Do we need new laws to protect religious freedom in Australia?

The Universal Declaration of Human Rights (UDHR) was proclaimed by the UN General Assembly in 1948 as “a common standard of achievement for all peoples and all nations.” The drafters consulted a broad range of thinkers, including religious and philosophical greats such as Pierre Teilhard de Chardin SJ, Mahatma Gandhi and Aldous Huxley. Teilhard counselled the drafters to focus on “man in society” rather than the human being as an individual. The right to freedom of thought, conscience and religion or belief was recognised in the UDHR, providing:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

When marking the sixtieth anniversary of the UDHR in 2008, Irish poet Seamus Heaney said

Since it was framed, the Declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its Articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the “still, small voice.”

A decade ago, the newly elected Rudd government set up a national human rights consultation. I was privileged to chair the consultation which recommended a national Human Rights Act. Neither side of politics was much interested in this suggestion. The more conservative religious leaders were strongly opposed, believing that religious freedom might be better protected by parliament without legislation being subjected to judicial oversight for compliance with human rights generally. Ten years on, they might have cause to think differently.

Back in 2009, some of the more conservative religious leaders found a strong ally in Bob Carr, the one-time Labor premier of New South Wales and then later Minister for Foreign Affairs in the Gillard Labor government. Carr delighted in telling the story about the visit he received at his Premier’s Office by the Catholic and Anglican Archbishops of Sydney. They were seeking exemptions for religious schools from some provisions of the state’s anti-discrimination law, which would then permit the schools to teach their doctrine and enact their practices spared the threat of proceedings in any tribunal investigating whether their employment or enrolment practices were discriminatory. Carr indicated that without a Human Rights Act, this arrangement could be reached on a simple handshake with a meeting of the premier and the two archbishops. He joked that he felt as if he was solving the Reformation.

But a decade on, such an arrangement is far less likely to occur and even less likely to pass muster if publicised. Religious groups, like political parties, may well have an entitlement to employ staff who are willing to get with the program. Religious groups, like any other special interest groups in the community, need to be able to give an account of themselves — especially if the services they are delivering are funded in part by the taxpayer.

The Queensland parliament has now legislated a human rights charter similar to that adopted by the parliaments in Victoria and the ACT. These charters are weak forms of human rights protection by way of judicial review of majoritarian parliamentary intrusions. They do not empower the judges to strike down laws that are incompatible with human rights, but merely to make a declaration of incompatibility and leaving it to Parliament to decide whether to put right the human rights deficit highlighted by the courts.

That’s why these legislative instruments are rarely invoked in the courts. Lawyers and their clients are more interested in getting a final, cost-effective result rather than launching academic test cases which result in a learned dialogue and standoff between parliament and the courts. Other Australian jurisdictions, including the Commonwealth, don’t have even this mild level of available judicial scrutiny and are out of kilter with other equivalent jurisdictions — such as the UK and New Zealand, which have their own human rights acts.

In the absence of even a modest human rights act, religious freedom tends to be treated by means of exemptions for religious bodies or exceptions for religious behaviour set down in anti-discrimination acts, such as the Commonwealth’s Sex Discrimination Act. During the 2017 plebiscite campaign on same-sex marriage, many politicians and advocacy groups agitated or conceded the need for legislation to make up for the lack of legal protection of religious freedom at a national level. Religious folk rightly argued that it was no more logical to legislate religious freedom as an exception or exemption to discrimination laws than to legislate the right to equality and equal treatment as an exception or exemption to a religious freedom law. Over time, a right which is legislated only by way of exception or exemption becomes suspect and liable to further restriction.

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR), which further specifies the right to freedom of thought, conscience and religion as first enunciated in the UDHR. Article 18 of the ICCPR is now the main international legal provision protecting freedom of religion or belief. It provides:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

There have been numerous Australian inquiries by parliamentary committees, the Australian Law Reform Commission and the Australian Human Rights Commission which have highlighted the need for some further legislative protection of this right at a Commonwealth level. But the appetite for such reform in the legal academy has been slight, and in the past, almost non-existent among the leadership of the mainstream churches.

Like all competing or conflicting rights, the right to religious freedom is limited in its scope. There is often a need to balance conflicting rights. For example, Article 26 of the ICCPR recognises the right of all persons to equality and to non-discrimination on certain grounds — including religion. Article 26 provides:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The most recent report of the Special Rapporteur on freedom of religion and belief to the UN Human Rights Council notes:

[T]he jurisprudence of the Human Rights Committee and the regional human rights courts uphold that it is not permissible for individuals or groups to invoke “religious liberty” to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere.

In the wake of the same-sex marriage plebiscite, the Australian challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students.

