Beware the ‘bill of rights’ trap when debating freedom of religion

Two recent events have exposed some serious misunderstandings on both the right and left about how Australia’s human rights protections work — and have unhelpfully revived calls to introduce a federal charter of rights (which conservatives should resist, despite any superficial attraction).

First, a High Court judgement found the federal government can lawfully sack public servants for expressing political opinions. Then the federal government released its Religious Discrimination Bill, which seeks to add religion to the list of attributes protected at law.

In light of erroneous claims by some that the High Court’s decision radically curtailed our right to free speech, it is important to understand what the Court actually said regarding the implied freedom of political communication in our constitution.

The Court found, correctly, that the implied freedom is not a personal right to freedom of expression analogous to that found in the First Amendment to the United States constitution. Rather, it is a check on the power of the government to limit political expression.

This is perhaps a subtle distinction, but an important one nonetheless. In this case, the High Court considered whether the federal government policy of restricting public servants’ social media use undermined our system of representative democracy; and found it did not.

It did not consider whether an individual public servant’s Twitter misuse was protected ‘free speech’.

The Court’s apparent pretermission here might tempt us into thinking that freedoms of speech and religion should be protected by a legislated charter of rights.

But there are three main reasons why this is ill-advised. There are fundamental and intractable disagreements between the right and the leftover the content of such a charter. This then means the culmination of any effort to settle on a list of rights would be a set of abstruse proclamations interpreted by an increasingly progressive judiciary. Finally, debates about the nature and extent of rights in this country should be held in the public square and Parliament, not decided by courts.

On the right, there are legitimate concerns that Australia’s inherited system of uncodified common-law freedoms — such as free speech and freedom of religion — is threatened by expanding anti-discrimination legislation at both the state and federal levels.

However, human rights advocates such as former Australian Human Rights Commissioner Gillian Triggs argue that a charter should include rights such as a prohibition on the indefinite detention of asylum seekers and refugees, a requirement that government provide adequate housing for all, and a requirement that government ensure access to medical care and social justice.

Triggs’ list makes a mockery of the suggestion that her version of the charter would operate to prevent the government from infringing on common law freedoms. Everyone agrees that human rights are universal, but no one agrees on what else they are.

This makes it even more likely that any set of rights agreed to will be filled with the usual vague and platitudinous statements about ‘equality’ and ‘social justice’.

The ambiguity of these shibboleths necessitates their interpretation by courts; and if international practice is any guide, this interpretation is almost invariably left-leaning. Charters of rights open the door for unelected judges to implement progressive social policies in the name of human rights without the inconvenience of public accountability.

How then can we protect our freedoms?

Some conservatives and religious leaders have complained that the government’s proposed Religious Discrimination Bill does not go far enough in protecting religious freedom because it does not establish a positive right to religious freedom.

This complaint is unsound. The current Bill should secure the support of conservatives precisely because it does not establish a positive right to religious freedom.

The government’s refusal to establish such a right keeps the debate about the nature and extent of religious freedom in this country where it belongs: squarely in the hands of its people and parliament — not in the hands of unaccountable judges divining hidden meanings in the splotched tea leaves of international human rights ‘law’.

Notwithstanding all this, the lack of explicit protections for freedom of speech and religion means we must continue to grapple with the more troubling aspects of the legal status quo.

We might agree that the government can legitimately restrict the right of its publicly funded employees to criticise its policies, but remain concerned about the left’s increasing intolerance of free speech.

We might worry that certain employers retain the right to sack sports stars for expressing orthodox religious views, but not wish to inadvertently resurrect the offence of blasphemy.

These are difficult tensions to navigate, but there is no salvation for conservatives in a charter of rights, which would inevitably create more problems than it solved.

In light of this, the High Court’s recent decision was correct. It re-affirmed that decisions about the appropriate way to limit our freedoms should be left to our elected parliament.

The appropriate limits on freedom of speech and religion should remain legally contested. The alternative is a tyranny of progressive ‘experts’ deciding all these matters unburdened by any requirement to account for their decisions to the public.

Lukas Opacic is a Senior Policy Analyst at the Centre for Independent Studies.