Do We Need New Laws to Protect Religious Freedom in Australia

Fr Frank Brennan SJ AO

Distinguished Fellow, PM Glynn Institute, Australian Catholic University

Barry O’Keefe Lecture

Australian Catholic University
19 February 2020

I am delighted to honour the late Barry O’Keefe here at the Australian Catholic University Law School. Barry was a fine lawyer and a very committed Catholic. I have fond memories of seeing him at the early morning mass in St Mary’s Cathedral on weekdays. He would always be finely tailored, always smiling, often doing the first reading at mass, and ever ready for a pleasant chat after mass. Despite his grave illness, he generously chaired the Truth Justice and Healing Council for the Catholic Church at the commencement of the Royal Commission into Institutional Responses to Child Sexual Abuse with a heartfelt desire to do whatever he could to restore the good standing of the Church and to ensure that appropriate safeguarding procedures were put in place. He prized religious freedom. He also prized individual liberty and accountability for the state to ensure the equal protection of all, including the most vulnerable.

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 60th anniversary of the declaration 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’.[1]

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, thinking that religious freedom might be better protected by parliament without legislation being subjected to judicial oversight for compliance with human rights generally. A decade 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 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 incompatible with human rights, but merely to make a declaration of incompatibility 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 amongst 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.[2]

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. 

I served on the Ruddock Committee set up after the same sex marriage plebiscite. We provided our expert panel report to the Turnbull government in May 2018. The Ruddock committee 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 in 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, a hangover from a past era. 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 Koran. 

Let’s consider an example that has nothing to do with sexuality. Jesus was fearless in his condemnation of wealth: ‘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.’ (Matthew 19:23-24) 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 is 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’ 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 committee 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 panel, 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.’[3] ‘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.’[4]

The right to freedom of thought, conscience and religion set out in Article 18 of the International Covenant on Civil and Political Rights (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 spelt 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.’[5]

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 LGBT 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:

  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.

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.[6] 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’.[7]

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. Afterall, 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 has put 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.[8]

Now we come to the politics. The Morrison Government has decided not to pursue the Ruddock recommendation 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 which has said, ‘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.’[9] 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 issue 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.

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 LGBT, 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 Ruddock panel 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. 

I note that the two Coalition members who have entered Parliament direct from employment in our two Australian Catholic universities have taken a firm stand against the Parliamentary Joint Committee on Human Rights which was created with bipartisan support in response to the recommendations of our National Human Rights Consultation. Last year, Julian Leeser said, ‘The presence of the Joint Committee on Human Rights, inspired not by an Australian tradition but by international bureaucracies, is a symptom of “self-doubt, division and illusion” and represents a loss of liberty.’[10] He thinks: ‘The Committee is about bureaucrats judging Parliament, rather than the Parliament judging human rights.’ Last week in Parliament, Celia Hammond added her support to Mr Leeser’s campaign to abolish the committee telling the House of Representatives: ‘it may be timely for this parliament to consider the purpose, remit and functioning of this committee to ascertain whether it is in fact contributing in any meaningful way to the protection of the human rights of Australian citizens.’[11] If anything, I think Leeser and Hammond make the case for strengthening the joint committee on human rights, not for abolishing it. 

Convinced that there is no chance of minority parties in the Senate signing off on anything more than a clean, lean discrimination law, I won’t be too exercised about all the agitation going on presently about the bells and whistles that might be added to such a piece of legislation.[12] I do hope we can move on from the present polarised debate in Australia. Let’s not forget that during the Ruddock inquiry, key human rights NGOs supportive of the LGBT cause and organisations such as PIAC and the Human Rights Law Centre said they had ‘long advocated for legal protection of the right to freedom of thought, conscience, religion or belief within a framework which guarantees robust human rights protections for all Australians’.[13] It’s time to get back to finding common ground.

The rethinking by religious conservatives on the need for legislation, including a Human Rights Act, to protect religious freedom, ensuring that equality does not trump religious freedom and conceding that religious freedom ought not trump equality may simply be a reflection of the political calculation that the elected politicians are now no more likely than the unelected judges to privilege religion over equality. There has also been a hardening of views by some human rights activists who are now opposing any expansion of the patchwork quilt of anti-discrimination laws to include discrimination on the basis of religion. Michael Kirby, a long-time advocate for human rights legislation, has warned: ‘Never forget that apartheid in South Africa was ultimately justified by reference to the supposed religious condemnation of miscegeny and that racial intolerance was based on the alleged inferiority of black people traced to contestable Biblical texts… There is a need for considerable caution in elevating every religious opinion to an enshrined legal right to hurt and harm others.’[14]

