Freedom of Religion or Belief and the right to non-discrimination
As with all rights, the right to freedom of religion or belief needs to be balanced against other rights. Often rights will be closely aligned, and protecting the right to freedom of religion may not involve impeding other fundamental rights. This is seen with the close association between the right to freedom of religion or belief and rights such as freedom of association and freedom of speech. Anti-discrimination laws can protect religious minorities from discrimination, and so the rights to non-discrimination and religious freedom interact in a way which enhances religious freedom.
At other times, however, different rights may compete with each other and to some extent be mutually exclusive. The most common contemporary example of this is when the right to freedom of religion or belief clashes with the right to non-discrimination. It is worth quoting Professor Evans’ clear summary of the issue at length:
…discrimination laws intersect with religious freedom [when] religious groups or individuals claim that they should be exempt from certain aspects of discrimination law. Religious groups may wish to engage in discrimination (on the basis of religion or other bases such as sex, marital status or sexuality). Religious groups believe that it is essential that they maintain autonomy when it comes to issues such as selection of clergy or other key religious appointments. This autonomy is an important element of religious freedom, impacts on a relatively small number of people and would be hard to justify removing. However, religious groups often also wish to be permitted to discriminate in other areas in which they are active, for example in relation to admissions to religious schools, employment in religious organisations or the types of groups to whom they rent property. In such cases, the religious freedom of individuals or groups can come into conflict with the right of other individuals not to be discriminated against.
This potential conflict is the focal point of much of the discussion about religious freedom in Australia and was a common refrain throughout the evidence received. The Australian Human Rights Commission highlights the issue, supporting consideration of a “mechanism for ensuring an appropriate balance is maintained”.
Dr Alex Deagon’s paper bears the pertinent title “Australia in the Crucible: Religious Freedom versus Anti-Discrimination”, and focuses at some depth on this issue. This paper focuses on section 116 and the surrounding jurisprudence, its central argument being:
That the free exercise clause should be understood more broadly to motivate legislative protection for religious freedom from the general operation of anti-discrimination law in particular circumstances.
The two main components to this argument are that the interpretation of the free exercise clause of section 116 should be expanded, and that religious freedom “should be protected from the general operation of anti-discrimination law in particular circumstances”.
Different approaches to resolving this tension will have different emphases and priorities, and although it is generally agreed that there is no “hierarchy” of human rights, some witnesses have emphasised what they regard as “fundamental” rights, including religious freedom, while others have cautioned against placing too much emphasis on these rights at the expense of others. The Wilberforce Foundation highlighted freedom of religion as “fundamental” and even “the bedrock and genesis of all human rights discourse”.
The Human Rights Law Alliance and Australian Christian Lobby (HRLA and ACL) claimed that freedom of thought, conscience and religion or belief is “in certain significant ways the most fundamental” of all freedoms. The HRLA and ACL claims that non-discrimination has been set up as the “paradigm under which human rights claims are to be resolved”, with an “unconventionally broad scope” given to the term “discrimination”. As one example of this “paradigm shift”, HRLA and ACL cited the example of Cobaw, discussed in Chapter Five above, claiming that this case has made “equality and non-discrimination the paradigm human right”.
The HRLA and ACL further claimed that there has been a “proliferation” of laws “enshrining far-reaching rights of non-discrimination in Australia”, arguing that this is “the enactment, essentially, of article 26 of the ICCPR over and over again”, while article 18 has not been so enacted. HRLA’s Martyn Iles pointed out that there are as many as 50 protected attributes across Australia’s different jurisdictions.
Some submissions have had a different emphasis. The Human Rights Law Centre argued that the rights to equality and non-discrimination “constitute basic and general principles relating to the protection of all human rights”. The HRLC submission focused largely on this issue of balancing competing rights, saying that this notion is “not radical” but is a “fundamental concept embedded within the international and domestic” human rights instruments.
Referring to the Cobaw decision mentioned above, HRLC’s Ms Anna Brown commented that the decision was a good decision and that:
its outcome was a good example of how these competing rights can be balanced. If the service is not advertised as a service that is Christian and is conducted in accordance with particular beliefs, there was no reason for that group to believe that they should be turned away from it.
