Australian Human Rights Commission Freedom of Religion and Belief

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					                     Australian Human Rights Commission
             Freedom of Religion and Belief in the 21st Century

                        Submission from Prof. Patrick Parkinson AM
                                      Faculty of Law
                                    University of Sydney

This inquiry raises issues of great importance to Australian society. The enclosed paper, “A
National Framework for Religious Freedom”, sets out what I believe are the principles that
should undergird the Australian government’s approach to religious freedom, and offers a range
of applications of those principles.

These comments deal particularly with some issues that are raised by the 2008 Discussion Paper.
I have concerns in particular about the way in which proposed anti-discrimination and anti-
vilification laws (recommended for example in the 1998 HREOC Report) are drafted.

1. The overreach of anti-discrimination law

Anti-discrimination as the dominant moral code
All the major world religions in Australia, including the Christian religion, are minorities. Only a
modest percentage of Australians attend Churches, mosques, synagogues or other houses of faith
on a regular basis. No religious organization has much influence over public policy. No religious
faith has much influence on what is enacted in legislation. No religious moral code represents a
national shared consensus about how we should live, and there are few if any moral values
specific to people of religious faith that are enshrined in law. The position was otherwise in
previous generations.

By way of contrast, the dominant moral code in public life in Australia, is that one should not
discriminate against anyone. Rarely do politicians or law reform bodies refer to any other moral
values as informing the life of the community. There is much rhetoric about human rights, but
when it comes to translate that rhetoric into public policy, the standard recommendations seem to
be to extend anti-discrimination laws and their siblings, anti-vilification laws. The 1998 HREOC
Report is an example of this.

Non-discrimination is a very important social value, and a major aspect of human rights.
However, it is not an end in itself. It serves the higher value of social cohesion.
The anti-discrimination movement

There are constant recommendations to extend the reach of anti-discrimination and anti-
vilification laws. The extension of anti-discrimination laws has been in two directions. First, an
ever-increasing number of forms of discrimination have been prohibited. The early federal laws
quite properly dealt with discrimination on the grounds of race and gender; but the anti-
discrimination movement –for such it is – has sought to extend the range of protected groups
much further, and this is reflected in some state laws.

The other form of extension has been in the coverage of anti-discrimination laws, from defined
areas of life in which one must not discriminate (for example the provision of goods and
services) to all areas of life.

The problem is that as the scope and reach of anti-discrimination laws have been extended,
governments have had to deal more and more with competing - and valid – interests. A good
example is age discrimination. It is all very well passing laws that prohibit or limit the
termination of employment based upon an arbitrary retirement age, but for every senior citizen
whose job is protected in this way there is likely to be some younger person – perhaps trying to
pay off a mortgage or support a young family - who has to be content with temporary or casual
employment, or who suffers unemployment.

Other human rights may also require limitations on the reach of anti-discrimination laws. The
significance of this has not always been perceived, so strong is the dominance of the majority’s
belief in anti-discrimination as the most important social value. Yet there is no hierarchy of
human rights, no one right that trumps all others. Rights constantly have to be balanced against
one another. Human rights live side by side in tension with one another in many contexts.

Fundamentalist approaches to anti-discrimination

Those who believe that anti-discrimination laws should be ever extended to cover more and more
issues and to apply in more and more situations, tend to find it difficult to see any other point of
view. There is an unspoken belief that non-discrimination is the right that trumps all others.
There can be a fundamentalism about this as powerful and rigid as the most dogmatic of
religious fundamentalisms. That fundamentalism inheres in two aspects. The first is a belief that
all limitations on who is eligible to apply for particular jobs should be abolished or severely
restricted, even if 99% of all the other jobs in the community were open to that person and the
limitations are themselves based upon competing human rights claims.

The second fundamentalist aspect of the anti-discrimination movement is an unwavering belief
that the only human rights are individual ones and not group rights. This can make adherents
blind to the competing claims of groups which would justify a right of positive discrimination in
order to enhance the cohesion and identity of the group.
When anti-discrimination law oppresses minority communities

A particular problem about the overreach of antidiscrimination laws is when laws designed to
protect minorities actually operate to the detriment of minorities. Should an Aboriginal Land
Council be allowed to have an open preference for the employment of Aboriginal people, even in
those positions where Aboriginal identity would not be obviously seen as an inherent
requirement of the position such as a secretarial job or work as a maintenance person? Should a
social club for a particular national grouping (for example, a Ukranian or Vietnamese club), be
allowed to give preference in employment to those for whom the club exists? Should a Thai
restaurant be allowed to advertise for only Thai staff? Should a gay bar be allowed to employ
only homosexuals?

It is hard to see why not, in any of these instances. There is no harm to the wider community
from such modest limitations on who is eligible to apply. A community – whatever its basis -
needs to be able to be able to have organizations that promote its identity and cohesion. Some of
these group rights are specifically protected by the ICCPR (e.g. Articles 18 and 27). That might
involve positive discrimination in favour of members of that group. Yet this may be in conflict
with anti-discrimination laws which have been drafted on the basis of a fundamentalist stance.

To require minorities to employ members of the majority (defined in this case as the vast
proportion of the population who do not belong to that particular minority) is to engage in a
destructive kind of fundamentalism that destroys the very social cohesion that it is designed to
promote. It threatens to rob minorities of their community, or to force them into evasive
approaches to the law. It may even require them to engage in civil disobedience.

