Canberra, Australia, Nov 11, 2019 / 22:01 pm
While the Catholic bishops of Australia have said a religious discrimination bill does not go far enough to protect religious freedom, former High Court Justice Michael Kirby has claimed the proposal would foster religious intolerance and extremism.
In a letter to the Australian Law Journal, he said that the effort to protect religious freedom was "a product of hostile religious assertions of a minority of conservative politicians" that followed Australia's legal recognition of same-sex marriage in 2017, The Guardian reports.
"I am unconvinced that such newfound protections are really needed," said Kirby, who identifies as homosexual and who served on Australia's highest court from 1996 to 2009. He suggested the proposal has "serious dangers."
Kirby said the new laws "will support extreme assertions of religious rights by religious minorities who want to go around condemning others, often based on previously obscure passages in religious texts that faith communities or their zealots invoke to defend their religious freedoms."
He had spoken earlier this year at a dialogue at the Vatican hosted by Cardinal Pietro Parolin, where he advocated the repeal of "laws that criminalize adult consensual sexual conduct."
The ruling Liberal-National Coalition government wants to make religious belief and activity a protected class, like race or sex. It also wants to ensure that groups which reject same-sex marriage are not stripped of their charitable status.
The bill would establish a religious freedom commissioner at the Australian Human Rights Commission; and amend existing laws regarding religious freedom, including marriage and charities law, and objection clauses in anti-discrimination law.
In its current version, the bill would not protect religious statements that are "malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offense."
Australia has seen debate over religious freedom in recent years with respect to the seal of the confessional, hiring decisions, and same-sex marriage.
Archbishop Anthony Fisher of Sydney noted last year that "we cannot take the freedom to hold and practice our beliefs for granted, even here in Australia," and that "powerful interests now seek to marginalize religious believers and beliefs, especially Christian ones, and exclude them from public life. They would end funding to faith-based schools, hospitals and welfare agencies, strip us of charitable status and protections."
The Australian Catholic Bishops' Conference filed a submission on the draft bill, calling it "an important acknowledgement of the right to freedom of religion." However, they warned that it falls short in several key areas. While the bill says that religious schools will not be considered illegally discriminatory if their actions "may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of (their) religion," the bishops said this provision should be expanded to other organizations with a religious mission and ethos too.
Catholic health groups, welfare agencies, and other entities should be able to employ staff members who will uphold the tenets of their faith, the bishops said. Religious-run publishing houses, retreat centers and other nonprofit entities should be protected.
The Christian legal think tank Freedom for Faith has echoed these criticisms of the bill, saying it has "a very limited scope for religious organizations to retain their ethos and identity, and conversely an expansive scope for suppression of free speech."
According to the Catholic bishops, the law needs to recognize that some products and procedures will not be offered due to religious beliefs, and so Catholic medical facilities should be able to expect employees to provide care according to a Catholic ethos.
The Australian bishops stressed the importance of recognizing religious liberty not only as freedom of worship, but also as freedom to live out one's faith through charitable works, education, and public debate.
Kirby, writing to the Australian Law Journal, claimed that current discrimination law prevents harm, while the proposal to change it will give freedom to the religious who cause harm.
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"If this move goes ahead, I predict that the result will be a rise in religious intolerance and also anti-religious hostility to replace the more relaxed (live and let live) tradition of modern Australia," he said.
According to Kirby, apartheid in South Africa was justified by citing supposed religious condemnation of inter-racial marriage. He said "racial intolerance was based on the alleged inferiority of black people traced to contestable biblical texts."
"Passages of scripture can be found for just about every prejudice known to mankind," he added. "There is a need for considerable caution in elevating every religious opinion to an enshrined legal right to hurt and harm others."
The Labor Party has declined to take a position on the bill, on the grounds that it is still in draft form.
Attorney General Christian Porter has said there will be some amendments to address religious institutions' concerns that their institutions, like elder care homes, will be exempt from a prohibition on religious discrimination.
Anglican leaders have voiced similar concerns as the Catholic bishops. They cannot support the current draft of the proposal.
Arthur Moses, president of the Law Council of Australia, spoke out against the bill last month, opposing conscience protections for medical professionals who have religious objections to participating in abortion.
In the view of the Australian Industry Group, the proposal could make it difficult for employers to enforce codes of conduct, as employees could justify non-compliance by citing religious beliefs. This could expose other workers to harassment, the group argued in its submission on the legislation.
