Just Cases | Season 3 | Episode 7 | Do witchcraft laws breach freedom of religion?

How does Australian law protect the beliefs and religious practices of witches, conjurers and fortune-tellers? A High Court case from the 1930s could provide the answers.

There’s a big debate about religious freedom in Australia after the federal government announced plans to introduce new federal religious discrimination laws. Most of the coverage of the religious freedom debate focuses on protecting the major religions, most notably Christianity.

But there’s some religious groups that don’t get any coverage at all. What if you’re a witch or a Wiccan? A Druid or Shaman? How does Australian law protect your beliefs and religious practices? How has the law treated you over the years if you’re a conjurer or a psychic?

Today JUST CASES rewinds to a 1930 case which went all the way to the High Court of Australia.

Music- Lee Rosevere 'Last Call'- Lee Rosevere 'Introducing the Pre-Roll'

Court case- Hansen v Archdall and Smith [1930] HCA 16 44 CLR 265

http://eresources.hcourt.gov.au/showbyHandle/1/13142

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Transcript | Just Cases | Season 3 | Episode 7 | Do witchcraft laws breach freedom of religion?

[00:00:00] Monty Python: We have found a witch. May we burn better? Who do you know? She's a witch. She looks like one witch. Bring her forward. I'm not a witch. I'm not a witch, but you are just as one. They dress me up like this, and this isn't my nose. It's a false one. Well, we did do the nose, the nose. And the hat, but she's a witch.

[00:00:31] James Pattison: That is, of course, a little snippet from Multipart and the Holy Grail, and that's a general tenor of the discussion for today on just cases. Religious freedom is all the buzz at the moment in Australia. The federal government's planned religious discrimination laws are due to be introduced into parliament in October this year.

[00:00:50] Professor Melissa Castan: Supporters of the legislation say the laws are necessary to protect religious freedom. Opponents say the laws are at best, unnecessary, and at worst, a smokescreen to allow bigotry towards minorities.

[00:01:02] James Pattison: Most of the debate focuses on protecting the major religions, most notably Christianity, at least that gains the most amount of coverage in the press.

[00:01:09] But there's some religious groups who don't get any coverage at all. What if you're a witch or a wcan? A druid, a shaman. How does Australian law protect your beliefs and religious practices? How has our law treated you over the years? If you're a conjure or a psychic, a high court case in the 1930s could provide the answers.

[00:01:33] This is just cases.

[00:01:41] Professor Melissa Castan: And we welcome back Dr. Luke Beck, our religious freedom expert at Monash Law. Hi Luke.

[00:01:46] James Pattison: Hello, James and Melissa. Are you slightly concerned about our introduction? Slightly. Uh, your episode on funding of religious schools, which was episode 13, got quite a response. So you're backed by popular demand and you have a cracking tail for us today.

[00:02:01] This story takes place in Queensland in the 1930s, 1920s and thirties, I believe. Uh, but we have to zoom back even further in time, don't we, to get a sense of where all the madness began. So how far back? Do anti witchcraft laws go?

[00:02:16] Luke Beck: Well, probably to biblical times 'cause the, the origins of anti witchcraft laws.

[00:02:22] Uh. Come from the biblical command of thou shalt not suffer or witch to live. And so, uh, in England and other parts of Europe that followed Christianity, they enacted laws to implement biblical, um, dictates. And in, in England, which is the the legal heritage that we've adopted in Australia, they had anti witchcraft laws and the penalty for.

[00:02:44] Practicing witchcraft or being a witch was obviously to be put to death. And so you had, um, witch hunts and witch trials all throughout Europe and North America. Hundreds of thousands of people, predominantly women were put to death for allegedly being witches. In the late 17 hundreds, they got a little bit more progressive and thought about updating the law, and they, in England, they enacted a law called the Witchcraft Act in 1796.

[00:03:10] Sounds progressive. It sounds very progressive, and so what made it progressive was the fact that it said that. The penalty for being a witch is no longer to be put to death. It's a fine, or in some cases to be locked in the stocks or nice left winging radicals. Exactly. It's a little, it's a bit, probably a bit better than being put to death.

