Religious Discrimination Bill 2021 Response from a concerned citizen 17 December 2021

 

Commonwealth of Australia   Religious Discrimination Bill  2021

Response from a concerned citizen

Author: Andrew Smallman

My interest in the bill  is that of an independent 78 year old citizen having  no affiliation with any religious or anti religious or political entity.

Brief summary: 

* Beliefs.  Beliefs are personal, private and no business of any law in a liberal democracy. We are no longer in the middle ages. Laws can only pertain to behaviour. 

* Freedoms.   A person or group should be free to engage in activities in relation to politics, social policy, religion, philosophy or any other matter as part of a general freedom of expression and conduct about anything provided the conduct is lawful and does not infringe the freedoms of others.  There is nothing special about religious expression. It should have the same status in the public place as activities related to politics, philosophy, surfing, flying model aeroplanes or anything else.

The Bill will not enhance the freedom of any person or group to engage in religious practice.  It will not make discrimination against any person or group less likely. 

It will in fact have the opposite effect by granting special privilege to quasi-religious  entities  to discriminate against people in ways totally at odds with the anti discrimination principles enunciated in the objects of the Bill.

* Religious body. Real religious bodies engage in the  expression of religious practice and teaching religious doctrine. These organisations are not mentioned in the definition of religious body in the Bill. Instead the bill seeks to proclaim schools, hospitals and other entities to be religious bodies which is disingenuous and manifestly incorrect.

 * Cult of fragility versus  culture of diversity.  The Bill invokes the notion of “religious susceptibilities”. This is an expression of the idea that people holding to certain doctrines are fragile and need to be “protected” from association or congress with those who hold to different notions. This is toxic, false and the stuff of cults.

In his second reading speech the Prime Minister the Honourable Scott Morrison said this bill offers “protection” for persons of faith. But he did not specify from what entity or influence persons of faith need protecting.

* Indivisibility and universality of human rights.  In its Objects The Bill clearly states the importance of these concepts.   But much of the actual substance of the text consists of  particulars, exceptions and exemptions which operate against both indivisibility and universality.

* The elephant in the room   with this bill is that we have no comprehensive national approach to codification of freedoms, rights, responsibilities and discrimination.  I ask members of the House of Representatives and the Senate to set this bill aside and turn their considerable energies to tackling the larger issue.

 

Exposition:

Beliefs

The Bill disqualifies itself right on the front page by seeking to create an Act of Parliament which deals with people’s beliefs.

Laws can only deal with actions, not beliefs. Beliefs are personal, private and no business of any law or government or administration.

Any attempt by any law to enter the realm of personal  beliefs would take us back a thousand years to the middle ages when the religious sought to control the  thoughts, beliefs, and behaviour of ordinary people.

The Bill further attempts to concern itself  about  whether beliefs are “genuinely held” or not. This is impossible to define or express in administrative action.  People will tell you they “genuinely” hold one belief today and a different one next week.

The Act refers repeatedly to the idea of beliefs held by various organisations. This notion has no validity at all.    Beliefs can only be held by individuals. They are personal.   Organisations can have policies, procedures, mission statements and the like but not beliefs.

Protected attributes and general freedoms

Many anti-discrimination laws rest on the concept of  protected attributes.   These usually include date and place of birth, ethnicity,  parents, skin colour, gender, body morphology, disease and disability.   These are attributes rendered unto us. We do not get to choose them.

A person’s religious belief, practice, affiliation or proclamation is not an attribute at all.  An individual can change his or her religious affiliation at will and many do. Religious belief or affiliation is not an intrinsic property or attribute of the person.

Freedom to hold and express religious beliefs and to engage in religious practices is a subset of the general right of all citizens to hold any beliefs of any kind about anything and to express their beliefs about anything, be it religion, politics, philosophy, agriculture, animal husbandry or anything else.

We do not suppose that a person’s beliefs, views or proposed actions about politics or global warming or the management of water resources be deemed a protected attribute. 

