Kevin Andrews (Menzies, Liberal Party) Share this | Hansard source

In December 1948, the international community gathered at the United Nations adopted the Universal Declaration of Human Rights. Confronted by the horrors of the Second World War and egregious breaches of human rights in many places, world leaders sought to enshrine standards of conduct that respected the inherent dignity and liberty of each human being. Led by the redoubtable Eleanor Roosevelt, the human rights committee of the new organisation had worked for nearly two years to draft the declaration. Australia was a significant supporter of the creation of the United Nations and also the universal declaration.

Central to the declaration is the bold assertion that 'human beings shall enjoy freedom of speech and belief and freedom from fear and want', which 'should be protected by the rule of law'. Article 18 of the declaration states that:

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.

As Harvard professor of law Mary Ann Glendon points out in her masterful account of the creation of the declaration, A World Made New, article 18 was a major achievement of the human rights committee. Along with Eleanor Roosevelt, it was the work of other remarkable contributors, including Rene Cassin and Charles Malik, and an Australian, William Hodgson, was a member of the drafting committee.

Two decades later, the international community concluded a long process to transform the declaration into an international legal instrument. Hence, the International Covenant on Civil and Political Rights was drafted and adopted, and amongst the supporters again was Australia. The covenant expands article 18 of the declaration with three additional provisions. Firstly:

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

Secondly:

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.

And, thirdly, the nations that are signatories to the 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.

Australia is a signatory to the covenant, but it's not been incorporated into our domestic law.

A number of observations can be made about the protection of religion and belief in Australia. First, there is an international definition and standard of freedom of religion and belief that Australia has long supported. Accordingly, there is an objective measure by which the adequacy or otherwise of protections in Australia can be measured. The standard in article 18 of the covenant has also been interpreted by the United Nations from time to time.

It is clear that there is very little legal protection for freedom of religion and belief in Australia. This is consistent with the evidence from experts to the parliamentary human rights inquiry that I chaired and which released two reports. As I wrote in the forward to the parliamentary report, Legal foundations of religious freedom in Australia:

… 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.

Section 116 of the Australian Constitution is limited in its scope according to these same experts and does not provide the range of protections covered by the covenant. To quote again from the forward:

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.

A survey of history reveals that threats to religious freedom have arisen mostly from the dominance of one religion over others or from a state sanctioning an official religion. While this is still the case formally or informally in some parts of the world, the threats in Western nations like Australia 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 freedom of religion in Australia. To quote again from the forward to the parliamentary report:

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.

These reflections highlight the inadequacy of the current situation. First, Australian domestic law contains very little protection for freedom of religion. Secondly, this is compounded by the incorporation through a series of Commonwealth, state and territory statutes of one universally recognised freedom that is against discrimination into domestic law but the exclusion of others, including freedom of religion. Thirdly, where exemptions are provided, they create a tenuous and negative protection rather than a positive protection provided in the international covenant. Moreover, there is a failure to recognise that under international jurisprudence there is no hierarchy of rights that each and every right should be given full expression to the extent possible.

The notion that religious freedom does not require any further legal protection, because Australians are a tolerant, easygoing people, is overly sanguine. Hence a Bishop is dragged before a tribunal for simply expounding Christian beliefs; a company retreats after a Twitter storm because it was associated with a respectful debate between two members of this House about same-sex marriage; a business executive is hounded by activists to resign from the board of a Christian education foundation; a sports star is harangued for expressing a belief that marriage is between man and woman; and a university is pressured about an academic who supports a Christian foundation. The latter was argued in the name of diversity—a diversity that tolerates only one view.

The notion of toleration indeed has been turned on its head. A new liberal view was espoused by John Locke and others, with Locke's in his 1689 letter concerning toleration. In it, Locke sought to distinguish the business of civil government from that of religion. Written at a time when controversy surrounded the idea that Catholics should be able to practise their religion in Protestant England and that Jews and Muslims should be able to enjoy religious freedom in a Christian nation, Locke argued that the state and the church had separate functions. He sought to find a way that people of different religious beliefs could live together. As the late Rabbi Lord Jonathan Sacks has written, toleration:

… aims not so much at truth but at peace. It is a political necessity, not a religious imperative, and it arises when people have lived through the alternative: the war of all against all.

This bill is not perfect, but it is an attempt to find a balance of rights that supports that toleration which was espoused by Locke and many others. Freedom of religion includes the freedom 'to profess, and by argument to maintain, their opinions in matters of religion', to quote Thomas Jefferson's famous formulation. That means in the public square, not just in the synagogue, temple or church. Once freedom of speech is compromised, freedom of religion will not be far behind. When both are compromised, freedom itself has been lost.

Many contributors to this debate, I note, have spoken about matters that are not in this bill—about their desire for changes to be made, for example, to exemptions under the sex discrimination legislation. Those matters are matters beyond this bill. They're matters indeed which were introduced by way of exemption by a previous Labor government. In conclusion, I believe this bill is an attempt to restore balance. It is not perfect. There are matters which I personally would have included and others I might have excluded. But I believe it is a reasonably fair attempt to balance the competing rights in this area. As I said, there are various rights which need to be balanced in a modern rights supporting democracy like Australia. There is no hierarchy of those rights, but we should be trying to the best of our endeavours to ensure that each of those rights can be supported in legislation, in the culture in which we live and, indeed, in the laws made by the parliament.

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