In his media release in August 2019 accompanying the first draft of the government’s Religious Discrimination Bill, the Attorney-General stated that the Bill, whose purpose is to protect people from discrimination on the basis of their religious belief or activity, did not create a “right to freedom of religion”. This phrase summarises the confusion that exists, not analysed or sufficiently explained by the Attorney-General or the Ruddock Religious Freedom Review of May 2018, as to the existing legal position—is our capacity to practise religion based on a right, or a freedom, or something less than either?
Traditionally our polity, like the United Kingdom from which our legal system comes, viewed the people’s protection from interference as a matter of freedoms protected by the common law and the philosophical theory that in such a system all was permitted other than that legitimately prohibited by Parliament, usually expressed through the criminal law which prevented freedom of action impinging in damaging ways on other people.
A “right to a freedom” is a novel proposition in this tradition. But the term was invented so as to allow the government to say what it is not doing—creating a sword which would allow religions positive rights against outsiders. The language of “swords” and “shields”, juristic terms used in the law to describe when certain remedies can be sought from a court, masks the complications of the task undertaken—the redistribution of legal prohibitions and exemptions in the context of religion. This was accomplished by the federal government in the 1970s in the domains of sex, race, age and disability. Why was religion not included then?
One answer is that Australia already had a constitutionally established freedom of religion and a society that understood and respected religious belief and its place in our community. The noise of minorities complaining about religious discrimination has increased in Australia since the 1970s due to the increase in Muslim immigration. Is this opaque and extraordinary Bill really needed?
The relevant provision enacted by Parliament in 1900 as part of the Constitution is section 116, which states:
The Commonwealth shall not make any law for the establishing of 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.
This provision has routinely been read narrowly by politicians and the High Court, and treated as a mere limitation on the legislative power of the Commonwealth. Yet it has a far wider import—it reflects and seeks to explicitly enforce the stance of the former Australian colonies in rejecting the religious chauvinism that persisted in Britain into the nineteenth century, embodied in such legislation as the Test Acts of 1673 and 1678 (repealed in 1828), which prevented non-Anglicans from holding public office and graduating from the great universities. The colonial governments rejected the concept of a state church, so that all religions were treated as equal and their corporate forms regarded in law as voluntary associations, not unlike sporting clubs. To use the example of the universities again, the University of Sydney was deliberately established as a secular institution, its founding statute expressly forbidding the administration of any religious test for matriculating, sitting examinations or graduating to a degree.
The existence of a freedom of religion is already recognised negatively by the exemptions extended to religious bodies in state and territory discrimination laws. Those exemptions are often criticised as extending privileges to religious institutions, but they are not some generous but wrongheaded gift of government; they are a recognition of freedom the people already have, as confirmed by section 116.
Section 116 is an instruction that such laws were never to be enacted by the Commonwealth, but also the affirmation of the common law’s approach that whatever is not expressly forbidden is a freedom capable of exercise. It does not establish a “right” in the sense most people regard absolute “rights” as having to be established through Bills of Rights.
The wording of section 116 is not archaic but uses the same words which would be used now to describe a freedom of religion established by the Constitution. To accept that freedoms are so established does not require the application of some non-originalist theory of constitutional interpretation.
Section 116 is an express statement that in Australia there is a freedom of religious expression, and a positive prohibition on legislation that interferes with the free exercise of religion—it is and should be regarded as a charter for such freedom.
Why would that not be a reasonable conclusion when, at least since 1997, the High Court is capable of construing the Constitution as impliedly establishing a freedom of expression on governmental and political matters when there is no express statement of such a right or freedom in any provision of the Constitution?
By 1997 the High Court had overcome its reluctance to use the Convention Debates as a source for interpreting the Constitution.
The unanimous judgment in Lange analysed the structure for government established by the Constitution, emphasising the sections which required members of parliament to be chosen directly by the people at elections. The court found that:
Freedom of communication on matters of government and politics is an indispensable instrument of that system of representative government that the Constitution creates by directing that members of the House of Representatives and the Senate shall be “directly chosen by the people” of the Commonwealth and the States.