Ms Brown added that if exemptions continue to exist, something HRLC does not support, there needs to be “a level of transparency and consistency in the way they are operated, so people can make informed choices”.
With a similar emphasis on the right to non-discrimination, Australian Lawyers for Human Rights argued that the “right to express one’s religious beliefs does not ‘trump’ other rights”. ALHR highlighted Article 26 of the ICCPR, which states that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law”. ALHR argued:
Article 26 is a ‘stand-alone’ right which forbids discrimination in any law and in any field regulated by public authorities, even if those laws do not relate to a right specifically mentioned in the ICCPR.
ALHR went on to “reject the suggestions that anti-discrimination law conflicts directly with the right to freedom of ‘religion’”.
Same-sex marriage and non-discrimination
The tension between the right of non-discrimination and the religious freedom to discriminate in some cases was a common theme received throughout many of the hundreds of submissions from the broader public, and was raised frequently in particular in connection with same-sex marriage. It is noted that the recent Senate Select Committee’s report on the exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill, tabled in February 2017, considered the connection between same-sex marriage and religious freedom at length, including close examination of religious exemptions and exceptions. This Interim Report will not examine the issue in such detail, but the weight of evidence on the topic warrants some attention in this Interim Report.
Dr Alex Deagon’s submission drew attention to the “emerging tension between religious freedom and anti-discrimination law, particularly in relation to sexual orientation and same-sex marriage”, arguing that anti-discrimination law “could be used to restrict religious freedom which conflicts with same-sex marriage”. It is also important to note Dr Deagon’s comments that he is not advocating the right to discriminate in general:
there is no-one, or at least very few people, who are advocating that there should just be a blanket right for people to refuse to serve the LGBTI community in terms of goods and services because of their religious convictions… The particular issue is in relation to the support of same-sex marriage ceremonies through the provision of services. The idea is: by providing a service which directly contributes to a same-sex marriage ceremony, it implies an endorsement of same-sex marriage.
The Wilberforce Foundation argued that the “same-sex marriage and gender fluidity movements” have been a cause of religious freedom violations internationally “under the protection of incorrect pre-eminence given to the right of non-discrimination”. The Wilberforce Foundation submission, and several others, cited numerous examples from around the world that it argued establishes this claim, including the so-called “cakemaker” cases: incidents in which religious people, often in the wedding services industry, decline to provide services for a same-sex wedding on the basis of religious conviction and are found to have been in breach of anti-discrimination law, often receiving large fines or other sanctions.
Several Australian cases of concern were raised, although these were typically examples of people attracting controversy for their comments rather than the “cakemaker” examples from other countries. Perhaps the most prominent example, and that most commonly cited in evidence, is that of the Catholic Archbishop of Hobart Julian Porteous, who was subject to a complaint under the Tasmanian Anti-Discrimination Act 1998 after producing a booklet outlining the Catholic Church’s teaching on marriage for distribution within Catholic schools. The complaint was eventually withdrawn, but has been cited frequently in evidence as an example of the conflict between religious freedom and anti-discrimination law, particularly as it combines with differing views on same-sex marriage. It is to be noted that Tasmania does not enshrine the right to freedom of religion in the manner that, for example, Victoria does in its Charter of Human Rights and Responsibilities.
In contrast to these concerns, a number of submissions argued that religious freedom is unfairly favoured above the right to non-discrimination and equality by the current marriage and anti-discrimination laws. Much of this argument focused on exceptions and exemptions in anti-discrimination laws, which are discussed further below.
Some submitters also argued that religious freedom is violated by not allowing religious groups to recognise same-sex marriages. Professor Gary Bouma said:
Some [Anglicans] have got the State to support their view and prevent the marriage of same-sex couples for all Australians, not just their own members. But what of my FRB [freedom of religion or belief] since I believe that it is congruent with my faith and theology but am denied my FRB?
