Religion in the public square

Religion in the Public Square Colloquium, Assembly Hall, Melbourne

The Honourable Catherine Branson QC, President, Australian Human Rights Commission

23 July 2010

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Acknowledgement of Country

I would like to begin today by acknowledging the traditional owners of the land on which we meet, the Wurundjeri peoples, and pay my respect to their elders, past and present.

Introduction

Freedom of religion is a fundamental human right. The Australian Government has voluntarily agreed, through its ratification of the International Covenant on Civil and Political Rights, to respect, promote and protect this human right.

I open by making this unequivocal statement as there has been some controversy in recent times regarding the status of freedom of religion as a fundamental human right, and about the relationship between freedom of religion and other human rights.

I have been asked today to provide some reflections on Australia’s international obligations to protect freedom of religion. I will first make some observations about the common ground between faith-based organisations and human rights organisations. I will also outline my understanding of Australia’s legal obligations to protect freedom of religion, analyse whether freedom of religion is currently adequately protected in Australia and offer some suggestions on how it might be better protected. Finally, I will consider the relationship between freedom of religion and other fundamental human rights, most importantly, freedom from discrimination.

These are challenging issues, and there is much for us to talk about. I look forward to engaging in this important discussion, and hope that the conversations that we had today continue in good spirit beyond today’s event.

The common ground between human rights organisations and faith-based communities

Human rights organisations and faith-based communities have much in common.

Human rights provide the framework for a decent, peaceful and inclusive community. This is the kind of community the Australian Human Rights Commission works to create. It is the kind of community in which I want to live. People of faith in Australia also strive to create this kind of community.

A key commonality is concern for the most vulnerable members of our community: for people with a disability, Indigenous peoples, children, the elderly, those experiencing homelessness, those experiencing violence, people with a mental illness. Commitment to ensuring respect for the fundamental human dignity of those among us who are vulnerable and marginalised is a primary motivation of both human rights and faith based organisations.

Although we do have much in common, I am conscious that in recent times there has been a lack of trust between some members of faith-based communities and human rights organisations.

This was evident during last year’s National Human Rights Consultation, where some members of faith-based communities actively and vehemently opposed the adoption of a national Human Rights Act. My understanding is that this was largely a result of concern about the impact that such a law would have on the right to freedom of religion. I will return to this issue shortly.

I would like to assure you that the Australian Human Rights Commission is deeply committed to the protection of the human right to freedom of religion.

I would also like to assure you that during my term as President of the Commission I will do whatever I can to build trust and understanding between human rights organisations and faith-based organisations.

I acknowledge that the Commission and some members of faith-based organisations will not always agree about how different human rights should be balanced. However I am committed to working together in a climate of respect and open communication. I believe that together we will be able to achieve much to protect and build the human dignity of the vulnerable and marginalised in our community.

What are Australia’s obligations to protect the human right to freedom of religion?

It is important to begin by considering the exact nature of Australia’s international obligation to protect the human right to freedom of religion and belief. It is often said that human rights are ‘universal’. The right to freedom of religion and belief is universal. However, this does not mean that the right is to be applied in an identical manner in every part of the world. I agree with the statement made by the senior British judge Lord Hoffman that, while human rights may be universal at the level of abstraction, they are national in character at the level of application.^[1] The application of human rights does not take place in a social and legal vacuum. The enactment and interpretation of legislative provisions is best carried out ‘in the context of a given society and its legal system’^[2] by an arbiter with an appreciation of the culture in which those rights operate.

As I have already observed, freedom of religion and belief is a fundamental human right, first articulated as such in the 1948 Universal Declaration of Human Rights, a document of international consensus developed following the deeply shocking events of the Second World War.^[3]

Australia’s binding obligation to respect, protect and promote the fundamental right to freedom of religion is set out in the International Covenant on Civil and Political Rights, ratified by Australia in 1980. Article 18(1) of this agreement states that: ‘Everyone shall have the right to freedom of thought, conscience and religion’.