[00:03:30] And so when Australia was, uh, colonized. By the British. Those laws were inherited into Australia. And over time as the Australian colonies and then the Australian states updated their criminal laws, they included versions of this old witchcraft law. And that continued for quite some decades up in fact, up until the two thousands.

[00:03:51] And so basically what this law said was that. It is a criminal offense to practice any kind of witchcraft, sorcery, enchantment, conation, or pretend to tell fortunes, and the penalty was in those days a relatively hefty fine.

[00:04:06] James Pattison: So what I love about this particular case is that. You got me on the hunt for a judgment that mentions the word witchcraft in it.

[00:04:15] So we actually have a high court case that talks about the Witchcraft Act of 1736. Correct. That is on the public record

[00:04:23] Luke Beck: people. So there's a case from the 1930s where the high court of Australia, the finest legal, judicial minds in Australia turned their attention. To the laws of witchcraft and sorcery and enchantment and fortune telling.

[00:04:36] And so the background to this case is that there was this, uh, woman in Queensland by the name of Hanson, and she was allegedly, according to police and authorities, some sort of dodgy fortune teller trying to rip people off. So any, any relation you said Hanson from Queensland? Uh, I am not sure. That would be really fascinating for some genealogists.

[00:04:54] To investigate. I, I, I would encourage them to do that, but I, I suspect not. But you never know. You never know. And so get onto it, guys. And so this woman was convicted before a magistrate

[00:05:04] James Pattison: of pretending to tell fortunes. I want any excuse to go into some of the old school language of, of, um, cases like this.

[00:05:10] So, uh, the judge. Recounts the facts of this particular case that on the 18th of October, 1929 in Brisbane, this woman, Margaret Hansen, uh, quote, endeavored to impose upon a private individual, namely one Ruby Kingsley, by verbally falsely representing to the said Ruby Kingsley, that she. The said Margaret Hansen.

[00:05:32] Otherwise, Madame Margaret had power and ability to foretell future events, which would thereafter happen in the life of the said Ruby Kingsley, with a view to obtain money from the said Ruby Kingsley. So here's where the proverbial. Hits the fan because Ruby Kingsley is actually a paid police agent. So Ruby goes to matter, Margaret's house on the sly and asks for her advice about her financial affairs.

[00:06:01] Right? So. About buying a business in Queensland. And, uh, and Madam Margaret shuffles cards, she looks into a, a crystal, she reads the palm of, uh, of Ruby Kingsley, and she says something along, along the lines of, Ruby should sell her business and that she's going to have a, a relative who will die and leave her a fortune basically.

[00:06:28] So. Bad misstep on the part of Madam Margaret letting a cop or a police agent into her house. Uh, she says she's convicted of an offense. She has to pay a fine of 10 pounds. What, what happens next? She

[00:06:40] Luke Beck: appealed and it ended up somehow, perhaps, magically in the high court. I'm not sure how she afforded to go to the high court, but she ended up in the high court, uh, and she lost her appeal and the conviction was allowed to stand.

[00:06:54] And one of the things the high court said was they clarified a little bit. Or confirmed what the law meant. So the way the statute has always been written is that it is a crime to pretend to practice witchcraft or so sorry. Or to pretend to tell Fortunes. And so some, an argument that people would sometimes put is that I was not pretending to practice witchcraft.

[00:07:17] I was not pretending to tell fortunes I was actually doing it. So therefore I'm just, I just fall outside statute. Mm-hmm. And the high court confirmed that you can't make that argument because the legal position is that it's all nonsense. You, you, legally you are. So,

[00:07:31] Professor Melissa Castan: legally you are always pretending if you are, if you're engaging that in that activity.

[00:07:34] Luke Beck: Yeah. Which is kind of amusing, but also kind of odd because. Some people identify themselves religiously as wco or pagan or witches, however they wanna describe themselves, and they honestly, truly do believe that they are witches and that they are practicing witchcraft, et cetera. And so the law is kind of saying your central religious beliefs are objectively false.

[00:07:55] That would kind of be like saying a law being passed that says, you know. Jesus is not real. It's not really appropriate for the law to pass factual judgements on theological propositions like that. And it's not really

[00:08:08] Professor Melissa Castan: consistent with the other, the later high court authority that says that belief in a supernatural being is a fairly open concept.

