February 24th 2018

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Articles from this issue:

COVER STORY Weatherill demand places Murray-Darling in jeopardy

EDITORIAL China completes island building in South China Sea

CANBERRA OBSERVED Greens: wouldn't know a cowardly act if they did one

REDEFINITION OF MARRIAGE Government forms say it is fluid gender marriage

FREEDOM AND LAW Gender and anti-discrimination: wedges between you and freedom

HISTORY A look back at B.A. Santamaria gives us a forward impulse

GENDER POLITICS Transgenderism: A state-sponsored religion

LAW AND SOCIETY Protecting freedom of religion in Australia

HISTORY Hungary, 62 years on from the anti-Soviet uprising

MUSIC Reel to real: Johann Johannsson, RIP

CINEMA Sweet Country: Sour taste of bush justice


BOOK REVIEW Lessons from the UK front of the GFC

BOOK REVIEW The dragon has woken and rumbled

BOOK REVIEW Recovery manual for morals and culture


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Protecting freedom of religion in Australia

by Kevin Andrews MP

News Weekly, February 24, 2018

Liberal Member for Menzies the Hon Kevin Anrews delivered the following address to the National Civic Council’s Annual Conference on Saturday, February 3, 2018. Mr Andrews is chairman of the Human Rights Sub-committee of the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade.

In December 1948, the international community gathered at the United Nations adopted the Universal Declaration of Human Rights. Confronted by the horrors of World War II and egregious breaches of human rights in many places, world leaders sought to enshrine standards of conduct that respected the inherent dignity and liberty of each human being.

Liberal MP Kevin Andrews

Led by the redoubtable Eleanor Roose­velt, the Human Rights Committee of the new organisation had worked for nearly two years to draft the Declaration. Australia was a significant supporter of the creation of the United Nations, and also of the Universal Declaration.

Central to the Declaration is the bold assertion that “human beings shall enjoy freedom of speech and belief and freedom from fear and want … [which] should be protected by the rule of law”.

Article 18 of the Declaration states: “Everybody 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 a community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

As Harvard professor of law Mary Ann Glendon points out in her masterful account of the creation of the Declaration, A World Made New, Article 18 was a major achievement of the Human Rights Committee. Along with Eleanor Roosevelt, it was the work of several other remarkable contributors, including Rene Cassin and Charles Malik.

Two decades later, the international community concluded a long process to transform the Declaration into an international legal instrument. Hence, the International Covenant on Civil and Political Rights was drafted and adopted. Among the supporters again was Australia.

The Covenant expands Article 18 of the Declaration with three additional provisions.

First: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

Second: “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.”

Third, the nations that are signatories to the 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”.

Australia is a signatory to the Covenant, but it has not been incorporated into our domestic law.

Freedom of religion in Australia

A number of observations can be made about the protection of religion and belief in Australia.

First, there is an international definition and standard of freedom of religion and belief that Australia has long supported. Accordingly, there is an objective measure by which the adequacy or otherwise of protections in Australia can be measured.

The standard in Article 18 of the Covenant has also been interpreted by the United Nations from time to time.

It is also clear that there is very little legal protection for freedom of religion and belief in Australia. This is the consistent evidence from experts to the Parliamentary Human Rights inquiry that I currently chair and which released an interim report late last year.

As I wrote in the foreword to the Parliamentary report, Legal Foundations of Religious Freedom in Australia: “Legal protection of religious freedom in Australia is limited. Australia is unusual among modern Western democracies in that it lacks a codified bill or charter of rights. While a culture of religious freedom has thrived, and the common law has respected religious freedom to a large extent, the legislative framework to ensure this continues is vulnerable.”

Section 116 of the Australian Constitution is limited in its scope, according to these same experts, and does not provide the range of protections covered by the Covenant.

To quote again from the Foreword: “The Constitution does place ‘fetters’ on the Commonwealth government, preventing it from restricting religious practice to some extent. But this is a fairly narrow protection, and does not provide positive protection of the right, nor does it prevent the states and territories from restricting religion.

The modern context

A survey of history reveals that threats to religious freedom have arisen mostly from the dominance of one religion over others, or from the state sanctioning an official religion. While this is still the case, formally or informally, in some parts of the world, the threats in Western nations like Australia are subtler and often arise in the context of protecting other, conflicting rights. An imbalance between competing rights and the lack of an appropriate way to resolve the ensuing conflicts is the greatest challenge to freedom of religion in Australia.

Again to quote from the foreword to the Parliamentary Report: “This is most apparent with the advent of non-discrimination laws which do not allow for differentiation of treatment by religious individuals and organisations. It is also manifested in a decreasing threshold for when religious freedom may be limited. For example, the Victorian Charter of Rights and Responsibilities allows ‘reasonably necessary’ limitations, while the ACT Human Rights Act has the even lower threshold of ‘reasonable’ limitations, compared with the International Covenant’s requirement that limitations be ‘necessary’.

While religious exemptions within non-discrimination laws provide some protection, these place religious freedom in a vulnerable position with respect to the right to non-discrimination, and do not acknowledge the fundamental position that freedom of religion has in international human rights law.

These reflections highlight the inadequacy of the current situation. First, Australia’s domestic law contains very little protection for freedom of religion. Second, this is compounded by the incorporation through a series of Commonwealth, state and territory statutes of one universally recognised freedom – against discrimination – into domestic law, but the exclusion of others, among them freedom of religion. And third, where exemptions are provided, they create a tenuous and negative protection, rather than the positive protection provided in the International Covenant. Moreover, there is a failure to recognise that under international jurisprudence, there is no hierarchy of rights, that each and every right should be given full expression to the extent possible.

