, on the other hand, MPs preferring no further anti-discrimination legislation at all, might be the hardest challenge. Removing the politicking from the equation all together which is more of an academic exercise since practically impossible, the question that remains is simply this: Can any credible legal case be made for additional legislation?
Comprehensive human rights legislation or more legal patchwork?
As can be expected in a vibrant democracy, the religious community itself doesn’t speak on the issue with one voice.
Father Frank Brennan who once earned the noble distinction of being dubbed ‘a meddlesome priest’ by former Prime Minister Paul Keating, an epithet he wears proudly to this day, is perhaps the most thoughtful and insightful figure the Australian religious establishment has produced to date. Unlike many other clerics, the Jesuit priest has never beaten around the bush when it comes to human rights, having argued consistently for a national human rights act, and his dedication goes back to the days of the Human Rights Consultative Committee he chaired. He even is prepared to concede that religious freedom is not one of the most pressing matters at hand. Acknowledging the fallout from the same sex marriage debate and the backlash it caused amongst religious people, however, he believes that the time has come for recalibrating religious freedom in Australia. With a federal Human Rights Act unlikely to make it onto the statute books anytime soon, the only way forward is additional anti-discrimination legislation in this area. As Father Brennan rightly acknowledges, such an undertaking is complex, potentially putting freedom of religion on a collision course with other rights and legal provisions. Expanding on his thoughts in Eureka Street, Brennan makes some additional fine and nuanced observations, restating his commitment to a national Human Rights Act and making it plain to readers that no human right, not even those meant to ensure freedom of religion, can or should ever be absolute.
For ideologically very different reasons, there is considerable opposition to additional legislation. During the same sex marriage debate, former Prime Minister Malcolm Turnbull argued that religious freedom is already protected under the constitution. Indeed, liberal libertarians like John Roskam, Executive Director of the Institute of Public Affairs make the same point, but would like to go much further, rolling back all existing human rights and anti-discrimination legislation. For Roskam and his ilk, the common good can only be achieved if the government leaves people alone; this is to say the state is no positive arbiter in human affairs. What John Roskam is to the libertarian right Greens MP Adam Bandt is to the left. Opposing any Religious Discrimination Act, Bandt worries that progress, particularly for the LGBT community, might be put in jeopardy, and his fears are by no means unfounded. As must have become apparent by now, what unites all sophisticated opponents of the planned new legislation is their belief that the constitution contains already provisions safeguarding religious freedom in Australia; Yet, this argument is at least partially flawed. Most commonly cited is Section 116 stating the following:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observants, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
The Australian Constitution: Section 116:
What makes legal experts such as Dr Alex Deagon concerned is the extremely narrow interpretation of this Article by Australia’s High Court, effectively denying religious freedom as a positive right. Granted, the government of Queensland is unlikely to set up its own church in the foreseeable future in the sunshine state, but the possibility of States legislating to undermine religious freedom is more than just a legal hypothetical. Indeed, as Father Brennan astutely observed, States deal very differently with religion, and, as the enquiry he chaired found, New South Wales and South Australia had significant shortcomings. Thus, considering Australia’s legal code on anti-discrimination legislation overall, it is difficult to deny religious people the rights of protection granted to various other groups in society.
Whilst not likely to satisfy ideological hotheads sitting on either side of the political fence, the forthcoming legislation and its accompanying hyperbole may have prompted the government to act politically cautiously, opting for a minimalist version which can be easily incorporated into Australia’s anti-discrimination legislative framework. Even though nothing has been set in stone yet, the government has so far acted legally responsible. A more intricate question remains; how detrimental the lack of adequate human rights protection has become for Australia is evident in its permanent strengthening of unreasonably austere national security legislation, setting the country apart from almost any other Western democracy. In conclusion, therefore, it seems reasonable to argue that, in the longterm, either a Bill of Rights, enshrined into the country’s constitution or a federal Human Rights Act, against which all forthcoming legislation has to be benchmarked, will be the most reliable and constructive measures positively impacting upon protecting the human rights of individual citizens. Such a comprehensive federal legal framework must ensure robust protection of religious freedom too, and, perhaps of equal importance, it must also guarantee that each individual enjoys the right to freedom from religion if one so chooses.
Reflective contemplations 