The most recent report by the United States Commission on International Religious Freedom paints a troubling picture. It describes the critical situation for millions of people who are suffering persecution, in many cases violent persecution, often sponsored by the state or governmental bodies in countries such as Burma, North Korea, Egypt, Eritrea, Iran, Iraq, Nigeria, Pakistan, China, Saudi Arabia, Sudan and Vietnam, among many others.
The situations in those countries remind me that I am blessed to live in Australia, which enjoys a high degree of religious freedom. That gratitude leads me to cherish the freedoms that we enjoy by ensuring that in an ever-changing society those freedoms are not diminished or lost. To borrow a phrase: “the price of freedom is eternal vigilance”.
Although adopting elements of other constitutions, the Australian Constitution retained the monarchy and Westminster parliamentary government from Britain. According to Justice McHugh in the High Court case of Australian Capital Television v Commonwealth in 1992: “the purpose of the Constitution was to further the institutions of representative government”.
In that sense, the Australian Constitution was overlaid onto an already existing tradition of legal jurisprudence which accepted the basic tenets of Westminster democracy. In the words of Justice Isaacs in 1926 in the case of Commonwealth v Kreglinger, the principle of responsible government: “is part of the fabric on which the written words of the Constitution are superimposed”. With that system came a series of principles and conventions which were unwritten but nevertheless fundamental to the operation of government and free society in Australia.
Viscount Bolingbroke, an eighteenth-century proponent of the principles of Westminster democracy, once said that the constitution is: “that assembly of laws, institutions and customs, derived from certain fixed principles of reason … that compose the general system, according to which the community has agreed to be governed”. That statement is particularly true of Australian constitutional law. The principles of representative and responsible government embodied in the Westminster system of government go well beyond the written words of the Constitution and embrace the laws, institutions, customs and principles which underpin it.
Fundamental to the principles of that system of government are the freedoms of speech, association, assembly, religion and movement, which can be traced back through the common law to the Magna Carta.
Therefore, with one main exception, the drafters of the Australian Constitution did not see it necessary to include a US-style bill of rights or other statement of principles guaranteeing the fundamental freedoms of those bound under it. Justice McHugh expressed this well in Australian Capital Television v Commonwealth:
Although the makers of the Constitution were much influenced by the terms and structure of the Constitution of the United States and “felt the full fascination of its plan”, they rejected the United States example of a Bill of Rights to protect the people of the Commonwealth against the abuse of governmental power. They did so because they believed in the efficacy of the two institutions which formed the basis of the Constitutions of Great Britain and the Australian colonies—representative government and responsible government.
The absence in the written document of the Australian Constitution of express rights such as those granted by the Bill of Rights under the US Constitution did not prevent the High Court in that case from finding a constitutional protection for freedom of communication. To the contrary, the system of representative government was the precise reason why such a right existed. In the words of Chief Justice Mason in that case: “Freedom of communication … is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision.”
The essential point is that fundamental freedoms of speech, association, assembly, religion and movement are indispensable to and inseparable from a system of responsible and representative government and are thus intrinsically embodied in Australian constitutional law.
To this general principle of avoiding “bill of rights”-style guarantees, there is one main exception found in section 116 of the Constitution which provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
In his book Unto God and Caesar: Religious Issues in the Emerging Commonwealth (1976), Richard Ely gives an insightful account of the various individuals and groups involved in debating a clause that would ensure freedom of religion under the Australian Constitution. What becomes apparent from that account is that those delegates to the Constitutional Conventions who opposed the inclusion of the clause in the Constitution did so on the grounds that it was unnecessary, given that the Constitution would embody the broader principles guaranteeing citizens’ fundamental freedom.
Edmund Barton QC, the leader of the New South Wales delegation to the Constitutional Convention (who became Australia’s first Prime Minister and one of the first justices of the High Court) argued at the 1898 convention:
Because we are a Christian community we ought to have advanced so much … since the days of imposing religious observances or exacting a religious test as a qualification for any office of the State as to render any such dangers practically impossible. We will be going a little too far if we attempt to load this Constitution with a provision for dangers which are practically non-existent.
