pmc.gov.aupmc.gov.au/.../religious-freedom-submissions/14941.docx · Web view2018. 5. 14. · (Respondent) [2013] UKSC 77. His honour cited the passage and the following description

AMBROSE CENTRE FOR RELIGIOUS LIBERTY

SUBMISSION TO RELIGIOUS FREEDOM REVIEW

BY AN EXPERT PANEL UNDER THE CHAIR OFTHE HON. PHILLIP RUDDOCK

COUNCILLOR AND MAYOR CITY OF HORNSBY

Via on-line submission Email: [email protected]

14 February 2018

Dear Mr Ruddock,

On behalf of the Ambrose Centre for Religious Liberty, I am pleased to make the following submission for the consideration of your expert panel.

BACKGROUND

I am the founder and chairman of the Ambrose Centre for Religious Liberty (Ambrose Centre).

The Ambrose Centre is a human rights oriented organisation; it is not, nor does it pretend to be a religious organisation. It is incorporated as a ‘Not for Profit’ organisation and engages in public activities of promoting, bringing to awareness, addressing meetings and related activities whereby existing or intending laws have a bearing on the fundamental human right of manifesting religious beliefs.

The Ambrose Centre has made several submissions to Parliamentary and associated Inquiries over the years. Where appropriate, the Ambrose Centre seek leave of the court to appear as Amicus Curiae. TERMS OF REFERENCE

The terms of reference as announced by the Prime Minister for your Expert Panel are to:

Consider the intersection between the enjoyment of the freedomof religion and other human rights;

Have regard to any previous or ongoing reviews or inquiries that it considers necessary;

Consult as widely as it considers necessary.

This submission will comment on the first two reference points.

Ambrose Centre for Religious Liberty – R. Mimmo[Type text]

SUBMISSION:

1. The Executive Summary to the December 2015 Australian Law Reform Commission (ALRC) Traditional Rights and Freedoms- Encroachment by Commonwealth Laws, Summary Report touched on three topics relevant to the Expert Panel’s considerations.

1.1 The Executive Summary made the following salient observation-

Under the caption –Freedom of Speech at paragraph 24 it said …

Freedom of speech has been described as ‘the freedom par excellence; for without it, no other freedom could survive’ and is closely linked to other fundamental freedoms, such as freedom of religion, thought and conscience.

Under the caption –Freedom of Religion at paragraph 28 it said:

Religious Freedom encompasses freedom of conscience and belief, the right to observe or exercise religious beliefs, and freedom from coercion or discrimination on the grounds of religious (or non-religious) belief.

At paragraph 29, under the same caption, it said:

There are very few, if any provisions in Commonwealth Laws that interfere with freedom of religion. The main areas of tension arise where religious freedom intersects with [State]anti-discrimination laws which have potential to limit the exercise of freedom of conscience outside liturgical and worship settings.

Under the caption –Freedom of association and assembly, at paragraph 31, it says:

Freedom of association concerns the rights of all persons to group together voluntarily for a common goal or to form and join an association…

1.2 Each of these topics are interconnected when considering the freedom of religion. To truly have the right to exercise a religious belief, then the corresponding right to speak freely of the belief, to join a community for purposes of common guidance, education publication and assembly with others of a like mind cannot be seen in isolation; they are like an umbilical cord that feeds the religion.

1.3 The terms of reference connect freedom of religion to other human rights. Human rights instruments are international and universal. The most commonly accepted instrument is the International Covenant of Civil and Political Rights (ICCPR). Over 170 countries affiliated to the United Nations are signatories to the ICCRP. More than any other human rights instrument and, anecdotally, more than any other international treaty.


1.4 Article 18 of the ICCPR would be known to the Expert Panel as dealing with the freedom of thought, conscience and religion. It states:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

1.5 As is plain, Article 18 distinguishes the freedom of thought, conscience and religion from the freedom to manifest religion and belief. It is noted that there is no freedom to manifest conscience. The freedom to exercise or manifest religion or belief is subject to specific limitation, albeit narrow.