This is in fact not necessarily so, either in political theory or practical reality, as many regimes operating in the world today, such as Zimbabwe, give proof. A state could arrange to have members of parliament chosen directly by the people at elections without any freedom of choice, let alone speech. No section of the Constitution requires “free” elections. But the court was able to locate that requirement in published glosses on the Constitution which described the traditional system of democratic government inherited from England and operative at the time of Federation: as Birch wrote, in order for the parliament to have democratic authority as it was understood by our political tradition, its members had to be chosen at elections that must be free, “with all that implies in the way of freedom of speech and political organisation”. The court then reasoned:
Whilst the system of representative government for which the Constitution provides does not expressly mention freedom of communication, it can hardly be doubted, given the history of representative government and the holding of elections under that system in Australia prior to Federation, that the elections for which the Constitution provides were intended to be free elections in the sense explained by Birch.
So, in the freedom of speech guaranteed by the Constitution we have, perhaps, even an implication upon an implication. In passing, one might note that, in the common law of defamation in Australia, an implication upon an implication would not be sufficient to convey a meaning in a publication, as being too remote to the ordinary reasonable reader.
A further source of support was found in another gloss provided by Justice Dawson in Australian Capital Television v Commonwealth to the effect that the election process required the people to have the opportunity to appreciate the available alternatives and have access to information about the policies of candidates and parties, even though none of that is referred to in the Constitution.
So, informed by traditional practice and scholarly glosses, the law is that the sections of the Constitution which provide for elections necessarily protect a freedom of communication on governmental and political matters.
The High Court then construed the implied freedom in a manner similar to the way section 116 has been interpreted: it did not confer personal rights on individuals but prevented legislative interference with the implied freedom. The next step was that the common law in Australia had to conform with the Constitution and had to include an appropriate immunity from suit for libel where the libel involved communication of information on government and political matters. The court acknowledged that in a common-law system everyone is free to do anything, subject only to the provisions of the law, and the discovery of the implied freedom of communication in the Constitution was found to expand freedom of speech, by expanding the accepted categories of the defence of qualified privilege at common law. The protection was found by the court to extend to discussion of government and political matters at state, territory and local levels because the discussions at those levels were connected and relevant to choices in federal elections. But the court rejected a defence pleaded in the broader terms of a freedom “guaranteed” by the Constitution. Interestingly enough, given the ubiquitous denials by the High Court that the Constitution could not create any sort of private right, that was the end result of the High Court’s reasoning in Lange, because the common law was developed to permit the defamation of a person’s reputation if it occurred in a particular context.
In 1943 Chief Justice Latham said that section 116 is a general prohibition applying to all laws, does not compete with other provisions of the Constitution, and prevails over and limits all provisions which give power to make laws. He also said that the reference to the “exercise” in section 116 indicates that the protection went beyond merely the holding of religious opinions, but extended to acts done in pursuance of religious belief as part of a religion. But he recognised that section 116, like the guarantee of the free exercise of religion in the First Amendment to the US Constitution, is not absolute and must give way to the right of the state to employ the sovereign power to ensure orderly living and the peace and safety of the state. Consistent with this, the question will always be whether any law is an undue infringement of freedom of religion. He described the protection afforded by section 116 as a “guarantee” the interpretation and application of which cannot be left to parliament but to the courts to render invalid laws that infringe it.
In one High Court decision in 1981 Justice Gibbs noted that the words of section 116 were in part replicating the wording of the First Amendment of the US Constitution, but that as the First Amendment was a provision that guaranteed a number of fundamental rights, its interpretation may differ from section 116. It is worth noting that the First Amendment also states that Congress shall make no laws “prohibiting the free exercise of religion”, the same phrase used in section 116. The High Court did not doubt that if a federal statute infringed section 116 it would be invalid, so that section 116 has the characteristic force of a provision guaranteeing a right to freedom of religion by permitting the judicial striking down of parliamentary laws. Indeed, Justice Gibbs compared the prohibition on establishing a religion in section 116, which he did not consider warranted a broad interpretation, to the adjacent prohibition on the free exercise of religion by saying, “The establishment clause imposes a fetter on legislative power, and unlike the words which forbid the making of any law prohibiting the free exercise of religion, does not do so for the purpose of protecting a fundamental human right.”