[00:08:14] Yeah. That was in the, um, the Scientology Scientologist case in the eighties and, and the high court had quite a broad view of what Yeah. Belief in a supernatural being concept or they took a really broad view of what religion could be. Yeah. But does, but would that kind of overcome some of that? The very strict bit in this 1930s case, maybe?

[00:08:31] Luke Beck: Uh, well, not necessarily. 'cause we have constitutional, some limited constitutional protection for freedom of religion, but that only applies to federal laws. Mm-hmm. And these are all state based laws. Ah, so the states are free to interfere Okay. With religious freedom, kind of as much as they want. Mm-hmm.

[00:08:44] Although in practice today, there's much of it that's not, there's not much of it. You, these are, this is some really quirky stuff from back in the day.

[00:08:50] James Pattison: So, so the high court, in this case of Hanson, so it's Hanson and uh, now. I'm gonna pronounce it incorrectly. Is it Arch Doll and Smith, or Arch? Doll and Smith?

[00:09:00] Yeah. From 1930. The high court says, uh, it doesn't matter whether you had a strongly held conviction that the, the fortune telling that you were doing was for real, it's still an offense. Correct. And you committed that offense. Correct. They dismissed the appeal, right? Yes. You lost the appeal. Okay. And so in a way, they've kind of.

[00:09:23] Removed that split. Isn't there a split in in our criminal law between your. The Men's Re and Actis Reyes that you have to have the, the action and the intention or mentality, um, that you have to prove both elements. Yeah. The

[00:09:39] Professor Melissa Castan: prosecution has to prove that the accused had both Actis Reyes and men's Rea Yeah.

[00:09:44] To make out the elements of the offense.

[00:09:45] James Pattison: So then if you are, if the intention is actually one that is based on a convi. Strongly. You

[00:09:52] Professor Melissa Castan: sincerely believe that, that you're actually doing it?

[00:09:54] Luke Beck: Well, she intended to do the act, and so the question here was, is the ACT actually doing it or just pretending to do it?

[00:09:59] And the high court said, we're not getting into the distinction between actually doing it and pretending to do it. So she didn't intend to tell fortunes she set up, you know, she set up her fortune telling table and took money, right? Like she didn't accidentally do it. Like she quite deliberately. Did what she did.

[00:10:11] So there was no question of lack of intent, but she wanted to argue that the leg, the way the legislation is phrased, says, pretend to practice witchcraft or sorc. Pretend to tell fortunes. And so she, you know, people would sometimes make the argument, well, I'm not pretending I'm actually doing it. I'm really a witch.

[00:10:24] Or I'm really a fortune teller. And the courts have, and the courts have had consistently said, no, no, no. You know, you can't make that argument. That's not really what the statute means. Well, what if

[00:10:33] Professor Melissa Castan: you really do have supernatural powers? Are you always gonna be caught by this law then?

[00:10:38] Luke Beck: Well, if you're a witch Yeah.

[00:10:39] Or a sorcerer. Or a conjure. You're doing enchantments or fortune telling. Yeah. Under this law you, you're guilty of if you're taking money for it. Yeah.

[00:10:46] Professor Melissa Castan: That's a bit rough actually. Yeah. Yeah.

[00:10:52] You're listening to just cases. We're talking to Dr. Luke Beck from the Monash Law School. If you are interested in. Dunning Law Hop over to our website at www.monash.edu/law.

[00:11:11] James Pattison: In, in roughly the 1840s, 1850s, right through to the earlier 20th century, there was a, a really sort of burgeoning, um, interest in spiritualism and a real belief, a popular belief in the occult. Seances were popular. For example, there's, there's every chance that, uh, I mean, Alfred Deacon, one of our former Prime Minister was a very, uh, well-known spiritualist, and there's every chance that he, only a few years before this case might have been, uh, practicing a seance in the Prime Minister's office,

[00:11:44] Professor Melissa Castan: but he might not have taken money for it.

[00:11:46] James Pattison: That's a

[00:11:46] Luke Beck: good point.