There is still hard work to be done to convince both politicians and judges that religious folk are entitled to equal protection of the laws especially when their religious views are at variance with those of the general public and the intellectual elite of an increasingly secular society and secularist State. That may be because there is not only a change of attitude towards religion in an increasingly secular Australia, but also a change of values. Fewer Australians now value the entitlement of religious folk to maintain the religious ethos of their institutions which are in receipt of taxpayer funds to provide services to the general community regardless of their religious affiliations. They draw the line at religious employers or religious service providers discriminating against individuals on the basis of unchangeable personal attributes in the name of religious freedom. More Australians now value equality and respect for all persons wanting to access services or seek employment regardless of their gender or sexual orientation. If the values are changing, so too will the laws and policies. That would be the case whether or not Australia had a constitutional or legislative bill of rights. But then again, recourse to community values should not be a foil for majoritarian sentiment wanting to deny the just entitlements of an unpopular misunderstood minority. In the month before the High Court in Mabo recognised the rights of Aboriginal Australians to their traditional lands in accord with community values, Justice Brennan dissented in a case where his fellow judges authorised a non-therapeutic sterilisation of a child with mental disability. He said:[15]

‘[T]he rule must give priority to the right to physical integrity and the human dignity it protects, even though such a rule imposes burdens on parents, guardians and those having the care of the intellectually disabled child who are entitled to the active support of the State which must bear the ultimate burden.

‘Such a rule, it may be said, is too idealistic and is out of touch with contemporary community standards. There is much force in that criticism but this is an area of the law in which it is necessary to guard against the tyranny which majority opinion may impose on a weak and voiceless minority.’

We must all be eternally vigilant against the tyranny of the majority especially when their populist sentiment has the backing of the elites in society. And we must continue to keep an eye for those who are weak and voiceless whether because of their race, religion or any other attribute which ought be irrelevant when determining how to respect their dignity and equality living in a pluralist democracy under the rule of law. That vigilance is required whether or not there is a bill of rights. 

The gravest danger to human rights is the constraint placed on discourse and debate about the conditions under which people can participate in shaping the kind of society in which they live. That discourse and debate must continue whether or not we have a bill of rights, and most especially in relation to issues which are deemed politically correct. In the absence of a bill of rights, there is a need to enhance public conversation, law and policy making without one. Through respectful dialogue in the public square, in our parliaments and in our courts, we might succeed in rejecting unfairness, insisting on the essential equality of all, respecting the integrity and dignity of those most different from us, while extending mercy to those who most need it, even if they not be the most deserving. Let’s continue seeking justice, truth and compassion for all, whatever their religion, and whatever their sexual orientation.

[1] Heaney S (2008) Human Rights, Poetic Redress. Irish Times 15 March 2008. Available at https://www.irishtimes.com/news/human-rights-poetic-redress-1.903757. Accessed 6 January 2019

[2] Shaheed A (2018) Report of the Special Rapporteur on freedom of religion and belief. UN Doc A/HRC/34/50 (28 February 2018) [40]. 

[3]Religious Freedom Review, Report of the Expert Panel, #1.5

available at https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religious-freedom-review-expert-panel-report-2018.pdf

[4]Religious Freedom Review, #1.6

[5]Religious Freedom Review, #1.122

[6] See Religious Freedom Review #1.415: ‘While the AHRC should play a greater role in bringing together people of diverse faiths and in educating and engaging with the public about issues related to religious freedom, the Panel is of the view that the appointment of an additional commissioner is not necessary. The Panel noted that the Human Rights Commissioner already has the capacity to perform many of the functions suggested for a Religious Freedom Commissioner. The Panel observed that one of the themes emerging from its work was the importance of building a common understanding of all human rights and their equal status.

[7] Religious Freedom Review, #1.392

[8] Ronan McCrea, ‘Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination, and the Secular State’ (2016) 5 Oxford Journal of Law and Religion 183, 186.

[9] Australian Human Rights Commission, Submission to the Attorney-General’s Department on Religious Freedom Bills second exposure draft, 31 January 2020, p. 4

[10]Julian Leeser, ‘Human Rights Hijacked’, 2018 B'nai B'rith Human Rights Address, 15 July 2018 at https://www.julianleeser.com.au/news/speeches/human-rights-hijacked-2018-bnai-brith-human-rights-address

[11] Hansard, House of Representatives, 10 February 2020, p. 27

[12] Presuming that Labor and the Greens will oppose any Discrimination PLUS bill, the Coalition would require three of the five votes on the cross bench consisting of One Nation (2), Centre Alliance (2) and Jacqui Lambie. I can’t see Centre Alliance and Jacqui Lambie coming on board. Lambie is on record that she ‘sees no case for the Coalition’s religious discrimination bill as Tasmanians already enjoy religious freedom and don’t want their discrimination laws changed’. See https://www.theguardian.com/australia-news/2019/sep/09/jacqui-lambie-says-she-sees-no-case-for-religious-discrimination-bill. Senator Patrick of the Centre Alliance has said there is ‘a question about whether or not there is a problem or just a perception of a problem’. See https://www.smh.com.au/politics/federal/a-perception-of-a-problem-rather-than-a-real-problem-kingmaker-senator-questions-level-of-religious-discrimination-20190711-p526d8.html

[13] Human Rights Law Centre, Getting the Balance Right, October 2019 at https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/5d948264e402006ec8660e31/15700138089

63/HRLC+Submission+-+Religious+Discrimination+Bill+Exposure+Draft+-+FINAL.pdf

[14] Michael Kirby, Letter to the editor, (2019) 93 Australian Law Journal 979.

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