The need to re-assert religious freedom

The notion that religious freedom does not require any further legal protection because Australians are a tolerant, easy-going people is overly sanguine. Even if this is true of most of us, the recent debate about redefining marriage revealed that there are individuals and groups who will exploit the inadequacy of the protection.

Hence, a bishop is dragged before a tribunal for simply expounding Catholic beliefs. A company retreats after a twitter storm because it was associated with a respectful debate between two members of Parliament about redefining marriage. A business executive is hounded by activists to resign from the board of a Christian education institution. A sports star is harangued for expressing the belief that marriage is between and man and a woman. A university is pressured about an academic who supports a Christian foundation. This last was argued in the name of diversity – a diversity that tolerates only one view!

The notion of toleration has been turned on its head. A new liberal view was espoused by John Locke in his 1689 Letter Concerning Toleration. In it, Locke sought to distinguish the business of civil government from that of religion. Written at a time when controversy surrounded the idea that Catholics should be able to practise their religion in Protestant England, or Jews or Muslims enjoy religious freedom in a Christian nation, Locke argued that the state and the Church had separate functions. He sought to find a way that people of different religious beliefs could live together.

As Rabbi Jonathan Sacks has written, toleration “aims not so much at truth but at peace. It is a political necessity not a religious imperative, and it arises when people have lived through the alternative: the war of all against all.”

Beginning with the libertarian revolution of the 1960s, the notion of a common public morality has been challenged and undermined. Within half a century the political notion that the law should not intrude into areas of private behaviour has been transformed into the moral assertion that a person now has the “right” to do anything not precluded by law.

The political judgement about the boundaries of the law is now translated into a moral judgement about rights. What one was “permitted” to do now becomes what one has the “right” to do. And having asserted a “right”, many insist that it should be protected by the law! Hence Locke’s political toleration has been combined with the new moral relativism.

As Lord Sacks cautions: “When political liberalism is combined with moral relativism it reconnects morality and politics, the very thing liberalism was supposed to avoid.”

A moral judgement that liberalism allowed a person to express in the realm of faith and religion – for example, about religious belief, including the alleged beliefs, customs or practices of other religions – is now swept into the political realm. In morally relative politics, a “right” to do something must be protected as a new human right. Not only is the activity now a “right”, but the persons involved are right (or at least as right as anyone else). To say otherwise is intolerant. Such intolerance is discriminatory and should be punished. How the wheel has turned in three centuries!

One of the great achievements of the political liberalism of the 17th and 18th centuries was the idea that the individual is the foundation of the polity. The law treated individuals as its basis. This notion was foundational to liberal democracy.

Hence, in the spirit of this development, the 1776 United States Declaration of Independence boldly asserted that: “All men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to ensure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Under this formulation, it is the individual who possesses political rights and whose consent legitimates government. It was a rejection of the idea that rights subsisted in classes of people, whether determined by birth, hierarchy or membership of a particular group. It is central to the liberal democratic experiment.

Increasingly, however, “rights” are now being asserted on behalf of groups. A claim is made for example, that the expression of a moral judgement about the beliefs, statements or actions of another group should be unlawful because it is offensive to members of the group; or that it is likely to cause ridicule or contempt towards a member of that group.

Whereas the laws of defamation are to protect the individual against libel and slander, it is now claimed that moral judgements about a group should be unlawful and punishable. This is a significant shift.

The law of defamation seeks to protect an individual’s reputation by providing a civil action against a person who has “caused hatred, ridicule or contempt”, to employ the standard formulation. Western society has traditionally drawn a distinction between offence and defamation. Many unpleasant, offensive things are said in a liberal society like Australia, but they do not constitute defamation.

Freedom of religion includes the freedom “to profess and by argument to maintain, their opinions in matters of religion”, to quote Thomas Jefferson’s famous formulation. That means in the public square, not just the synagogue, temple or church. Once freedom of speech is compromised, freedom of
religion will not be far behind. And when both are compromised, freedom itself will have been lost.

The West must reassert the values underpinning liberal democracy. It seems to have been forgotten that the idea of toleration was born of political necessity. The alternative that Europe experienced in the 17th century was a war of all against all. This leads me to the present situation.

The future

As the Parliamentary Committee indicated, there are various proposals for the better protection of religious freedom in Australia.

How the provisions of the International Covenant can be best implemented in Australia is the central issue. Options include a Bill of Rights, a Charter of Rights or a Human Rights Act; a Religious Freedom Act; or the enhanced protection of religious freedom in anti-discrimination law.

Two challenges arise from a statutory rights instrument. First, previous attempts to introduce rights into the Constitution – in 1944 and 1988 – were defeated. Proposals in 2008 were also abandoned. These outcomes are linked to the second, more substantial issue: namely, the transfer of power from the legislature to the courts. A Charter of Rights, which does not allow courts to strike down laws, but to take into account directions from the Parliament, is the more attractive option for many people.

A less complicated solution would be to incorporate the provisions of Article 18 into an Australian law. This, however, would lead to the argument that other provisions of the Covenant, such as freedom of speech and association, should also be legislated.

Alternatively amendments to existing human-rights legislation could incorporate the provisions of Article 18.

A further option is a general limitations clause in anti-discrimination legislation. While this would provide greater protection for freedoms, it fails to fully establish a positive, equal right, as international human-rights jurisprudence requires.

Both the Ruddock inquiry and the Parliamentary Committee will continue to examine these issues.

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