[00:11:48] Professor Melissa Castan: Mm. Does that

[00:11:48] Luke Beck: is and are, and are seances, sorcery or witchcraft, or are they something other than. Sorcery on witchcraft. There are some really inter you could have some really fun legal arguments with this. Absolutely.

[00:11:58] James Pattison: And, and in the, in 1930, uh, our laws at that point kind of going in contravention to the way that society is hopefully becoming a little bit more.

[00:12:10] Toler, Toler

[00:12:11] Luke Beck: and open-minded about the variety of religious beliefs and practices that might exist in the community no matter how or or strange we might think some of them to be. And yeah, so that's a legitimate issue. And so in the late 1990s, the human rights and equal opportunity. Commission, which is now called the Australian Human Rights Commission.

[00:12:30] They did a big inquiry and report on Freedom of religion in Australia. And one of the sort of sub issues that they looked at in that inquiry and report was in fact these anti witchcraft, anti sory, anti-fat telling laws, and they hurt. They got submissions from ordinary Australians and representative groups explaining that.

[00:12:50] There are some people in the Australian community who identify as witches or wicker or pagan, and who say that their religious practices and beliefs are criminalized by these old anti witchcraft laws, and the commission said, yes indeed. These laws are inconsistent with religious freedom. And they need to be changed.

[00:13:10] And so they made a couple of recommendations. Sorry, before you jump into the recommendations, where, where were these laws actually on the books? Um, so in most states, so in Queensland, in, in Victoria, in Western Australia, in South Australia, in the Northern Territory and in Tasmania, new South Wales had them, but they repealed them before this inquiry.

[00:13:28] Wow. Took. Yeah. So up until the late 19, they'd

[00:13:30] Professor Melissa Castan: always appear in like the Vagrancy Act. In the Vagrancy Act of the Sum the offense or the Summary Act, offenses Act and that

[00:13:35] Luke Beck: sort of thing. Yeah.

[00:13:36] James Pattison: And so you could actually, it was a criminal act. A criminal act. And so does that mean it was attached to. A prison sentence or a fine or, uh, fines.

[00:13:44] Yeah. That's crazy talk, isn't it? Uh, so, so, uh, there was even, I understand a criminalization of fortune telling Yeah. Not just a, not just a religious belief, but a belief in a, whatever you want to call that. Yeah. Yeah. I mean, for some people

[00:14:00] Luke Beck: that might be religious, like they, you know, their religion and gives them this spiritual power to, you know, predict the future and explain the past and, you know,

[00:14:09] James Pattison: I feel like there are possibly.

[00:14:11] Other laws that could have been used if you, if you were, um, you know, fraudulently practicing fortune telling, you're pretending to be, you know, able to conjure spirits from the past and put people in touch with their dead relatives and you charge 'em a bunch of money for that and you're ripping them off.

[00:14:31] Surely we have other laws Yeah, that

[00:14:33] Luke Beck: can

[00:14:33] James Pattison: take.

[00:14:34] Luke Beck: Exactly. So there are, there are, there are general criminal laws of obtaining benefit by deception and fraud and things like that that would cover situations where people are essentially trying to take advantage of vulnerable people and or rip them off. So the general law of obtain benefit by deception of fraud, et cetera, would cover those sorts of situations.

[00:14:50] So if you're using these laws to catch, you know, dodgy fraudsters, it's kind of unnecessary. You can just use the general law of. Deceptive conduct and fraud to deal with that sort of thing. So

[00:15:00] Professor Melissa Castan: that really takes you to the anti-religion or the anti Yeah. There's a, there's, there's, there's another element fiction of it.

[00:15:05] Yeah,

[00:15:05] Luke Beck: there's an, there's, there's sort of a religious element where tar, at least originally targeting particular religious practices and these, you know, laws remain on the books. And then the police and prosecuting authorities just sort of pick and choose whichever offense is most convenient for them at the particular, at the particular time.

[00:15:21] And so that's one of the things that the Human Rights Commission said, we don't need these laws. To the extent that people are engaging in dodgy practices, ripping people off the general criminal law can deal with that. Why do we have still in modern Australia laws that target quirky minority religious practices?

