December 19th 2015

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Articles from this issue:

COVER STORY The first Christmas: a birth that set fire to men's hearts

CANBERRA OBSERVED A Nationals welcome no sure thing for Macfarlane

CLIMATE CHANGE $100bn a year climate fund the rub in Paris deadlock

FAMILY AND SOCIETY Free speech petition: appeal all 'right not to be offended' clauses

WATER POLICY Review tells of destruction of farms in Goulburn Valley

CULTURE AND POLITICS Liberalism's disappearing act on human freedom

TAX REVIEW Rise in GST a no go when the need is for jobs

HISTORY Taiwan's first people have survived waves of settlers

FREEDOM OF RELIGION Law not broad enough to contain freedom's flow

SPEECH IN PARLIAMENT Credit where credit is long overdue: B.A. Santamaria

FAMILY AND SOCIETY Swedish daycare part II: problems of weak parenting

CINEMA No life is lived as an island: It's a Wonderful Life

BOOK REVIEW A contribution to Pope Francis' call for a conversation on conservation


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Law not broad enough to contain freedom's flow

by Robin Speed

News Weekly, December 19, 2015

To find a balance for freedom of religion, Tim Wilson (“Finding a balance for freedom of religion”, The Australian, November 6, 2015) considers it is necessary to preserve the freedom in law. But such an approach will, in the writer’s view, neither provide a balance nor preserve the freedom.

The better path is to leave the freedom undefined and define in law the circumstances where the freedom is curtailed.

Religious freedom involves the freedom to think about what we like and to choose what we believe. Whether we believe in God or not, whether we believe in Christianity, Buddhism, Islam or anything else human beings are built to think and choose. Thinking and choosing is personal and private and not visible to anyone else.

Religious freedom is a broad church

Religious freedom is the freedom to accept or reject any religious view. One cannot classify the acceptance of a religious view as religious freedom and non-acceptance as not. Religious freedom is the freedom to think.

Religious freedom also involves freedom to communicate thoughts to others and, in the process, to persuade or be persuaded. The most strident attacks on Christianity or any other belief is a religious attack. The speaker is exercising his or her freedom to speak out about his or her beliefs or non-beliefs.

Religious freedom also involves the freedom to associate with whom we choose, whether those whom we choose share our views or not, and the freedom to practise what we believe.

Nothing in the above denies the ability of the community to restrict the freedom of religion in some particular way for the protection of the community: for example, not to incite violence. But there is a world of difference between containing religious freedom in law by words, and prescribing in law a particular restriction on that freedom.

General guarantees in law of freedom of religion are counterproductive and serve no useful purpose, as was shown by the Canadian experience with its “hate speech” legislation. The writer is unaware of any law anywhere in the world that defines and preserves freedom of religion except in a very general sense. This is because religious freedom is made up of many parts and cannot be contained by words.

Under our system, Parliament decides what is the law and the wording conveyed by the law. Parliament is made up of people, factions and parties who make law commonly by compromise. There is nothing pure or sacred about the way a law is made or the product. Even when made, the final interpretation of the law is left to the courts, which, with different judges, may have different interpretations in different times.

G.K. Chesterton considered that the right to religious freedom granted by man had done more to suppress religion than had any persecution. He wrote (Autobiography) that when granted by man it was “... supposed to mean that everybody is free to discuss religion. In practice, it means that hardly anyone is allowed to mention it.”

How, then, should a balance be reached? It is suggested that it is necessary to define in law the circumstances in which you might want the freedom to be curtailed.

Questions that must be answered

For example, in the context of the debate about changing the definition of marriage to include same-sex marriage, a series of questions need to be asked, such as:

• Will a religious teacher be free to teach in accordance with his or her beliefs?

• Will a minister or priest be compelled to marry a homosexual couple even if it is contrary to his or her beliefs?

• Will parents or grandparents be free to teach their own children or grandchildren that they believe that the change to the definition is contrary to their beliefs?

• Will you be free to say that same sex-marriage is considered wrong on religious or other grounds?

Having asked and then answered the questions, it is necessary to specify in law precisely what cannot be said or done.

In my view religion should be left to survive or not independent of the law. Preservation of religious freedom in the law is not possible because the freedom cannot be contained by words and, even if it could, the law would not sustain it.

We should concentrate on prescribing into law the precise curtailment of freedom as it is this way only that we can achieve a balance.

Robin Speed is
 president of the 
Rule of Law Institute of Australia.

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