TO: Committee Secretary
Parliamentary Joint Committee on Human Rights
Department of the Senate
PO Box 6100
Parliament House
CANBERRA ACT 2600
AUSTRALIA
FROM: Dr Russell Blackford
30 Birchgrove Drive
Wallsend, NSW 2287
E-mail: russell.blackford@newcastle.edu.au
Phone: [redacted]
Inquiry regarding
Religious Discrimination Bill 2021 and related bills
Introduction
1. I refer to the current inquiry relating to the
government’s religious discrimination legislative package, including the Religious
Discrimination Bill 2021 (“the Bill”), and thank you for the opportunity to
make this submission.
2. I am an academic philosopher with a specialization in
legal and political philosophy, including issues relating to liberal theory, secular
government, and traditional civil and political liberties such as freedom of religion
and freedom of speech. I have published widely on these topics. In particular,
my published books include Freedom of Religion and the Secular State (Wiley-Blackwell,
2012) and The Tyranny of Opinion: Conformity and the Future of Liberalism
(Bloomsbury Academic, 2019). My formal qualifications include an LLB with First
Class Honours from the University of Melbourne and a PhD in philosophy from
Monash University, where my doctoral dissertation applied ideas from liberal
theory and philosophy of law to certain topical issues in bioethics.
3. I also have extensive practical experience as an industrial
advocate working in the federal jurisdiction and as a workplace relations solicitor
with a major commercial firm in Melbourne. I have considerable expertise in workplace
relations and employment law, and in anti-discrimination law.
4. I currently hold an appointment as Conjoint Senior
Lecturer in Philosophy at the University of Newcastle, though I do not, of
course, purport to represent the views of the university.
Scope of submission
5. The draft Bills are complex and much of their content deals
with issues arising from tensions between different strands of public policy. As
a result, there is much room for argument about the values and priorities that
have shaped the current legislative package. It is noteworthy that the Bills do
not generally deal with the topic of freedom of religion, which is a freedom
from persecution or imposition of religion by state power. They do not, for
example, seek to strengthen and extend the protection given by s. 116 of the
Australian Constitution. Instead, they are a contribution to
anti-discrimination law.
6. In this brief submission, I will confine myself to just
two key areas of concern: first, the definition in the Bill of “religious
belief or activity”; second, the nature of a “statement of belief” and the
importance of allowing vigorous public discussion and debate about religion.
Religious belief or
activity
7. Fundamental to the legislative package is protection
against discrimination in employment, and in various other domains of public
life (education, accommodation, provision of goods and services to the public,
etc.), based on religious belief or activity as defined. The definition of
“religious belief or activity” is as follows:
(a) holding a religious belief;
or
(b) engaging in religious
activity; or
(c) not holding a religious
belief; or
(d) not engaging in, or refusing
to engage in, religious activity.
8. The first problem with this definition is that it does
not clearly include the communication (or expression) of religious
beliefs. An employer might, for example, claim that it has not unlawfully discriminated
against an employee because of the mere fact that she is known or understood to
hold a certain belief, or because of her participation in clearly religious activities
such as ritual and worship. The employer might argue that it has lawfully
discriminated against the employee because of her communication of her belief,
or because of some aspect of her communication of it, such as its time, place,
tone, or manner. In response, a court might hold that the communication of
religious beliefs falls within “religious activity” or that it is implicit
within “religious belief”. However, that is not clear and it cannot be assumed.
9. For reasons that are unclear to me, the Bill currently
protects communication of religious beliefs in relation to the rules of
qualifying bodies, but not in relation to areas such as employment. Compare s.
15 with, for example, s. 19. At best, this is confusing.
10. The legal effect of this difference is open to more than
one interpretation. On one construction, however, it suggests that
communicating religious beliefs is not included within the definition of
religious belief or activity, but is a separate topic. If so, s. 15 provides
that the rules of a qualifying body cannot generally forbid communication of
religious beliefs, but it seems that an employer’s code of conduct probably can
prevent communication of religious beliefs, even outside the workplace (or to
use the language of the Bill, outside of practising the employee’s profession,
trade, or occupation). In that case, this anomaly should be corrected.