This argument is evidence that the prevailing view of the framers of the Constitution was, generally, that the best protection of freedoms under the constitutional law of Australia was the principles of representative and responsible government embodied in the Westminster system of government. Another framer, Sir Josiah Symon, a South Australian delegate, went as far as to say that religious freedom: “is embodied in the Constitution as a part of the unwritten law that no church establishment shall prevail and that religious freedom shall be observed”.
The argument also highlights the perspective of the framers that in its foundation they saw Australia as a Christian community. Similar sentiments were expressed by other framers, such as Sir Henry Parkes, often referred to as the Father of Federation, who said, “as we are a British people, we are pre-eminently a Christian people—as our laws, our whole system of jurisprudence, our Constitution—are based upon and interwoven with our Christian belief”. Alfred Deakin, later to become Australia’s second Prime Minister, prayed that the federation may be a “means of creating and fostering throughout all Australia a Christlike citizenship”. Sir John Downer similarly declared that “the Commonwealth will be from its first stage a Christian Commonwealth”.
Therefore, it appeared difficult at least for Barton and those who argued in a similar vein to conceive of a situation in Australia where there would not be religious freedom. For them, it was so ingrained in their conception of the prevailing legal jurisprudence and religious outlook that possible threats to religious freedom were almost inconceivable.
Some, however, who ultimately prevailed, had perhaps a keener sense of history. Bernard Wise, a New South Wales delegate, did not share Barton’s optimism as to the death of religious persecution, saying: “but we have seen in our own time a recrudescence of that evil demon, which I fear, is only scotched and not killed”.Section 116 was adopted as we know it today.
Since Federation in 1901, section 116 has been interpreted by the High Court on four significant occasions: Krygger v Williams (1912) 15 CLR 366, Adelaide Company of Jehovah’s Witnesses Inc. v The Commonwealth (1943) 67 CLR 116, Attorney-General (Vic) (Ex rel Black) v Commonwealth (1981) 146 CLR 559 and New Faith v Commissioner for Pay-Roll Tax (Vic). Looking at these judgments as a whole, some conclusions may be drawn about freedom of religion in Australia.
First, there is no evidence of a “strict separationist” doctrine in the High Court’s decisions. In Australia, freedom of religion does not mean freedom from religion. The Constitutional provision is an exhortation against government interference in the free exercise of religion, either by interfering in the religious acts or beliefs of individuals and communities, or by establishing a religion itself.
It is not a moratorium on religious involvement in public institutions, nor does it prevent the government from co-operating or supporting church initiatives. As Chief Justice Barwick said in Attorney-General (Vic) (Ex rel Black) v Commonwealth in 1981, there is nothing preventing the Commonwealth giving aid to or encouragement of religion.
For that reason, I concur with sentiments of the New South Wales Premier Barry O’Farrell, who in a speech before the recent state election said: “I am pleased that in Australia we have not gone down the United States path where the strict legal separation of Church and State goes beyond common sense.”
The second observation from these High Court cases is that there have been few instances in which section 116 has been invoked. This may be explained by a variety of circumstances. However, it is in part because, as argued earlier, the Australian system of representative and responsible government, particularly in the broader sense, generally protects against contraventions of that clause.
It would, nevertheless, be naive to believe that Australia has an entirely unblemished record of religious freedom. To just take one obvious example, for the first half of the twentieth century social relations in this country were marred by a bitter sectarian divide between Catholics and Protestants. Until the 1960s, Catholics suffered religious discrimination as some job vacancy advertisements read “Catholics Need Not Apply”. That sectarian divide is now a thing of the past. However, new developments give rise for new cause for concern.
The Boycotts Divestment and Sanctions Resolution against Jewish businesses passed in December 2010 by the Marrickville Council and, more recently, violent activist protests against Jewish businesses, in particular, Max Brenner chocolate and coffee stores, are eerily reminiscent of Jewish pogroms of earlier times.
The Marrickville Council resolution was championed by Greens mayor and state election candidate Fiona Byrne and supported by Lee Rhiannon, who is now a federal Greens senator. Their support for this action revealed an ugly underbelly of the Australian Greens’ agenda.
