JANET ALBRECHTSEN

Pro­gres­sives have worked tire­lessly to down­grade univer­sal hu­man rights

The Australian - - FRONT PAGE - JANET ALBRECHTSEN janeta@big­pond.net.au

The case for same-sex mar­riage in Aus­tralia and the pro­tec­tion of re­li­gious free­dom could have hap­pened hand-in-hand.

It could have been dealt with in an hon­est and sim­ple way. This is how a pro­posal for same-sex mar­riage should have been put to the Aus­tralian peo­ple. Two sim­ple clauses should have been laid in front of them. Clause 1: Same-sex mar­riage is le­gal. Clause 2: Not­with­stand­ing any­thing in Clause 1, any right, priv­i­lege or free­dom that was per­mis­si­ble be­fore the le­gal recog­ni­tion of same-sex mar­riage is per­mis­si­ble af­ter it.

The plebiscite ought to be marked down as a fail­ure of the Turn­bull govern­ment and the same-sex mar­riage ac­tivists to recog­nise same-sex mar­riage and guar­an­tee re­li­gious free­doms in a sim­ple and hon­est man­ner.

Their du­plic­ity is a glar­ing re­minder of what the so-called “pro- gres­sive” mis­sion has stripped from the lib­eral project, de­lib­er­ately con­fus­ing and con­flat­ing univer­sal rights be­stowed on us at birth with civil rights that are gifts of the state.

This mis­sion to lump anti-dis­crim­i­na­tion rights in with univer­sal hu­man rights is ret­ro­grade, and it has hap­pened only by ig­nor­ing the his­tory of univer­sal hu­man rights as the foun­da­tional prin­ci­ples of a lib­eral democ­racy.

As Lib­eral sen­a­tor Tim Wil­son pointed out when he was hu­man rights com­mis­sioner back in 2014, hu­man rights are not the same as civil rights — the for­mer are univer­sal and arise at birth; the lat­ter are gifts of cit­i­zen­ship, be­stowed by the state on an in­di­vid­ual.

Hu­man rights are not the same as so­cial jus­tice as­pi­ra­tions, that neb­u­lous tag given to the pur­suit of eq­uity, an equally am­bigu­ous no­tion.

And hu­man rights are not the same as anti-dis­crim­i­na­tion laws, Wil­son said, point­ing out that hu­man rights are of­ten about ex­er­cis­ing dis­crim­i­na­tion.

Not every dis­crim­i­na­tory act is a wicked one, such as the free­dom to as­so­ciate with those we choose and the free­dom to speak about and to be­lieve in dif­fer­ent ideas.

Hu­man rights con­flict not just be­tween them­selves but with myr­iad other civil rights be­stowed by the state and so­cial goals set and sought by govern­ment, in­dus­tries, in­di­vid­u­als and ac­tivists. The ques­tion then is whether a univer­sal hu­man right should be treated as less im­por­tant than these other pur­suits. So-called pro­gres­sives an­swer yes, and have worked tire­lessly to down­grade univer­sal hu­man rights, tar­get­ing free­dom of speech and free­dom of re­li­gion as par­tic­u­lar hur­dles to them im­pos­ing their views on oth­ers.

To un­der­stand the depth of the hu­man rights cor­rup­tion, con­sider how sec­tion 18C of the Racial Dis­crim­i­na­tion Act has been used as a weapon of first re­sort by those claiming to have been of­fended by views they dis­agree with. This is part of a reck­less and ill-con­sid­ered pur­suit of feel­ings-based rights be­stowed by the state over univer­sal rights that ac­crue be virtue of us be­ing hu­man be­ings.

Con­sider, too, how sec­tion 17 of Tas­ma­nia’s anti-dis­crim­i­na­tion law was used by trans-ac­tivist and Greens can­di­date Mar­tine De­laney, who claimed her feel­ings were hurt by a pam­phlet pub­lished by Ho­bart’s Catholic Arch­bishop Ju­lian Por­te­ous that de­fended tra­di­tional mar­riage. Sec­tion 17 pro­tects hurt feel­ings but there is no pro­tec­tion of re­li­gious free­dom. The univer­sal hu­man right to free­dom of be­lief has been su­per­seded by a right not to be of­fended.

It doesn’t mat­ter whether cases about hurt feel­ings suc­ceed or not; it’s enough that the law is used to shadow box free speech and free­dom of re­li­gion, cre­at­ing a chill­ing ef­fect on what peo­ple can say and be­lieve in a lib­eral democ­racy.

Cast­ing free speech and re­li­gious free­dom as in­fe­rior to anti- dis­crim­i­na­tion laws has been cen­tral to the same-sex mar­riage cam­paign. And this il­lib­eral agenda has been en­abled by si­lence and ob­fus­ca­tion about re­li­gious free­dom by Yes ad­vo­cates within the Turn­bull govern­ment; by Ge­orge Bran­dis, Dean Smith, Trent Zim­mer­man, Christopher Pyne and other so-called mod­er­ates who are more in­tent on claiming a legacy than do­ing what gen­uine lib­eral politi­cians should do: find the right ac­com­mo­da­tion be­tween a new civil right to same-sex mar­riage and a univer­sal hu­man right to free­dom of be­lief.