[00:15:39] And so the Law Reform Commission said, sorry. The Human Rights Commission recommended that the Federal Attorney General, uh, pressure, uh, they, they made two recommendations. They said that the Federal Attorney General should first pressure Queensland and Victoria to repeal their laws, which criminalize and I quote, the practice of witchcraft, fortune telling Sorcery and Enchantment.

[00:16:01] That sounds very spooky. It does. What's Enchantment spells putting a spell on people. I put a spell on you. So in other words, the, the commission is saying that it is, it was at that time still a crime to put spells on people in those two states and their second recommendation was that,

[00:16:16] Professor Melissa Castan: is it just, does they talk about voodoo dolls?

[00:16:18] 'cause I've got a thing about that.

[00:16:19] Luke Beck: Yeah. That would cut voodoo dolls would be covered by this legislation. Yeah.

[00:16:22] Professor Melissa Castan: Okay, we'll come back to that in a minute. Yeah.

[00:16:24] Luke Beck: And then their second recommendation was that the Attorney General should pressure the other jurisdictions, Queensland, west Australia, south Australia, Northern Church in Tasmania, to repeal their laws, criminalizing the practice of fortune telling.

[00:16:35] So I think these are some of the funnest. Law reform recommendations saying you don't generally see sorcery and enchantment and witchcraft in law reform recommendations.

[00:16:44] Professor Melissa Castan: Luke, you're a fun loving guy. Let's pass it. I'm So, are these laws still in place now? I mean, can I, can I pull out my voodoo dog? 'cause I've got some grudges that I've gotta manifest.

[00:16:53] Luke Beck: Well, yes you can. So these laws have since been repealed so that those recommendations were made in 1998, but the states did not act. At that time, they kept them on the books. And so there, there had been, uh, attempts to repeal these anti witchcraft, anti sorcery laws over time. But some politicians would get up in parliament and say, well, no, no, no.

[00:17:13] We need these laws to protect people from being taken advantage of, even though the commission was very clear that there are other laws to deal with that situation. And so these laws. Were repealed relatively recently. So, uh, in Queensland the law was abolished in 2000 over the, the opposition of some of the opposition mps who said, actually, we still need this law.

[00:17:33] But it was repealed in 2000, in the Northern Territory, it was abolished in 2003. And Victoria, which is generally, you know, often thought of as a progressive state, was probably the last jurisdiction in Australia to get rid of these laws. And so. Victoria's anti witchcraft law was, uh, abolished in 2005.

[00:17:52] Professor Melissa Castan: Goodness gracious. And

[00:17:53] James Pattison: just to, just to be really specific here, an anti, the anti witchcraft law is actually more of an anti pretend witchcraft law. Or did it also target people who are legitimately witches?

[00:18:08] Luke Beck: Both. So the practice or practicing witchcraft or pretending to practice witchcraft. Legally, there was no distinction.

[00:18:13] So if you were saying, I am actually practicing witchcraft and casting spells and doing other stuff, the law would say, you are only pretending we you are guilty.

[00:18:21] Professor Melissa Castan: So is the asking for money thing, the difficult part of it then.

[00:18:24] Luke Beck: So the asking for money, uh, applied to the fortune telling. Right. So the gen but not so the general law of practicing witchcraft or sorcery or enchantments.

[00:18:31] That was just general. So if you were doing it just at all, just 'cause that's your practice at, you were, you know, in your coven with your fellow wicker witches and you're, you know, casting spells or doing whatever it is you're doing, that would've been a crime. That's up until 2005 in Victoria. That's quite

[00:18:43] Monty Python 2: cold.

[00:18:44] Yeah.

[00:18:45] James Pattison: In the report, there was quite an interesting comment that was made about how anti witchcraft laws can have quite unintended bad consequences. An example of this, uh, that they mention in the report, it comes from 1944. There's a woman by the name of Helen Duncan who practices a medium, and she was convicted under the Witchcraft Act.

[00:19:07] Specifically she was, she was convicted for pretending to exercise conation and sentenced to prison. And, and this crazy thing that actually happened was that she conducted a seance and had contacted a sailor on a, a naval vessel. Who told the participants in the seance quote, my ship has sunk. And the government decided that this was actually, this could potentially, by conducting a seance, this could potentially breach, you know, at the time, national security and give away their locations, uh, the locations of, of British ships because they were planning for the D-Day landings in France.

