It rather puts the lie to the almost invariable response politicians, particularly those in government, give when questioned about freedoms, human rights and constitutional change – that these are second-order issues and that Australians are really most concerned with jobs and economic growth.

The reason for the deflection is fairly obvious: employment and economic well-being are motherhood, whereas talk of rights, freedoms and constitutional change provoke serious disagreement. So to engage in the latter invites a certain amount of vote-jeopardising hostility from one or other side of an argument or proposal. To engage in the former does not.

This week the ACT Human Rights Commission made public its submission to the Ruddock inquiry (set up after the same-sex marriage plebiscite). The ACT can claim a special voice here as the first Australian jurisdiction to enact a Human Rights Act and still one of only two to do so.

The commission, and the ACT Government in a separate submission, warned that any federal legislation protecting religious freedom should be part of an overall human-rights law and not a stand-alone one.

The big concern after the same-sex marriage plebiscite was that the religious freedom of small-business operators might be infringed. Christian and Muslim bakers who objected to homosexuality might be required under discrimination law to supply – shock horror – wedding cakes to same sex couples.

As things go – refugees banged up for years on Manus Island, Indigenous kids not being educated, security-law detentions etc – gay cakes is not a big-ticket human-rights item. The prosecution and so-called denial of human rights of a fundamentalist Christian or Muslim baker refusing to supply a cake is so unlikely as not to warrant a federal inquiry. The baker could say she is too busy or the couple could sense hostility and quietly go elsewhere – an option not open to Manus refugees.

But since the Federal Government has opened the Pandora’s box on human rights and religious freedom, let’s look inside.

The ACT position is basically a concern that if the Federal Government legislates for some overriding religious freedom it would run contrary to other rights set out in the ACT’s Human Rights Act because it would enable suppliers of cakes, and more alarmingly leases and other life essentials, to deny supply to gay couples because it might offend the supplier’s religion.

The conflict is obvious: on one hand, the human right to be treated equally, irrespective of sexuality, on the other, the right not to have one’s religious sensibilities offended by being forced, on pain or fine or jail, to provide a gay cake or a lease to a gay couple.

You can see which right should prevail here. Would we allow the human right of free practice of religion to permit, say, Christians to deny Muslims a lease, or Muslims to deny Christians a lease? No. The religious freedom is the one to be constricted. By all means practice your religion, but not in a way that denies other more important rights.

So the ACT is quite right to point out the conflict between the right to religious freedom and other human rights and to be concerned about which should prevail in circumstances of conflict.

But when we open that can of worms, we see that the big clash is not about gay cakes. It is about the  fundamental clash between freedom of speech and freedom of religion.

We had a bit of a taste of the clash of human rights over Section 18C of the Racial Discrimination Act. That was a clash between freedom of speech and the freedom from racial vilification.

If we are to have Federal legislative action or constitutional change on these matters – religious freedom, freedom of speech and freedom from racial vilification – we are going to have to look at which are more important when they clash.

Clearly, the issues are of great importance and cannot be swept under the jobs-and-growth carpet. Australians are concerned about rights.

And perhaps the most difficult conflict is between freedom of speech, on one hand, and freedom of religion and freedom from racial vilification, on the other.

The resolution of those conflicts must be in the context of human rights. Religious toleration is a right for humans to practice their religion unmolested, but always provided the rights of others are not affected. Children’s rights should not to be abused by parents denying education to girls or education about the theory of
evolution in the name of religion.

More importantly, there is a right not to be vilified personally or discriminated against because of religious belief, but that should not mean that the religion itself cannot be criticised or even vilified by people exercising their freedom of speech. If you deny freedom of speech to people who want to subject religious teaching to scrutiny, it would mean that Christians in the 19 th century could have prevented people pointing out that Darwin’s theory of evolution puts paid to a lot of bunk taught under religion’s umbrella.

Ultimately, the reason free speech must prevail over freedom of religion is that religion is dogmatic. It accepts no other “truth” than its own. Yet we know that with so many conflicting religions they cannot all be right. Only if free speech prevails can we determine which, if any, is right.

If we are to have a federal Human Rights Act, it may well be that there is no need for a separate head of freedom of religion, beyond personal protection not to be discriminated against on the grounds of religion. Freedom to practise religion should merely come under the head of freedom of speech. Clerics could spout whatever fanciful, parable-laden twaddle or moral direction they liked, provided it did not interfere with the rights of others.

They should not be allowed to incite violence against their critics; believers of other faiths; or converts to other faiths.

Another important element to permitting scrutiny, analysis and criticism of religion is that it can help prevent the gullible from being swept up by cults or radicalised by extremists. When the contradictions of Scientology’s literature, the Koran and the Bible are laid bare and more widely known, fewer people might become ensnared by the radical, literalist followers of those works.

Let’s hope the Ruddock review and analysis of the gay-cakes argument put freedom of speech and freedom from discrimination on religious (or other) grounds ahead of the freedom to practise religion, especially if that practice impinges on the rights of others.

www.crispinhull.com