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Editor’s Note: We reproduce this insightful article, “Faith, hope but no clarity in religious discrimination bill” by Greg Craven, Vice-Chancellor of the Australian Catholic University. Full credit to The Australian Newspaper for publishing Greg’s always-articulate articles. See more of Greg Craven’s stories here.

Photo: Attorney-General Christian Porter announcing the draft bill at Sydney’s Great Synagogue.
Bianca de Marchi/AAP

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I like our federal Attorney-General, Christian Porter. He once admitted to me that he and his wife enjoyed reading sections of one of my constitutional law books to each other in bed. Evidently he is a man of taste and priorities. So, I can sympathise with him as he grapples with legislating for religious freedom. This is the legal equivalent of doing the Kokoda Track in a suit of armour.

Some legislation is easy to draft and some is difficult. This stuff is diabolical and the complexities show clearly through the exposure draft of the religious discrimination bill, released on Aug­ust 29.

The fundamental problem is that the issue matters so much to so many people from so many points of view.

From the preacher fearing he will never be able to evangelise again, to the gay teacher wondering about their job, this stuff matters. Worse, everyone has their own freedom of religion bill in their pocket and will fight to the death for that version.

And just to make things easier, religion has never been a hotter topic. From same-sex marriage, through abortion to responses to child sexual abuse, religion is as safe a substance as nitroglycerine.

Which is ironic, because freedom of religion is a widely-accepted notion, and in essence very simple. It is enshrined in every human rights instrument in creation, and just about no one will actually admit to opposing it.

At heart, it simply is the proposition that everyone is entitled to the religious belief (or non-belief) of their choice, and the right to speak, preach, teach and live their lives according to it.

Which is where the complications begin. Everybody agrees I am allowed to be a Christian and send my children (if I like) to Christian schools. But how Christian is that school allowed to be? Can I insist that its staff preach and even practise Christian virtue — sexual or otherwise — and what happens if they do not? Welcome to Porter’s nightmare.

This is the problem with human rights, like freedom of religion. It is not whether you agree with them in abstract, but which right wins when religion collides with freedom of speech, or association, or sexual expression.

In the Western world, the practical answer is clear enough. Religion is the 12-pound weakling of human rights. Faced by almost any other demand, it will be sacrificed by politicians, legislators and bureaucrats, particularly if they are “progressively” inclined.

To them, religion is seen as at best old-fashioned, but potentially positively dangerous to more funky rights of physical autonomy, privacy and freedom of speech. This type of understanding has led to the development of a highly particular and typically ineffective legislative format to “protect” religious freedom. This is where you protect another right — typically against some form of discrimination — but provide an “exemption” in favour of action taken on religious grounds.

This is dud rights protection. As a matter of theory, no one is going to be particularly satisfied being stigmatised a “licensed religious discriminator”, unethical but excused. In the legal trenches, courts and tribunals naturally are disinclined enthusiastically to support exceptions to what evidently is seen as best practice.

This recently has led to a whole new way of conceptualising legislative freedom of religion, which pretty much has coincided with the current Australian political debate. Instead of casting the contest as one between a right and an exemption, why not present it as right versus right?

Under this approach, freedom of religion legislation would contain a big, bold right to precisely that. This right would then compete on at least an equal footing with other rights in determining legal and policy questions, in a vastly more positive atmosphere for proponents of religion.

But this possibility ultimately was sunk in the context of the Porter bill by a combination of deeply conservative Coalition members together with eclectically dense libertarian commentators, who could not discern the difference between a piece of legislation dealing with one specific right — religion — and a bill of rights. To these ostensible protectors of religion, any law with the word right in it was a detested bill of rights.

So Porter more or less was forced to produce a bill that proceeds in the usual right-religious exemption model that systemically downplays the centrality of faith in the pantheon of rights.

Consequently, in the guts of the bill, part two protects various activities (employment, partnerships, qualifying bodies and so forth), while part three provides various religious exemptions relating to precisely the same things.

But there are some parts of the bill that do stick to the hard rights theory of religious freedom, and this produces a piece of legislation that is curiously self-contradictory and not easy to put together. Freedom of religion is most often a molehill, yet sometimes it is a mountain. The most obvious example of a provision with gonads is the right to make a statement of religious belief protected by section 41. This is, after all, the heart of freedom of religion: freely to speak one’s faith. Provided a statement is not malicious, harassing, vilifying or inciting hatred or violence, the right here effectively is absolute, prevailing even over other anti-discrimination legislation. This protection covers statements of belief and non-belief, in practice ensuring believers can speak their truth without fear of being denounced as discriminators. There could be no more actions against bishops for daring to utter the creed in public.

The second tough provision is section 10. This confers a right on religious bodies — educational, charitable or any other conducted on a religious basis — to act in accordance with their religion in conducting their activities. This will be a provision that, among other things, grounds religious education in schools.

The third in the troika of toughness is section 11, which excludes from the concept of discrimination any action that is reasonable, consistent with the purposes of the act, and that addresses a religious need or disadvantage. Exactly what this means is anyone’s guess, but to the religiously-minded it is at least vaguely comforting.

Yet this eclectic combination of provisions, frankly, makes the Porter bill a hard read. Its general tone is of a religious freedom bill whose author’s heart is at best moderately engaged. But just occasionally there is a gleam of steel. Ironically, it is virtually impossible to comprehend the bill in any event because we lack one vital piece of information.

Alongside this legislative process, the Australian Law Reform Commission is conducting a review of religious exemptions in anti-discrimination law generally. It is not due to report until December next year.

Depending on what this report says and how government reacts to it, it is highly likely it will provide the basis for legislation that decides some of the really hot-button issues on freedom of religion, like whether a teacher in a Christian or Islamic school must adhere to religious teachings in giving their classes. Or living their life. And whether the same regime applies to a religious educator, a history teacher and the school gardener.

This is one of the fundamental problems of the draft religious discrimination bill as a political artefact. It tells you when you are not discriminating on religious grounds, but we still do not know whether conduct protected under this bill will nevertheless run afoul of other anti-discrimination regimes relating to matters such as sexuality. The A-G says he has consulted widely, and so much is certain. But the drafting suggests much of this consultation was internal, to assuage the concerns of different groups in the Coalition party room. This undoubtedly would have been exhausting.

But it is not a substitute for consultation with the affected community. Much of the Catholic Church, for example, considers itself blindsided by the bill. Many denominations have questions, quibbles and quandaries.

This bill cannot be the end of the discussion. Whether it is a genuine start will depend on both government and opposition.