1.6 As paragraph 1 of the Article makes clear, the right to freedom of thought, conscience and religion is absolute. Article 4.2 of the ICCPR states, that this right cannot be derogated from, even in time of public emergency.

1.7 However, paragraph 3 of Article 18 makes plain, the freedom to manifest religion is qualified to the extent prescribed by the domestic law, but only for limited and narrow purposes.

1.8 The United Nations Human Rights Committee which monitors rights arising from the ICCPR adopted General Comment 22 on Article 18 at its forty-eighth session in 1993. Numerical paragraph 8 of the General Comment had this to say on the limitation to the manifestation of religion:

The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.

1.9 The Human Rights Committee made extensive comments on Article 18 in General Comment 22. At paragraph 4 it states, inter alia:


In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.

1.10 Flowing from the above extract, it therefore is clear that Article 18 cannot be read in isolation. It includes freedom of speech, association and assembly. While human rights instruments speak of individual rights, Article 18 must be read broadly to include churches and or religious institutions in addition to the other freedoms.

1.11 Yet, despite Article 18, State anti-discrimination laws do not treat religious rights any more highly than numerous other civil rights. Of course, it hardly needs repeating, States are not bound by the ICCPR nor for that matter, section 116 of the Commonwealth Constitution.

1.12 In this context it is understandable why the ALRC made mention at paragraph 29 of its executive summary as to the tension between religious freedom and anti-discrimination laws1.

1.13 The Expert Panel will appreciate that many other challenges exist now and potentially in the future for persons and or organisations inspired by or informed by religion. The most obvious are related to abortion, euthanasia and delivery services by religious bodies dealing with fostering and adoption. The grouping is not exclusive.

1.14 Victoria has the Abortion Law Reform Act 2008 which allows an abortion to take place up to 24 weeks without any questions. A registered health practitioner who has a conscientious objection to abortion must refer the woman to a practitioner whom the referring practitioner knows will perform the termination: this is a partial breach of conscience.

1.15 States which have fostering and adoption services grant funds to religious organisation to provide such services. Some religious organisations have teachings on where a child should be placed; for example, a child should only be placed in a household where there is a married heterosexual couple. Such teaching is contrary to anti-discrimination laws which require services not be denied to same-sex couples. To overcome the tension, States regularly grant exemptions for religious organisations.

1.16 Similar exemptions are provided for the selection of teaching staff, selection for seminary training and health care, nursing homes and limited accommodations services such as B & B’s.

1.17 The partial denial of conscience to health practitioners in abortion services and euthanasia to health practitioners, in addition to exemptions generally, reflects on the uncertainty for religious believers and organisations.

1.18 The uncertainty is well founded. In a submission to the Consolidation of Commonwealth Anti-Discrimination Laws Inquiry, a prominent group of Legal Academics and legal experts recommended:

1 See 2nd dot point of paragraph 1.1 above.


We believe that the religious exceptions for religious organisations should be removed because we do not accept that religious rights should prevail over the rights of individuals to be treated in a non-discrimination way in public sphere activities2.

1.19 Writing in the Harvard International Law Journal, prominent legal academics (Professor) Carolyn Evans and Beth Gaze wrote:

On the one side, some religious groups and scholars make a case for strong autonomy: religion should be given a wide scope over the full range of their activities whether publicly or privately funded and no matter how economically or socially significant their scope. On the other side, there is an increasingly powerful movement to subject religions to the full scope of discrimination laws, with some scholars now suggesting that even core religious practices (such as the ordination of clergy) can be regulated in the name of equality.3

2. WHY RELIGION SHOULD BE ACKNOWLEGED AS A FUNDAMENTAL RIGHT

2.1 The 2016 Census shows that religious adherents are declining. The largest single block is that of people with no faith, 30%.

2.2 The census also shows that the largest religious tradition is the Catholic Church with approximately 22%. Yet the attendance of people at weekly Mass has fallen dramatically since 1960 to the present from 57% to 12%4.

2.3 From these figures it would not be unreasonable to argue that religion should not enjoy any special privileges. To adopt such a course would be a great disservice to the many people who have a deep and sincere belief in God or other such deity.

