Right to be a bigot hidden in the government's religious freedom bill

Most of the bill is a standard anti-discrimination law that protects people against being discriminated against on the basis of their religion, or lack thereof. To that extent, the bill operates as an uncontroversial protective shield. But the government has added in extra provisions that operate as a sword, allowing people to inflict harm on others.

One of those swords is section 41, which establishes a right to make statements of belief. This right overrides all eight state and territory anti-discrimination laws and all of the existing federal anti-discrimination laws, including the Race Discrimination Act and the Sex Discrimination Act. You will be able say things that would be unlawful today.

A childcare operator could tell a gay couple dropping a child off to day care that "being gay is a form of brokenness". A doctor could tell a patient with a disability that "disabilities are God's punishment for sin". A boss could point to a Catholic worker with a picture of the Virgin Mary on her desk and say "look at that Catholic superstitious nonsense". A school principal could even stand up at school assembly and say "women should not be in positions of leadership over men".

People on the receiving end of these comments will not be able lodge discrimination complaints, as they can now. They won't be able to lodge complaints under any other laws either. There is a mechanism in the bill allowing the government to override by executive fiat any other law it finds that stands in the way of people making statements of belief. The bill does say that the right to make statements of belief does not extend to statements that harass, vilify or incite hatred against others. But this gives the game away.

The concepts of harass, vilify and incite hatred are different concepts to, and involve higher thresholds of nastiness than, the concepts of insult, offend, ridicule or humiliate found in section 18C of the Racial Discrimination Act. In effect, the bill gives people a right to ignore other laws in order to make statements of belief that insult, offend, ridicule or humiliate other people.

Strangely, the bill doesn't give everyone the same sized sword. Religious people are given a bigger sword than non-religious people. The bill says only statements of belief on the topic of religion are covered for non-religious people. But for religious people, statements of belief on any topic whatsoever are covered.

The bill also says non-religious people's statements must "arise directly from" their lack of religious beliefs. But for religious people, their statements need only meet the much lower threshold of "may reasonably be regarded as being in accordance with" their religious beliefs. Failing to be even-handed like this is inconsistent with international human rights law.

Article 18 of the International Covenant on Civil and Political Rights protects "freedom of thought, conscience and religion". The UN Human Rights Committee has said freedom of thought, conscience and belief is "protected equally" with freedom of religion. Other articles in that human rights treaty declare that article 18 must be implemented in a non-discriminatory manner. The UN Human Rights Committee has said those articles require the "enjoyment of rights and freedoms on an equal footing".

Giving some people a smaller sword than others is not ensuring the right to freedom of religion and belief is enjoyed on an equal footing. It is outright discriminatory.

This causes a constitutional problem. The bill states that the "main constitutional basis" for the bill is the external affairs power. This power gives Federal Parliament power to pass laws implementing Australia's treaty obligations.

The High Court has said that a law is not supported by the external affairs power if the law is "substantially inconsistent" with the treaty obligation it seeks to implement. And the right to be a bigot sword looks suspiciously like it is substantially inconsistent with the relevant treaty obligation because it does not treat religious and non-religious people even-handedly.

There is a significant likelihood that the right to be a bigot sword is therefore unconstitutional. The easiest way to avoid constitutional invalidity is to get rid of all the nasty swords in the bill, leaving in place a standard anti-discrimination shield law.