Former high court justice says law will result in rise in both religious intolerance and anti-religious hostility

This article is more than 10 months old

This article is more than 10 months old

The Coalition’s religious freedom bill will result in a rise in both religious intolerance and anti-religious hostility, threatening secularism in Australia, Michael Kirby has warned.

The former high court justice has labelled it an “unbalanced law that will sustain nastiness and hostility that we can well do without” in his first intervention in the debate since Christian Porter released the draft religious discrimination bill in August.

The attorney general has promised to introduce the bill to parliament before the year’s end, but faces an uphill battle to pass it, with human rights and LGBTI groups, employer bodies and state anti-discrimination commissions opposed, and key crossbench senators saying skepticism it is needed.

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In a letter to the Australian Law Journal, Kirby suggested the push for legal protections for “religious freedom” was “a product of hostile religious assertions of a minority of conservative politicians” after the passage of marriage equality legislation in 2017.

“I am unconvinced that such newfound protections are really needed,” he said. “And I see serious dangers in the present form of the proposed laws.”

Kirby argued that existing discrimination law enacts the principle that “the right to swing my arm ends when I hit another’s chin”, which is “now … being dismantled to give a free go to the religious arm swingers”.

“If this move goes ahead, I predict that the result will be a rise in religious intolerance and also anti-religious hostility to replace the more relaxed [live and let live] tradition of modern Australia.

“This will also damage the principle of secularism, which is one of the most valuable gifts the British tradition provided to us, which we should be vigilant to preserve.”

Kirby said the new laws “will support extreme assertions of religious rights by religious minorities who want to go around condemning others, often based on previously obscure passages in religious texts that faith communities or their zealots invoke to defend their religious freedoms”.

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One of the central elements of the bill is a clause that exempts statements that “may reasonably be regarded” as part of a person’s religious belief from federal, state and territory anti-discrimination law.

Experts have warned this will legalise speech that offends, insults or humiliates a person based on protected characteristics, overriding prohibitions in Tasmania’s law and section 18C of the federal Racial Discrimination Act.

“Never forget that apartheid in South Africa was ultimately justified by reference to the supposed religious condemnation of miscegeny and that racial intolerance was based on the alleged inferiority of black people traced to contestable biblical texts,” Kirby said.

“Passages of scripture can be found for just about every prejudice known to mankind.

“They have even been invoked against natural or innocent features of human nature or conduct such as left-handedness and masturbation.

“There is a need for considerable caution in elevating every religious opinion to an enshrined legal right to hurt and harm others.”

Labor has refused to state a position on the religious discrimination bill, citing the fact it is only an exposure draft which may change before it is introduced.

Porter has suggested he will not be making “massive or substantial” changes to the bill, apart from amendments to address religious institutions’ concerns that their commercial service providers – such as aged care – should be exempt from the prohibition on religious discrimination.

The independent senator Jacqui Lambie has said existing religious discrimination laws in Tasmania are working well, while Centre Alliance’s Rex Patrick has said he is yet to be convinced about the merits of the bill.