Exceptions and exemptions in anti-discrimination law
As highlighted by Professor Evans, there are certain contexts in which religious groups may wish to discriminate for a variety of reasons. In some cases this will be relatively straightforward, as in the appointment of clergy. In other cases it will be more controversial, for example for employment in or admission to religious schools, or in the provision of services to which the service provider objects on religious grounds. In either case, there is a need to determine whether a person’s right to non-discrimination should be given priority over the religious freedom of a religious group.
Professor Evans notes the “highly controversial” nature of this tension, which is growing in Australia, and also the trend of a narrowing of “the scope of exemptions for religious groups” in many countries. These countries are mainly in Europe, but there has been “increasing public debate in Australia over whether the exemptions in Australian discrimination Act should likewise be narrowed”.
Some witnesses opposed religious exemptions altogether. For example, the Human Rights Law Centre argued that current permanent exemptions “do not strike the right balance”, stating that “the mere existence of these exceptions operates as a barrier to vulnerable people”. The HRLC submission called existing permanent religious exceptions “unacceptably broad”, saying they may allow for discrimination that is “not reasonable and proportionate”. While supporting the right of religious organisations to “organise and conduct affairs closely connected to religious practice and observance… in a manner that accords with their religious beliefs and customs”, this should require an “intimate nexus between belief and conduct”.
Further, HRLC stated that justification for a broad religious exemption “materially lessens” when a religious body is providing goods or services “in the public sphere as part of a commercial enterprise”. HRLC supported a general limitations defence, as discussed below.
Australian Lawyers for Human Rights had similar concerns about religious exemptions, stating:
Any legislation which impinges upon human rights or provides any exemptions from human rights must be narrowly framed, proportionate to the relevant harm, and provide an appropriate contextual response which minimises the overall impact upon all human rights.
ALHR argued that it is “not valid for Christians to have exemptions from Australian laws so as to be able to ‘live out their public faith’ free from legal responsibilities to others”.
Professor Gary Bouma also made similar arguments, stating that the demand by religious groups for broad exemptions is:
a clear example of the change in FRB issues from the capacity of individuals to practice their faiths to groups having FRB rights to practice as they see fit including to act in ways that contradict Australian laws.
Other witnesses oppose religious exemptions because, it is argued, they place religious freedom in subordination to non-discrimination. The Human Rights Law Alliance and Australian Christian Lobby said that religious freedom is a “plenary” freedom, and “not merely narrowly defined exceptions to a non-discrimination paradigm”.
Wilberforce Foundation stated that anti-discrimination acts “reduc[e] the freedom of religion to narrow exemptions from anti-discrimination acts”. In the context of the Sex Discrimination Act particularly, Wilberforce Foundation stated that dealing with the “co-equal” (with non-discrimination) right of religious freedom by way of an exemption, this “necessarily subordinates it to the right to non-discrimination”. Similarly, HRLA and ACL stated that the “feeble system of exemptions and exceptions” have the effect of:
setting non-discrimination up as the paradigm under which human rights claims are to be resolved. As but one of several rights, this [is] an inaccurate representation of human rights principles. The actual paradigm is “human rights” and within it is located each of the rights set out in the ICCPR.
Mrs Lorraine Finlay commented:
When you are dealing with freedom of religion as an exception, it automatically suggests that it is a right that is not as important as the primary right, which is the antidiscrimination legislation. That is the wrong approach. We would submit that both are equal. They need to be balanced against one another, and anything that presupposes one as being primary is simply an incorrect approach.
Genuine occupational requirement test
In some jurisdictions, anti-discrimination law exemptions contain within them a “genuine occupational requirement” test in the employment context. Equal Opportunity Tasmania submits that it can be appropriate for a religious organisation to require an employee to share the tenets, beliefs, teachings, principles and practices of the organisation if the employee is seeking to “oversee or lead the rites and/or rituals” of the religion. In such a case, a shared faith and shared practices would be a “genuine occupational requirement”. In contrast, a person employed as a “cleaner or gardener” should not be required to share these attributes, as that person’s role does not require these attributes as part of the occupation.
