Freedom of religion

Exclusion zone proposals show fundamental misunderstanding of freedom

candelight-vigil-abortionRecent proposals from the Greens in the ACT show just how little the party understands about human rights.

The sole Greens member of the Legislative Assembly, David Rattenbury, called for “exclusion zones” around Canberran abortion clinics, in order to thwart those that would protest.

The approach of the ACT Greens is a concerning restriction on peaceful activities. The proposal would emulate Tasmania’s Reproductive Health (Access to Terminations) Act 2013, which criminalises protests which are able to be seen or heard by a person within a 150 metre “access zone”.

It mirrors 100 metre exclusion zones proposals from the Australian Sex Party in Victoria, earlier this year. Both the Greens and the Sex Party seem to believe that even conduct involving praying quietly and lighting candles should be prohibited. Up to 150 metres away.

Rattenbury illustrated this when he said:

This is not a freedom-of-speech issue; this is an issue of safe and accessible healthcare.

Women have the legal right to medical privacy and the human right to make choices about their own health without interference or harassment.

The anti-free speech attitude is shared by Women’s Centre for Health Matters health promotion officer Angela Carnovale, who said that protesters rights to protest should not infringe on the spurious right to “accessible healthcare” by “pursuing conversations in other forums where those conversations can be had”.

Unfortunately, Carnovale was not so generous as to suggest which locations the government should authorise for the holding of such conversations.

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Tasmania strengthens religious liberty for schools

Freedom for faith-based schools is set to be strengthened in Tasmania. The Liberal state government has introduced into the Legislative Assembly the Anti-Discrimination Amendment Bill 2015 which will provide an exemption for religious schools to select their students based on the prospective enrolees’ religious beliefs, or lack thereof.

It is a shame that these schools need to rely on an exemption such as this, but it represents a significant improvement in Tasmanian law.

The Anti-Discrimination Act 1998 prohibited faith-based schools from having a faith-based enrolment requirement. In 2012, an amendment provided a slight improvement to the act. It inserted sections 55A and 55B which enabled faith-based schools to give preference to certain enrollees, but only in the event that enrolees exceeded the available places for enrolment. This was an onerous process, that required the school in question to ask for an exemption from the state Anti-Discrimination Commissioner, who may or may not grant it.

The latest amendment repeals both section 55A and 55B, and inserts section 51A, which provides a general discretion for faith-based schools to admit students based on religious belief.

This is a positive step for religious liberty. Likewise, it is refreshing to see the the Human Rights Commissioner, Tim Wilson, place this fundamental freedom at the forefront of the human rights conversation. It is a welcome change after the Australian Human Rights Commission’s many years of negligence in the area.

The Tasmanian state government should be applauded for these changes.

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The mythical conflict between freedom and non-discrimination

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Should businesses have the right to refuse service where the service contradicts their religious beliefs? Renae Barker considered the issue in a recent article in The Conversation, referring primarily to the case of the Northern Ireland bakery which refused to bake and decorate a cake with the words “Support Gay Marriage”, which has been dubbed “Cakegate“.

This sort of conflict between (typically small) businesses refusing services to gay weddings and the like, is astonishingly common. Barker lists some other instances, including the English guest house which had to pay damages when they refused to rent a shared room to a sex couple; a case currently underway in Oregon where a bakery declined to provide a wedding cake for a gay couple, and in Australia, Christian Youth Camps breached equal opportunity laws when they rejected a booking from a group to “run a suicide-prevention camp for same-sex-attracted young people.”

I could also add a number of extra US cases to this list, including the Colorado baker which was court-ordered to make cake for a gay wedding; the Washington florist who breached anti-discrimination laws for refusing to provide flowers for a gay wedding, and the New Mexico case which found that wedding photographers are now “compelled by law to compromise the very religious beliefs that inspire their lives.”

Barker argues that there is a “quest to find a balance” between the conflicting rights of exercising religion, and of the gay community to be free from discrimination. However, this misses the fundamentally different nature of the “rights”. Religious liberty exists in the personal sphere, and simply requires that the state does not intrude. The claim to non-discrimination is the opposite – it requires the state to step in and force disagreeing parties to comply. In all the above cases, the government assisted the complaining party in enforcing the right to “non-discrimination”. It is deeply illiberal.

In response to the Christian Youth Camps case in the Victorian Supreme Court, Daniel Hickman of the Melbourne Catholic Lawyers Association said the legal community “seem to see religious freedom as a subsidiary right and non-discrimination as a primary right.” From the evidence, it is hard to disagree.

It also destroys the concept of freedom of contract. A free market depends on the ability of buyers and sellers to freely and willingly choose who to do business with. Advertising your services is not an offer to which a respondent is entitled to receive. The case of Fisher v Bell [1961] held that goods displayed in window with a price affixed were merely an invitation to the customer to make an offer. This is the ideal approach, as the proprietor still retains the power to manage who he conducts business with.

Early legal principles strongly supported freedom of contract. In the 1875 case of Printing and Numerical Registering Co v Sampson, the Judge said;

It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice. Therefore, you have this paramount public policy to consider—that you are not lightly to interfere with this freedom of contract.

Unfortunately, this attitude has been lost, with more and more legislation added to the books, undermining contracts. Even worse, this has come at the expense mostly of religious liberty.

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Tim Wilson at the National Press Club

After his first year in the position, Human Rights Commissioner Tim Wilson today addressed the National Press Club. Among other issues, he detailed the nature of liberty, the importance of the Magna Carta, property rights, religious freedom, censorship and section 18C of the Racial Discrimination Act 1975.

It is comforting that there is at least one supporter of freedom in the Human Rights Commission.

UPDATE: Mr Wilson’s address can be viewed at the following link.

The transcript is reproduced below, from the Australian Human Rights Commission website.

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