Religious freedom proposal is a dud

The Morrison government is preparing a religious discrimination bill. However, these reforms are utterly unsatisfactory. They do not address, and in some cases compound, the constitutional invalidity of "hate speech" laws.

Some of these laws, such as the notorious section 18C of the Racial Discrimination Act and equivalent provisions in the states and territories, impermissibly infringe the implied constitutional freedom of political communication.

Any reform should not use the language of discrimination but ­actually put Australia in line with its international human rights ­obligations to protect religious freedom.

Adding an additional protected "class" of religious people and organisations does not overcome the problems with respect to those classes that legal provisions currently cover.

If anything, adding a new class of protected individuals compounds the problem of the constitutional invalidity of laws that may already unreasonably impinge on the freedoms of religion and political communication.

What is more, according to Patrick Parkinson, law dean at the University of Queensland, "the religious discrim­ination bill, as the government envisages it, will have no impact whatsoever on vilification law in the states. All it will do is make it unlawful under federal law to discriminate against somebody because of their faith."

A religious discrimination act "would not solve all or even most of the problems with religious freedom in Australia", Parkinson says.

If that is the case, then such an act will be construed in such a way as to still allow the states to take action against religious leaders over the public dissemination of doctrine that leaves people feeling offended.

The free exercise of religion is a fundamental freedom that is protected by section 116 of the Constitution. Courts have also found an implied freedom of political communication, which includes as a corollary freedom of association. These freedoms must also cover, by logical extension, religious people and religious organisations.

The International Covenant on Civil and Political Rights supports these constitutional freedoms. It was signed by Australia in 1972 and its protection for freedom of religion is found in article 18.

Article 18 is concerned with the right to "freedom of thought, conscience and religion", which encompasses the right to "adopt a religion or belief".

An infringement of rights protected by article 18, such as freedom of religion, may also simultaneously involve the infringement of the right to privacy (article 17), the right to peaceful assembly (article 21), the right to freedom of association (article 22), and the right to the equal protection of the law without discrimination (article 26).