2.4 The sincere belief held by many people that it is wrong to offend their God by performing an act which they believe is against their conscience or teaching of their faith or Church Leaders. The State should not act as a coercive agent or instrument to make unlawful a sincere and genuinely held belief that they should not wrong their God.

2.5 The words of Lady Hale5 should hold true. In an important case before the House of Lords, she said:

2 Submission made 13 December 2011, p163 Harvard ILJ Online, vol 49 April 21, 2008 p 41. In support of this comment, the authors refer to-Pru Goward, Address at the Ordination of Catholic Women Annual Conference, Melbourne: Women, Human rights and Religion (Nov. 5-6, 2005) available at https://www.ocw.webcentral.com.au/articles.htm Cass R Sunstrin, On the Tension between Sex, Equality and Religious Freedom, PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 167 (2007), available at http://www.ssrn.com/abstract.id=995325;(f.Reid Mortensen, Rendering to God and Caesar: Religion in Australian Discrimination Law, 18, Queensland L.J. 208, 219 (1994-1995)4 Sydney Morning Herald, 12 February 2018, p 9.5 Appointed President of UK Supreme Court in October 2017


http://www.ssrn.com/abstract.id=995325

https://www.ocw.webcentral.com.au/articles.htm

132. Such a guarantee of equal treatment is also essential to democracy. Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being. The essence of the Convention, as has often been said, is respect for human dignity and human freedom: see Pretty v United Kingdom (2002) 35 EHRR 1, 37, para 65. Second, such treatment is damaging to society as a whole. Wrongly to assume that some people have talent and others do not is a huge waste of human resources. It also damages social cohesion, creating not only an under-class, but an under-class with a rational grievance. Third, it is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. Finally, it is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not6.

2.6 However, it is appreciated that no State wishes to permit discrimination. Exemptions in anti-discrimination laws are, in fact, approved discrimination. It is our submission that when approaching questions of recognising laws on protection for religion, the argument needs to be made out.

2.7 Professors Rex Ahdar and Ian Leigh from the Universities of Dunedin (NZ) and Durham (UK) respectively, in their book7, carry a passage on the need to make out the argument:

[There]is a general point about conceptual analysis. The study of concepts like law, and freedom, and power, and democracy cannot be undertaken in a normative vacuum. Unless, for example, we have some idea of why it might matter, why it might be thought a matter, why it might be thought a matter of concern whether something is a law or not, we cannot sensibly choose among rival conceptions of this concept… Justificatory argument in political theory and jurisprudence must precede conceptual analysis, not the other way round8.

3. DEFINING THE MEANING OF RELIGION

3.1 To attempt a justificatory argument as why religion is important, various judicial comments follow starting with judicial views on the meaning of religion.

3.2 Many jurisdictions over the years given comments and observations on what is religion. However, the difficulty of such an exercise should not be underestimated.

3.3 Notwithstanding such difficulty, it is helpful to reflect on how different jurisdictions have attempted to give meaning to the word ‘religion’.

6 Ghaidan v Godina Mendoza (FC) [2004] UKHL 30 para.1327 Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State, 2nd ED. Oxford University Press, 2013.8 Ibid, P Quotation taken from Jeremy Waldron, Legislation and Moral Neutrality, in his Liberal Rights: Collected Papers 1981-1991 (Cambridge, 1993) Ch 7, 153 (emphasis in original).


3.4 In Jehovah’s Witness Case9, Latham CJ, said:

“It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed in the world”10.

3.5 The passage by Latham CJ was approvingly referred to by Toulson J in the matter of R (on the application of Hodkin and another) (Appellants) v Registrar General of Births, Deaths and Marriages (Respondent)11. His honour cited the passage and the following description of religion with the approval of the Full Court of the UK Supreme Court of Appeal.

“… I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives, in conformity with spiritual understanding associated with the belief system. By spiritual or non-secular, I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science”12.

3.6 Iacobucci J, writing for the majority in the Supreme Court of Canada judgment in the matter of Syndicat Northcrest v Amselem13, said:

“In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, to those that are socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices which allow individuals to foster a connection with the divine or with the subject or object of that spiritual belief”14.