Anti-discrimination law and Article 18 of the ICCPR

Article 18 is one human right which requires limitations on the excessive reach of anti-
discrimination laws. Religious communities are all minority communities. As explained in the
attached paper, governments are required by Article 18 to give an expansive reach to religious
freedom, including in such matters as the education of children. Faith-based organizations need a
right of positive discrimination in order to continue to exist as communities defined by that faith.
This is particularly important for religious schools.

There are many in the community who do not understand the need for religious communities to
retain their identity. There seem to be regular calls for the repeal of exemptions from anti-
discrimination law. Religious organizations can, consistently with their nature and beliefs,
comply with most anti-discrimination laws. There is no possible religious justification for
discrimination on the basis of race or disability, for example. Through the centuries, people of
faith have been in the vanguard of movements promoting fundamental human rights and
upholding the inherent dignity and value of all human beings. People of faith would also widely
support laws prohibiting discrimination on the grounds of gender, except in relation to the small
number of religious leadership positions where the male role is regarded as being ordained by
tradition and belief.
There are a few other areas where the moral or religious beliefs of people of faith may clash with
the views of the dominant secular majority. These are in particular in regard to sex outside
marriage and other sexual practices (as contrasted with sexual orientation). It is fundamental to
the rights of religious minorities, guaranteed by Article 18, that they should be allowed to adhere
to their own perceptions of truth, right and wrong within their communities and faith-based

This does not interfere with the fundamental rights of others as long as governments insist on
non-discrimination in the wider community. My human rights are not affected by my exclusion
from employment in a gay bar. I could still work in the great majority of bars if that were my
chosen occupation. Nor, if I were a qualified teacher, would there be any interference with my
fundamental human rights if I could not apply for employment in a Muslim school. I could still
teach in the great majority of other schools. Out of respect for the rights of these minorities, I
would not insist upon a right to be employed by an organization that exists to promote the
identity and social cohesion of a minority community of which I am not a member. It would be
different if, as a result of any aspect of my identity, I were excluded from employment in the
State or Federal Public Service or in a large commercial enterprise that is not associated with any
particular subsection of the community.

Introducing anti-discrimination provisions in relation to religion

If the government is going to prohibit discrimination on the basis of the presence or absence of
religious belief, then any such laws need to be carefully drafted to ensure that there is no
interference with the positive rights of faith-based organizations to employ people of that faith.
This may be covered by the standard ‘inherent requirements’ approach, as long as it is clear that
a Christian school may regard being an adherent of the Christian faith as an inherent requirement
of being employed in that faith-based community whatever the role within the organization that
the person is required to fulfil. I have expanded on this in the enclosed paper. If a narrow view of
inherent requirements were taken, then perhaps only the religious studies teacher and maybe the
Principal might be included. This issue should not be left to the discretion of judges.

It really is a precondition of the acceptance by religious groups of anti-discrimination provisions
about religious faith that the right of positive discrimination is clearly articulated in the law.

Anti-vilification laws

Much has now been written about the problems associated with poorly drafted and ill-conceived
anti-vilification laws concerning religion. No-one supports vilification or incitement to hatred.
The problems arise when the kind of vague drafting used in some anti-vilification laws is
repeated across the country by other drafters.

It ought to be axiomatic that no-one should be accused of vilifying unless their intention were to
do so. It ought also to be axiomatic that one cannot ‘vilify’ merely by criticizing something or
offending someone. Vilification is a very strong word. It is really the equivalent of incitement to
hatred. It takes a lot to incite people to hatred in Australia. We seem to be a naturally tolerant
society, with disgraceful eruptions like we saw in the Cronulla riots being, fortunately, the

For the reasons I gave in an article (“The Freedom to be Different: Religious Vilification, Anti-
Discrimination Laws and Religious Minorities in Australia” (2007) 81 Australian Law Journal
954-966), the Victorian legislation is not a good model for such laws. It has been interpreted so
that a person can be said to vilify another without either the intention or the effect of so doing.
The Act also goes far beyond incitement to hatred. The Victorian Court of Appeal could not
reach a consensus on the interpretation of the legislation, so its scope and application is shrouded
in uncertainty.

This law has demonstrated how badly drafted provisions can undermine social cohesion and
damage the fabric of society. The use of civil remedies for vilification has led to a raft of
hopeless claims in which people have tried to use the courts as a new battleground to fight over
matters that courts cannot possibly resolve – and should never be asked to resolve. The chilling
effect of such claims on perfectly acceptable expressions of faith and belief about truth is little
minimized by the fact that these claims have been dismissed. The damage is done by the fear of
lawsuits, not their success.

In my view, if the Government decides to go down the track of religious vilification laws, then it

   a) Ensure that the legislation applies to the incitement of hatred or contempt only.
   b) Limit the legislation to creating a criminal offence rather than conferring a right of civil
   c) Require the consent of the Attorney-General for prosecutions.
   d) Ensure that the offence is not one of strict liability.

 The Government should, however, recognize that the state-based vilification laws have created a
lot of anxiety in the community, and that reassurance is now needed concerning the reach of such

                                                                               Patrick Parkinson
                                                                               January 27th 2009

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