Back when conservatives raging about section 18C of the Racial Discrimination Act was a bigger thing, the then-Attorney-General George Brandis declared that people should "have the right to be bigots". The general public wasn’t really keen on that idea so Parliament decided against weakening section 18C. But the Morrison government has snuck in a "right to be a bigot" clause into its draft Religious Discrimination Bill, in a way that is inconsistent with international human rights law and probably unconstitutional.

Some Liberals blame then-Attorney-General George Brandis for bungling the case for change when he declared "everyone has the right to be a bigot". Credit:Andrew Meares

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.