Rebalancing the nation’s human rights dialogue

Chris Merritt                 25 November 2021

Published in the Australian Newspaper

In practical terms, the most promising part of the government’s plan to end religious discrimination will not be the rise of a new form of litigation. Court cases, despite what some lawyers believe, cannot solve all of society’s problems.

Most people will never step foot in a court. For them, the real impact of the government’s plan will come from the promise to establish a new position within the Australian Human Rights Commission dedicated to preventing the erosion of religious freedom.

The proposed Religious Discrimination Commissioner will rebalance the nation’s human rights dialogue and, if the right person is appointed, ensure religious liberty is no longer treated as a second-order issue.

Academic and Jesuit priest Frank Brennan nailed the problem last week in a powerful article in Eureka Street. He wrote that it was not good enough that religious freedom at a national level is treated as “a catalogue of exceptions in the Sex Discrimination Act”.

All human rights, including religious freedom, should be treated equally. Yet that is not how the current system works. In modern Australia, the human rights system is a shambles. We have given statutory recognition to some, but not all, of our international human rights obligations.

This divisive approach has distorted the debate over human rights and given rise to the perception that the rights of some are more important than the rights of others.

You do not need to look too hard to see that the confected right to be free from offence has been allowed to trump two real rights that lacked statutory recognition: freedom of speech and freedom of religion.

Nobody should ever forget what happened to Julian Porteous, the Catholic Archbishop of Hobart, who fell victim to this selective approach to human rights.

In 2015 the archbishop explained the well-known Catholic doctrine on marriage in a widely distributed booklet. That prompted Martine Delaney, a transgender activist and Greens candidate to complain that she felt offended.

Porteous, quite reasonably, believed he had a right and an obligation to explain his church’s teaching. But Tasmania’s Anti-Discrimination Commission disagreed and decided he had a case to answer.

The Australian Catholic Bishops’ Conference was also required to answer the activist’s complaint, which meant a state government agency was purporting to have the authority to pass judgment on the way Catholic bishops impart the doctrine of their church.

Delaney eventually withdrew her complaint. But that affair highlighted the damage being done by Australia’s approach to human rights.

Some have criticised the Religious Discrimination Bill on the grounds that it will override state laws and shield people who make a statement of belief – such as Porteous’s outline of Catholic doctrine.

But the shield for statements of belief comes with qualifications that should be enough to satisfy reasonable people. Such statements cannot be malicious and cannot be used to vilify or harass.

In the past, governments fell into error by giving priority to the human rights of identifiable interest groups – important as they are – while neglecting those rights, such as religious freedom, that are important to a much broader part of society.

This Bill and its associated change at the Australian Human Rights Commission is a necessary correction.

Anti-religious sentiment might be fashionable in some quarters, but there is no getting away from the fact that almost 70 per cent of the population has some form of religion, according to the 2016 census.

The Bill will inevitably lead to litigation but that is just part of the remedy. Even when court cases succeed the immediate benefits are usually confined to the parties – not the general community.

This is where the new Religious Discrimination Commissioner comes in. If the right person is appointed, this position has the potential to help focus the Australian Human Rights Commission not just on identifiable interest groups but on an interest shared by almost 70 per cent of the population.

The could have a beneficial impact on the way the community views the commission, particularly when coupled with the recent appointment of Lorraine Finlay. Finlay, the new Human Rights Commissioner, also appears to have an eye to core interests shared by the broader community. She sees her role as protecting and promoting traditional rights and freedoms “including a focus on fundamental freedoms such as freedom of speech, religion, movement and association”.

These appointments, and the new law, coincide with extraordinary developments in one of the most damaging episodes of antisemitism. The developments, due to be revealed on Friday by Caroline Marcus on Sky News, concern the treatment of Jewish boys at Victoria’s Brighton Secondary College.

Their accusations of anti-Jewish abuse were first revealed by Australian Jewish News and prompted the Victorian government to commission an inquiry by workplace relations consultants. That inquiry found the school’s management of the reported antisemitic conduct was “adequate” – a finding that has failed to satisfy five boys who left the school prematurely after being singled out for abuse because of their religion.

They attended this college for different periods between 2013 and 2020. Yet their stories of what happened are disturbingly consistent.

In multicultural Australia, the Religious Discrimination Bill and the changes at the Australian Human Rights Commission are about to provide safeguards that should have been in place long ago. People of all faiths need to be sure the institutions of this country will not leave them without a remedy if their children are also abused because of their religion.