The fundamental character of this human right is reflected in the fact that it is non-derogable which means it may never be suspended, even in a declared state of emergency.^[4]

However the right to freedom of religion and belief may be limited. While internal aspects of freedom of thought, conscience and religion may never be interfered with, the right to manifest a religion or belief may be. However, this is the case only if a state can show that the limitations are ‘prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others’.^[5] Any restrictions must be ‘directly related and proportionate to the specific need on which they are predicated’.^[6]

So freedom of religion is a fundamental human right, yet one that may be limited in certain circumstances. This is the crux of the tension between a human rights perspective and a faith-based perspective. The critical question is how to manage the complex and challenging task of balancing fundamental competing rights.

Is the human right to freedom of religion and belief adequately protected in Australia?

Before turning to the balancing of freedom of religion and belief with other human rights, I would like to consider the question of whether this human right is adequately protected in Australia. Arguably it is not:

• although there is limited protection of freedom of religion in Australia’s Constitution, it only applies to the federal government and not to the states

• there is a question mark over whether the common law protects religious freedom, and even if it does, it is a weak protection^[7]

• there are no federal laws prohibiting discrimination or vilification on the grounds of religion. Apart from discrimination on the grounds of ‘ethnic origin’ (for example, discrimination against Jewish people), federal law does not make religious discrimination unlawful

• laws regarding discrimination on the basis of religion are inconsistent across Australia’s states and territories

• anyone who feels that they have been discriminated against because of their religion, can only make a complaint to the Australian Human Rights Commission if: the discrimination is by the federal government, a federal government authority or someone acting on their behalf or if the problem arose in an employment context. However, even if the Commission finds that there was discrimination on the basis of religion there are limited options to resolve the situation. The Commission can only recommend a remedy. These recommendations are not enforceable, and complaints cannot be heard in court.

So what could be done to ensure greater protection of freedom of religion in Australia? Many of you will be aware that the Commission supports the introduction of a federal Human Rights Act. As I said previously, we know that this proposal has been the source of great controversy, particularly amongst some members of faith-based organisations.

Freedom of religion and human rights legislation

Last year saw a remarkable process, the National Human Rights Consultation. People across Australia engaged in animated discussion about how human rights should be protected and promoted: in submissions, in public forums, in the National Consultation hearings and in the media.

Although not explicitly within the terms of reference, one of the most hotly debated issues arising in the National Consultation was the question of whether Australia should adopt a federal Human Rights Act.

I should stop here to observe that in most democratic nations, freedom of religion and belief is protected in a national human rights law such as that proposed during the National Consultation; or in a constitutional bill of rights.

The Commission believes that a national Human Rights Act would significantly improve the protection of human rights in Australia, including the protection of freedom of religion and belief. Additionally, reverting to an issue that I alluded to earlier, an Australian Human Rights Act would allow the development of a peculiarly Australian jurisprudence around the application of the right to freedom of religion and belief which takes account of the Australian social context.

The concerns of some people affiliated with faith-based organisations about the impact of a Human Rights Act on freedom of religion were clearly communicated to the National Consultation. They were also expressed in the media and communicated to the Australian Government after the launch of the National Consultation report.

I understand the depth of this concern.

However it is important to remember that there were mixed views amongst churches about the desirability of a Human Rights Act, with some churches and church agencies expressly supporting such legislation, some opposing.

I would like to address some specific concerns that arose during the National Human Rights Consultation here in Victoria, where the Victorian Charter of Rights and Responsibilities was thought to restrict freedom of religion. These included:

• the impact that Victorian religious vilification laws could have on freedom of speech, particularly as a result of the Catch the Fire Ministries case

• the review of exemptions in Victorian anti-discrimination legislation

• the 2008 Victorian abortion legislation was not subject to the usual human rights scrutiny measures, including a statement of compatibility.^[8]

Each of these issues undoubtedly raises human rights concerns. However, as Frank Brennan, Chair of the National Human Rights Consultation Committee concluded, the Victorian Charter ‘in each instance would have helped or would have been irrelevant. I could not see the Charter itself and its faithful implementation working any harm to the freedom of religion’.^[9]

Victorian religious vilification laws were enacted before the Charter and were not subject to the human rights scrutiny processes. These processes would have required consideration of whether the laws unreasonably interfered with the right to freedom of expression and the right to freedom of religion and belief. As the Consultation Committee said, a Victorian charter could have provided additional protection for religious freedom of expression if it had been in effect at that time.