11. Even if it were clear that communicating religious
beliefs falls within “religious belief or activity”, consider the situation of a
person who does not hold any religious belief or engage in any religious
activity, but who does hold philosophical beliefs that are critical of religion
and/or provide a non-religious alternative worldview, such as some form of
secular humanism or philosophical naturalism. This person might communicate her
beliefs about religion in public discussion and might engage in other activities
that are aimed at undermining the credibility of religious doctrines, or at
opposing the social and political influence of religious organizations. For
example, she might be affiliated with a secular humanist organization, or the like,
and take part in its activities.
12. This person should receive the same protection for her relevant
beliefs, communications, and lawful activities as an adherent to a religion
receives for her religious beliefs and communications and her lawful religious activities.
Any other approach would be intolerably discriminatory. However, despite what
is stated in paragraph 41 of the explanatory notes to the Bill in the
Explanatory Memorandum, the current definition does not appear to have that
effect. As worded, it protects only passively not holding a religious
belief and passively not engaging in (or refusing to engage in)
religious activity.
13. Accordingly, the definition of religious belief or
activity needs to be modified so that it clearly includes communicating religious
beliefs, and so that it includes holding and/or communicating beliefs that are actively
critical of religion or are philosophical alternatives to religious beliefs.
Furthermore, the definition needs to be modified to include not just non-participation
in religious activity but also positive engagement in activity related to worldviews
that are critical of religion and/or stand as alternatives to religious beliefs.
14. All of the problems identified under the current heading
can be solved by adding the following to the current definition of religious
belief or activity (perhaps with consequential amendments elsewhere in the
Bill):
[(d) …]; or
(e) communicating a statement
of belief; or
(f) engaging in any activity
reasonably connected with a lack of religious belief, or of a particular
religious belief, or reasonably connected with a critical attitude to religious
belief generally or to a particular religious belief.
Statements of belief and
public discussion of religion
15. If enacted, the legislative package will have the effect
that a statement of belief is deemed not to be, solely in itself,
discrimination under any of a list of federal and state anti-discrimination
statutes. As far as it goes, this is welcome. It provides a valuable protection
for one kind of speech, namely (subject to certain conditions) speech that
expresses or communicates a religious belief, and speech that communicates a belief
that the individual concerned genuinely considers related to his or her not
holding a religious belief.
16. I expect that the courts would interpret the definition
of a statement of belief broadly to include speech that communicates a critical
attitude to religious belief or to a particular religious belief. Here,
paragraphs 171 and 172 of the relevant section of the Explanatory Memorandum
appear to be correct. Although this issue should be kept under review as case
law develops, the proposed definition is probably broad enough to be workable
and acceptable.
17. However, Note 1 inserted after sub-s. 12(2) is a matter
of concern. This note also appears after sub-s. 15(3) (and see also paragraph
192 of the relevant section of the Explanatory Memorandum). It states: “A
moderately expressed religious view that does not incite hatred or violence would
not constitute vilification.” As far as it goes, this statement is correct.
However, it is seriously misleading.
18. First, even an anti-religious view, or a view severely
critical of religion or a particular religion, would not constitute
vilification unless it incited hatred or violence. Though not defined in the
Bill, hatred is an extreme emotion involving animosity, detestation, and
calumny. Second, and more importantly, even statements of belief that are
discourteous, disrespectful, satirical, mocking, or uncivil, or otherwise
immoderate in their expression, would not constitute vilification unless they rose
to the level of inciting either the extreme emotion of hatred or outright
violence. While that much is clear as a matter of statutory interpretation, it
is important not to create confusion with a note that conveys a contrary and
misleading impression.
19. Thus, the note should be reworded to reflect the
intention and meaning of the Bill. The note would be accurate – and more reassuring
– if it stated as follows: Robustly expressed statements of belief that do
not incite hatred or violence do not constitute vilification. This guarantees a
broad zone for vigorous public discussion of religion.
20. In that regard, compare the broad zone for academic
discussion and debate recently identified by a unanimous High Court in Ridd
v. James Cook University (13 October 2021). Here, the judges explained that
ideas of academic or intellectual freedom provide a broad zone for vigorous discussion
that rightly includes much that inevitably cannot be expressed with courtesy
and respect.
21. Outside the relatively genteel environment of the
academy, this idea applies even more strongly to certain kinds of discussion
and debate conducted in the public sphere. These include political, cultural,
moral, and, most importantly for current purposes, religious discussion and
debate.