This position is contested by some submissions. The Presbyterian Church of Queensland contends that these requirements “risk encroaching upon religious freedom by failing to account for several foundational and distinct attributes unique to religious institutions”. PCQ argues that, similar to a political party, for example, which would not be required to employ a member of an opposing political party, religious institutions may also value a “mission fit” for their employees, regardless of an employee’s role within the organisation. Religious groups, political parties, and other associations “are defined by their unifying attributes, being adherence to a legitimate common philosophy, worldview, culture or cause”.
Similarly, the HRLA and ACL expressed concern that religious bodies would be “stripped of their right to employ staff who share their ethos”. This right was called a “right of positive selection” by Sydney University law professor Patrick Parkinson, who said that it “is rather different from discrimination”.
Professor Carolyn Evans, while cautioning against a “language of persecution” which is “emotive and exaggerated on both sides”, acknowledged that “as a society we are becoming less religiously literate”. Consequently, at times there is “no real understanding of the way religious groups operate, their ethos and so forth”. This can lead to problems in areas such as genuine occupational tests, although Professor Evans did nuance her comments by noting that some religious bodies employ “tens of thousands of people” and receive “considerable public funds” for doing so, which weakens the argument for allowing too wide an exemption.
General Limitations Clause
Against this backdrop of concerns around existing exemptions and exceptions, several submissions highlighted the “general limitations clause” an alternative method of balancing religious freedom and non-discrimination. This was a key recommendation of the Presbyterian Church of Queensland, and formed part of a recommendation from the Human Rights Law Centre to reform exemptions in anti-discrimination law. The HRLC would replace permanent exemptions with a “general defence of justification” which would enshrine the principles of necessity, reasonableness, proportionality and legitimacy.
Constitutional law scholars Professor Nicholas Aroney and Professor Patrick Parkinson have proposed a version of a general limitations clause which the ALRC has recommended for further consideration. This clause is worth reproducing in full:
A distinction, exclusion, restriction or condition does not constitute discrimination if:
it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or
it is made because of the inherent requirements of the particular position concerned; or
it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or
it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.
The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 1(a).
The ALRC notes that the definition includes a proportionality test, and also clarifies “what is not discrimination”. Such a definition would be consistent with the UN Human Rights Committee’s comments in General Comment 18:
not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.
The HRLA and ACL also recommended the “codification of the principle in General Comment 18” within a consolidated anti-discrimination act.
Other submissions contained similar proposals, providing suggestions for clauses which could be inserted into anti-discrimination law. Dr Alex Deagon’s suggestions specifically protected “individuals who refuse to express a view or offer goods or services” if doing so would conflict with that individual’s “doctrine and practice of their religion”. Significantly, Dr Deagon’s proposal did not provide an absolute right to refuse services, stating that the individual may not be compelled “unless the refusal directly results in concrete hardship for those who seek the expression or service”.
Along a similar line of argument, although specifically with reference to the Sex Discrimination Act, the Wilberforce Foundation proposed an “overriding clause” which would clarify that the Act does not apply to discrimination that is “reasonably necessary” to “act in accordance with” one’s religion. Again, an absolute right is not proposed, and discrimination would be “unlawful and actionable” if the service denied is “not reasonabl[y] obtainable elsewhere by the person who has been denied the service”.
The Australian Catholic University also supported measures similar to the general limitations clause described.
Freedom of Religion or Belief and access to abortion
Another area in which careful balancing of competing rights is required involves access to abortion services. This conflict manifests in two main areas: “exclusion zones” around health service providers, and conscientious objection to abortion by medical practitioners.
Both of these issues were raised numerous times in hearings and submissions.
Some states have introduced laws creating “exclusion zones” around health service providers, areas in which people may not protest against abortion or in any way impede or intimidate those seeking the services.
ALHR stated that it may be necessary to limit “‘religious’ protests and vigils” in the interests of “protecting the rights of clinic patients and staff”, as well as to avoid public disorder. ALHR’s Freedoms Committee Chair Dr Tamsin Clarke stated in Sydney:
some people might think they have a right to express their religious beliefs against abortion, but it must depend on context. If you are standing outside an abortion clinic, screaming and waving placards and really distressing the women who are going into that clinic, who probably did not want to have to be going in there anyhow, that is an inappropriate exercise of your free speech rights, which is hurting other vulnerable people.