[00:19:50] So she was actually. Thrown into jail. Well,

[00:19:53] Luke Beck: so, so that case, you know, among that, that case among others demonstrates that people genuinely did believe in witchcraft and the potential for sorcerer and enchantments and witchcraft actually have real world impacts. So obviously the government and the prosecution authorities in that case genuinely believed that there was some sort of magic going on, right?

[00:20:11] These, so these are sort of, you know, serious, educated people believing this sort of stuff. You know, people, these laws were originally introduced, you know, back in the day because people genuinely did believe that witchcraft and sorcery was a thing. They really did put people to death because they really did believe these women were sorcerers and witches and those laws, you know, continued.

[00:20:31] James Pattison: And were some of the people who were arguing against repealing those laws. You mentioned in Queensland there were some opposition mps who, who oppose the repeal of the laws on the grounds of, you know. Uh, people are taking advantage of people financially, et cetera, but were they, were there any people arguing against it because they believed, like you say, that witchcraft could be real?

[00:20:53] Luke Beck: Uh, so I don't think people put the, the view that we need to criminalize witchcraft because I genuinely believe that witch is a real, et cetera. Because I think, you know, in the two thousands, if you were a serious politician making that argument, that probably isn't necessarily gonna go too well for your reputation and profile.

[00:21:08] And I suspect that most people. Don't believe in witchcraft, but clearly some people still do believe in witchcraft. You know, IE those witches, the people who say that, you know, yes, I'm a wicker or a witch, or, or whatever it is. And so presumably there are other people

[00:21:22] James Pattison: who believe in that too.

[00:21:24] Monty Python 2: Mm. Now

[00:21:25] James Pattison: people are still getting caught up in these old anti witchcraft laws.

[00:21:28] Mightn't be in Australia, but there's a recent case, Luke. Yeah. Uh, overseas. Yeah,

[00:21:33] Luke Beck: so in Canada, in one of their provinces, their laws were still on the books up until late last year. And so there was a case last year in 2018 where a couple of people were charged under their equivalent anti witchcraft laws.

[00:21:45] So Canada inherited the same kind of English anti witchcraft laws that Australia did. And so eventually those charges were dropped, but the police did in fact lay anti witchcraft charges against a couple of Canadian women only last year.

[00:21:59] James Pattison: Bring this into, uh, 20 18, 20 19. I mean, this is still very current currently.

[00:22:04] As we mentioned in the introduction, uh, there is, uh, about to be introduced into Parliament new federal religious discrimination laws. How is this, this old school anti witchcraft, legal regime relevant?

[00:22:19] Luke Beck: To today? Well, I suppose it demonstrates that when we're talking about religious freedom and religious discrimination and things like that, you have to bear in mind that it's not just about the mainstream big, large religions like Christianity, et cetera.

[00:22:30] It also has to apply equally to small, minority, quirky religions. Otherwise, you know, it's not really religious freedom, it's religious favoritism. And so if legislation is drafted broadly, so it just says. You know, religions are protected or it's unlawful to discriminate against the person on the ground of their religion or absence of religion.

[00:22:46] That would cover small, quirky minority religions like this just as much as it would cover the larger, more mainstream religions that we're

[00:22:53] James Pattison: familiar with. Has the, the Human Rights and Equal Opportunity Commissioner report from 1998, how have those recommendations been enacted among the states and do the states now have sort of quite solid, um, anti-religious discrimination.

[00:23:10] Legislation. You know, is it holding firm or is there a, a need for more protections for religions across Australia?

[00:23:18] Luke Beck: Well, so. All this is,

[00:23:19] James Pattison: this is a way for me to get you, this is a sneaky way for me to get you to ask you whether you agree with the, um, the government's new, uh, religious discrimination laws.

[00:23:27] Okay,

[00:23:27] Professor Melissa Castan: fair enough. Not so sneaky. So, every

[00:23:30] Luke Beck: state other than New South Wales and South Australia has had on the books for many, many years, laws making it unlawful to discriminate against people on the ground of their religion. New South Wales and South Australia are the outliers in that case. Also, today we have under federal law.