Helen Szoke of the Victorian Human Rights Commission will talk about the parliamentary review of the Victorian anti-discrimination legislation in more detail. I understand the concerns held by faith-based organisations about any potential narrowing of exemptions. However it is not the case that human rights legislation necessarily has this impact. In fact, a Human Rights Act that protected the right to freedom of religion and belief could assist in the exercise of balancing this right with the right to freedom from discrimination.

Finally, it is true that the Victorian abortion law was not subject to the human rights scrutiny process. This is because the Victorian Charter contains a savings provision that exempts any law relating to abortion from the provisions of the Charter. The Charter had no impact on the law. I understand the deep concern of some Victorians that the compulsory referral provisions of the abortion law violate the right to freedom of conscience. However for those who feel that freedom of conscience has been unreasonably limited, it is important to remember that the Charter is not the culprit.

Arguably a national Human Rights Act would enhance, rather than limit, the legal protection of freedom of religion. A national Human Rights Act would certainly work to protect and promote the human rights of vulnerable and marginalised people in Australia, people whose interests faith-based organisations hold dear.

I would also like to make two additional observations about the impact of a national Human Rights Act.

First, a Human Rights Act is about placing obligations on the Australian Government. Its primary aim is to ensure that human rights are taken into account in all government decision making – in the development of law and policy, in the delivery of government services. A Human Rights Act would impact the activities of ‘public authorities’ – and in other jurisdictions it is rare for a faith-based organisation to be considered a public authority.^[10]

Second, a Human Rights Act, through providing enhanced protection of freedom of religion, would ensure that this important human right is always considered in government decision making. A Human Rights Act would ensure that the impact of law and policy on freedom of religion is always carefully considered. This will be particularly important in situations when rights come into conflict.

Freedom of religion and belief and anti-discrimination laws

Resolving the conflict between the right to freedom of religion and belief and other fundamental human rights is challenging.

The conflict that causes the most acute concern is that between freedom of religion and belief and freedom from discrimination.

This concern is well articulated in Professor Parkinson’s National Agenda for Religious Freedom, which he will present this afternoon. I do not wish to pre-empt his presentation but would like to offer some observations about the balancing of these two fundamental human rights.

Like freedom of religion, freedom from discrimination is a fundamental human right, also protected in the International Covenant on Civil and Political Rights.^[11] Freedom from discrimination may also be limited.^[12]

Some commentators have argued that freedom of religion should be accorded more weight than other human rights because it is both non-derogable, and because it is the only right in the International Covenant where the limitation provision is qualified by the word ‘fundamental’.

However, while the non-derogable status of a right is of considerable significance, United Nations General Comment 24 notes that there ‘is no hierarchy of rights under the Covenant’.^[13] It is true that no other limitation provision in the ICCPR is qualified by the word ‘fundamental’. However, arguably all internationally recognised human rights are of their nature ‘fundamental’ rights.

So how do we manage the exercise of balancing freedom of religion and belief and freedom from discrimination?

Many religious groups argue that they should be exempt from certain aspects of discrimination law – that they should be permitted to discriminate on either the basis of religion, or on other bases such as sex, marital status or sexual orientation. Permission to discriminate when making key religious appointments is commonly felt to be essential. However, some groups believe that they should also be able to discriminate in other areas, including for example, in admissions to religious schools, employment in religious organisations or regarding the types of groups to whom they rent property.^[14]

It is important to acknowledge that religious organisations have a significant role in public life in Australia. They run schools, hospitals, welfare organisations and employment agencies. They employ a very large number of people. Many receive a significant amount of public funding to carry out their activities. The extent to which such organisations are permitted to discriminate has an impact on a very large number of people.

Most Australian jurisdictions have some exemptions for religious bodies in their anti-discrimination law.^[15] The challenging and often controversial question is how broad such exemptions should be.