3.7 At a later stage of the judgment, His Honour, linking the spiritual faith with practices associated with that belief, said:

“Over the course of a lifetime, individuals change and so can their belief. Religious beliefs, by their very nature, are fluid and are rarely static. A person’s connection to or relationship with the divine or with the subject or object of his or her spiritual faith, or his or her

9 Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] 17 ALJ 134 10 Ibid, para 311 [2013] UKSC 7712 Ibid, para 57.13 [2004] 2 S.C.R. 551, 2004 SCC 47 14 Ibid, para 39.


perception of religious obligation emanating from such a relationship may well change and evolve overtime”15.

3.8 From a different viewpoint, Justice Sachs, of the Constitutional Court of South Africa, in the matter of Christian Education South Africa v Minister of Education16 linked religious freedom to religion. His Honour said:

“yet freedom of religion goes beyond protecting the inviobility of the individual conscience. For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth”17.

3.9 The High Court of Australia also examined the substance and meaning of religion in the case of the Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)18 (Scientology case). This case required the High Court to determine if Scientology would qualify as a religion for purposes of receiving special exemptions from Pay-Roll taxation.

3.10 In the joint judgment of Mason ACJ and Brennan J, religion was defined thus:

“..we would therefore hold that, for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of a canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity privilege or right conferred on the grounds of religion19.

3.11 While all judgments mentioned connect belief with conduct, only the judgment of their Honours Mason and Brennan referred to the protection of religious inspired conduct must be within the ordinary law. This point is essential to grasp and make known. No religious belief, doctrine or injunction can be acted on if its practice offends the law. Thus, physical punishment for apostasy, non-belief, adultery, or practices of genital mutilation, child brides, polygamy and domestic violence when acted upon under the guise of a religious teaching, customs or practice, cannot be protected as they are outside the ordinary laws.

3.12 Article 18 grants the freedom to thought, religion, conscience and belief is absolute. However, the manifestation of religious belief is not absolute, it is a qualified right.

4. THE SOURCE AND GRANT OF POWER

4.1 The Australian Parliament has no constitutional authority to legislate on religion. Nor, for that matter, on human rights. However, section 51(xxix) of the Australian

15 Ibid, para 53.16 Case CCT 4/00 – 18 August 200017 Ibid, para 3618 [1983] HCA 40; (1983) 154 CLR 12019 Ibid, para 17.


Constitution grants to the Australian Parliament powers to make laws with respect to ‘external affairs’.

4.2 Under this grant of power, the Australian Parliament is able to ratify and subsequently make laws on International Treaties and Conventions.

4.3 The International Covenant on Civil and Political Rights (ICCPR) was approved by the United Nations General Assembly in December 1966; formally adopted as an International Covenant and entered into force on 23 March 1976. Australia signed the Covenant in December 1972 and ratified it in November 1980.

4.4 While the Covenant came into force in November 1980, before the Covenant or any specific Article of the Covenant becomes a part of our domestic law, Parliament must formally legislate the Covenant in total or any particular Article.

4.5 The existence of the Australian Human Rights Commission is evidence that the Australia Parliament legislated to establish it pursuant to the entry into force of the ICCPR. However, Article 18 dealing with Religious Freedom has not been legislated into Australia’s domestic law as yet.

4.6 By failing to bring Article 18 into domestic law, religious houses and individual believers are dependent on the application of State based discrimination and equal opportunity laws for the exercise of religious beliefs.

4.7 The High Court of Australia has endorsed the view that anti-discrimination and equal opportunity laws as found in various jurisdictions of Australia are intended to protect human rights20.

4.8 Discrimination and equal opportunity laws largely undervalue the strength, depth and sincerity of religious beliefs, in practice and, when relevant, the delivery of goods and services. Too often, the manifestation of religious belief in the delivery of goods and services is trumped in favour of other rights.

4.9 Too often, it is stated that the right to act on a sincerely held religious belief is to grant a right to discriminate21. This claim is transparently false.

4.10 Furthermore, the various discrimination and equal opportunity laws do not recognise the right to manifest religious belief. Rather exemptions are granted, but if challenged, are subject to the determination of tribunals and courts.