The recommendations of the Ruddock Religious Freedom Review

I served on the Ruddock Religious Freedom Review set up after the same-sex marriage plebiscite. We provided our expert panel report to the Turnbull government in May 2018. The Expert Panel conceded that, in theory, there is a major lacuna in the array of anti-discrimination legislation. If you legislate to prohibit discrimination on the basis of gender, sexual orientation, age, race or disability, why not on the basis of religion? Our report was not released until December 2018 by the Morrison government. We recommended both a tweaked tightening of the exemptions for religious bodies in the Sex Discrimination Act and the introduction of a Religious Discrimination Act.

The delay of the release of the report and the shambolic handling of its publication highlighted the political problem with our recommendations. The Turnbull wing of the Liberal Party favoured the tweaked tightening of the Sex Discrimination Act provisions, but not the introduction of a Religious Discrimination Act. The Morrison wing of the Liberal Party were troubled by the former but attracted to the latter.

I constantly meet well-educated, compassionate human rights advocates who view religion as a hangover from a long past era. While conceding that human rights are universal and inalienable, indivisible, interdependent and interrelated, they basically think that freedom of religion is more trouble than it is worth. They find religious belief and practice marked by notions of tradition, authority, ritual and permanent commitment mystifying and counter-productive. They prize individualism, freedom, personal autonomy and non-discrimination. They not only welcome increasing manifestations of the secular with a strict separation of church and state, they also relish increased secularisation of society with less reliance and respect being shown to the religious inclination which is quarantined to the sole preserve of the individual’s private life — not to be shared in polite company and not to be aired on the public airwaves. Or if aired ever so briefly, to be silently tolerated or publicly declaimed.

Both sides of politics are agreed that it is time to repeal section 38(3) of the Sex Discrimination Act, which allows a religious educational institution to discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy provided they discriminate “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.” I welcome this bipartisan commitment of the parliament, but I despair at our parliament’s protracted delay and incapacity to deliver on this commitment.

Religious schools should not be able to discriminate against students on the basis of their sexual orientation or gender identity. But religious schools should remain free to teach their doctrine respectfully and reasonably, in season and out of season. And the law should make that perfectly clear. We all need to concede that some religious teachings can be confronting and upsetting. But it is not for the state to rewrite the Bible or the Qur’an.

Let’s consider an example that has nothing to do with sexuality. Jesus was fearless in his condemnation of wealth (Matthew 19:23-24): “Truly I tell you, it is hard for someone who is rich to enter the kingdom of heaven. Again, I tell you, it is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God.” Church schools have to remain free to teach this doctrine even to the wealthiest children privileged to attend private schools with high fees. This doctrine can be taught respectfully and reasonably even though it is in stark contrast to the lifestyle of many of these students and their families.

So, too, the teaching of Jesus about marriage and divorce. Yes, there are a large number of students from blended families who have experienced divorce, and there will be an increasing number of students from families with same-sex married parents. There’s no doubt that Jesus’s teaching on divorce has been counter-cultural for a long time; so now, his teaching on marriage. A Christian school must be guaranteed the freedom to teach what Jesus taught, respectfully, reasonably and counter-culturally: respectfully because the dignity of all persons must be affirmed; reasonably because a school has a fundamental educational purpose; and counter-culturally because many of the things Jesus taught will never appear in the political manifestos of the Liberal Party or the Labor Party.

As an Expert Panel, the Ruddock Review noted that four of the nine Australian jurisdictions (including the Commonwealth) allowed religious schools to discriminate against students on the basis of their gender identity or sexual orientation; four did not; and then Tasmania allowed discrimination against new applicants but not against existing students at a school. Not being elected politicians, we did not see it as our role to propose major policy changes, but rather to recommend legislative changes which could be expected to win broad rational support across the political spectrum, honouring the principles of federal-state relations.

The Ruddock Review did not want religious schools having the ability to discriminate adversely against kids. But at the same time, we wanted religious schools to be able to teach their doctrine reasonably and respectfully. And we wanted religious schools within reason to be able to constitute their own faith environment just as a political party creates its own political environment — by employing staff and attracting volunteers who get the message and want to proclaim it and enact it. Just as the Greens ought not be required to employ a coal merchant, a Christian school ought not be required to employ an anti-Christian activist. We did not think you should be able to sack a teacher just because they entered into a same-sex marriage.

If religious freedom is to be better protected in future, it is necessary that religious citizens develop a more coherent position on the utility of comprehensive national human rights legislation being enacted and implemented consistent with the complexities in federal-state relations. It is also necessary that religious citizens and their leaders show more regard for the right to equality and equal treatment of others, especially those who have suffered adverse discrimination from religious people and organisations in the past. And it’s necessary that the human rights academy accord universality and indivisibility to all human rights including the fundamental right to freedom of religion. Some rights are trumpeted by the mainstream media and the academy; others are not. Freedom of religion might not be fashionable, but that’s all the more reason for it to be protected by legislation with judicial teeth. It’s time to advocate and demonstrate that all rights — including freedom of religion and the right to equality of treatment — are universal and inalienable, indivisible, interdependent and interrelated.