The Commission understands that there is a range of views amongst religious organisations about the extent of these exemptions. Using the example of employment at religious schools, some organisations are comfortable to limit exemptions to positions involving leadership and religious instruction, for other organisations it is more important that all those they employ are adherents to the faith that underpins their school.

Professor Parkinson in his National Agenda calls for a right to positive selection for religious groups as well as other organisations such as cultural groups. Using the example of employment at religious schools he says that there should be ‘a right to choose people with a particular characteristic when that characteristic is important to the purpose of the school, and thus from the school’s point of view, a genuine occupational requirement’.

I agree with Professor Parkinson that it is important to recognise group identity in a multicultural and multi-faith society such as ours.

However when the creation of group identity involves employment decisions, it necessarily involves discrimination. To what extent should such discrimination be permitted, and who should decide? What level of exclusivity should be permitted in a democracy that values diversity and inclusiveness?

A human rights analysis assists in resolving these questions. According to the United Nations Human Rights Committee, ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Convention’.^[16] Carolyn Evans, an academic writer who has done significant work in this field, argues that ‘there is a need to ensure that the restrictions on rights are adequately justified, the rationale is clear and that the restrictions are no broader than justifiable’.^[17]

If exemptions for religious organisations are too broad they could expose large numbers of people to discrimination. Furthermore, I feel that it could be problematic for religious organisations to determine for themselves the extent to which they should be able to discriminate. Perhaps ultimately it is for Parliament to draw the line as a matter of public policy.

The Commission has argued that exemptions from anti-discrimination laws, including those that apply to religious organisations, should be reviewed.^[18] However we do recognise the need for some level of exemption, to allow faith-based organisations to maintain their integrity according to the tenets of the relevant communities’ faiths.

Currently in Australia, exemptions for religious organisations are quite broad and have been applied widely in fields such as the appointment of clergy and religious discrimination in school enrolment. However they have been interpreted more narrowly in other contexts, particularly in employment.^[19] There are a number of possible approaches to achieve more targeted exemptions, for example by:

• allowing exemptions for only the core functions of religious bodies
• ensuring that religious bodies are not allowed to discriminate with respect to services for which they receive public funding
• narrowing the concept of an ‘inherent requirement’ of a job so that a religious organisation, to take advantage of this exception, must make it clear why they need to discriminate.^[20]

The Uniting Church in Australia provides one way forward with their support for: ‘federal legislation prohibiting religious discrimination, including a specific provision which allowed for discrimination on the basis of religion by faith communities in the area of employment in leadership and teaching positions, where it is reasonably necessary for maintaining the integrity of the religious organisation...’^[21]

The Human Rights Framework

Many of you will be aware that in April this year, the Australian Government launched the Human Rights Framework in response to the National Human Rights Consultation. One element of the Framework is a review process to harmonise and consolidate federal anti-discrimination laws. The outcome of this is expected to be a single federal anti-discrimination law. The Government has indicated that it will release an exposure draft for consultation early next year.

This process will necessarily involve a review and consideration of the existing exemptions contained within anti-discrimination laws. We hope that the legislature will undertake a bona fide and appropriately informed exercise of balancing fundamental human rights. Such an exercise should take into account, on the one hand, the rights of members of faith communities to enjoy freedom of religion and, on the other hand, the rights of members of the broader community to enjoy other fundamental rights and freedoms including the right to live free from discrimination.

Conclusion

In conclusion, human rights are about building a culture of tolerance and respect. I believe that currently freedom of religion and belief is inadequately protected in Australia. Hopefully we can continue this dialogue to improve the situation and carefully balance the right to freedom of religion and belief and the right to freedom from discrimination. I am very pleased to have had an opportunity to explore some of these issues with you today, and look forward to many more such discussions in the coming months.

 

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^[1] Lord Hoffman, The Universality of Human Rights, (Judicial Studies Board Annual Lecture delivered 19 March 2009), p 8. At http://www.jsboard.co.uk/downloads/Hoffmann_2009_JSB_Annual_Lecture_Universality_of_Human_Rights.doc.

^[2] Lord Hoffman, above.

