Freedom of religion must be protected under Australian law and balanced with other rights

Freedom of religion must be protected under Australian law and balanced with other rights

Today the Human Rights Law Centre will appear before the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee to give evidence for the inquiry into the status of the human right to freedom of religion or belief.

Human Rights Law Centre's opening statement

Thank you to the Committee for inviting us to give evidence today.

My name is Anna Brown and I am the Director of Advocacy at the Human Rights Law Centre. I am joined by my colleague Lee Carnie, a lawyer at the Human Rights Law Centre.

The Human Rights Law Centre is an independent, not-for-profit organisation which advocates for the protection and promotion of human rights in Australia. We work across a range of areas including advocating for reform to anti-discrimination laws and stronger protection of human rights – including protection of freedom of religion.

We have also litigated in support of freedom of religion, specifically, we intervened in a High Court matter to argue that council-by laws in Adelaide impermissibly restricted the free speech and free expression of religion by Christian street preachers.

The right to freedom of thought, conscience, religion and belief is a fundamental right under international human rights law. Under international human rights law every individual has a right to adopt a religion or belief, to associate with others with the same religion or belief, and to manifest that religion or belief in worship, observance, practice and teaching.

Despite this, around the world human rights abuses are perpetrated against religious minorities both by state and non-state actors. Systematic violations against people because of their religion or belief happen in countries close to Australia like Burma, Bangladesh, North Korea, Pakistan and India.

Conversely, many human rights violations around the world are perpetrated in the name of religion, including persecution of religious minorities, mistreatment of women and attacks on lesbian, gay, bisexual and transgender people.

However, the focus of our submission and our contribution today is the protection of religious freedom in Australia.

Australia is a diverse, multicultural and multi-faith country which has a responsibility to ensure people from a range of different religious and non-religious beliefs can live together in harmony and peace.

Australia has not yet translated the international obligations it signed up to into our domestic law. There is a patchwork of legal protections across the states and territories that protect people from discrimination and vilification on the basis of their religion. With the exception of workplace protections, there is a gap in federal law when it comes to legal protection from discrimination on the basis of religious belief. 

We would support remedying this problem through the introduction of a federal Human Rights Act that protects freedom of religion and belief, among other rights, and the addition of religious belief (including non-religious belief such as a humanist, atheist or other belief that is not religious in nature) to those attributes already protected under federal discrimination law.

Central to this inquiry is the question of how we can ensure people can practice their faith freely and without fear of discrimination or persecution, while ensuring that religious belief is not used as an excuse for overriding the rights of people of other faiths or who are not religious.

While the right to hold a belief is absolute – the right to manifest that belief can be limited when it conflicts with the right of others.

Human rights principles require that these competing rights and interests are considered and the right to manifest religious belief through conduct is limited where legitimate, reasonable and proportionate.

Hence, if the parliament were to enshrine the protection of religious freedom in a Human Rights Act such an Act must also provide for a mechanism to enable limitation of these rights if reasonable to do so. And if discrimination protections are introduced they must be accompanied by appropriate defences that operate in cases where unfavourable treatment is reasonably justifiable.

In Australian discrimination law as it currently stands, the permanent exemptions available to religious organisations do not strike the right balance. The mere existence of these exemptions operate as a barrier to vulnerable people – such as single mothers and transgender people - to access vital services provided by faith based organisations, organisations that often receive government funds to deliver these services. 

We strongly urge the committee to consider the need to review and amend these provisions to ensure that efforts to protect religious freedom do not come at the expense of protecting vulnerable people from harm.

Our submission is available here and the public hearing will be streamed live from 10am to 12pm online.