During the 2007 parliamentary debate on human cloning, the Catholic Cardinal George Pell was investigated by the New South Wales Upper House’s Privileges Committee for public comments to the effect that Catholic MPs who vote in favour of human cloning would be acting contrary to their church’s teaching about the sanctity and dignity of human life and would be denied Holy Communion. He was to be investigated for contempt of parliament.
At the time, Lee Rhiannon boasted in her media release: “The President of the Upper House has agreed to my request that the Privileges Committee investigate the appropriateness of Cardinal Pell’s comments.” The then MLC made it clear that her intention was to intimidate Cardinal Pell into silence in the human cloning debate, saying: “Hopefully this referral will act as a warning to Cardinal Pell that he should refrain from launching a fresh assault on Upper House MPs who are yet to cast a vote on this important bill.”
In response to the inquiry, Cardinal Pell argued:
It is my submission that it is essential that religious leaders, including myself, are free to express the position taken by their church or religion on matters of public interest and debate. To prevent religious leaders from doing so has the effect of stifling religious freedom and hampers effective and open debate on matters of public interest.
In 2008, the Victorian parliament passed legislation concerning abortion. Relevant to this discussion was section 8 of the Victorian Abortion Law Reform Act, which eliminates the right to conscientious objection by mandating doctors to either participate in the abortion process or recommend a doctor who will do so.
The then president of the Victorian branch of the Australian Medical Association, Doug Travis, who generally supported the legislation, made the following point in an open letter to the then Premier, John Brumby:
The Bill infringes the rights of doctors with a conscientious objection by inserting an active compulsion for a doctor to refer to another doctor who they know does not have a conscientious objection. Respect for a conscientious objection is a fundamental principle in our democratic country, and doctors expect that their rights in this regard will be respected, as for any other citizen.
The Australian Medical Association stated in a media release:
We are still concerned about the conscientious objection clause (section 8), and would like to see it amended. The Victorian Law Reform Commission stated that the AMA Code of Ethics provided a sensible balance between the needs of the practitioner and the patients, and we have asked the Parliament to amend the legislation to reflect the law.
The AMA code of ethics, of course, provides that when a personal moral judgment or religious belief prevents a doctor from recommending some form of procedure or therapy the doctor may inform the patient and decline to provide the procedure on that basis.
Senator Xenophon recently announced that he would introduce a private members’ bill in the Senate to, in effect, repeal section 127 of the Evidence Act, according to which a person who is a member of the clergy of any church or religious denomination is entitled to refuse to divulge to a court the contents of a religious confession made to that member of the clergy.
Looking further afield to the USA, in 2009 two Democrat senators in the Connecticut state Senate introduced a bill called An Act Modifying Corporate Laws Relating to Certain Religious Congregations, also known as Raised Bill 1098. The bill provided for the incorporation of Catholic parishes throughout the state. Priests and bishops would be prohibited from having any voting rights in such corporations (but would be permitted to be ex-officio non-voting members). The books and records of the corporations would become accessible by any member of the corporation.
The bill was ultimately “tabled”, US procedural terminology that means it was not put to a vote. According to newspaper reports, the tabling was announced in the face of large protests.
There are many other examples. The elaboration on the above examples demonstrates that these potential threats to religious freedom are real and substantial.
These examples demonstrate that it is often the case, at least in Australia, that where there is an attempt to curtail the rights of religious groups, particularly Jewish or Christian ones, the Greens are not far away.
As the Greens have come to hold the balance of power in the federal Senate, and also to hold five seats in the New South Wales Upper House, their policies and underlying philosophies have come under greater scrutiny. And that scrutiny has revealed a strong atheistic and anti-religious tendency.
In their book The Greens, Bob Brown and Peter Singer expressly reject what they refer to as the ethic of “traditional Western belief” which has “prevailed throughout virtually the entire history of Western Civilisation”. They stridently declare that there is “an alternative tradition”. That tradition, which puts trees and animals on a par with human dignity, is conspicuously atheistic.