^[3] The 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief includes a positive obligation on States to ‘take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life’ (art 4(1)). The manifestations of religion are quite detailed in article 6 of the 1981 Declaration, particularly those manifestations concerning the rights of religious groups and organisations.

^[4] International Covenant on Civil and Political Rights, 1966, art 4(2).

^[5] ICCPR, above, art 18(3); Office of the High Commissioner for Human Rights, General Comment No 22: The right to freedom of thought, conscience and religion (Article 18), UN Doc CCPR/C/21/Rev.1/Add.4 (1993), para 1.

^[6] General Comment No. 22, above, para 8.

^[7] Carolyn Evans, Legal Aspects of the Protection of Religious Freedom in Australia, Centre for Comparative Constitutional Studies Melbourne Law School (2009), pp7-8: Grace Bible Church v Reedman argued that there was ‘an inalienable right to religious freedom and that freedom cannot be abridged by any statute of the South Australian Parliament’. This was dismissed unanimously by the Full Court of the Supreme Court of South Australia. The High Court also recognised that freedom of religion under s 116 of the Constitution may be limited when necessary in Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116. See Carolyn Evans and Beth Gaze, ‘Religious Freedom and Non-discrimination Laws’ [2007] Human Rights Defender 13.

^[8] National Human Rights Committee, National Human Rights Consultation Report, Attorney-General’s Department (2009), pp 47-48.

^[9] Father Frank Brennan SJ AO, The Church as Advocate in the Public Square: Lessons from the National Human Rights Consultation, (Speech delivered at McCosker Oration, Old Parliament House Canberra, 8 February 2010).

^[10] For example, even if a religious body is a public authority because it fulfils a ‘function of a public nature’ (the definition of a second type of public authority under the Victorian Charter), the body is exempted when acting in conformity with their religious doctrines, beliefs or principles, under sections 38(4) and (5) of the Charter.

In the Human Rights Act 2004 (ACT), religious organisations are not a specified exemption to the definition of public authority. In addition to core public authorities, there are also ‘functional’ public authorities. Factors that may be considered when deciding whether an entity is performing public functions are listed in section 40A(1). In addition, certain functions are taken to be of a public nature (s40A(3)).

The Human Rights Act 1998 (UK) does not list the type of bodies that are public authorities, nor does it list factors that are relevant to assessing whether a function is a ‘function of a public nature’. The courts have generally been reluctant to impose public authority obligations on private bodies. For example, in Aston Cantlow v Wallbank [2003] UKHL 37, the House of Lords held that the Parochial Church Council was not exercising a function of a public nature. However, the Parliamentary Joint Committee has criticised this approach and suggested an alternative test. See Joint Committee on Human Rights, House of Lords and House of Commons, The Meaning of Public Authority Under the Human Rights Act, Seventh Report of Session 2003-2004.

^[11] ICCPR, note 4, art 2.

^[12] Human Rights Committee, General Comment No. 18: Non-discrimination, UN Doc A/45/40 (Vol. 1)(Supp) (1989), para 13. The United Nations Human Rights Committee has stated that: ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’.

^[13] Office of the High Commissioner for Human Rights, General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6 (1994), para 10.

^[14] Evans, note 7, p 30.

^[15] For example, the federal Sex Discrimination Act contains an exemption such that the prohibition on discrimination does not apply to religious bodies where the act or practice that might discriminate ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’ (s 37(d)). The Sex Discrimination Act also exempts religious educational institutions from the prohibitions on discrimination (s 38). In contrast, the Racial Discrimination Act does not contain any exemption for racial discrimination by religious bodies.

^[16] General Comment 18, note 12.

^[17] Carolyn Evans and Beth Gaze, ‘Religious Freedom and Non-discrimination Laws’, [2007] Human Rights Defender 13.

^[18] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee on the Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender Equality (1 September 2008), para 28, recommendation 38. At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html.

^[19] Evans note 7, p 36.

^[20] Evans, above, pp 39-40.

^[21] Uniting Church in Australia National Assembly, Submission to the Australian Human Rights Commission on Submission to the Australian Human Rights Commission Freedom of Religion and Belief in the 21^st Century Project (March 2009).