On the other hand, Professor Foster argued that in some cases “opposition to abortion may not even be expressed in polite and respectful ways”. The Tasmanian law prohibits certain behaviour within 150 metres of a clinic. This behaviour includes “besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding” a person, but also extends to interference “in relation to terminations”, which Professor Foster argues could prohibit “quietly hand[ing] out leaflets… on the other side of the road”.
Some states have introduced laws requiring a doctor with a conscientious objection to abortion to refer a patient to another doctor who is known not to object to abortion. The HRLA and ACL argues that this “forc[es] them to facilitate abortions” and is “a grave assault on the person’s conscience”. Professor Iain Benson argues that this treats “the autonomous moral views of the health care worker (doctor, nurse or pharmacist) as irrelevant”.
There was some discussion on these laws at the Sydney hearing. Dr Michael Casey commented:
it is helpful to remember that [this] is not just a clash of sensibilities or a personal sense of authenticity… We are talking about very difficult issues around questions of right and wrong, true and false, not just a clash of sensibilities.
Dr Deagon echoed these comments, arguing that it is important that medical professionals, including counsellors, are “not compelled to perform an abortion or recommend an abortion”.
There was some evidence in support of these provisions. Liberty Victoria made the following comments:
Putting a vulnerable woman in distress to the unnecessary and undignified quest for yet another medical appointment is a manifestation of religious belief by the doctor, or the doctor’s employer, which steps well beyond the confines of the devotees of the religion in question…
This raises the question as to whose human rights prevail: the woman’s or the religious doctor’s?
…in a secular democracy religious beliefs, particularly in the context of publicly funded provision of services, should not be privileged over rights such as unbiased and timely access to counselling or medical services.
It is worth noting that those advocating the protection of conscientious objection have commented that there are other ways of achieving the policy aim of ensuring safe access to, and information about, abortion services. Professor Michael Quinlan, Dean of Law at the University of Notre Dame, stated at the Sydney hearing:
if the intention is to ensure that people have sufficient information so that they can obtain that service, then there are ways in which government could achieve that objective without putting someone into an impossible situation of conscientious objection… The state… can ensure whether there is any absence of that information… without forcing someone to act against their conscience. So legislation like that would help to solve the problem.
Professor Benson echoed that point:
on whom is the onus to provide services?... If the state wishes people to have access to services, there is no reason why that burden cannot be on the medical association… in Canada, we have a lawyers referral number. If you want to seek a service from a lawyer you call the general number and the law society provides the list of practitioners in that area of law. The same thing could be done easily in medicine.
The right to freedom of religion or belief interacts with other fundamental human rights. While rights are often harmoniously aligned, their interaction can create tension in some cases. Protecting the right is most challenging when these tensions arise.
In contemporary society, this is most apparent when the right to freedom of religion or belief and the rights to equality and non-discrimination come into conflict. The desire of religious individuals to express and act on their religious beliefs, and the desire of religious organisations to maintain autonomy over their affairs, can compete with the desires of people not to be treated differently or unequally. Striking the right balance between these competing rights is a challenging and delicate task.
There was a great deal of evidence which addressed the balance between non-discrimination laws and religious freedom. Various opinions were put forth on the effectiveness and appropriateness of religious exemptions in non-discrimination laws. Some believe that religious exemptions give unfair weight to religious freedom over equality before the law. Others believe that religious freedom is unjustly subordinated to non-discrimination by religious exemptions. Different concerns were raised and a number of solutions to these concerns were suggested.
Other contemporary societal challenges were also raised in evidence. The Sub-Committee notes the difficulty and delicacy in determining how best to strike an appropriate balance, acknowledging the many varying arguments received in submissions and discussed at the public hearings. The Sub-Committee will continue to examine this issue carefully throughout the remainder of the inquiry.
The Hon Mr Kevin Andrews MP
Human Rights Sub-Committee
30 November 2017
Senator David Fawcett
Joint Standing Committee on Foreign Affairs, Defence and Trade
30 November 2017