It would be fair to say that if the Greens had their way, people with any religious beliefs, particularly Jewish or Christian ones, would not have any role or say in public life. Lee Rhiannon made this plain in the Pell Privileges Committee episode when she demanded that two Christians on the committee “leave their religious beliefs at home”.
This attitude would undoubtedly lead to the situation which Barry O’Farrell warned of when he said: “The great danger of excluding religious belief from public life altogether is that then the only religious views acknowledged in those circumstances are of those who have none.”
Protection of religious freedom in Australia would be aided by the diminished political influence of the Greens.
It can also be said from these examples that these threats are often mitigated by the ordinary democratic processes of our society. The disappearance of sectarianism in Australia had a number of causes, none of which related to legislative changes, such as discrimination legislation, which came later.
In the case of the Marrickville Council boycott, it was a combination of democratic forces which caused the council to reverse its position: fierce local anti-boycott campaigns leading to Fiona Byrne’s failure to win the seat of Marrickville in the New South Wales state election and the actions of politicians from mainstream political parties who have shown solidarity with the Jewish community.
Barry O’Farrell wrote to the council giving it twenty-eight days to rescind the resolution. Within a week, the council had withdrawn it.
In response to the protests against Max Brenner, which resulted in nineteen charges for offences including trespassing, besetting a premises and assaulting police, Foreign Minister Kevin Rudd visited a store in Melbourne where he said: “I don’t think in twenty-first-century Australia there is a place for the attempted boycott of a Jewish business. I thought we had learned that from history.”
Arguably, various Jewish groups might have availed themselves of remedies under the Anti-Discrimination Act for race discrimination, given that “race” is defined in the Act to include “ethno-religious origin”. However, no group as far as I am aware made any complaints or sought any remedy under that Act.
Similarly, in the New South Wales Upper House, common sense prevailed and Cardinal Pell was cleared of contempt of the parliament by the democratic process of the Privileges Committee.
These examples are evidence that the best form of protection for religious freedom is Australia’s system of representative and responsible democracy.
The Anti-Discrimination Act 1977 (NSW) (ADA) prohibits discrimination on grounds of race, sex, transgender, marital or domestic status, disability, responsibilities as a carer, homosexuality and age. Significantly, these categories do not include religious belief, although the race ground is defined to include “ethno-religious origin”. Unlike all other Australian jurisdictions, there is no prohibition of discrimination on religious grounds. Rather, the religious exemptions in New South Wales exempt religious bodies from other grounds of unlawful discrimination under the ADA.
Section 56 creates a general exemption from the ADA for religious bodies. Religious bodies are not required to comply with the ADA in relation to: “the training, education, ordination or appointment of religious leaders”; “the appointment of any other person”; or “any other act or practice that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion”.
Section 56 was included in the ADA when first enacted. While other jurisdictions have adopted a general exception from their anti-discrimination statutes for religious bodies, the exceptions are narrower than that under the ADA in the following ways:
- While section 56(c) of the ADA exempts appointment of persons “in any capacity” by a religious body, other jurisdictions exempt only appointment of persons to perform functions related to religious practices;
- Some other jurisdictions have provisions equivalent to section 56(d) of the ADA, but others are narrower. Those that are narrower limit the exemption to acts done as part of a religious practice (NT), or don’t extend the exemption to discrimination in work or education (Qld), or limit the grounds of discrimination that are exempt (Vic).
The exemptions from the ADA for religious bodies were considered by the recent New South Wales Court of Appeal case of OV & OW v Members of the Board of the Wesley Mission Council. That case concerned a same-sex couple who contacted Wesley Dalmar Child and Family Care to inquire about becoming foster carers. They were told that an application from a same-sex couple would not be accepted.
The couple argued that the refusal to consider their application was unlawful discrimination under the ADA. Wesley Mission argued that they were exempted from the prohibition on discrimination because of the religious bodies exemption to the ADA. The question for the court was whether Wesley Mission’s refusal to consider the couple’s application conformed to the relevant doctrines of the religion that the Wesley Mission was established to propagate.