4.11 Exemptions for religious beliefs and practices are a poor shadow of the recognition for religious manifestation as stated in Article 18 of the ICCPR. Rarely, do the religious rights of individuals succeed before tribunals and courts.

4.12 Considerable pressure is applied to law makers to either weaken or abolish the exemptions, [as stated above], thus ignoring the driving force which religion provides to its adherents in how they order their lives.

20 Judgment of Mason SJ and Gaudron J in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 found at para 21. For an overview and analysis of this case see Glen Patmore’s article in Melbourne Review, 1999 Vol 4.21 See article by a regular correspondent for the Sydney Morning Herald, Tim Dick, 26 May 2015.


4.13 While discrimination laws acknowledge religion as an attribute against which discrimination cannot be directed, the right to publicly manifest the religion in public is restricted mainly to worship.

4.14 Public acts of refusing to provide goods or services in the course of employment, accommodation or commercial dealings under the banner of a religious belief or conscience is not permitted by discrimination laws.

4.15 Numerous controversial legal cases have resulted in religious believers receiving adverse judgments. Such judgments arise from a religious run resort centre being labelled as a discriminator; to doctors in Victoria opposed to abortion threatened with being struck-off the Medical Registration Certification should they refuse to assist a woman seeking to terminate a pregnancy.

4.16 It is not necessary to discuss the respective cases but each has their origin in the State not permitting religious views to prevail over the exercise of rights enjoyed by non-religious individuals.

5. LIMITATIONS ON MANIFESTION OF RELIGIOUS BELIEFS

5.1 The Human Rights Committee General Comment 22 on Article 18 addresses the question on legitimate restrictions of the freedom to manifest religion or beliefs as found in paragraph 3 of Article 18 of ICCPR.

5.2 Paragraph 8 of General Comments 22, inter alia, says:

The Committee observes that paragraph 3 of Article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner.

5.3 Examples where limitations have been applied include: Osmanoglu and Kocabas v Switzerland22, the European Court of Human Rights (ECHR) held that Muslim parents send their daughters, who had not reached the age of puberty, to compulsory mixed swimming lessons as part of their schooling. The parents’ objection was that this was contrary to their religious convictions. Another example where religious belief was not accepted as an excuse was when male Muslim pupils were unwilling to shake female teacher’s hands. The Canton of Basel-Landschaft (Switzerland) enacted a ruling upon all educational authorities in the Canton that parents would be fined 5000 Swiss Franc should they not direct their sons to shake the hand of a female teacher.

5.4 The Canton said: “the Public interest with respect to equality between men and women and the integration of foreigners significantly outweighs students’ freedom of conscience (freedom of religion)”23.

22 10 January 2017 (European Court of Human Rights – Chamber Judgment)23 The Guardian (UK) 26 May 2016.


5.5 General Comment 22 at paragraph 7 addresses the reliance on the defence of religious belief when contrary to the national interests. It says:

“In accordance with Article 20, no manifestation of religion or belief may amount to propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discriminate, hostility or violence. As stated by the Committee in its General Comments 11, State parties are under the obligation to enact laws to prohibit such acts.

5.6 Clearly, there is no case to argue that religious freedom should operate outside the ordinary laws as made clear by Mason ACJ and Brennan J in the Scientology case24.

5.7 Similarly, there should be no case to argue that somehow religious beliefs should impose a particular moral brand on the activities of other people or groups in a democratic society.

5.8 Likewise, neither should the law extend to adopting high-handed decisions which have the effect of driving religious institutions out of adoption centres, nursing homes, welfare, and modest commercial activity because they are denied the right to run their centres in accordance with their religious beliefs.

5.9 To place in context the need to give balance to the argument between the right of religious belief and those who would wish to privatise religion, the European Court of Human Rights (ECHR) said in Otto-Preminger Institut v Austria:

Those who choose to exercise the freedom to manifest their religion. Irrespective whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They tolerate and expect the denial of others of their religious beliefs and even the propagation by others of doctrines hostile to their faith25..

