Australia has a proud record as a modern, liberal democracy, one of the freest societies in history. Over the last hundred years Australia has also become one of history’s most culturally, ethnically, and religiously diverse societies. Australians from all backgrounds have long enjoyed liberty to live their lives as they see fit and pursue their goals as they wish. Many Australians or their ancestors have fled persecution or war seeking a better life for their families and have found it here.
Australia’s record is not perfect, and like any nation it has sometimes failed to live up to the high standards of human rights and freedoms that we have come to expect in the Western world. Nevertheless, despite this, most Australians have enjoyed, and continue to enjoy, a quality of life and a degree of freedom that is remarkable in a historical context.
The right to freedom of religion, thought, conscience or belief is one of the pillars of this liberty. Many Australians are descended from people who fled persecution for their faith. Early European settlers came from Catholic, protestant, and Lutheran traditions. Orthodox Christians, Muslims, Hindus, Jews, Buddhists, and many others have found freedom here too. Aboriginal people continue to practice their indigenous faith traditions. And people with no religious adherence, including atheists, live free from coercion or persecution by religious authorities.
Australia’s strong record of religious freedom should not be taken for granted, however. The Committee’s previous report into religious freedom, Conviction with Compassion, was tabled seventeen years ago and reflects a markedly different time in Australia’s social and political past. In 2000 Australia was celebrating the new millennium and in the hosting of the Sydney Olympics was proudly showcasing a culturally diverse and tolerant Australia to the world. Events since then have heightened Australian society’s awareness of religious issues and impacted how many Australians perceive religious difference.
This inquiry, and the Interim Report’s focus on the legal framework of religious protection in Australia, has brought many issues to the attention of the sub-Committee.
Among these issues there are two broad points which stand out most prominently.
Firstly, 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.
Most significantly, there is almost no explicit protection for religious freedom at the Commonwealth level. 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 it does not provide a positive protection of the right, nor does it prevent the States and Territories from restricting religion.
Secondly, the threats to religious freedom in the 21st century are arising not from the dominance of one religion over others, or from the State sanctioning an official religion, or from other ways in which religious freedom has often been restricted throughout history. Rather, the threats are more subtle 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 the right to freedom of religion.
This is most apparent with the advent of non-discrimination laws which do not allow for lawful 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 to the ICCPR’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 nondiscrimination, and do not acknowledge the fundamental position that freedom of religion has in international human rights law.
This inquiry has been met with enthusiasm from all different areas in society. Submissions have been thoughtful, thorough, and for the most part respectful. Public hearings have been attended by witnesses of a very high calibre and of varying points if view. The spirit in which these hearings have been conducted has allowed robust, energetic, deeply considered, and respectful conversation.