Implementing religious freedom into Australian law
As discussed in Chapter Two, despite ratifying the ICCPR, Australia has not adopted the rights it enumerates into domestic legislation. This Chapter examines some of the discussion about this feature of Australia’s legal framework and discusses some of the suggested approaches to implementing the ICCPR in the law.
Dr Paul Taylor noted that Article 2(2) requires State Parties to the Covenant to “take the necessary steps… to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant”. Dr Taylor was critical of Australia’s failure to formally implement the Covenant rights in domestic law. He noted that a country may not justify failing to comply with this obligation by appealing to “political, social, cultural or economic considerations within the State”.
The UN Human Rights Committee has commented on this failure to implement the Covenant. In its 2009 concluding observations on the fifth periodic report submitted by Australia, the HRC recommended enacting “comprehensive legislation” implementing all the Covenant provisions, commenting:
The Committee notes that the Covenant has not been incorporated into domestic law and that the State party has not yet adopted a comprehensive legal framework for the protection of the Covenant rights at the Federal level.
In its 2017 concluding observations to the sixth periodic report of Australia, the UN Human Rights Committee repeated its concerns about the “lack of direct protection against discrimination on the basis of religion at the federal level”, and made the following recommendation:
The State party should take measures, including by considering consolidating existing non-discrimination provisions in a comprehensive federal law, in order to ensure adequate and effective substantive and procedural protection against all forms of discrimination on all the prohibited grounds, including religion, and inter-sectional discrimination, as well as access to effective and appropriate remedies for all victims of discrimination.
Bill of Rights, Charter of Rights, or Human Rights Act
Two Australian jurisdictions have implemented human rights instruments akin to a “bill of rights” or “charter of rights”. Victoria’s Charter of Human Rights and Responsibilities was enacted in 2006, following the ACT’s Human Rights Act in 2004. This Chapter extends the discussion of these instruments in Chapter Five to the context of enacting a federal instrument.
In the absence of a federal bill of rights, states and territories could each have their own bills of rights incorporating ICCPR rights. Professor George Williams noted that in addition to Victoria and the ACT, there are discussions underway about bills of rights in Queensland, Tasmania, and New South Wales, and Tasmania, Queensland, and Western Australia have all had reports in favour of bills of rights. Professor Williams said that “it is the right time” to be talking about this at the state level.
However, this piecemeal approach would rely on the eight jurisdictions passing their own instruments to achieve a consistent level of protection across the country.
The preferred option, one which was discussed at some length in submissions and at public hearings, would be to implement a federal bill of rights or similar instrument, either through a single act or through Constitutional change.
Support for a federal rights instrument
A national bill of rights received some support in evidence. Although Dr Taylor did not advocate for a bill of rights, he did state that a bill of rights best reflects the universality, indivisibility, interdependence, and interrelatedness of human rights. Professor Carolyn Evans also favoured a “more comprehensive human rights act” which incorporates all the ICCPR rights rather than the current situation in which some rights have been “cherrypicked” and given stronger status than others. Some submissions favoured a bill of rights model, including the specific term “Bill of Rights”.
At the Sydney hearing, Dr Taylor commented that the distinguishing feature between a bill of rights as opposed to a charter of rights is that:
a charter simply lists the rights as if they were values and they do not apply them in the legislation as rights that can be invoked in a particular way.
Dr Taylor further commented that it should be possible, in order to achieve compliance with the Covenant, for a rights holder to appeal to the state.
Professor Williams noted that the advantage of being the only democracy without a bill of rights or equivalent instrument is that we can look widely to the experience in other countries. For example, according to Professor Williams, the US system has transferred power to the courts at the expense of parliamentary sovereignty. In contrast, the approach used in New Zealand and the UK maintains the sovereignty of parliament while requiring that due weight be given to “democratic values that we think are enduring, and important and should not be forgotten.” Professor Williams commented:
I do not support anything like the American instrument, which means courts can strike down laws. I favour the UK approach, which means the courts interpret statutes; and so they effectively take direction from parliament that, in applying anti-discrimination and other laws, there are certain important rights and values that must be taken into account.
As noted in Chapter Five, this model is also used in the Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act, allowing what the ACT Government calls a “dialogue process”.
Due to his concerns noted above, Professor Williams does not like the language of “bill of rights”, and favours moving towards a Human Rights Act approach.
The Human Rights Law Centre recommended enacting a Human Rights Act in addition to other measures, arguing that it would “consolidate and modernise the disparate Commonwealth anti-discrimination law protections and ensure there was appropriate coverage”.
Opposition to a federal rights instrument
Some submissions stated their opposition to a Bill of Rights or similar instrument. The Human Rights Law Alliance and Australian Christian Lobby (HRLA and ACL) noted that attempts in 1944 and 1988 to introduce rights, including religious freedom, into the Constitution were defeated. Commenting on the 2008 National Human Rights Consultation Committee established by then Attorney-General Robert McClelland, which recommended the adoption of a bill of rights, HRLA and ACL claimed that “unpopularity and widespread opposition” lead to the recommendation being abandoned.