5.10 The problem, of course, does not reside in religion per se as much as there is in the absence of a proper law which respects the right to hold a religious belief and to live in accordance with that belief.

5.11 It is well established in human rights law that many religious believers organise their lives around their beliefs. They conduct their daily affairs in accordance with their beliefs. Their religion informs their beliefs and conscience. Laws which require religious believers to act contrary to their beliefs are offensive and coercive.

5.12 The recent campaigns against organisations, institutions and individuals who provide facilities or a platform or employment for individuals who oppose same-sex marriage is an illustration of the depth of hostility towards religious inspired beliefs and also against neutral players. The campaigners are treated as moral crusaders while victims are expected to surrender their rights. Discrimination laws do not and have not protected the victims26.

5.13 Provocative and offensive newspaper articles condemning religious exemptions27 and the not infrequent sniping against the teaching of religion in public schools28,

24 See n 12 and n 13 above.25 1995, 19 EHRR34, at para 47.26 See article in the Australian Newspaper, by Senator David Leyonhjelm, 26 April 201727 Sydney Morning Herald, 25 May 2015, article by regular columnist Tim Dick.28 Sydney Morning Herald, 16 February 2017, p 11.


has a negative psychological effect on religious believers. It builds a perception that religion somehow is shameful and under attack.

5.14 Campaigners against the public manifestation of religion often talk up their beliefs and at the time seek to shut down religious beliefs. Conveniently, they ignore the fundamental right to freedom of expression found at Article 19 of the ICCPR that states:

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

5.15 Article 19 is clear even to the most prejudiced person that all lawful expression of views is a fundamental right with the exception only for the protection of national security, public order, public health or morals.

5.16 It should be obvious that the reliance on exemptions and exceptions contained in discrimination laws for the protection of religion (and religious beliefs), be that in the running of, the employment of and the administration of education, health care, welfare distribution activities, all of which are performed because of genuine religious beliefs and conscience, are ineffectual and inadequate.

5.17 The said laws do little to allay fears or give confidence to the players that the sincerely motivated works in which they engage recognise the true meaning of religion.

5.18 To emphasise the point on the depth of religious beliefs, the Economist magazine in 2007 published a special report on religion and public life29. Miroslaw Volf, director of Yale University Centre for Faith and Culture is quoted as saying:

“It used to be said that workers hung their religion on a coat rack alongside their coats. At home their religion mattered, at work it was idle. That is no longer the case. For many people religion has something to say about all aspects of life, work included30.

29 The Economist Special Report on Religion and Public Life, 3 November 200730 Ibid, para 10.


6. SUGGESTIONS AND COMMENTS FOR THE EXPERT PANEL’S CONSIDERATION

6.1 We submit that it is necessary to reflect upon the true meaning and depth of religious beliefs. It is our submission that it is insufficient to stop at that point. It requires additional reflections on the many good works that religious organisations and individuals perform as a contribution to societal development, care and growth in the interest of all.

6.2 These acts are primarily inspired by the religious teaching of good works, prayer and charitable expressions are necessary to enter the afterlife. Religious beliefs and canons of conduct consistent with those beliefs are an essential pathway for the salvation of the soul.

6.3 International Human Rights Courts have recognised the depth of religion. In Sahin v Turkey31, the Grand Chamber of the European Court of Human Rights, held:

“the Court reiterates that, as enshrined in Article 9*, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism in dissociable from a democratic society, which has been clearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practice a religion…32.

6.4 The contribution to western culture and laws of Christian faith has also been recognised dating back many centuries. In 1676 Hale CJ in convicting the defendant of blasphemy in Taylor’s Case33 said:

“…to say religion is a cheat is to dissolve all these obligations whereby the civil societies are preserved and Christianity is a parcel of the laws of England: therefore to reproach the Christian religion is to speak in subversion of the law”.

6.5 Sir Terrence Etherton in a speech on Religion, The Rule of Law and Discrimination delivered on 26 June 2014 at the 2014 Gray’s Inn Reading at Barnard’s Inn, recited that Lord Radcliffe later said to Hale CJ:

“…the bonds of civil society were preserved by religion, and the major institutions of society, including the government and the law had it as their duty to support that form of it known as Christianity”34.