The case was appealed all the way to the Court of Appeal. In considering the religious bodies exemption, the Court of Appeal adopted a broad definition of religion. It stated that an act or practice will be exempt where required by a religious doctrine, even where the doctrine is held by only some elements in a particular denomination. Further, the exemption applies to the contemporary doctrines of the religious body. The doctrines are not required to be those that applied at the time of a religious body’s establishment.
A number of observations can be made about this case and discrimination laws generally. Australian laws prohibiting discrimination represent shared values and beliefs in the Australian community. Giving someone a “fair go” regardless of race, religion, political belief, gender or sexual orientation is a value that most hold. That being said, such laws ought to take into account the fundamental freedoms which go to the heart of our democratic system of responsible and representative government: of speech, association, assembly, religion and movement.
Further, and although the guarantee of freedom of religion in section 116 of the Constitution operates only to restrict Commonwealth legislation from breaching that right, the legal context and jurisprudence of Australia and each of its states is such that freedom of religion is fundamental to our system of democracy and laws. As such, although drafted as “exemptions” to the Anti-Discrimination Act, such provisions are in fact a legislative recognition of the fundamentality of freedom of religion. The legislature recognises that it is not permitted to encroach upon the freedom of religion.
In other words, to refer to the rights of religious groups vis-à-vis discrimination legislation as an “exemption” is accurate as far as the drafting of the legislation is concerned. However, as a matter of substantive legal principle, rather than the creation of special rights or interests, the “carve out” protects pre-existing rights which go to the heart of our democracy, as I have argued above.
The same principle applies to private educational institutions. Such institutions, motivated by a particular belief or philosophy, often religious belief, should not be excluded from the rights enjoyed by religious institutions merely because they do not carry the label of religious or because they do not have a belief in the supernatural. The “exemptions” presently extended to them under the New South Wales anti-discrimination laws are justified.
New South Wales does not have any specific legislation against religious vilification.
In 2005, independent MLC Peter Breen introduced a private member’s bill which sought to amend the ADA by inserting provisions:
- To make it unlawful for a person to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the religious belief or activity of the person or members of the group;
- To create an offence for such vilification if it includes a threat or incitement of others to cause physical harm.
It would be a defence under the Bill if the alleged vilification was done “reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate and expositions of any act or matter” but not expressly if done for religious purposes.
As the proposed legislation consisted of an amendment to the New South Wales Anti-Discrimination Act, a finding by the tribunal of such vilification could lead to orders being made, including the payment of compensation of up to $100,000.
At the time that the Bill was debated, Victoria, Tasmania and Queensland had already enacted legislative provisions similar to those proposed. However, Western Australia and South Australia had declined to enact such provisions. Ultimately, the only supporters of the Bill were Mr Breen, Democrats MLC Dr Chesterfield-Evans and Greens MLCs Ian Cohen and Lee Rhiannon. The mainstream political parties and the Christian Democrats opposed the Bill.
That the Bill had only this narrow group of supporters, mainly Greens, is already a clue as to the dangers of this type of legislation. Another clue was the inflammatory and hostile language by the proponent of the Bill, Peter Breen. At one point in the debate, he approved a description of Christianity as “Christian religious imperialism” which “grew out of a minority group of revisionist Jews”. The speech was littered with veiled attacks on Christians and Christianity. For a bill which aimed to promote religious tolerance, such language seemed telling of what religious tolerance actually meant to the promoters of the legislation.
The core concern however is that the practical experience of such legislation is the opposite of the legislation’s avowed purpose. As one opponent of the Bill, Gordon Moyes, said during the debate:
The thing that this legislation upholds as the ultimate aim is the very thing that has not been accomplished in jurisdictions where it has become law. Experience shows that such laws have promoted intolerance, rather than tolerance, divisiveness, rather than harmony, and tension, rather than peace.
Patrick Parkinson, Professor of Law at Sydney University, similarly warned of the practical dangers of religious vilification legislation in a paper published in 2004:
At issue is the freedom to express views about truth and falsehood, right and wrong, good and evil, which may offend others who have a different view on these matters. Religious vilification laws in practice, if not in theory, pose a grave danger to this freedom because of the collateral damage that can be caused by a legislative strategy to enforce tolerance.
