The protection of religious freedom has been a topic of considerable discussion and debate in Australia in recent years, particularly in the context of the campaign to legalise same-sex marriage. The significance of this issue can be seen by the numerous inquiries, reports and initiatives that have been undertaken in recent years focusing on the question of religious freedom and its protection in Australia.
There have been a growing number of examples in recent years that demonstrate religious freedoms being undervalued and eroded in Australia. There are numerous examples that can be pointed to, but in particular there have been a growing number of complaints made against individuals or groups who have sought to promote traditional marriage as an expression of their religious faith.
These examples will most likely multiply in the coming years following the legalisation of same-sex marriage in Australia. The particular danger that lies in these examples is the chilling effect that such intolerance has on public debate and discussion. As was noted by Angela Shanahan:
If people … are forced to appear before an Anti-Discrimination Commission … then this is a threat to one of Australia’s greatest freedoms, the right to free speech. This is a major disincentive to people making a contribution to debate across Australia. Anti-discrimination bodies should not be used as star chambers by those who simply don’t like what someone else says.
Of course, while freedom of religion is absolute in relation to the right to hold a belief, it is accepted that there are legitimate restrictions that may be applied to the right to exercise that belief. For example, religious beliefs never provide an excuse for violence or intimidation of others.
Indeed, the High Court has stated that religious freedom must remain ‘subject to powers and restrictions of government essential to the reservation of the community’ or ‘subject to [such] limitations […] as are reasonably necessary for the protection of the community and in the interests of the social order’. It is important to note however that such restrictions should not be imposed lightly, and must leave the greatest possible scope for the freedom to operate.
To obtain a realistic understanding of the status of religious freedom in Australia it is necessary to consider the nexus between religious freedom and other human rights, particularly anti-discrimination laws. When considering this balance, it is important to recognise that discrimination per se is simply a recognition of difference and can be practised for justified reasons.
In contemporary society, it is fair to say that ‘discrimination’ now has an inherently negative connotation. No one wants to be thought as discriminating against anyone or anything. However, humans discriminate all the time between what they think is good or bad for them. This is an inevitable consequence of having the capacity for conceptual thought. A person who prefers to drink water over bleach is exercising discrimination, that is, discerning that water is better to drink than bleach. The real issue, especially when determining thresholds for legal liability, is when discrimination can be exercised. This has parallels to an observation made by Justice Sachs from the Constitutional Court of South Africa concerning the meaning of equality:
[E]quality should not be confused with uniformity; in fact, uniformity can be the enemy of equality. Equality means equal concern and respect across difference. It does not presuppose the elimination or suppression of difference. Respect for human rights requires the affirmation of self, not the denial of self. Equality therefore does not imply a levelling or homogenisation of behaviour but an acknowledgment and acceptance of difference.
In a broader sense, the ability to discriminate on the basis of an organisation’s core commitments and values is central to the democratic freedoms of our nation. For example, when recruiting staff or appointing officeholders, a political party could be expected to display discrimination resembling that practiced by religious bodies. It is reasonable, for example, a politician from the Left of the Labor Party might discriminate against individuals with conservative views when recruiting staff for their office team. Likewise, environmental advocacy bodies such as Greenpeace or the Australian Conservation Foundation might reasonably be expected to discriminate against global warming sceptics when appointing scientists to their Scientific Advisory Committees.
This also necessarily includes the freedom to disassociate from practices inconsistent with one’s religious beliefs. If individuals are not allowed to express their religious beliefs in public or to live in a way that is consistent with those beliefs, or if they are forced to participate in practices that are antithetical to those beliefs, then they are effectively being denied the opportunity to observe their religious faith. Likewise, when anti-discrimination laws prevent an individual from disassociating from practices that are antithetical to their religious beliefs, this obviously creates significant difficulties for individuals wishing to exercise their religious freedoms.
