Mr Tim Wilson
Australian Human Rights Commissioner
Friday 25 September 2015
Dear Mr Wilson
Submission on Religious Freedom Roundtable Proposal
Thank you for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’
From the outset, I would like to express my scepticism of the need for, and purpose of, this Roundtable.
While your call for submissions[i] at least briefly acknowledges the biggest problem in this area (“how to balance religious freedom with other human rights”), the remainder instead appears to focus on the ‘expansion’ of religious freedom, with the explicit goal of developing a body of policy work “that is designed to enlarge respect for religious freedom and proper consideration of its importance in future policy development and law reform.”[ii]
This is despite the fact that no clear need is articulated for such ‘enlargement’.
Indeed, as suggested by the Australian Law Reform Commission (ALRC) in its recent Interim Report as part of its own Freedoms Inquiry:
“[g]enerally speaking, Australians enjoy significant religious freedom, particularly by comparison to other jurisdictions. Australians enjoy the freedom to worship and practise religion, as well as the freedom not to worship or engage in religious practices.”[iii]
The ALRC went on to comment that:
“[t]here are few Commonwealth laws that can be said to interfere with freedom of religion. The Law Council of Australia advised that ‘it has not identified any laws imposing any specific restriction on the freedom of religion’ and ‘that any specific encroachment is likely to arise in balancing religious freedom with other protected freedoms, such as freedom of speech’.”[iv]
Indeed, it is difficult to think of many areas where religious freedoms are genuinely encroached upon, with the exception of the mistreatment of muslim Australians, by both Governments and other Australians, in the 14 years post September 11 (and it is difficult to see how this Roundtable would help address that issue), or the ongoing abuse of refugees fleeing religious persecution who are detained, processed and resettled on Nauru and Manus Island (although sadly there is nothing unique about this mistreatment, with all refugees who arrive by boat abused by Governments, of both persuasions, in this way).
On the other hand, it is easy to identify ways in which ‘religious freedom’ is currently exercised to discriminate against other Australians, and in this way cause significant harm to them and their rights.
The most obvious, and egregious, example of this is the extremely broad exceptions under most Commonwealth, state and territory anti-discrimination laws that permit religious organisations to discriminate against lesbian, gay, bisexual and transgender (LGBT) Australians.
In the Commonwealth Sex Discrimination Act 1984, these exceptions are contained in sections 23(3)(b), 37 and 38, with sub-section 37(1)(d) revealing exactly how broad this special right to discriminate is in practice:
“[n]othing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being an act or practice 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.”
In practice, this means that the Commonwealth Government tacitly endorses discrimination by religious organisations against gay teachers, lesbian students, bisexual people accessing health of community services and transgender aged care employees, among many others.
There are also a wide variety of more indirect ways in which ‘religious freedom’ has been used, and continues to be used, to oppress lesbian, gay, bisexual transgender and intersex (LGBTI) Australians.
This obviously includes ongoing advocacy by a number of mainstream christian churches, as well as by homophobic groups like the Australian Christian Lobby, to seek continued discrimination on the basis of sexual orientation, gender identity and intersex status through the secular Marriage Act 1961.
But it also includes things like campaigning to ensure the National Health & Physical Education Curriculum does not include content that is genuinely-inclusive of LGBTI students (thus denying their right to health information), or calling on Governments to abolish the national Safe Schools Coalition, a program with the explicit goal of reducing homophobic, biphobic, transphobic and intersexphobic bullying.
For all of the above reasons, I call on you to reconsider the need to establish a ‘Religious Freedom Roundtable’ and that, if you do, to amend the scope of such a Roundtable to ensure that its primary focus is on addressing the many ways in which ‘religious freedom’ is currently used as a weapon, by some elements within society, to legitimise homophobic, biphobic, transphobic and intersexphobic discrimination that is, and should be considered, unacceptable.
Before I turn to the ‘Statement of purposes and Guiding principles’ I would like to make two additional points about the information contained in the call for submissions.
First, in relation to the dot point “[p]reserving religious freedom when an organisation receives taxpayer’s money to provide a public service”, I would note that nearly all religious organisations receive taxpayer’s money through the generous exemptions from taxation law which they currently enjoy.
I would also note that this dot point appears to relate to the ‘carve-out’ to existing exceptions contained in the Sex Discrimination Act 1984, which has the effect of prohibiting discrimination by religious-operated aged care services against LGBT people accessing their services, where that service receives Commonwealth funding.[v]
In my view, this carve-out is not wide enough – there is no justification for these services to be legally permitted to discriminate against LGBT employees, either.
But, most importantly, from my perspective it is not the involvement of Government funding that means such discrimination should be prohibited – it is the fact that, employment and service provision in the public sphere, which includes the operation of aged care services, should be free from discrimination on the basis of sexual orientation, gender identity and intersex status. Full stop.
Second, in relation to the dot point “[b]alancing the right to religious freedom and equality before the law – what are the areas of shared agreement?” I note that the right not to be discriminated against (or ‘freedom from discrimination’), is in fact much broader than just ‘equality before the law’, which could be narrowly-construed as meaning equality under legislation and/or before the courts, rather than, say, equal access to employment or service provision.