We do not need some kind of law to protect the right of individuals and groups to engage in religious practice. They are doing it already with no impediment.

Religious organisation or body

I think we can readily agree that some types of organisation are “religious”. These would include churches, mosques and  synagogues which people attend for religious ceremony, monasteries, theological colleges, bible colleges, religious camps, retreats and the like together with the administrative structure required to operate these activities.

But the definition of religious body  in section 5 does not mention these types of organisations at all  which is an astounding omission  given the title and objects of the bill.

Instead, the bill wants to put the view that certain types of schools, hospitals, health care organisations, accommodation and care facilities and  benevolent organisations are “religious bodies”.

This is disingenuous and contrary to facts available to anybody.

I had my right hip replaced at North Shore Private Hospital which is operated by Ramsay Health Care, a secular for-profit organisation.

My left hip was replaced at the Mater Hospital St Leonards, Sydney operated by St Vincent’s Health, a functional entity within the overall control of the Roman Catholic Church in Australia.

My experience as a patient was for all practical purposes exactly the same in each facility. The doctors, nurses, physiotherapists, catering staff, cleaners and administration all did the same jobs to the same standard in each hospital. I was not treated to any kind of religious experience and did not observe any kind of religious activity which might have affected any patient at the Mater.

In no sense is the Mater a religious institution just because it comes under the overall control of the Catholic Church.

Neither is the manufacture and sale of Weetbix a religious activity just because it comes under the overall control of the Seventh Day Adventist Church of Australia.

When I visit Vinnies or the Salvos I see no evidence of religious activity whatsoever. These organisations operate a recycling programme. There is nothing religious about it.

To obtain a license to operate a school religious organisations  have to meet the requirements of the State Education Authority which are about educational standards not religion.

So-called “religious” schools have to teach the same syllabus  as any other school and meet the same educational and professional standards as any other school.  Mathematics taught in a “religious “ school is exactly the same as mathematics taught in any other kind of school.

But wait, it gets worse.

The definition of  a religious body in Section 5 of the Bill specifically includes “any other type of body”  (other than a body that engages solely or primarily in commercial activities).

This is totally unacceptable. The bill is giving carte blanche to somebody (not specified) operating a religion (not defined) to declare anything to be a “religious body” as long as it is “conducted in  accordance with the doctrines, tenets, beliefs or teachings of a particular religion”. These doctrines could consist of  anything at all.

Why does it matter ?   Because religious bodies are eligible for preferential taxation treatment and because they are granted by this bill a license to implement discriminatory practices not permitted to any other groups.

Cult of fragility or culture of diversity

Part 2, Section 7 subsection (1) Note 1 of the bill states

“…it is not discrimination for a religious primary school to require all of its staff and students to practice that religion, if  such a requirement is necessary to avoid injury to the religious susceptibilities of the people of that religion.”

This is an expression of the idea that people and their beliefs are fragile. This is a  toxic and false notion which has gained some popularity in recent years. Some groups of people claim that they will be harmed in some fashion which is never explained merely by proximity to or association with persons who have different beliefs about some things.

This attitude is typical of cults, religious or otherwise, the leaders of which proscribe any contact with or interaction with people in the non-cult world.

The alternative and vastly more robust approach in an egalitarian, multicultural society which I hope Australia can continue to be is cultural diversity, which embraces the reality that people can have and express a range of views on any subject and that we all gain in wisdom, strength and tolerance by allowing ourselves to hear and interact with people whose ideas challenge our own.

Statement of belief

Statement of belief is defined in Section 5 and further referred to in Section 12. 

In the absence of this bill any person can state any belief about anything and act in accordance with the belief at will  provided that  in so doing:

The person has regard for the rights of others and does not break the law.

The effect of this bill is to restrict, constrain and limit the right to statement of belief.

It requires somebody, presumably a judge at some stage to decide whether a statement is “malicious” (by what criterion we have no idea) or that a “reasonable person” (whoever that might be) would consider the statement would “threaten, intimidate, harass or vilify a person or group…..” (where these terms are nowhere defined or in any meaningful way capable of definition).