On the Ruddock Review, we received over 15,000 submissions and held 90 public consultation meetings around the country. We incurred the wrath or displeasure of both ends of the spectrum on the issue of religious freedom because we did not think there were many major issues. To quote our report:

The Panel heard repeatedly that religious adherence in Australia is at a critical juncture. Changing patterns of religious adherence, a loss of trust in mainstream institutions, and changing social mores are challenging the traditional role that religion has played in Australian society … The Panel did not accept the argument, put by some, that religious freedom is in imminent peril, it did accept that the protection of difference with respect to belief or faith in a democratic, pluralist country such as Australia requires constant vigilance.

The right to freedom of thought, conscience and religion set out in Article 18 of the ICCPR is a human right. Like all human rights, it is a right enjoyed by human beings, not a right granted to corporations. We said that the human right to freedom of religion “protects those whose views on faith or belief change over their lifetime. It is not a protection for religions. It is a protection, a human right, for the religious, the non-religious and those who subscribe to other systems of belief.”

Like many previous inquiries, we did accept that there was a shortfall in the federal legal architecture for the protection of religious freedom. Despite our being a signatory to the ICCPR, Australia has not passed the necessary domestic legislation to protect this right.

Most countries similar to ours have legislated some form of national human rights legislation or placed a bill of rights in their Constitution. We have done neither. Having chaired the National Human Rights Consultation for the Rudd government a decade ago, I knew there was no appetite on either side of the legislative aisle for a national human rights act.

Many religious groups and religious leaders who, in the past, have been eloquent opponents of a national human rights act called for a Religious Freedom Act. We opposed that because we thought it risked privileging some rights over others without providing a comprehensive means for resolving any conflict of rights. We spelled out our reasons:

[We] did not support enactment of a standalone Commonwealth enactment of this kind at this time. Specifically protecting freedom of religion would be out of step with the treatment of other rights. Moreover, the statutory expression of positive rights would need to be carefully crafted having regard to the need to reconcile them with the full suite of other human rights. As a matter of practicality, this necessitates a framework which provides equal treatment for a wide range of human rights.

But we did see a place for a federal Religious Discrimination Act. We noted a shortfall in the protection of religious freedom not just at a national level but also in some of the states. There is a shortfall in the NSW and South Australian legislation. Some LGBTI advocates have said they are opposed to any religious discrimination legislation. I find that strange. Presumably they are not calling for the repeal of section 14 of the Victorian Charter of Rights and Responsibilities, which provides:

We thought the Australian Human Rights Commission should be seen to be treating the protection of religious freedom as part of its day job, this being a right every bit as important as the other rights within the purview of the commission. But we did not favour a full-time religious freedom commissioner. We thought that would risk a Balkanisation of the commission in the present climate.

Since the Ruddock Review, many religious groups have continued to agitate for a religious freedom act. We thought something more modest and more consistent with present federal laws would be appropriate. If you have a Sex Discrimination Act, age discrimination legislation, disability discrimination legislation and a Racial Discrimination Act, then why not a religious discrimination act? We recommended “that steps be taken … to develop a Commonwealth Religious Discrimination Act directed at the provision of comprehensive protection against discrimination based on religious belief or activity, including the absence of religious belief.”

Mind you, we saw that even a Religious Discrimination Act would have some added complexity. In a pluralistic democratic society like Australia, there is probably a fair consensus on the exceptions which should be permitted for women or Aborigines to set up exclusive arrangements for themselves, even in the public square with taxpayer assistance. When people want to gather or act exclusively in a group on the basis of some unchangeable, readily identifiable characteristic, it is easy enough to set the legal limits on acceptable positive discrimination. When people want to gather or act exclusively in a group on the basis of their religious beliefs, especially when those beliefs motivate them to provide public services and to evangelise, it is a more complex task to set the legal limits on acceptable positive discrimination.

While it is unacceptable to have public affirmations that one race or gender is better or preferable to another, it’s not quite the same with religion. After all, most religious believers voluntarily follow their particular religion because they believe it is the one true religion or the better or preferable religion. That does not, or should not, cause offence to people of other religious faiths or to unbelievers, provided there is mutual tolerance in the public square of all faiths and none. The common good of a pluralistic society is well served when co-religionists are able to associate together in groups and organisations which enhance their distinctive religious ethos, while contributing to the needs of society through the provision of services delivered in a non-discriminatory way. Ronan McCrea puts it well:

religion raises different problems and is the basis of very different claims in different contexts. Sometimes it should be seen as a belief akin to political beliefs, other times it is a right to treat it as something closer to ethnic or racial identity. Designing legal rules for such a shape- shifting phenomenon that is viewed in so different ways by different people in so many different contexts is immensely difficult.

