Human Rights Sub-Committee – Interim Report on Religious Freedom

In November 2016 the Human Rights Sub-Committee, chaired by the Hon. Kevin Andrews, of the Joint Standing Committee on Foreign Affairs, Defence and Trade was tasked with examining ‘the status of the freedom of religion or belief … around the world, including in Australia.’ 

CSA made a joint submission with Adventist Schools Australia to the sub-committee earlier this year – a copy is attached below.

The Interim Report is the first report to be released after a number of public consultations throughout the year. The Chair to the report outlined the importance of religious freedom in Australia in page vii to the Report:

“Australia has a proud record as a modern, liberal democracy, one of the freest societies in history. Over the last hundred years Australia has also become one of history’s most culturally, ethnically, and religiously diverse societies. Australians from all backgrounds have long enjoyed liberty to live their lives as they see fit and pursue their goals as they wish. Many Australians or their ancestors have fled persecution or war seeking a better life for their families and have found it here.

Australia’s record is not perfect, and like any nation it has sometimes failed to live up to the high standards of human rights and freedoms that we have come to expect in the Western world. Nevertheless, despite this, most Australians have enjoyed, and continue to enjoy, a quality of life and a degree of freedom that is remarkable in a historical context.

The right to freedom of religion, thought, conscience or belief is one of the pillars of this liberty. Many Australians are descended from people who fled persecution for their faith. Early European settlers came from Catholic, protestant, and Lutheran traditions. Orthodox Christians, Muslims, Hindus, Jews, Buddhists, and many others have found freedom here too. Aboriginal people continue to practice their indigenous faith traditions. And people with no religious adherence, including atheists, live free from coercion or persecution by religious authorities.”

Released in response to the preceding public consultations, the Interim Report examined the balance in Australia between the freedom of religion or belief and other human rights. The scope of the report is as stated on page 2 of the report:

“1.4 This Interim Report focuses on the legal framework in Australia and its effectiveness in protecting religious freedom, drawing on the evidence received in the public hearings and in relevant submissions. The Sub-Committee takes the view that it would be most appropriate to review and report on religious freedom in our own country before turning to the wider world.

 1.5 Primarily, the submissions used for this Interim Report are from legal scholars and organisations and from governments and government bodies. There is much further evidence from religious and secular groups, community organisations and members of the public which is relevant to the questions raised in this Interim Report, but for the purposes of the report only a smaller number of submissions that directly address the specific legal issues will primarily be used.”

The biggest problem that was uncovered by the Interim Report was that of balancing the right to freedom of religion or belief with other rights, in particular the right to non-discrimination. As stated on pages 75-76 of the Report:

“7.1 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.

7.2 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. […]

7.3 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 overall focus of the inquiry to date is around whether there is a balance of the freedom to religion or belief in Australia and other freedoms of human rights (p 90).

“7.54 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.

7.55 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.”

This Interim Report is a very useful document and will undoubtedly be carefully considered by the Ruddock Review being undertaken in the New Year.