Definitions like this get us absolutely nowhere. They just kick the can down the road to the courts with no useful guidance to judges as to how they should rule in any particular case.

Indivisibility and universality of  human rights

The objects of the Act contain several statements which recognise the “indivisibility and universality of human rights” and “the principle that every person is free and equal in dignity and rights” and that “everyone has the same rights to equality before the law, regardless of religious belief or activity”.

But the remainder of the bill proceeds by means of 50 or so pages of convoluted verbigeration  to subvert those principles.

Rights are divided up and parcelled out in little pieces with different rules depending on variations in workplace, type of organisation and other factors.

Universality is lost in the profusion of exceptions and exemptions.

The result is a tangle of words the net effect of which is to invite  the reader to wonder what the authors of the bill are trying to achieve.  It is certainly not clear to me as I read through the actual words.

In Part 4 Division 2 Section 19 the Bill states

“ It is unlawful for an employer to discriminate against another person on the ground of the other person’s religious belief or activity”…. And goes on in similar sentiment for the rest of the section.

But then it appears that in Division 4 Subdivision A Section 34

“Certain conduct by religious bodies is not discrimination under division 2 or 3 of this part and it is therefore not necessary for the conduct to come within an exception of this division”

So the bill sets out rules in one part then entitles some people in some kinds of facility to ignore those rules for no particular reason given in the bill.

No argument or explanation  is offered as to why some organisations and facilities should be subject to rules which are different from those which apply to other organisations and facilities.

The problem of meaning is further confounded by legalese prose the meaning of which is difficult to ascertain.   

Just by way of example and bearing mind the bill is full of similar gems of verbal obfuscation here is  a quote from Section 5, Part 50, clause 2

(2) A person (the first person) commits an offence if:

a) the first person makes to another person (the second person) a threat to cause detriment to the second person or any other person: and

b) the first person:

1) intends the second person to fear that the threat will be carried out: or

11) is reckless as to causing the second person to fear that the threat will be carried out: and

c) the first person makes the threat because he or she believes a matter mentioned in paragraph (1) (d) …..etcetera…..and on and on for page after page………

I understand that the authors of the bill are trying to clarify certain matters but it appears to me their efforts are likely to have the opposite effect.

The bill is inviting some unfortunate  judge to be a mind reader who can determine the beliefs and fears of various witnesses before a court, each of whom could  have a motive for gaming the act.

The Australian Constitution

It is likely that the Bill as it stands could be subject to challenge by constitutional lawyers

There is reference to religious freedom in the Australian Constitution.

Section 116 states:

“The Commonwealth shall not make any law for establishing any religion or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required for any office or public trust under the Commonwealth.”

The Bill as it stands appears to tangle with the stipulation that “no religious test shall be required as a qualification for any public office or public trust under the Commonwealth”. Given that private and “religious” hospitals and schools are substantially funded by the Commonwealth with taxpayers money I think a good argument could be advanced that these entities constitute a “public trust”  under the Constitution thus rendering sections of the  Bill invalid.

Who really wants this bill and why

The politicians

In the argy-bargy which accompanied the passage of the “same sex marriage” act (the marriage amendment, definition and religious freedoms Act 2017), some religious representatives claimed that the new law would, in some never identified fashion, threaten religious freedom.  This was a fabricated claim based on nothing of substance and the passage of time has shown that religions continue to conduct their affairs unimpeded in any way by legalisation of same sex marriage.  However in order to placate the religious, the government of the day promised to bring on a bill to “protect” religious freedom.

Now ( December 2021) what both major parties appear to want is to get any bill before the parliament for the same reason which is to placate the restive religious.

I very much doubt that politicians care much what is actually in the bill as long as it does not become yet another focus of religious unrest in the lead-up to another federal election campaign.

I note that the bill has been sent to a parliamentary committee for review without a vote in the lower house. This supports my view that neither the government nor  the opposition want this bill subjected to open debate.