The politics of religious discrimination

The Morrison government has decided not to pursue the recommendation of the Ruddock Review of a clean, lean Religious Discrimination Act. Rather, in response to those who have long advocated a Religious Freedom Act, the Morrison government is attempting to formulate what we might call a “Religious Discrimination PLUS Bill” which will include some bells and whistles you would not expect to find in a standard piece of anti-discrimination legislation. They have even formulated specific provisions to deal with the controversies relating to Archbishop Porteous’s run-in with the Anti-Discrimination Commissioner in Tasmania and Israel Folau’s run-in with Rugby Australia.

I agree with the Australian Human Rights Commission: “As a matter of principle, the Commission considers that legislating for single instances is not good legislative practice. As a matter of substance, it may lead to unintended and undesirable consequences.” They have also inserted provisions overriding State laws such as the Victorian abortion law which prohibits doctors from conscientiously refusing to refer patients for abortions (including late-term abortions) even when a patient has ready access to alternative information and services. I think the Victorian provision pays insufficient regard to a doctor’s right to freedom of thought, conscience and religion. But I am not convinced that a specific Commonwealth override added to an anti-discrimination bill is the way to go.

In a democracy like ours, there is no requirement that government stick rigidly to the recommendations of an Expert Panel. And there is nothing wrong with those citizens opposed to the findings of the Expert Panel agitating for a different legislative outcome. That’s why I have kept out of the debate since we submitted our report.

I note that those citizens who are anti-religious tend to view the present legislative exercise as a piece of special-pleading, pandering to a political interest sympathetic to the more conservative groupings in the federal Coalition. Some of the LGBTI groups think this is a rear-guard action by the churches and other religious groups who “lost” the plebiscite — even though the evidence shows, for example, that Catholics who voted in the plebiscite voted “yes” at the same rate (or slightly higher) as the community generally.

I think there is little prospect of any “Religious Discrimination PLUS Bill” passing the Senate. When such a bill is ultimately rejected by the Senate, I do hope that our federal politicians will have the good sense to legislate a neat and clean Religious Discrimination Act, and our politicians in the NSW and South Australian parliaments will have the good sense to bring their legislation up to an appropriate standard honouring our commitments and undertakings under the ICCPR.

Beware the tyranny of the majority

There is undoubtedly increased religious antipathy in the Australian community. For example, I encounter more anti-Catholicism today than I did twenty years ago. Given that all human rights are to be treated equally, I don’t think it is good enough that religious freedom at a national level be treated simply as a catalogue of exceptions or exemptions in the Sex Discrimination Act. That leaves the perception that religious folk are always engaged in special pleading, wanting to discriminate adversely against others.

Let me state a few propositions which I think should underpin any law or policy in this area.

Religious schools should be able to exercise a preference for students and families who support the school’s religious ethos and who want to benefit from that ethos. You mightn’t want to send your kid to such a school, and you should have a realistic choice. But society is the better when everyone has that choice, and when everyone knows what is involved in making that choice.

Religious schools should be able to choose leaders for their staff who are animated by and supportive of the school’s religious ethos and beliefs. If political parties, women’s groups and Aboriginal organisations can be selective in their choice of leaders and staff who “get it” and who want to “evangelise their mission,” why shouldn’t religious groups?

We should not discriminate against our fellow citizens on the basis of religion or belief in the provision of public services or in our activities in the public square. But neither should we discriminate against our fellow citizens on the basis of their sexuality or gender in the provision of public services or in our activities in the public square.

Those running Church schools need to work out how best to accommodate all students — including those being brought up by same sex couples and those who identify as LGBTI — and how best to treat all staff — including those who enter into a civil same sex marriage. We are entitled to conduct our institutions consistent with Church teaching but not in a manner which discriminates adversely against those of a different sexual orientation. We should treat them in the same manner as those of a heterosexual orientation. If we were to insist that all heterosexual teachers be celibate or living in a sacramental marriage, we would have a case for discriminating against teachers in a same sex relationship. But given that we turn a blind eye (or perhaps even a compassionate and understanding one) to those heterosexual teachers not living in a sacramental marriage, we should surely do the same for those thought to be living in a same-sex relationship.

In attempting to legislate these propositions, it is essential that government consult widely with the community. The Expert Panel of the Ruddock Religious Freedom Review was of the view “that it is important that the Government consult widely on draft legislation to avoid any unintended consequences.” I continue to think positive religious freedom would be best enhanced by a national Human Rights Act. But I won’t be waiting for that from any Liberal or Labor government in the near future. In Australia, we may have to await the parousia on that one.

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