There is an unjustifiable imbalance between religious freedoms and anti-discrimination laws in Australia, with the balance weighted far too strongly in favour of the latter. All too often, religious freedom is treated as a ‘secondary’ right that is not given equal weight with other human rights, in particular equality rights.
At the very least, religious freedom needs to be accorded equal weight with other human rights. Religious freedom is not sufficiently protected when it exists merely as a narrow exemption that is grudgingly accepted in anti-discrimination legislation. This implicitly undervalues the importance of religious freedom, with the consequence that it is consigned to a secondary role and is left vulnerable to removal at a later date.
Freedom of religion should not be considered as an exemption. In our view, it is a fundamental freedom that deserves to be protected in a positive sense in Australia. However, we do not believe that this is necessarily best corrected by introducing new legislative measures, whether focused specifically on religious freedom or dealing more generally with human rights.
Naturally, any time that a statutory basis for human rights is established it inevitably hands the interpretation of those rights to the judiciary, and yet this is a task that they are not ideally suited to. Judges do not have the training or skills to engage in wider debates about social policy and public morality.
Besides, the courts are not appropriate institutions to carry out and evaluate the research needed for such a role. There is an obvious potential here for a partisan administration of justice. Such partisan interpretation of laws, as well as creating flawed court decisions, has the power to change pre-existing legislation to conform to these subjective judicial rulings. Because this creates an unstable legal environment, as even long-standing laws may be amended or even overruled, Jeffrey Goldsworthy concludes:
The traditional function of the judiciary…..does not sit altogether comfortably with the enforcement of a bill of rights. In effect, it confers on judges a power to veto legislation retrospectively on the basis of judgements of political morality ….This involves adding to the judicial function, a kind of power traditionally associated with the legislative function, except that the unpredictability inherent in its exercise is exacerbated by its retrospective nature. That is why, on balance, it may diminish rather than enhance the rule of law.
We certainly agree with the claim that religious freedom is not sufficiently protected in Australia. We do not, however, believe that this is best remedied through the introduction of legislation focused specifically on religious freedom or dealing more generally with human rights. If it is accepted that religious freedom is increasingly vulnerable in Australia, but there are doubts about the introduction of a Religious Freedom Act, then what is the solution?
A much better way to proceed would be to look at amending the existing anti-discrimination laws so that they strike a better balance between potentially conflicting human rights. This approach doesn’t introduce entirely new (and potentially conflicting) laws but instead recalibrates existing laws in a way that strengthens the protection of religious freedom and, in fact, attempts to ensure that the widest scope of freedom is maintained when balancing conflicting human rights.
More to the point, it is important to realise that the debate about legal protections – whilst important – is ultimately a debate about symptoms rather than cause. The ultimate issue is the growing marginalisation of religion and faith – and Christianity in particular – from public life across Western liberal democracies. Until this problem is addressed, it is unlikely that any legal reform will actually be successful in protecting religious freedom from the growing pressures that it faces, not only in Australia but across the entire Western world.
This article is drawn from a chapter authored by Lorraine Finlay, Joshua Forrester and Dr Augusto Zimmermann in an upcoming book from Connor Court Publishing that Michael Quinlan, Iain Benson and Keith Thompson are editing following the conference ‘Freedom of Religion or Belief: Creating the constitutional space for other fundamental freedoms’, which was held on 14 – 16 February 2018 at the UNDA Sydney Law School and University of Adelaide Law School.
 LLB (Hons), LLM cum laude, PhD (Mon); Professor and Head of Law, Sheridan College; Professor of Law (Adjunct), University of Notre Dame Australia (Sydney); President, Western Australian Legal Theory Association (WALTA).
 BA (UWA), LLB (UWA), LLM (NUS), LLM (NYU), Lecturer in Constitutional Law, Murdoch Law School; Senior Lecturer (Adjunct), University of Notre Dame Australia (Sydney).
 BA (Hons) (Murd), LLM (Hons) (UWA), PhD Candidate (Murdoch).