The religious

Most of the push for legislation appears to be coming from the bishops of the Catholic and Anglican Churches. It appears to me that some of the other religions such as the Jews, Muslims, Hindus and others are not objecting but neither are they pushing very hard for this bill.

I think it is no co-incidence that the Catholics and Anglicans have a multi level, hierarchical administrative structure within which ambitious individuals can find a career path. This involves achieving status, privileges and a degree of power.   For these people the prospect of exerting control over or at least influence over the government of the day on matters of law might be a seductive attraction.

It’s not about religion, it’s about privilege.

Lobby groups and Influencers

There are several of these. I just point to two.

The Australian Christian Lobby has said it supports the Bill but subsequently threatened to dis-endorse it due to perceived issues with possible proposed changes to the Sex Discrimination Act.

Mr Nick Cater of The Menzies Research Centre said in a piece published in The Australian on 29 November 2021 …

…”Morrison’s bill……confirms that religious faith is a matter for individual conscience not group conformity, and is a matter sacred between a person and their God”.

This statement is  a  brazen falsehood. The bill actually does specifically license the imposition of  group conformity for a range of specified entities.

I just note in addition that we do not need a law which deals with any person’s  individual conscience. Such matters are beyond the reach any law.

The general problem of rights and discrimination

The elephant in the room with this bill is the general problem of how we as a nation deal in law and practice with issues of freedoms, rights, responsibilities  and discrimination. There are Commonwealth and State laws (12 of them according to Part 2 Section 12 of the bill)  which deal in various different ways with issues of discrimination and equal opportunity.  These laws have arisen over a period of 50 years in an apparently ad hoc fashion with little in the way of  unifying conceptual or legal structure. Taken together these laws now look like a patchwork quilt with many missing pieces and many opportunities for conflict, confusion and misunderstanding.

I think the time has come for the Australian people to consider the creation of a single  omnibus law, operating at both Federal and State levels to codify our expectations about the freedoms, rights and responsibilities of individuals and groups and about protecting people from discrimination on the basis of inherent personal attributes or statements or actions about any matter. This could include observance of religious or cultural practices or political activity or environmental protection or anything else.

A proposed alternative Bill

When I peruse the bill before the house it is apparent that it raises more questions than answers. For instance what does “injury to religious susceptibilities” mean?  It is not defined and I would suggest is not capable of definition.  

The courts will be left to figure out what some of the convoluted language and un-defined concepts of the bill actually mean. In addition judges will need to be mind readers so they can determine what a person’s belief might have been at some particular time and whether it was genuine (whatever that means).

So here is my little contribution:

Andrew’s Freedoms and discrimination Bill November 2021

The object of this bill is to codify in concise form the expectations of Australian people about freedoms,  responsibilities and discrimination.  

Part 1. Freedom of speech, behaviour and association.

Individuals and groups are free to express views about any matter and engage in activities and practices of any kind including congregation with others provided that in so doing they do not break the law or adversely affect the welfare of others.

These views and activities could be about religion, politics, culture, philosophy, environment, fish farming or anything else.

Part 2. Discrimination

Individuals, groups and organisations shall not discriminate against other individuals or  groups on the basis of

a) Innate or acquired characteristics of a person.

These are  things over which an individual has little or no control.

These include but are not limited to age, sex, ethnicity, country of birth, skin colour, body morphology, illness and  disability.

b) A person’s actions and practices arising out of choice. These include but are not limited to things like religion, politics, culture, dress and social behaviour.

Part 3. Offences.

It is an offence for any person, group or organisation to act so as to prevent any person or group from engaging in lawful activity as described in Part 1.

It is an offence for any person, group or organisation to discriminate against any person or  group engaging in lawful activity as described in Part 1.

Part 4. Penalties.

These need to be spelled out preferably in some adjunct regulation which can be amended as required by administrative fiat.

Part 5. Procedural matters and mechanism for review (not detailed here).

End of response

Andrew Smallman 17 December 2021