Specific Comments Regarding the Draft Statement of purpose and Guiding principles[vi]
The ‘Statement of purpose’ describes the Religious Freedom Roundtable as a forum “for representatives of religious and spiritual communities to have ongoing engagement and dialogue about freedom of religion, conscience and belief (‘religious freedom’) and its interaction with public policy in 21st century Australia.”
Given the discussion above, and the fact that LGBTI Australians are the people most negatively affected by the exercise of ‘religious freedom’ in Australia, it seems odd to establish a roundtable to look at these issues and yet not have LGBTI organisations at the table.
This omission could be seen as indicating that the Religious Freedom Roundtable is in fact concerned with prioritising or ‘privileging’ the rights of religious organisations over and above the rights of other people, including those of LGBTI Australians.
Under the heading ‘Mutual respect’, in the first paragraph, you note that “[religious freedom] interacts with other fundamental freedoms including freedoms of thought, conscience, speech and association, as well as property rights.”
In response, I reiterate the position from my submission to last year’s Rights and Responsibilities Consultation that highlighting these rights, simply because they are ‘traditional’ or even just older, but omitting other rights such as the right to non-discrimination which in practice is just as important, is unjustified.[vii]
In short, “prioritising certain rights above others potentially neglects and devalues the importance of those other rights which are no less essential to ensuring all Australians are able to fully participate in modern society.”[viii]
Finally, I would like to make the following points in relation to specific ‘Guiding principles’:
Principle 1: Religious freedom is fundamental to the Australian way of life, and should be treated equally to all other human rights and freedoms.
Principle 2: Religious freedom is a fundamental human right that should be respected and not limited unless it infringes on the rights of others.
I agree with these statements, and particularly the observations that religious freedom should be ‘treated equally to all other human rights and freedoms’ and respected ‘unless it infringes on the rights of others’.
In practice, this should mean that the right to non-discrimination should be ‘treated equally’ to the right to religious freedom.
More importantly, it means that, given exceptions to anti-discrimination law allowing religious organisations to discriminate against LGBT Australians in health, education, community services and aged care are clearly an infringement on the right to non-discrimination in public life, and that they cause significant harm to these people, such exceptions should be abolished.
Principle 3: Religious freedom has an essential and important role in our public life or civic affairs to contribute to the moral and spiritual guidance of our nation; and faith is as legitimate basis for participation in public life and civic affairs as any other.
I disagree with this statement for two reasons. First, as an atheist, and noting that Australia is a secular state, I reject the notion that ‘our nation’ as a whole necessarily requires ‘moral and spiritual guidance’ from organised religion.
Second, while people should not be prohibited from participation in public life on the basis of their religious beliefs, I do not believe it is appropriate for religious individuals and/or organisations to seek to impose ‘religious laws’ on their fellow citizens.
An example of this is the ongoing campaign by christian fundamentalists to impose a narrow religious interpretation of marriage on their fellow citizens through the secular Marriage Act 1961, in this way denying the human rights of those who do not share the same faith – and even of other christians who do not subscribe to their particular homophobic definition of this institution.
Thus, while participation in public life and civic affairs should be open, such participation should not be abused by using religion as a tool to oppress others.
Principle 6: No Australians should be unnecessarily excluded from participation in public life or civic affairs because of their faith, age, disability, gender, race, sexual orientation, or other irrelevant personal attribute.
While I agree with the underlying sentiment of this principle, I find it disappointing that, as both the ‘Freedom Commissioner’ and also the Commissioner with responsibility for LGBTI issues, you have not explicitly mentioned gender identity or intersex status as part of this principle. These two protected attributes from the Sex Discrimination Act 1984 should be included.
Principle 8: When considering issues that affect the rights of others, it is necessary to provide equal opportunities to enlarge and consider their perspectives with the objective of accommodating and enlarging the human rights of all.
This principle appears to contradict the Statement of purpose, described above – specifically, given most contentious issues surrounding religious freedom in fact concern its intersection with the right to non-discrimination of LGBTI Australians, it is objectionable that LGBTI people and organisations are not included in this roundtable from the beginning.
Principle 10: Individuals and communities of faith will continue to constructively work with government and other public agencies to uphold the law and improve Australia’s moral and spiritual guidance.
As with principle 3, above, as an atheist I reject the implication that Australia, as a secular nation, necessarily requires ‘moral and spiritual guidance’ from organised religion.
Thank you again for the opportunity to provide comments on your proposal to establish a ‘Religious Freedom Roundtable’, including on its draft ‘Statement of purposes and Guiding principles.’
If you would like to clarify any of the above, or require further information, please contact me at the details below.
[iv] Ibid, para 4.39, page 104.
[v] Sub-section 37(2): Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if: (a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and (b) the act or practice is not connected with the employment of persons to provide that aged care.
[vii] See my full submission here: https://alastairlawrie.net/2014/10/27/submission-to-rights-responsibilities-2014-consultation/