[Edited extract from public address]
Former head of Australia’s Human Rights Commission, Professor Gillian Triggs, gave an address on Religious Freedom in celebration of World Interfaith Harmony Week 2019 – at Melbourne University on 5 February 2019 to an audience of 400 interested persons.
Introduction
As an international lawyer with an interest in human rights law, I have only rarely been asked to speak about religious freedoms… I say rarely because, unlike so many other human rights in Australia, religious freedoms are not threatened in practice…
or so it has seemed to me, that is, until I travelled a few years ago to Gosford on the NSW Central Coast to speak at the Gosford Anglican Church of St Mary. This historic church was built in 1858 in East Gosford and later moved, stone by stone, to its current spot. Its priest, Father Rod Bower, is thoroughly modern, a rebel known for his advocacy for the most vulnerable in the community. (He is I believe, now standing as an independent in the next election). He had long provided humorous support for the Australian Human Rights Commission’s work for asylum seekers on the church’s weekly message board—including one that read #We Stand for Gillian Triggs.
Exceptions
Professor Triggs went on to say, inter-alia,
Most protections for religious expression are indeed only by way of exception. The Sex Discrimination Act 1984 provides an example of the drafting technique. The Act makes it unlawful to discriminate on the basis of sex, among other protected attributes, in public life including employment, education, the provision of goods and services, accommodation or membership of licenced clubs. However, it also contains an article that provides exceptions for the ordination or appointment of priests, ministers of religion or members of any religious order; the training or education of those seeking such ordination or appointment; the selection or appointment of persons to perform functions for any religious observance; or any other act or practice of a religious body that:
‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.’
If Australian law enables religious bodies to avoid the legal obligations normally binding on all others in the community on the exceptionally wide ground that the act or practice of a religious body conforms to its beliefs or is necessary to avoid injury to religious susceptibilities, then this exception is generous and wide ranging.
International Law
Firstly, how does international law protect freedom of religion?
Article 18 of the ICCPR protects the right to freedom of thought, conscience and religion. This freedom comprises two elements:
- the right to adopt a religion or belief of one’s choice
- the right to manifest that religion or belief in worship, observance, practice or teaching in public or private.
These two aspects of freedom of religion may be subject to limitations only if they are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental freedoms of others.
Nations such as Australia that have become parties to the Covenant - and are bound by it in international law - must also ensure the ability of parents to provide the religious and moral education of their children in conformity with their convictions. Manifestation may not include advocacy of national, racial or religious hatred that incites to discrimination, hostility or violence. Finally, the right is so special, a nation cannot derogate from it, even in times of public emergency.
There are some important points to observe from this legal obligation:
- the right to freedom of religion is not absolute but is to be exercised with respect to the freedoms of others;
- the right is expressed by reference to individuals, rather than institutions,
- it may be manifested in both private and public spheres
- extends to conscience and thought as well as to religious belief.
Professor Triggs, in discussing Australian Law, said,
Australia has not fully protected freedom of religion as required by the Covenant, a point that is sadly true with respect to most of the human rights protected by the treaty.
Professor Triggs went on to consider Anti discrimination laws and exceptions; the Sex Discrimination Act where it relates to Educational institutions established for religious purposes. Also discussed were the exception to anti-sex discrimination laws where public funds are involved. Marriage Equality and the amendments to the Marriage Act passed were considered along with state and territoey laws, and the Ruddock Report. Professor Triggs then went on to reflect on a Federal Legislated Charter of Rights as recommended by the Law Council of Australia and scholars and commentators.
Conclusions
These have been tumultuous times. Marriage equality is finally a reality in Australia. Now we can progress to considering better ways to protect the right to religious expression while ensuring no one suffers discrimination, whether they are caring for elderly people or baking cakes for wedding celebrations.
For a more nuanced approach to striking a balance among rights we need to articulate guidelines. We need to ask and answer questions about what measures are reasonable and proportionate in the circumstances. For transparency and predictability, we also need closer scrutiny of claims to an exception by religious bodies. None of this is impossible. We can and should do it.
Irony: while the government hoped that the review would protect religious freedoms it has exposed in the public arena the unnecessarily wide exemptions that may well now be more restrictive.
A collaboration between University of Melbourne Chaplaincy and Religions for Peace Victoria Branch. Professor Emeritus Gillian Triggs was President of the Australian Human Rights Commission from 2012 – 2017.
Click for a full version of this address with introduction and question-and-answers
MORE:
Religions for Peace Victoria Branch
Website:
http://religionsforpeaceaustralia.org.au/?p=7215
