Oct 5, 2018

Legislating religious freedom will be a minefield for Morrison

Crispin Hull
The Sydney Morning Herald
October 6, 2018

It seems that the government is going to hang on to Philip Ruddock’s report on religious freedom until after this month’s by-election and then, according to Prime Minister Scott Morrison, take some legislative action on it.

First we have the obvious questions about open and accountable government. Who paid for this report? Why do freedom-of-information laws give such broad exemptions to Cabinet documents on topics which have absolutely no national-security or national-finance questions?

That aside, this is a minefield.

Any legislation or constitutional provision on religious freedom gives rise to two fundamental legal questions: what is religion and what is freedom?

Former attorney-general Philip Ruddock has been appointed to ensure religious freedoms are protected as the government pushes ahead with legalising same-sex marriage.

The leading case in Australia is the 1983 High Court case of Church of the New Faith v Commissioner of Payroll Tax.

Scientologists claimed that as the Church of the New Faith they were a religion, and should not have to pay Victorian payroll tax.

All five High Court judges held that Scientology was a religion.

Justices Mason and Brennan responded to claims that Scientology’s founder L Ron Hubbard was in it for the money by saying: “Charlatanism is a necessary price of religious freedom, and if a self-proclaimed teacher persuades others to believe in a religion which he propounds, lack of sincerity or integrity on his part is not incompatible with the religious character of the beliefs, practices and observances accepted by his followers.”

Justice Murphy said: “Most organised religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power... The amassing of wealth by organised religions often means that the leaders live richly (sometimes in palaces) even though many of the believers live in poverty. Many religions have been notorious for corrupt trafficking in relics, other sacred objects, and religious offices, as well as for condoning "sin" even in advance, for money. The great organised religions are big business.”

So the legal test in Australia for “religion” is not the motives of the founders and leaders of it, but the gullibility or faith of the followers.

This case was about tax exemption. Morrison’s new law, in the name of religious freedom, presumably is to give “religions” exemptions not only from tax, but also from other laws such as discrimination in employment on grounds of sexuality because homosexuality offends their “religion”.

This presents the legislature with a problem. The legislation could be cast widely to give “religions” exemptions against almost any law that is contrary to their religion. Then the door is open for charlatans to gather genuinely believing followers to say their “religion” demands they engage in what would otherwise be unlawful conduct (smoking dope, having bonfires on beaches, marrying while you are already married, discriminating against homosexuals) or that their religion demands that they do not engage in conduct which the law otherwise demands (sending your children to school, having them vaccinated, paying taxes which might be spent on the military etc).

On the other hand, the legislation could be cast narrowly so as only to apply to specified (mainstream) religions and not others. This would ironically discriminate against some religions in the name of religious freedom.

The germ of the Scientology case is “one in, all in”.

The other difficulty for the Coalition (aside from the Senate) is that the Commonwealth Parliament has limited constitutional powers. Making laws specifically with respect to “religion” or “religious freedom” is not among them.

So the legislation would have to rely on the foreign affairs power and the fact that Australia has signed various human rights treaties.

In the past the Coalition has railed against Labor for extending Commonwealth power this way.

Moreover, the legislation may not past muster unless it is consistent with the whole treaty, not just the religion bit.

The other way to go would be not to legislate, but to have a broad bill of rights including freedom of religion in the Constitution. Courts are better at dealing with competing rights and duties than legislatures.

At present, Section 116 of the Constitution says: “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 as a qualification for any office.”

But it is a set of negative rights, not a positive individual right to freedom of religion.

Its shortcomings were made clear in the 1944 Jehovah’s Witnesses case. The High Court validated a Commonwealth law expropriating the property of the Jehovah’s Witnesses despite the constitutional prohibition against laws that prohibit the free exercise of religion.

Justice Latham said that the word "free" is vague and ambiguous and would not prohibit the Commonwealth using the defence power to confiscate Jehovah Witnesses’ property on the grounds that the Jehovah’s Witnesses were subversive – believing in one Kingdom, and not the one that was running the war effort.

See what a minefield this is? Morrison will not be able to legislate for the freedom of white, mainstream religious values without ensnaring himself in the questions of what other religious values should be upheld, exactly how free their exercise should be and how a court would interpret this.

Besides, these days there is no real threat to religious freedom in Australia. The real threats are to freedom of speech and information, as the withholding of the Ruddock report attests.

So if Morrison insists, let’s put freedom of religion to the test. One in, all in. Bring on the religion. Bring on the Dope Smoking Religion; the Multitude of Wives Religion; the Passport Photos with a Veil Religion; the Noise Law-Ignoring, Happy Clapping and Singing from Turrets in the Middle of Night Religion; and the I Want to Run a Tax-Free Grow Some Turf and Second-Hand Clothing Business Religion.

If, as Mason and Brennan said, charlatanism is the price of religious freedom, the price is too high. Give me constitutional freedom of speech and allow them to spout whatever nonsense they want, but beyond that they should comply the ordinary law of the land and pay tax like anyone else.



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