Rights and Freedoms
There has been so much noise around rights and freedom in Australia in recent years that it is important to recall at the outset of any discussion that we are one of the only countries in the world that does NOT have a Bill of Rights enshrined in our Constitution.
It is particularly notable that the Liberal/National Government which has raised so many concerns recently about their rights being infringed in resist years are the same group that have consistently and stridently resisted calls for an entrenched Bills of Rights and attacked our national human rights commission! I worked as a human rights advocate overseas for many years before I came home to Australia, and I am constantly fascinated that the same people who want their "right to be a bigot" protected are so often reluctant to extend rights of protection to marginalised groups such as women, gays, refugees and indigenous Australians.
This page aims to put some of the current discussions about the protection of certain civil rights in context, so that readers can better understand Australian debates within the broader global human rights discourse. Rights bring responsibilities and most also can have restrictions placed upon them, for the protection of other values. We are NOT America and our approach to rights has always been one which balanced individual rights with the need to protect other basic fundamental principles of our society, such as tolerance and inclusion.
Freedom of religion
The relevant laws
At the global level, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) provides that “everyone shall have the right to freedom of thought, conscience and religion”. Section 116 of the Australian Constitution prohibits the Commonwealth Parliament from enacting legislation that would prohibit the free exercise of religion or establish a religion.
Australia has not taken a systematic approach to religious discrimination, with States legislating their different frameworks in relation to discrimination and religion. However, the issue became much more prominent in the during the national debate on same-sex marriage, as religious bodies/businesses demanded special protections to discriminate in relation to the marriage of gays.
Action by Parliament so far
In 2017, the Turnbull Government commissioned Philip Ruddock to undertake a Religious Freedom Review. The Ruddock Report on Religious Freedom was published in December 2018. In November 2016, the Federal Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade started an Inquiry on the status of the human right to freedom of religion or belief. This Inquiry produced two Interim Reports on Religious Freedom in 2018 and 2019, but ended without producing a final report upon dissolution of Parliament in April 2019.
Notably, in late 2018, issues were raised about the extent of religious schools’ rights to turn away same-sex students or teachers. At the time, the Morrison Government referred the issue to the Australian Law Reform Commission. The ALRC review into the Framework of Religious Exemptions in Anti-discrimination Legislation is underway, and submissions can still be made. The final ALRC report is not due until April 2020.
The new 46th Parliament started its work in July 2019. In its very first session, PM Morrison flagged his intention to push for a Religious Freedom Bill as a priority. Attorney General Christian Porter has said the Government’s proposal would be a “basic” bill that would “follow the basic architecture of discrimination bills” by defining religion as a protected attribute. There is also a suggestion to establish a new role for a freedom of religion commissioner at the Australian Human Rights Commission. Some more conservative MPs are pushing for a more proactive right for religious expression, including the right to discriminate on the basis of their beliefs.
The Attorney General has flagged that he will undertake a series of workshops with other MPs in July to build cross-party support. Commentators have suggested that whatever Bill is finally drafted, any Bill will still likely go to a Senate inquiry for lengthy hearings and possible amendment because there is such division within Parliament and the community on what it should cover.
From the perspective of kindness in policy-making, one of the biggest issues in relation to any religious freedom legislation is the importance of promoting tolerance across society. Religious people have used the recent Israel Falau controversy over religion to suggest that religious people are being subjected to discrimination. However, experience suggests that in fact, the Australian political and social mainstream have historically tended to prioritise protecting the sensibilities of religious people rather than the lives of marginalised and vulnerable groups, such as gay people, Indigenous Australians and refugees, all of whom have been attacked in public debates in recent years.
In most discussions in this area, human rights advocates have highlighted the need to balance the rights of religious people against the rights of others not to be discriminated against or vilified From the perspective of kindness – and drawing on the teachings of Jesus, the religious tradition in which I was raised – the lesson should arguably be that (1) our laws shouldn’t protect or encourage hateful speech, whether or not it rises to the level of being “criminal hate speech” and (2) our parliamentary debates should focus on promoting values and positions that encourage people of faith to show love, tolerance and inclusion towards others.
Freedom of expression
Page under development
Additional resources / reading
“The protection of human rights to promote the dignity of the individual is too important a matter for symbolic gestures alone. It is only through the pursuit of practical and effective efforts to promote human rights that we show our real commitment to the welfare of individuals and society."
-- Hon Alexander Downer, former Australian Minister for Foreign Affairs