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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Thursday, January 13, 2022

My submission to the Senate Standing Committee on Legal and Constitutional Affairs

I have sent a submission to this committee, which is currently inquiring into the Australian government's package of Bills to introduce federal legislation on religious discrimination. The Committee has gradually been publishing submissions here - it looks as if they are publishing all submissions received from organizations and a selection of those received from individuals. My submission, if you care to broach it, is number 180.

At the time I wrote the document, I had read a large number of submissions to the parallel inquiry by a different parliamentary committee (see my own submission here) plus a smaller number of the submissions to the Senate Standing Committee on Legal and Constitutional Affairs. Since then, as more submissions have been published, I've read most of them and have learned a few points that might have made me change some things if I'd had the benefit of reading all the other submissions first.

For example, I was unaware when I put in my submission that the legislative package provides for a review of the legislation two years after it comes into force. Given that, my recommendation that there be a review of the legislation three years after it comes into force, in order to consider how it is operating in practice, looks a bit silly. Oh well.

I have also seen some useful commentary on whether section 12 of the main Bill achieves its purpose of overriding certain state legislation, or whether it is drafted in such a way that it looks more like an attempt to amend the state legislation (for more, see submission number 31 by Professor Anne Twomey). The latter, or anything like it, is not something that the federal parliament can do. Arguably, the section should be modified so that it more clearly provides rights that then prevail over the state legislation. This is a technical issue in Australian constitutional law, but I think Professor Nicholas Aroney (see submission number 145) has probably been correct to respond by providing some alternative wording for the section.

It also looks as if I was wrong in thinking that, in the kinds of circumstances that have allegedly been arising, "no Muslims" policies adopted by shops and restaurants are likely already unlawful under federal law. There is relatively recent legal authority that seems to settle this issue the other way. But in any event, my recommendation did not rely on this one way or the other, as you'll see if you make it to the end. I recommended that these allegations be investigated and, if needed, specifically addressed to ensure that there are laws to prohibit such abuses even where there are no state laws that currently apply.

Otherwise, at this stage, I think the submission - all 22,000 words of it - is solid, especially for something that I wrote very quickly over the Christmas/New Year break.

I support provisions that will lessen some legal restrictions on speech that either advocates or criticizes religious views. I think that much of the opposition to this is far-fetched and illiberal. Much of it is based on misconceptions. More generally, however, I don't support the enactment of this comprehensive legislative package at this point of time. I am open to argument on many of the issues, but those issues, and the draft statutes themselves, are highly complex, and I don't see any immediate prospect of getting them "right" and in a form that will achieve a wide measure of community acceptance. Much of what is in them, as well as much that is not dealt with, needs much more extensive academic, political, and community debate.

Part of the problem, as I emphasize in my submission, is that religion is not like race or sex. Religious beliefs are highly controversial and highly motivating. In a sense, religions are more like political ideologies than like races. Each religion purports to be the true one, and the right to proclaim your religious beliefs and insist they are true is an important aspect of religious freedom. There should be room for vigorous public discussion of religion and religions, including their advocacy and also including views that challenge to them

While religious freedom is important, this is a freedom from religious persecutions and impositions by means of state power. It is also a freedom that includes freedom of religious speech and association, which in turn implies some ability to discriminate in order to preserve a group of like-minded people. It also implies an ability to engage in public debates about religion that might become disrespectful, uncivil, immoderate, and even hurtful. In short, there is a tension between religious freedom (including freedom from religion) and protection from religious discrimination. While I have ideas about how that tension should be resolved in various situations, this is something on which it's going to be extremely difficult to obtain either an obviously correct answer or a social consensus within a liberal democracy.

Some parties seem to think that an anti-discrimination statute dealing with religion could simply use existing Australian statutes, such as those prohibiting racial discrimination and sex discrimination, as a template. I disagree. I think that idea shows a failure of understanding in respect of religion and/or a failure to take the phenomenon of religion seriously. Any such simple approach could have far-reaching effects on freedom of association and freedom of speech.

I'll be watching developments closely and will doubtless have more to say about them from time to time.

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