Justice Stephen read the provision more closely, saying it was not “in form” a constitutional guarantee of the rights of individuals and outlawed prohibitions of “aspects of religious practice”. That was an appropriate approach for judges who adopted a conservative approach to constitutional interpretation and thought that anything like a constitutional guarantee needed to the established by clear, formal words. However, Justice Stephen also said that section 116 was a provision of high importance and that it provided important safeguards for religious freedom for Australians, at least vis-à-vis laws of the Commonwealth. Justice Mason said that section 116 was directed to the preservation of religious equality and the freedom of religion. Here, it would seem fairly clearly, is all the machinery needed to permit the courts not only to strike down legislation impinging on freedom of religion, but also to develop, as was done in Lange for freedom of speech, a common-law jurisprudence of religious freedom.
Indeed, in Kruger v Commonwealth, also in 1997, Justice Dawson pointed out that section 116 originally included the states, but was amended to exclude the states from its operation on the basis that the purpose, in part, was to make clear that the Commonwealth would not interfere in an area of states’ reserved rights and to leave the existing state laws as they were. Ironically, perhaps, the federal parliament is now interfering in a way not intended by the Constitution.
Recommendation 15 of the 2018 Religious Freedom Review was that the Commonwealth should enact a Religious Discrimination Act. The expert panel that compiled this report was asked to examine whether Australian law adequately protects the “human right of religion”. The report locates the source of that right in international human rights law, because that apparently is the only way we can conceive of ourselves having such rights. That immediately shows that the entire exercise was commissioned and carried out by people who see freedoms only in terms of “rights” dictated externally by international bodies that are uncritically accepted as the necessary authority and fount of such important matters, and who can only judge the position in Australia according to whether various governments have or have not committed to legislation similar formulas to those handed down from international rights law.
There is no consideration of whether Australian law or society, as established by our forebears, pre-empted the United Nations by some decades in ensuring Australians enjoyed freedom of religion. For example, one aspect of religious freedom commented on by the Review is the “negative” right not to be pressured, especially by the state or in state institutions, to participate in religious practices—this is exactly the form of state the colonial parliaments in Australia rejected in the nineteenth century, and they structured their institutions accordingly. Nor did the Review give adequate consideration to the common law, though it said it would, but it made reference only to two rules of statutory construction. The Review noted that there was no Commonwealth Religious Discrimination Act, even though all other forms of discrimination had their own statute, but it made no connection with the existence of section 116 or the common law.
Unsurprisingly the panel found the ubiquitous “rights talk” with which it was inundated in submissions as unfocused and inconsistent. The real difficulty is not with the existence of a freedom of religion, enforceable by Australian law, it is with the competing sets of “rights” which the international rights community has established through different instruments. It is a sacred totem of the human rights community that there is no hierarchy of rights, that, as the panel reported, rights are indivisible, like the Trinity, and none takes precedence over the other. But in fact, it is fairly obvious that a right to exercise religious freedom will often conflict with other rights established by the international instruments concerned with civil and political rights, rights to free speech and association and freedom from discrimination, which requires us to descend into the modern purgatory of competing interest groups seeking to force some rights to trump others in all sorts of circumstances, and to have our lives supervised by administrative tribunals at great embarrassment and expense. It is this conflict that requires legislative interference, not whether our Constitution embodies a guarantee of freedom of religion. The panel itself was forced to accept that “of critical importance in this analysis are the ‘friction’ points with other rights and how they are resolved in real-world situations”. In other words, the exercise being undertaken by the Attorney-General in enacting a Religious Discrimination Bill is one of horse-trading between interest and lobby groups in our society.
