The Religious Discrimination Bill (Part 2)

In Part 1 of this series, I discussed the motivations behind, and the core problem with attempts to secure religious people from discrimination in the manner of the Religious Discrimination Bill, 2019.  To summarize, the key protection being instituted is not a protection against discrimination, but rather grants to religious people only, exceptional privileges when it comes to disseminating their views.  In this post, I will look at fundamental flaws in the particular implementation of the law related to the definitions used in the bill.  These flaws have far reaching implications, including a potential for it to become mandatory for the courts to determine what is, and what is not reasonable doctrine or practice in a religion.  In that eventuality, the government, through the courts, will be mandating what is, and is not permissible to believe in any given religion, ie, the exact reverse of freedom of religion.

The meaning of 'Religion'

Stunningly, given the intention of the bill, there is no definition of its central concept within the bill.  'Religion' goes entirely undefined.  Nor does the common law in Australia provide such a definition.  The nearest approach is in Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria), 1983.  In that case, the High Court decided that Scientology was a religion, but from among five justices on the bench, we have one definition of religion (supported by two justices), with the remaining three justices saying, in effect, that no definition of religion is possible, but certain criteria will mark out some things are religions (split across two opinions).  Given the failure of a majority to concur on a single definition of religion, no precedent is established as to what is or is not a religion (other than that Scientology is one).

To this range of opinions, we can add Chief Justice Latham's opinion (in Adelaide Company of Jehovah's Witnesses v The Commonwealth, 1943) that, "It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world."

This judicial incapacity to determine what is meant by 'religion' is not due to incompetence.  The concept is essentially undefinable; with the best attempt by the High Court justices (and the Oxford English Dictionary) excluding certain sects of Buddhism and Confucianism which are widely acknowledged as religious in character.  The lack of a suitable definition of religion raises concerns about how the laws will be applied in fringe cases.  Will future courts go with the Mason/Brennan definition and exclude Buddhists and Confucians from the privileges granted by the bill?  Or will the lack of a clear demarcation extend the privileges granted to systems of thought and action that are clearly not religious in any conventional sense? 

The meaning of "Statement of belief"

The problems arising from the lack of a definition of 'religion' is further compounded by the bill's definition of a 'statement of belief', which reads:

"statement of belief: a statement is a statement of belief if:  
(a) the statement:
(i) is of a religious belief held by a person (the first person); and  
(ii) is made, in good faith, by written or spoken words by the first person; and  
(iii) is of a belief that a person of the same religion as the first person could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion; or
(b) the statement:  
(i) is of a belief held by a person who does not hold a religious belief; and  
(ii) is made, in good faith, by written or spoken words by the person; and  
(iii) is of a belief that a person who does not hold a religious belief could reasonably consider to relate to the fact of not holding a religious belief."

 The most important thing to notice in this definition is the introduction of a 'reasonable person test' in clause (iii) of both sections.  That clause means that Human Rights Commissioners, and ultimately the courts will need to decide which are, and are not reasonable beliefs within a religion (with those that are judged reasonable being protected, and those which are not, not receiving protection).

This, of itself, should be a substantial concern to any religious person who thinks the government should not be in the business of regulating which of their religious beliefs can be considered legitimate.  This is potentially compounded by the fact that the exact nature of the reasonable person test is not specified.  In particular, it is not clear whether the putative reasonable person must be typical of members of the religion (ie, that their religious beliefs conform with the majority), or unusually educated or authoritative (ie, that they must be theologians, or clergy), or even that they be a member of the religion whose overall religious beliefs are closest to those of the person making the purported 'statement of belief'.  

Each of these potential interpretations will lead to distinct outcomes.  

The last is the most liberal, but will have the effect of allowing any purported statement of belief to receive protection.  That follows because if the statement is made in good faith, and if the 'person of the same religion' must share a maximum number of religious beliefs with the first person, then they will by definition also share the belief expressed in the purported 'statement of belief', and hence must consider it as being related to the holding of the religious belief.  This outcome certainly grants the maximum of religious liberty, and hence is potentially preferable for believers; is also the most damaging for society.  It means that outright hate speech, such as the claim that gays and atheists should be stoned to death, would gain the protection of the law in most circumstances.  It also severely restricts the ability of educational institutions (even religious educational institutions) to prevent teachers from teaching thoroughly irrational beliefs such as geocentrism and flat Earth theory (both of which have support in foundational religious literature) based on their religious liberty.