[00:23:46] Prohibitions against discriminating against people on the ground of religion in the employment context. So any suggestion that Australia does not have religious discrimination laws is false. There are some gaps, but there are very clearly laws that are currently in use and that do in fact protect religious and non-religious people from that sort of discrimination.

[00:24:05] The federal governments has released a. An exposure draft of a religious discrimination bill. So it that is subject to consultation and potential change before it gets introduced into Parliament. And then once in Parliament it could be subject to further change in amendment. And that kind of has. Two parts.

[00:24:23] The first part of that bill is a stock standard anti-discrimination law that prohibits discrimination in all sorts of different areas against people on the ground of religion or lack of religion, and that's generally uncontroversial. People don't really have any problems with that. Then there's a second part of the bill.

[00:24:41] That's a bunch of other provisions that, that are in some ways quite strange and disconnected from your ordinary anti-discrimination laws. And it, and those provisions do things like authorize offensive, uh, give people a right, a positive right to engage in offensive and insulting. Conduct in the workplace motivated by religion.

[00:25:01] So if somebody's religion, you know, motivates them to believe that gay people are broken, uh, a a teacher in a public school would have a right to say in class, I believe that gay people are broken. And if her employer tried to take disciplinary action against her for doing that, that disciplinary action would be unlawful.

[00:25:20] Similarly, in a payroll department, in a, you know, a trucking company, if one of the payroll officers said, you know, I believe Jews are Christ killers. You would not be allowed to take disciplinary action against that employer. There are other provisions that allow healthcare professionals, doctors, pharmacists, nurses, podiatrists, all sorts of healthcare professionals to refuse to provide healthcare services to people if they have a religious objection.

[00:25:43] So that would allow doctors to refuse to perform abortions that would allow pharmacists to refuse to fill prescriptions for contraceptive pills for teenage girls, it would allow. Even a physiotherapist to say, well, I have religious objections to tra to the existence of trans people, so therefore I'm not going to do your physical therapy on, on your dodgy knee.

[00:26:04] And so those are the provisions that are controversial. So we went from,

[00:26:07] Professor Melissa Castan: you know, kind of regular law on, on non non-discrimination to quite. Quite extreme laws about being able to discriminate against people really fast there.

[00:26:17] Luke Beck: Yeah. So they, and so this is just an exposure draft.

[00:26:20] Professor Melissa Castan: Yeah. But still so it,

[00:26:21] Luke Beck: so I imagine it will be tweaked Yeah.

[00:26:23] Before it gets introduced into Parliament. But how far it will be tweaked, we don't know. And then once it gets into parliament, depends what the Senate does. Mm-hmm. In terms of trying to change some of the Yeah. But then

[00:26:32] Professor Melissa Castan: you just become subject to this mad kind of law bargaining process. Yeah. Through the parliamentary process.

[00:26:38] And the other

[00:26:38] Luke Beck: thing with the federal draft bill is that it seeks to override state. Anti-discrimination laws. Mm-hmm. So. So to the extent that people in every state other than New South Wales and South Australia already have protections against religious discrimination, this law would alter that. Hmm.

[00:26:52] And it also overrides other discrimination laws generally. So the Federal Race Discrimination Act is altered, the is overridden, the Federal Disability Discrimination Act is overridden, et cetera. So it's quite an unusual Was that

[00:27:04] Professor Melissa Castan: called for in the, the inquiry into religion?

[00:27:07] Luke Beck: No. So last year we had a Religious Freedom review led by the former Attorney General for that Braddock.

[00:27:12] That report, that review concluded that Australia does not have a problem with religious discrimination. There might be a case for enacting a federal law prohibiting religious discrimination to operate as a gap fill, a gap filling device. But that report did not call for the introduction of the, that second part of what the government is proposing with the all these quite unusual and strange provisions.

[00:27:32] So this is one

[00:27:33] Professor Melissa Castan: of those manufacture outrage situations. Um, and then. Like I've made a catastrophe and then I kind of come back and I only have a small catastrophe.

[00:27:40] Luke Beck: I suspect this is probably more offering a consolation prize to groups like the Australian Christian lobby, et cetera, who feel that they have lost things because of the existence of same sex marriage.

