Last night, the Joint Standing Committee of Foreign Affairs, Defence and Trade (the “Committee”) released the Interim Report into the Legal Foundations of Religious Freedom in Australia. Initiated on Tuesday, 29 November 2016 by the Honourable Julie Bishop MP, Minister for Foreign Affairs, the Interim Report is the first report to be released in the inquiry into the status of the human right to freedom of religion or belief, after a number of public consultations throughout the year. The Chair to the report outlined the importance of religious freedom in Australia in page vii to the Report:
“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.”
The inquiry into the status of the human right to freedom of religion or belief was released with the stated purpose of examining the human right to freedom of religion or belief in Australia, ensuring that Australia fulfils its commitment under Article 18 of the International Covenant on Civil and Political Rights. The terms of reference put to the Committee are:
As such, the International Human Rights Instruments most relevant to the Report are the: Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
In Australia, the freedom of religion or belief are protected by the Constitution both explicitly and implicitly. In particular, section 116 of the Constitution states:
“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”
Further protections are upheld by caselaw, State and Federal laws.
Released in reponse to the preceding public consultations, the Interim Report examined the balance in Australia between the freedom of religion or belief and other human rights. The scope of the report is as stated on page 2 of the report:
“1.4 This Interim Report focuses on the legal framework in Australia and its effectiveness in protecting religious freedom, drawing on the evidence received in the public hearings and in relevant submissions. The SubCommittee takes the view that it would be most appropriate to review and report on religious freedom in our own country before turning to the wider world.
1.5 Primarily, the submissions used for this Interim Report are from legal scholars and organisations and from governments and government bodies. There is much further evidence from religious and secular groups, community organisations and members of the public which is relevant to the questions raised in this Interim Report, but for the purposes of the report only a smaller number of submissions that directly address the specific legal issues will primarily be used.”
The biggest problem that was uncovered by the Interim Report was that of balancing the right to freedom of religion or belief with other rights, in particular the right to non-discrimination. As stated on pages 75-76 of the Report:
“7.1 As with all rights, the right to freedom of religion or belief needs to be balanced against other rights. Often rights will be closely aligned, and protecting the right to freedom of religion may not involve impeding other fundamental rights. This is seen with the close association between the right to freedom of religion or belief and rights such as freedom of association and freedom of speech. Anti-discrimination laws can protect religious minorities from discrimination, and so the rights to non-discrimination and religious freedom interact in a way which enhances religious freedom.
7.2 At other times, however, different rights may compete with each other and to some extent be mutually exclusive. The most common contemporary example of this is when the right to freedom of religion or belief clashes with the right to non-discrimination. […]
7.3 This potential conflict is the focal point of much of the discussion about religious freedom in Australia and was a common refrain throughout the evidence received.”
Additional consideration was given in the Report was the balancing of freedom of religion or belief and the access to abortion (p 87).
“Another area in which careful balancing of competing rights is required involves access to abortion services. This conflict manifests in two main areas: “exclusion zones” around health service providers, and conscientious objection to abortion by medical practitioners.”
However, the overall focus of the inquiry was around whether there is a balance of the freedom to religion or belief in Australia and other freedoms of human rights (p 90).
“7.54 There was a great deal of evidence which addressed the balance between non-discrimination laws and religious freedom. Various opinions were put forth on the effectiveness and appropriateness of religious exemptions in non-discrimination laws. Some believe that religious exemptions give unfair weight to religious freedom over equality before the law. Others believe that religious freedom is unjustly subordinated to non-discrimination by religious exemptions. Different concerns were raised and a number of solutions to these concerns were suggested.
7.55 Other contemporary societal challenges were also raised in evidence. The Sub-Committee notes the difficulty and delicacy in determining how best to strike an appropriate balance, acknowledging the many varying arguments received in submissions and discussed at the public hearings. The SubCommittee will continue to examine this issue carefully throughout the remainder of the inquiry.”
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.
Universal Declaration of Human Rights, adopted 10 December 1948, UNGA Res 217 A (III).
International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR).
FREE legislation news, delivered daily.
Sign up now.#WeLoveLegislation Tweets
NEW information resources - great for training.