The Review concluded that that there was no specific legislative protection in Australia, despite section 116 and the statements of the High Court referred to above. The Review stated that section 116 does not create a positive obligation on the Commonwealth to do anything to ensure freedom of religion, though the Constitution was not intended to be expressed like a prescriptive international human rights treaty, purposefully drafted to instruct recalcitrant non-common-law countries. Section 116 recognises a freedom of religion and such legislation is clearly within the Commonwealth’s remit, or the Attorney-General would not be introducing his new Bill. The Review stated that section 116 does not create a “right” for individuals to hold or manifest their faith, yet, in the negative sense recognised by the United Nations, this is precisely what it does do, and if that is not accepted, then in the light of the elasticity of the High Court’s identification of freedoms in the Constitution, it has the capacity to do so.
Section 46 of the Tasmanian Constitution Act 1934 is a fuller form of section 116:
(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
(2) No person shall be subject to any disability, or to be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.
Subsection (1) is very close in expression and meaning to the United Nations prescriptions about freedom of religion as described by the Review, and would be consistent with Australia’s treaty obligations, yet the one Federal Court judgment that has referred to it has found it not to confer any rights or freedoms on citizens or to have any practical effect, including on other Tasmanian legislation, in part because section 46 is not entrenched. That perhaps reflects the lack of any practised judicial technique in Australia for extrapolating the practical effects of legislated rights rather than any logical assessment of whether the legislature has established by law a freedom or right. Section 46 is expressly qualified, Section 116 is not, but, of course, it is entrenched, and in its terms expressly prohibits legislation that impinges on the free expression of religion, so empowering courts to strike down legislation that has that effect. It expressly refers to “the free exercise of any religion” without qualification or ambiguity. Does that engender the scope of protection the Review reported was required of Australia by its international treaty commitments? If it is ambiguous, the High Court has ruled that principles of statutory construction require that in cases of ambiguity the courts favour an interpretation that is consistent with those obligations. That would give great scope to section 116. The Review complains that such rules only assist where legislation is ambiguous. But if it is not ambiguous it is presumably not a difficulty to recognise section 116 for what it is—a positive statement of freedom of religious expression.
And, in any event, the High Court had no difficulty in Lange conjuring up a freedom of expression where none, even ambiguous, was even stated in the Constitution.
Like the Ruddock Review, the government’s “Response to the Religious Freedom Review” of December 2018 trumpeted itself as setting out to protect the freedom of thought, conscience and religion, which “is a right enjoyed by all”, that “right” being located in the International Covenant on Civil and Political Rights which “has been in force for Australia for almost forty years”, even though it actually has not been in legal force. No mention is made of what the High Court has said about section 116 or Australia’s domestic law. Section 3(c) of the Exposure Draft’s objects section reflects this dislocation: the Bill seeks to “ensure people can, consistently with Australia’s obligations with respect to freedom of religion and freedom of expression, and subject to specified limits, make statements of belief”. What about “consistent with the Australian people’s present freedom under the law”? How is it that an Australian conservative government has got to the point that external treaties which at most may have an effect on interpreting ambiguous legislation on the basis of an implied purpose to accommodate such international commitments, are relied on as the fons et origo of the freedoms of Australian citizens?
Despite the historical interpretation of section 116 as being intended to exclude the Commonwealth from intervention in the area of religious freedom, the government now regards this as an area of “shared responsibility”. Logically that can only be if section 116 represents not just a clog on Commonwealth power but a source of power. However, the same government document acknowledges the states and territories must be persuaded to co-operate in cognate legislation as the Commonwealth cannot unilaterally give effect to its aims.
Confusion proliferates in the government “response”. At the crux of it is the need to follow recommendations, on the one hand, to whittle down or abolish current exemptions extended to religious institutions with regard to discriminating against somebody on the grounds of their “identity”, yet at the same time protecting the “right” (that word again) of religious institutions “to reasonably conduct their affairs in a way consistent with their religious ethos”. This is a false predicament if one takes a religious ethos seriously.
Matthew White SC is a barrister working in Sydney and Hong Kong.