June 2nd 2018


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Articles from this issue:

COVER STORY The Greens: the political equivalent of bilgewater

EDITORIAL Malaysian election sends shockwaves across South-East Asia

GENDER AND SPORT Transgender playing in women's football league gains attention

CANBERRA OBSERVED Beyond tomorrow a bridge too far for politicians to plan

ENERGY Why renewables destabilise the power grid

LAW AND FREEDOM Exemptions: at issue with Dr Zimmermann

INTERNATIONAL AFFAIRS Behind the U.S.-North Korea rapprochement

INTERNATIONAL AFFAIRS Two to tango: Where to now for U.S. and China?

LIFE ISSUES So, is this not pro-life?

POLITICS AND CULTURE The West won the world but may lose its soul

MILITARY BIOGRAPHY Commanders: the men who resolve questions of life and death

HUMOUR

MUSIC Eurovision: Wailing and gnashing of teeth

CINEMA Superhero movies: A Chestertonian consideration

BOOK REVIEW A man for all seasons and hemispheres

BOOK REVIEW Mid-century gem of Catholic fiction

POETRY

LETTERS

ECONOMICS Vatican document nails some of the causes of the GFC

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LAW AND FREEDOM
Exemptions: at issue with Dr Zimmermann


by Robin Speed

News Weekly, June 2, 2018

One of the frequent criticisms of those advocating repeal of exemptions for religious freedom is their refusal to explain their reasons or debate them and to make personal attacks on those who disagree. It is, therefore, important that supporters of the existence of protections for religious freedom stand ready to explain their reasons and debate them and not to make personal attacks.

Dr Augusto Zimmermann in the News Weekly of March 10, 2018, in a learned and thoughtful article reasoned why there needs to be a general exemption for religious protections. In the News Weekly of April 7, 2018, I explained why I thought the reasons did not support the conclusion; and in the News Weekly of May 5, 2018, Dr Zimmermann responded.

As he and I are on the same side, I now respond, not to show who is right or wrong, but to show how the reasons for a position can be openly stated and rationally debated with the aim of improving the reasons, without making personal attacks.

For as St Paul wrote in Colossians 4:6: “Let your conversation be always full of grace, seasoned with salt, so that you may know how to answer everyone.”

It is important to put this matter in context, as the Australian Law Reform Commission noted:

“5.3 Australians enjoy the freedom to worship and observe religion, and the freedom not to be coerced into engaging in religious practices. There are very few, if any, provisions in Commonwealth laws that interfere with religious freedom in these ways.

“The main areas of tension arise where religious freedom intersects with anti-discrimination laws, which have the potential to limit the exercise of freedom of conscience outside liturgical and worship settings.”

Let’s, then, be clear about what is here being debated. It is the merits of a general statutory protection of religious freedom as opposed to specific statutory exceptions. This may seem very erudite but it is critical to obtaining meaningful protection.

First, let me set out what appears to be agreed between us:

  • Religious freedom is not a freedom which can be conferred by Parliament by some abstract statement.
  • Religious freedom is not best served by a general or broad-based statutory provision.
  • A bill of rights would not serve to protect religious freedoms.
  • Existing exceptions to the current law do not afford substantive protection of religious freedom.

From here our reasons diverge.

Dr Zimmermann states that the rule of law is inconsistent with my reasons and, although I made no mention of it in my article, he justifies the introduction of the rule of law into the argument by the quite irrelevant fact that I am President of the Rule of Law Institute of Australia.

Indeed, he considers “my fights for exceptions” to be “misleading” in that it disrespects a basic element of the rule of law: namely, the generality of the law. He considers that I should be “reminded” as President of the Rule of Law Institute that an important element of the rule of law is that it does not easily admit exceptions to the law.

It is true that the rule of law requires as a general proposition that all laws be general and have no exceptions for classes of persons. However, as a general statutory protection would offer no protection, I would rather have a specific exemption that does. After all, the rule of law recognises specific exceptions that are justified; that is, for persons on drugs or of limited mental ability.

We live in the real world; and while bad laws ought to be repealed rather than subject to exemptions, the anti-discrimination acts, for example, are not going to be repealed. How then, apart from specific statutory exemption, is religious freedom to be free?

As was further noted by the Australian Law Commission: “5.58 In practice, legislatures and the courts often have to strike a balance between ‘equality’ rights like anti-discrimination, and freedom to manifest religious belief.

“Campbell and Whitmore stated: ‘As a practical matter, it is impossible for the legal order to guarantee religious liberty absolutely and without qualification. Governments have a perfectly legitimate claim to restrict the exercise of religion, both to ensure that the exercise of one religion will not interfere unduly with the exercise of other religions, and to ensure that practice of religion does not inhibit unduly the exercise of other civil liberties.’ ”

The Australian Law Commission concluded by stating: “5.154 … further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions.”

The Commission leaves the matter as a live issue.

Dr Zimmermann reasons that the way to religious freedom is a general statutory protection for the freedom and not specific statutory exemptions. My concern is that, from my limited research, I am not aware of any country where a general statutory protection has worked. Rather it has proved a sop.

In the absence of precedents I favour specific exemptions. I acknowledge that this means a fight on a multitude of fronts, rather than a fight for a general provision, but I think it is the only way of obtaining meaningful protection.

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




























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