This clash of laudable aim—to promote religious tolerance—and practical experience, was illustrated in the Catch the Fire Ministries case. In that case, the Victorian Court of Appeal considered a claim that Catch the Fire Ministries had engaged in conduct that contravened section 8 of Victoria’s Racial and Religious Tolerance Act. Section 8 creates a civil prohibition on religious vilification similar to that of the defeated New South Wales Bill which prohibits a person, on the ground of religious belief, from engaging in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, another person or group.
Section 11 of that Act provides a defence to section 8, also similar to the defeated New South Wales Bill, that a person does not contravene section 8 if the conduct was reasonable and in good faith in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for any genuine academic, artistic, religious or scientific purpose.
The conduct complained of included statements made at a seminar presented by Catch the Fire Ministries in 2002, publication of a newsletter by Catch the Fire Ministries in 2001 and publication of an article on the Catch the Fire Ministries website in 2001. Some of the impugned statements included that the Koran promotes violence and killing, that the Koran teaches that women are of little value, that Allah is not merciful, that Muslims practising Jihad are following the Koran and a number of other statements. The seminar also included statements about “accepting, tolerating, reaching out to and loving Muslim people” and distinguishing between their criticisms of Islamic belief and practice and Muslims themselves.
Initially the Victorian Civil and Administrative Tribunal (VCAT) held that Catch the Fire Ministries had contravened section 8 and could not claim the defence at section 11(1)(b). Catch the Fire Ministries subsequently successfully appealed the VCAT decision.
Although ultimately successful on appeal, the case cannot be considered a victory for freedom of religion or freedom of speech. This is well expressed by Patrick Parkinson, in his 2005 paper “Enforcing Tolerance”:
The main danger of religious vilification laws is that they will have a chilling effect on legitimate religious activity even where the outcome of a complaint is to declare the religious expression to have been lawful. The punishment imposed by religious vilification laws does not lie in the penalties imposed by courts or tribunals for breaches of the law, but in the necessity to defend oneself from plausible claims that the law has been breached.
A number of observations can be made about this case and vilification laws generally.
First, it appears on the evidence taken by the tribunal that one of the key witnesses was both an officer of the complainant, the Islamic Council of Victoria, and an employee of the Equal Opportunity Commission. It appears that other witnesses for the complainant attended the seminar in question at the instigation of that person. It is concerning that an employee of an Equal Opportunity Commission, encouraged by religious vilification laws, might have thought it appropriate to act as a sort of religious tolerance police.
Second, the defences to the Racial and Religious Tolerance Act are more expansive than the equivalent Bill defeated in New South Wales. As indicated above, there is a defence in the Victorian Act if the conduct was reasonable and in good faith “for any genuine academic, artistic, religious or scientific purpose”. The word religious was omitted from the drafting of the defence to the New South Wales Bill; one would have had a defence available if the comments were made in the context of academic, artistic or scientific discussion but not religious discussion. Accordingly, had the Catch the Fire Ministries Case taken place under the proposed New South Wales legislation, the result might have been different.
Third, and without traversing all the detail of what was said, much of the debate in connection with the New South Wales Bill placed emphasis on our strong democratic traditions and the values which underpinned them as the best protection of religious freedoms. This is consistent with the thesis above, that religious freedom is best protected by our Australian form of responsible and representative government.
Fourth, and following from that third point, religious vilification legislation does not respect the role of freedom of religion (and other fundamental freedoms) in our legal jurisprudence. Rather, such legislation constitutes interference by government in the free exercise of religion.
As New South Wales Attorney-General, I have no intention to introduce any religious tolerance legislation here in New South Wales. I would be delighted to see the Victorian, Tasmanian and Queensland governments consider bringing their states into line with the New South Wales, South Australian and West Australian position. New South Wales’s anti-discrimination laws would seem to strike the best balance in terms of protecting against discrimination on the one hand, and protecting the rights of freedom of religion and association on the other.
This is an edited version of a speech by the New South Wales Attorney-General, the Hon. Greg Smith SC MP, delivered to the Thirteenth Meeting of Experts of the International Religious Liberty Association at the University of Sydney in August.