One of the central premises of human rights law is its ability to protect minorities against democratic majorities; where the Religious Discrimination Act will have much work to do, then, is in the space of contest between religious manifestation and majoritarian values, writes Mark Fowler on the ABC Religion and Ethics site.
Protection of persons against discrimination on the basis of religious belief is the missing piece in the constellation of Australian equality legislation. Of the five main equality rights recognised in the international law to which Australia is a signatory ― being race, age, disability, sex (including sexual orientation) and religion ― only religion fails to receive dedicated protection in Commonwealth law. In its 2017 Periodic Review of Australia, the United Nations Human Rights Committee called upon Australia to address this deficiency. While Shadow Attorney-General Mark Dreyfus QC has indicated that the proposal is “worth examining,” Labor is yet to provide its response. Given the timing, there is a very real prospect that the issue of religious freedom could become an election issue.
At its heart anti-discrimination law aims to protect an individual’s equality as a human being. This is a notion that we have given much thought to as a nation in more recent times, not only in respect of marriage, but also due to the ascendance of identity politics. However, this should not beguile us into thinking that the contest over equality is unique to our time. The answer to the question “what substances are so alike that justice requires their equivalent treatment?” has defined the moral and economic structuring of political orders throughout the ages.
For example, the civil and economic freedoms enjoyed by citizens in many classical city-states were made available by a particular understanding of the natural inequality of slaves ― their differential treatment was justified on the basis that they were not equal in substance. Almost fifty years prior to the Bolshevik Revolution, Dostoyevsky prophetically saw a force destructive of beauty, virtue and truth within the vision of equality forming in the nineteenth century underground Russian socialist movement. In The Devils, he famously envisioned the “lackey who will be the first to clamber up the ladder … and slash the divine face of that great ideal [the Sistine Madonna] in the name of equality, envy and digestion.” German National Socialism was, of course, particularly defined by its unique conception of natural racial inequality.
Societies have been grappling with, and defined by, their notions of equality for millennia. Aristotle’s question continues to resonate in our national discussion today: “they admit that justice is a thing and has a relation to persons, and that equals ought to have equality. But there remains a question: equality or inequality of what?” That these ancient notions find their modern judicial equivalent within anti-discrimination law is perhaps best illustrated by this statement of the European Court of Human Rights:
a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
Against this backdrop, the Morrison Government’s proposal of a Religious Discrimination Act asserts that it is an injustice that Commonwealth law currently permits Australians to be treated differently on the basis of their religion. It insists that in the modern Australian multicultural-democratic project, religion is no basis for treating persons as “unequal.” Attorney General Christian Porter cites the recent refusal of a person to Parliament House on the basis of their religious belief as an example of the kind of inequality that this Act would prevent.
One of the central premises of human rights law is its ability to protect minorities against democratic majorities. Where the Religious Discrimination Act will have much work to do, then, is in the space of contest between religious manifestation and majoritarian values. Here, as citizens infused with unconscious liberal values, we risk offering protection to a mischaracterised form of religion, one conceived as a voluntary exercise of the will. However, as Michael Sandel has warned, “freedom of conscience and freedom of choice are not the same; where conscience dictates, choice decides.” The Religious Discrimination Act necessarily begs the question: how do we define the boundary line of permissible religious manifestation where it conflicts with the rights of others? It is this question that will command the most attention when the draft of the Act is released for public consultation later this year.
All Commonwealth legislation must rely upon a Constitutional head to constitute a valid exercise of power. In the vein of existing Commonwealth anti-discrimination law, the low-hanging fruit is the external affairs power. The relevant international protection is contained in the International Covenant on Civil and Political Rights (ICCPR). The High Court has held that to be valid a statutory enshrinement of an international covenant, an Act must be “reasonably capable of being considered appropriate and adapted to implementing the treaty.” The ICCPR provides that only “necessary” limitations on religious exercise are lawful pursuant to five permissible grounds: “public safety, order, health or morals or the fundamental rights and freedoms of others.”
The Ruddock Panel provided further guidance in its recommendation that the complaints and exemption regimes within the Religious Discrimination Act should enshrine the framework for implementing the ICCPR contained in the Siracusa Principles, a statement of international human rights law experts promulgated in 1984. This framework should hopefully provide an objective benchmark around which religious communities and human rights advocates may discourse and a standard by which legislators may weigh the proposed terms of the Act.
As is the case with existing anti-discrimination law protections, any religious discrimination law will operate as a shield against detrimental conduct, not a sword. In this way, a Religious Discrimination Act can be seen as a guarantee that our shared public life is not neutered of religious expression. Enfolding religious belief within the Commonwealth regime protecting equality will ensure that our religious diversity and nuance continues to be welcome within our unfolding national story. A truly neutral, democratic and pluralistic society will seek to most accurately reflect both the religious and non-religious sentiments within its underlying polity by allowing freedom of conscience, not just in belief, but also in public practice. As the Ruddock Panel recognised, “religious freedom is precious … it needs to be actively preserved.”