Canberra’s elite should re­mem­ber that in polls taken through­out this process, the per- cen­t­age of Aus­tralians who sup­port guar­an­tees for re­li­gious free­doms has been con­sis­tently higher than the per­cent­age sup­port­ing same-sex mar­riage.

Re­mem­ber too that cen­sus fig­ures re­leased in June show a grow­ing per­cent­age of Aus­tralians tick “no re­li­gion”, up from 19 per cent in 2006 to 30 per cent last year. The con­clu­sion is that Aus­tralians recog­nise that guar­an­tee­ing re­li­gious free­doms is not just a mat­ter for the re­li­gious: it goes to the core of in­di­vid­ual free­dom in a lib­eral democ­racy be­cause re­li­gious free­dom is in­ex­tri­ca­bly linked to free­dom of ex­pres­sion.

In mid-Septem­ber, the Prime Min­is­ter said he wanted to “re­as­sure Aus­tralians that as strongly as I be­lieve in the right of same-sex cou­ples to marry, even more strongly, if you like, do I be­lieve in re­li­gious free­dom”.

If Mal­colm Turn­bull and his govern­ment walk away from first prin­ci­ples, from their lib­eral prin­ci­ples premised on the free­dom of the in­di­vid­ual, free­dom of speech, free­dom of be­lief, they will in­flict fur­ther self-harm on a govern­ment and a party that can ill af­ford more brand dam­age.

Rather than play­ing dodge­ball, Turn­bull should be prais­ing James Pater­son as a young Lib­eral who un­der­stands what’s at stake, not just po­lit­i­cally but cul­tur­ally af­ter more than three decades of the lib­eral project and hu­man rights be­ing van­dalised by the pro­gres­sive mis­sion to in­sert hurt feel­ings into the law at the ex­pense of in­di­vid­ual lib­erty and gen­uine tol­er­ance.

Pater­son, a long-time sup­porter of same-sex mar­riage, re­leased his draft pri­vate mem­bers bill on Mon­day. It goes much fur­ther than the other bill pushed by Smith, the Lib­eral sen­a­tor from West­ern Aus­tralia. Pater­son’s bill ex­tends re­li­gious free­dom be­yond the church, mosque or syn­a­gogue door. It means any­one di­rectly con­nected to a wed­ding cer­e­mony may de­cline ser­vices if same-sex mar­riage is against their be­liefs. It pro­vides a lim­ited right of con­sci­en­tious ob­jec­tion, too, so that sin­cerely held views are pro­tected.

It pro­tects speech that is not threat­en­ing or ha­rass­ing, re­in­forces the rights of par­ents to de­cide whether the so-called “safe schools” agenda fits their values, and more.

The Pater­son bill seeks a gen­uine ac­com­mo­da­tion be­tween same-sex mar­riage and univer­sal hu­man rights, though a com­pro­mise may be some­where be­tween the two pri­vate mem­ber’s bills.

Fol­low­ing the re­lease of Pater­son’s bill on Mon­day morn­ing, Guardian Aus­tralia’s Katharine Mur­phy im­me­di­ately tweeted: “Se­ri­ous ques­tion: why are some peo­ple’s free­doms more equal than oth­ers?” Other crit­ics claim Pater­son’s bill amounts to an op- po­nent of a bill of rights now want­ing a lim­ited bill of rights. It’s a cheap shot that be­trays a poor un­der­stand­ing of univer­sal hu­man rights as the foun­da­tional prin­ci­ples of a lib­eral democ­racy.

In a lib­eral democ­racy, we shouldn’t need a bill of rights to en­trench free­dom of ex­pres­sion or re­li­gious free­doms; these univer­sal rights ac­crue at birth, and it’s up to the state to make the case for caveats and carve-outs from those rights. Alas, hu­man rights have been so cor­rupted, the sys­tem is now so topsy-turvy, that we have to go cap in hand to govern­ment ask­ing that free­dom of be­lief be ex­plic­itly ac­com­mo­dated by same-sex mar­riage laws.

Those with a poor grip on his­tory and free­dom should be care­ful what they wish for. It’s stun­ningly ig­no­rant to as­sume that treat­ing free­dom of ex­pres­sion and free­dom of be­lief as sec­ond-or­der rights won’t one day bite those who treat them as dis­pos­able to­day.

The out­come of this con­test is not just a mat­ter for gay peo­ple and re­li­gious peo­ple. It’s a mat­ter for all of us in a lib­eral democ­racy. It will set­tle, one way or an­other, whether the coun­try can fi­nally con­front and rec­on­cile a 30-year project aimed at the sus­tained cor­rup­tion of clas­si­cal lib­eral ideas of univer­sal hu­man rights.

Free­dom of be­lief has been su­per­seded by a right not to be of­fended

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