31 (2005) 41 EHRR 8.*Article 9 of the European Convention on Human Rights, This is the equivalent to Article 18 of the ICCPR.

32 Ibid, para 104.33 (1676) 1 Vent 293, 86 ER 189.34 Taken from “Lord Radcliffe, The Law & Its Compass (1960) at 16 – as footnoted in Sir Terrence Etherton’s paper at page 3.


6.6 In quoting the above paragraphs, it is not our position to express support for a Religious Hatred Act or other devices or instruments in support of anti-blasphemy legislation.

6.7 It is our submission that discrimination laws are not the proper place for the protection of religion. The relevant parts of discrimination laws lists religion as an attribute alongside an ever increasing group of other attributes. This merely reduces religion to a form of a personal life choice, belief or desire and most likely relative to the time.

6.8 The motivation and inspiration derived from religion is more likely to be profound, meaningful and anchored in the believer’s daily life which informs daily acts.

6.9 Religion deserves to be protected, not as an attribute only, but as a fundamental right as identified in international human rights instruments. Australia has ratified each of these instruments but to date, has failed to bring Article 18 into our domestic law.

6.10 We submit that Article 18 should be legislated into our domestic law and placed within a designated Part of the Australian Human Rights and Equal Opportunities Act 1986 (AHREO).

6.11 By placing Article 18 within the AHREO Act, it bears an obligation on the Australian Human Rights Commission to recognise ‘thought, conscience and religion’ as a fundamental human right and, furthermore, brings appropriate protection for the manifestation of religious beliefs in public life and in public debates in accordance with the rights contained in Article 18.

6.12 We note the Australian Human Rights Commission (HRC) has held Inquires into the protection of religion and Article 18. Recommendations from these Inquires has not resulted in the bringing of Article 18 into domestic law.

6.13 One recommendation from the HRC was for the possibility of a Religion Act. We do not support the making of a special instrument such as a Religion Act or other similar titled Acts as these would merely compartmentalise religion as an entitlement devoid of true rights, responsibilities or limitations.

6.14 Essential to the right to manifest religious belief is the acknowledgement and acceptance that the threat of compulsion or coercion to force religious believers to act against their beliefs, teachings, doctrine or conscience, not be adopted.

6.15 As we pointed out elsewhere, laws to protect societal values, national values and public integration and harmony are reasonable measures and religious beliefs should not prevail over them.

6.16 The test is that the religious is sincere and genuinely held, and secondly, the expression of religious beliefs need to be within the ordinary laws of Australia.

7. CONCLUSION AND ADDITIONAL COMMENTS –

7.1 We have submitted that Freedom of Religion and the manifestation of religion is recognised as a fundamental human right.


7.2 The foremost International Instrument upon which this freedom of religion is based is the ICCPR. Australia has endorsed this Instrument by reliance upon the power in the Australian Constitution pursuant to s.51(xxix).

7.3 For reasons best known to successive governments, the Instrument has not been legislated into domestic laws in total. Despite the acknowledged importance of religion to many people, the rights enshrined in Article 18 of the Instrument it is not part of Australian domestic law.

7.4 Our submission has attempted to point out that anti-discrimination laws offer, by the use of exceptions and exemption, partial protection to religion and a dwindling respect for conscience. The manifestation of religious liberty is not protected in discrimination laws.

7.5 Our conclusion in this regard is that exceptions and exemption are manifestly inadequate and create the tension that religious freedoms are subservient to the superior claims of other rights. Whether this be true in its entirety or substantially correct, it remains a most unsatisfactory method for the protecting of religious freedoms.

7.6 To put it another way, exceptions and exemptions are part of the discrimination regime whereby one can discriminate with ‘our’ permission. The ‘our’ of course can be compared to the will of the respective State parliament. Religious freedom rights are at the mercy of the politicians. It is precisely the opposite of what a fundamental human right is meant to be – an entitlement.

7.7 Our submission has provided judicial comments and observations on the profound nature of religion and how democratic principles demand the free exercise of the religious beliefs.