The other interpretations are not so catastrophic, but run significant risk of regulating what is, or is not permissible to believe in a given religion.

Are denominations 'religions'?

These problems are compounded further in that the bill makes no distinction between denominations and religions.  On the most natural interpretation of the bill, that means that should a Christian believe they have been discriminated against due to their making a "statement of belief", then the only aspects of their religion they can rely on to show it is a statement of belief (and hence privileged) are those which are common to all Christians.  Again, how this works depends on how notional 'person of the same religion' is chosen.  If Christianity is one religion, and the reasonable person is considered to be typical, then all Christians in Australia will only be able to rely on Catholic doctrine and belief in showing their statement to be a 'statement of belief' (based on the fact that Catholics represent approximately half of all Christians in Australia).  Alternatively, if their beliefs are only those common to all Christians they may not even be able to rely on the Nicene Creed or the Bible (both of which are significantly doubted by people claiming to be Christians).

There is more than one type of unbelief! 

If unwise, religiously motivated,  members of parliament are opening up for themselves and their coreligionists a legal minefield with this bill, they have still managed to discriminate against the non-religious in the wording of the bill.  Put simply, they have reduced all sorts of unbelief to the rubric of 'not holding a religious belief'.  

Being fair, there are a sizable portion of people who define 'atheism' as 'lacking a belief in the existence of gods', ie, of 'not having a religious belief'.  As I have pointed out, that definition makes rocks into 'atheists' - and as such is nonsensical.  Worse, it co-opts a useful term for those who believe that there are no gods (such as myself), and uses it to describe a psychological state rather than an intellectual position.  For the purposes of this essay, I will reserve the term 'atheist' for those such as myself who believe there are no gods, and coin the term 'apistics' (based on the Greek word to believe) for those who merely lack a belief in the existence of any god.  To these two categories, we must add the agnostics - those who believe that neither belief, nor disbelief in any god can be justified.

Despite these different types of unbelief, the bill only allows protection of statements that "...could reasonably consider to relate to the fact of not holding a religious belief".  On its most natural interpretation, the views of atheists (and agnostics) will only be protected by the bill where their views coincide with apistics - ie, those who simply do not believe in a god.  Worse, these simple distinctions do not capture the full range of atheist, agnostic or apistic thought.  The bill encourages a situation in which religious believers may have their views that the Earth is flat, or that the Sun orbits the Earth, or that single women should be compelled by law to marry their rapists (to take three obscure biblical teachings not accepted by most Christians) are protected as 'in accordance with the doctrines, tenets, beliefs or teachings of [their] religion', while (religious) secular humanists may find that only those portions of their manifesto that explicitly reject the existence of gods are protected.   (Alternatively, "religious secular humanism" may find itself classified as a religion, and find all elements of their manifesto, while the - to my mind, more principled - secular humanists who eschew religious trappings to their philosophy may find their equivalent beliefs unprotected.)

In short, the wording of the bill mandates a far greater protection of religious beliefs than it does of equivalent beliefs of the non-religious.  

The meaning of "Religious belief or activity"

Finally, the preceding discussion is premised on the assumption that the bill can effectively enact at least some part of its purpose, no matter in how flawed a manner.  Of necessity, to discuss that clearly I have ignored the most fundamental flaw in the definitions within the bill - specifically the definition of "religious belief or activity", which states:

"Religious belief or activity means:  
(a) holding a religious belief; or 
(b) engaging in lawful religious activity; or  
(c) not holding a religious belief; or  
(d) not engaging in, or refusing to engage in, lawful religious activity."

A comparison of clauses (a) and (c) shows them to be strict contradictories.  As such, they cover between them all possibilities.  No matter what belief you hold, it will be a religious belief, or not a religious belief.  Ergo, by this definition, no matter what you believe, your belief is religious according to this bill.  Similarly, a comparison of clauses (b) and (d) will tell you that, according to this bill, all activities are religious activities for the purpose of this bill.  As the bill stands, the Human Rights Commission and the courts could not refuse the protection the bill offers to religious activities to any belief or action whatsoever, provided it is otherwise lawful.

In terms of legislative insanity, this definition means the bill as it currently stands ranks alongside the 'Indiana Pi Bill' (which attempted to legislate that the circle had been squared, and in passing implied that Pi equals 3.2).