22. To expect that public discussion and debate about
religion should, or could, typically proceed in a “moderately expressed” way is
to fail to take the issues of disagreement seriously. For example, adherents of
some religions sincerely regard other religions as not merely false but actually
demonic. Some religions sincerely view themselves as engaged in a cosmic
struggle of good versus evil against other religions and/or against unbelief. Some
religions sincerely regard a wide range of conduct as sinful, and hence
conducive to spiritual damnation or an equivalent, even though the conduct might
be essentially harmless in its visible effects, and thus not a good candidate
for legal prohibition or for ordinary kinds of social condemnation. Religious
leaders and adherents often feel called upon by God to speak prophetically, using
forceful rhetoric to call their society back to its traditional moral ideas and
forms of worship. Conversely, many people with non-religious or anti-religious philosophies
view religious beliefs as ill-founded, false, socially harmful, and damaging to
the welfare of individuals in the everyday, empirical world. Such people might
well be motivated to engage in satire, ridicule, and denunciation in the
tradition of Voltaire.
23. It follows that, even more than with academic discussion
and debate, there is a limit to how far public discussion and debate about
religion can be universally, or typically, moderate in its expression. There
is, for example, a limit to how courteously, respectfully, and otherwise moderately
religious leaders can express the view that certain conduct is wicked, sinful,
and abhorrent to God. There is a limit to how moderately rival views can be identified
and opposed as heresy, or as the products of malevolent spiritual intelligences
active in the universe. Likewise, there is a limit to how moderately one could affirm
that some or all religious beliefs are illusory and harmful. Public disputation
over these and similar issues is inevitably passionate, robust, and marked by a
sense of great urgency.
24. While some viewpoints might lead to ugly and hostile speech
appearing within the sphere of public discussion and debate, the general policy
that has developed in recent centuries, as part of the emergence of Western
liberal democracies, has been to tolerate rival viewpoints and their vigorous assertion.
Since the seventeenth century, supporters of secular government and freedom of
religion have hoped that the harshest attitudes would soften in an environment where,
at least, no one need fear persecution with “fire and sword” for holding and communicating
their religious or philosophical views. By and large, that approach has been
successful, and there has been a discernible softening of attitudes over the
past, say, 350 years, and even within current lifetimes. It remains prudent to
allow vigorous discussion and debate to continue in the public sphere, with
minimal interference from the government or from others with lawful authority
such as employers. Participants in public discussion and debate about religion
should not have to fear legal sanctions, or adverse social outcomes such as
termination of their employment, for insufficiently “moderately expressed”
views.
25. This is not to suggest that statements of religious or
philosophical belief should lie entirely beyond the law, allowing a total
free-for-all in this area. Although it is difficult to identify with
exactitude, there is an outer boundary to toleration of vigorous discussion and
debate about religion or anything else.
26. Within the present Bill, the boundary is set by
reference to statements of belief that are malicious, threatening,
intimidating, harassing, or vilifying, or which incite serious crime. It is
worth emphasizing that nothing in the Bill protects anyone from a civil suit
for defamation, should she communicate a statement of belief that includes
defamatory content. Nothing protects an employee who has confronted a workmate,
colleague, customer, client, patient, etc., with a statement of belief that is,
in context, malicious, threatening, intimidating, or harassing. Again, nothing in
the Bill protects an individual who has committed one of the crimes in s. 80 of
the Commonwealth Criminal Code – see especially ss. 80.2A and 80.2B,
where the essence of the relevant offences is intentional urging of force or
violence against groups or their members. Such boundaries provide more than adequate
limits to toleration of vigorous discussion and debate about religion.
Conclusion
27. In summary, I have offered and defended two specific
recommendations for amendment of the Religious Discrimination Bill 2021:
·
First, amend the definition of religious belief
or activity as I have set out in paragraph 14 above. This may require some
consequential amendments.
·
Second, as per paragraph 19 above, delete the
first note to sub-ss. 12(2) and 15(3) of the Bill, and replace it with more
accurate wording as follows: “Robustly expressed statements of belief that do
not incite hatred or violence do not constitute vilification. This guarantees a
broad zone for vigorous public discussion of religion.”
Yours sincerely,
Russell Blackford
9 December 2021
