In 1983 then Acting High Court Chief Justice Mason and Justice Brennan stated “Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society.” [1] The right of individuals to formulate and articulate their beliefs, to act upon their consciences and to associate with fellow believers is a fundamental hallmark of a just, open, and egalitarian society.

“…religiously burdened convictions have the potential to challenge the state like no other claim on human life.”

In many respects religious freedom is the ultimate test of a society’s willingness to recognise the liberty of the individual. I say this because, history, both within the West and within non-Western societies, has demonstrated that religiously burdened convictions have the potential to challenge the state like no other claim on human life.

Looking only to history of the West, from the fifth century bishops mediating on behalf of their cities with the invading barbarians after the fall of the Roman empire, to Archbishop Stephen Langton’s role in drafting the Magna Carta, to William Wilberforce’s tireless efforts resulting in the abolition of slavery in English law, it is the access to and sense of obligation to an “other-worldly” narrative sourced outside of any secular account that has been the incubator for freedom’s dissent against the abuse of power.

The situation in Australia

Submissions to past human rights charter inquiries both in Australia and New Zealand, and I would say the current inquiry, attest to a high level of concern over such charters amongst religious institutions. This is curious. As Professor Michael McConnell has argued, the very idea of individual freedom and its protection in modern liberal democracies owes its origin to the defence of religion against encroachments by the state. [2] What does it tell us about the proposed reforms that religious people, with such a long and deep heritage of defending the freedoms of others, carry these concerns?

Professor Patrick Parkinson in his review of submissions to the 2009 Brennan Inquiry into a Commonwealth Human Rights Charter found that one concern was a perception of a progressive watering down of the religious freedom protection under international human rights law over time. That protection is found in the International Covenant on Civil and Political Rights of 1966 (ICCPR), which Australia has ratified and whose provisions extend to Queensland. Article 18(3) of the convention provides:

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. [3]

The faulty Victorian model

“To adopt a model such as that implemented in the Victorian Charter may amount to an effective withdrawal of the human rights of individuals or corporate entities.”

It is argued that the Victorian Charter of Rights and Responsibilities Act 2006 (Vic) effectively weakens this guarantee of religious freedom by allowing that religious freedom may be subject to “reasonable” limitations, thus derogating from the standard of “necessary” limitations found in Article 18(3) of the ICCPR. The Victorian Charter also omits the rights of parents to ensure the religious and moral education of their children. [4]

To adopt a model such as that implemented in the Victorian Charter may amount to an effective withdrawal of the human rights of individuals or corporate entities. This is an unacceptable proposition for any Charter that purports to protect human rights.

Finding a balance

The balancing of religious freedom rights against other rights will be a necessary task of any proposed charter. The recently released Australian Law Reform Commission’s (ALRC) Freedoms Inquiry Report [5], linked a finding of no significant encroachment upon religious freedom to the ongoing presence of exemptions granted to religious bodies in the context of commonwealth laws.

However, as acknowledged by the ALRC, it has been argued that an exemption regime is not an appropriate vehicle to recognise religious freedom rights, to the extent it infers that religious freedom is not a valid right, but merely an exemption to another valid right.

The ALRC thus put forward for consideration the model of a ‘general limitations’ clause, citing the work of Professors Nicholas Aroney and Patrick Parkinson. Such a clause holds that the right to religious freedom is not unlawful, but for the presence of an “exemption”. It is an equally valid and subsisting right that must be balanced against other rights.

Editor’s Note: The QLD Parliament Human Rights Inquiry has delivered its report and said it is split on whether QLD should introduce human rights legislation, with Government members of the Inquiry committee arguing for the introduction of a Human Rights Act while non-government members voting against. Further discussion is expected on the Inquiry’s report in August.

Footnotes:

[1] Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120, 130 (Mason ACJ, Brennan J).

[2] Michael McConnell, “Why Is Religious Freedom the ‘First Freedom’?” (2000) 21 Cardozo Law Review 1243.

[3] International Covenant on Civil and Political Rights Article 18(3).

[4] Article 18(4) of the ICCPR, by which “States Parties … undertake to have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions.”

[5] Australian Law Reform Commission 2016, Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129), published on 02 March 2016, available at https://www.alrc.gov.au/publications/freedoms-alrc129, accessed 02 March 2016.