HRLA and ACL expressed concern that the “legislation of human rights” can:
have the effect of enlarging the power of unelected judges on questions of public policy which have ordinarily been resolved by democratically elected parliaments.
Professor Augusto Zimmermann also cautioned against a bill of rights, calling the idea “counterproductive”, and expressing similar concerns to those above about the transferal of power to judges in the United States.
Challenges to a federal rights instrument
There are also political considerations when discussing a bill of rights, beginning with the fact that a majority of Australians believe their rights are already adequately protected, including 61 per cent who believe Australia already has a bill of rights. Professor Williams highlighted the importance of education, including the work of the Sub-Committee in this inquiry, as part of the process of achieving reform. The importance of education in increasing the understanding of human rights issues in society was also discussed at the Canberra hearing.
The unpopularity noted by HRLA and ACL above presents further political difficulties. Dr Luke Beck argued that both a bill of rights and a human rights act would be too difficult to implement “in the current political climate”.
In a 1999 paper, Professor Williams argued that the 1988 referendum, which received the lowest ever Yes vote in a national referendum, demonstrated that:
any move to bring about an Australian Bill of Rights should follow a gradual and incremental path. Certain core rights should be protected before others, and then in legislation, subject to a legislative override, before any constitutional entrenchment.
This more gradual approach would:
maximise the opportunity to create a workable balance between enabling the judiciary to foster the rights of Australians and not vesting misplaced faith in the courts to solve Australia’s pressing social, moral and political concerns.
Religious Freedom Act
There was some discussion about the suitability of a Religious Freedom Act or similar legislation which specifically protects the Article 18 right to freedom of religion without implementing a broader catalogue of human rights.
Associate Professor Neil Foster agreed that a religious freedom act, or similar legislation that “broadly protects religious freedom based on the principles of article 18”, would be one possible method of implementing the ICCPR right. Such an act would provide, in his words, “rights to hold religious beliefs, rights to practice within the limits set out in article 18.3, to live and practise one’s life in accordance with one’s religious commitment”.
The Australian Human Rights Commission in 1998 proposed the enactment of a Religious Freedom Act. The AHRC’s report was considered in this Committee’s 2000 inquiry, and a Religious Freedom Act was considered unnecessary. The AHRC stated that it remains of the view that the Australian Government should consider “expanding the circumstances in which anti-discrimination law protects against discrimination and vilification on the basis of religion”.
As noted above, Professor Evans favours a single, more comprehensive human rights act, and cautioned that:
The danger at the moment is that various religious groups say, ‘We need a religious freedom act,’ then the media say, ‘We need a media protection act,’ and you could end up multiplying the problem rather than resolving it.
Protecting religious freedom in anti-discrimination law
Several witnesses and submissions discussed whether religious freedom could be protected by expanding federal anti-discrimination law. Professor Foster called this a “fairly minimal option” but thought it a “sensible model”. He did emphasise the fact that “different religions have different views about other religions”, and “careful discussion” would be required to:
allow religions to make robust comments about the truth or otherwise of other religions. You would allow religions to exercise their own religious freedom in the way they run their affairs… some churches have resisted the idea of a religious discrimination law because they feared that it would unduly impair the way they ran their religious institutions.
The Human Rights Law Alliance and Australian Christian Lobby submission recommended the enactment of a “consolidated Commonwealth Anti-Discrimination Act” embodying four criteria:
(i) non-discrimination should be balanced against other ICCPR rights;
(ii) General Comment 18 should be codified in the act, clarifying that the “reasonable and objective pursuit” of legitimate purposes is not unjust discrimination;
(iii) religious exemptions should be removed in favour of religious freedom; and
(iv) the absence of any vilification or speech provisions.
The Presbyterian Church of Queensland also stated that religion should be a protected attribute in Commonwealth anti-discrimination law, noting the importance of this “in light of the preponderance of religious minorities within contemporary, multicultural Australia”. The PCQ did not take a position on how best to achieve this, but noted that it could be achieved through a Religious Freedom Act or as a standalone measure.
As noted, the Australian Human Rights Commission has also advocated for freedom of religion to be a protected attribute in federal anti-discrimination law.
There has been general agreement about the need to formally implement the right to freedom of religion or belief, if not the ICCPR in its entirety. Australia is rare among modern liberal democracies in its lack of a federal bill of rights instrument. There are various arguments in support of and opposing the implementation of such an instrument at federal level. Some contributors favour a Religious Freedom Act directly implementing Article 18 in federal law. Others have suggested protecting religious freedom through federal anti-discrimination law, either in a separate act or by consolidating anti-discrimination law into a single act. The Sub-Committee notes the strengths and weaknesses in each of the suggestions proffered.
The Sub-Committee notes that the preponderance of evidence from all sides of the issue support the claim that religious freedom should be specifically protected in Commonwealth law, however this is achieved.