[00:27:52] And when we say those things like that, we have to make sure that we don't. Pretend that the Christian lobby represents Yeah. Ordinary Christians, they are just a one, they're group of people and they represent their own particular brand of Christianity. Yeah. I don't think you should say that all Christians believe that because we know that they don't, because the V we know from the postal survey that the v vast majority of Christians voted yes.

[00:28:12] So that this really

[00:28:13] Professor Melissa Castan: feels like horse trading on people's human rights for the basis of some political lobby groups that have influence somewhere

[00:28:19] Luke Beck: and and factional issues within. Yeah. Governing political parties. Yeah, so this is, you know, part of the bill is stock standard anti-discrimination law and is unobjectionable and uncontroversial.

[00:28:30] Then you've got all the other really strange stuff that I think we need to think about a lot more carefully. Yeah, and also

[00:28:35] Professor Melissa Castan: look, if you twist, if you turn that around, I mean, so with this being a person who has a religious belief in veganism. Uh, is allowed to stand outside a hamburger shop and, you know, abuse, shout abuse at people going in to buy hamburgers because they're killing animals and, you know, eating the animal product.

[00:28:49] And that is from their religious belief,

[00:28:51] Luke Beck: if it's religious and as long as it doesn't rise to the level of vilification. So the bill doesn't authorize vilification, but it does authorize insults and offensive conduct and of. Conservative Christians will be on, could be on the receiving end. This isn't just conservative Christians have a right to do X.

[00:29:06] Mm-hmm. It's, anybody has a right to do that if it's motivated by their religion. So if you are, you know, if you're a quite fundamentalist Protestant, for example, you might want to say offensive and insulting things. To and about Catholics at work, and your boss would have no power to stop you from doing that.

[00:29:21] Professor Melissa Castan: Seems like a retrograde step. Just saying,

[00:29:24] James Pattison: uh, these are, that's politics. The, the similarity between this current religious freedom measures, um, in 2019 and getting back to our 1930 case is basically if you. Can fundamentally believe that what you are doing is motivated by your objectively true religious belief.

[00:29:45] Whether it is telling fortunes as a fortune teller who has the power in 1930, or as a person who has received, you know, a message from God that, uh. Insert offensive line here about any group, um, in society who you disagree with, that on the one hand, you are not able to practice your witchcraft belief in 1930, but on the other hand, we're still having this debate and, uh, and in 2019 you seem to be able to say whatever you want.

[00:30:15] Yeah, as long as you can say it comes from above.

[00:30:17] Luke Beck: Yeah. So when the anti witchcraft laws were appealed, the logic underlying their appeal was. Tolerance and pluralism. We should all live and let live and get on and you know, try it. The best of our ability to live together harmoniously. And I'm not sure that same logic underlies the unusual parts of the government's bill.

[00:30:37] James Pattison: We shall wait and see

[00:30:39] Professor Melissa Castan: peace, love, and understanding. Guys.

[00:30:41] James Pattison: Here, here. Luke Beck. Thanks so much for joining just Cases. My pleasure. Thanks for having me again.

[00:30:47] Professor Melissa Castan: Luke Beck's new book, religious Freedom, and the Australian Constitution. Origins and Future is out now with Ruach.

[00:30:54] Luke Beck: And it's a cracking read. It is, it's

[00:30:56] Professor Melissa Castan: a good one.

[00:30:56] Let me say,

[00:30:57] Luke Beck: the book opens with the story of a bricklayer being sentenced to a spell in the stocks for the shocking crime of working on the Sabbath in Sydney.

[00:31:04] James Pattison: Actually, it it a plug. If you do want to hear a little bit more about that stock story, check out episode 13 of just cases. Luke gives you a little bit more background to that Fascinating story, and thank you to everyone for all of your reviews, subscriptions.

[00:31:21] And, uh, and follows on the socials. Uh, we've had a bunch of really lovely reviews on Apple Podcasts and lots of five star ratings since we asked for them. So you guys are the best. Thanks so much. If you haven't written a review yet and you're an Apple Podcast listener, do go ahead and and write a short, snappy one.

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[00:31:58] Professor Melissa Castan: Catch you later.