7.8 Great religious and philosophical minds over the centuries have asked the deeply penetrating questions of: “Who am I; What am I doing here; is there life after death.

7.9 In an endeavour to unravel the answers to these great mysteries people engage in a search for truth; a search for a God and, if they conclude there most likely is a God (or there is a God), then it follows to ask what is it that God wants of me?.

7.10 It is with this question in mind that our submission is predicated: “What is it that God wants of me?”

7.11 It is this question that has led to the many different practices, customs, establishment of monasteries, religious orders, church organisations and individual codes of conduct. Conduct generally directed to satisfying what is that God wants of me.

7.12 While extolling the merits of this religious development, we also acknowledge that many wrongs, hideous crimes and shameful practices have been committed while hiding behind the cover of religious beliefs.

7.13 But these wrongs, hideous crimes and shameful acts do not negate the very real and long line of enormous contribution over many centuries made by religious believers inspired by the sense of serving their God.


7.14 It is the deep devotion of serving God and avoiding doing an act which may offend their God. That belief should be recognised and protected. This is not a prior to discriminate but a right to lead a life faithful to the service of God.

7.15 What our submission seeks is that this is not a right to discriminate but a recognition that religious orders, churches, ministers of religion, associated service providers and individuals should not be coerced into acts of disobedience to what is sincerely believed to be the Will of God.

7.16 If the Expert Panel shares this view, then it is our submission that laws for the protection of religion should be within the body of the Human Rights Commission ACT 1986.

7.17 As stated previously, there should be no carte blanche protection of religious liberty but an acceptance that acts which are inspired by a sincere and genuine religious beliefs. Acts which are motivated by bias, prejudice, exploitation or intolerance or outside the ordinary law should have no such protection even if claimed to be arising from a religious belief.

7.18 The writer has expounded this view over the past two years, meeting with senior ministers and senior members of the opposition. It has been the long-held view of the writer that religious liberty laws needed to be placed outside the realm of discrimination laws. Further, that such laws require a bi-partisan approach between the major parties to achieve a successful passage through the two Houses of Parliament.

7.19 The writer can confirm that in his discussions with senior members of the respective parties, the proposal has met with respectful approval, at least in principle. It can be said that no member of the respective parties stated any reluctance or opposition for our proposal.

7.20 In closing, we attach separately, a draft Parliamentary Bill (the Bill) which was prepared in the last quarter of 2017 and before the Plebiscite was commissioned. The draft Bill has also been discussed with senior members of the respective parties.

7.21 The Bill aims to cover the important areas pertaining to religious liberty and is based on four premises:

(i) The Bill is founded on Articles 18, 19 and 21 of the ICCPR.

(ii) Its coverage is to areas related to the exercise of religious beliefs by religious orders, churches, associated entities and individuals; and

(iii) The protection is limited to these matters within the ordinary laws and on the basis all acts are an expression of a sincere and genuine belief; and

(iv) It removes the protection of religious liberty away from discrimination laws with their mix of exceptions and exemptions and into the realm of human rights.


7.22All religious organisations and associated entities remain subject to the laws both for prudential scrutiny and avoidance of abuse, particularly in accounting for the use of public funds.

7.23 We note that there may be a concern we are cherry-picking on rights. This is incorrect as the Rudd Government in 2009 enacted amendments to the Human Rights (Sexual Conduct) Act 1994 for the protection of family life. The Amendments to the Act were to bring into domestic law Article 17 of ICCPR.

We consent to the publication of our submission. However, we request that the draft Parliamentary Bill remain confidential and not be published. The Bill is made available to the Expert Panel for their deliberations and to indicate the work and thought that has gone into a possible way for the protection of religious liberty. As mentioned above the draft Bill has been received warmly although no firm undertakings have been given.

The writer would welcome the opportunity to make additional oral contribution before your Expert Panel in this matter if required or deemed beneficial.

R. Mimmo LLMAmbrose Centre for Religious Liberty


Documents

pmc.gov.aupmc.gov.au/.../religious-freedom-submissions/14941.docx · Web view2018. 5. 14. · (Respondent) [2013] UKSC 77. His honour cited the passage and the following description