When is a right not a right?
The Queensland Government is the latest jurisdiction to introduce a ‘bill of rights’ at a State or Territory level.
The Human Rights Bill 2018 (Qld) (the Bill) was introduced to the Legislative Assembly by Queensland’s Attorney-General, the Hon Yvette D’Ath MP. It is similar to legislation already on the statute books in Victoria and the ACT.
According to the Explanatory Notes –
The aim of the Bill is to consolidate and establish statutory protections for certain human rights recognised under international law including those drawn from the ICCPR [International Covenant on Civil and Political Rights], as well as the rights to health services and education drawn from the ICESCR [International Covenant on Economic, Social and Cultural Rights], and property rights drawn from the UDHR [Universal Declaration of Human Rights].
While the aims appear lofty not all is as it seems, especially when it comes to religious freedom.
The ICCPR Article 18 deals with religious freedom in the following terms –
- 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.
- No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
- 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.
- 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.
In contrast, section 20 of the Bill provides as follow –
- Every person has the right to freedom of thought, conscience, religion and belief, including—
- the freedom to have or to adopt a religion or belief of the person’s choice; and
- the freedom to demonstrate the person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
- A person must not be coerced or restrained in a way that limits the person’s freedom to have or adopt a religion or belief.
Note that Article 18(4) is omitted entirely from the Bill and the rights it seeks to acknowledge and protect. This might be what is meant in the Explanatory Notes as they talk about ‘certain rights’ – which seems to be code for those that the Government wants to recognise.
It is also important to consider article 18(3) which talks about the manifestation, living out, of an individual’s religion or beliefs (emphasis added) –
‘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’
The language here sets a very high bar on the limitation of this right. More clarification is provided within the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) which, to borrow the language of the Report of the Expert Panel on Religious Freedom include the principle that for a limitation of a particular right to be ‘necessary’ it must:
- be based on one of the grounds recognised in the relevant article as justifying a limitation
- respond to a pressing public or social need
- pursue a legitimate aim and be proportionate to that aim.
It is also stated in the Siracusa Principles that ‘[i]n applying a limitation, a State shall use no more restrictive means than are required for the achievement of the purpose of the limitation’
In contrast the Bill in section 13(1) dealing with the limitation of rights by the government indicates that (emphasis added) –
A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
It then goes on to add in section 13(2) a number of factors which ‘may be relevant’ in ‘deciding whether a limit on a human right is reasonable and justifiable’ (although the Courts are not required to consider them –
- the nature of the human right;
- the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
- the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
- whether there are any less restrictive and reasonably available ways to achieve the purpose;
- the importance of the purpose of the limitation;
- the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
- the balance between the matters mentioned in paragraphs (e) and (f).
Even a rudimentary comparison of the two approaches to limiting government action leads to the inevitable conclusion that protections under this Bill fall far short of those under international law. The equivalent legislation in the ACT and Victoria suffer from the same shortfall.
This was recognised in the Interim Report – Legal Foundations of Religious Freedom in Australia by the Commonwealth Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade who acknowledged ‘a lower threshold for when religious freedom may be limited’. The Report went on to say that the ‘threshold of “reasonable” rather than “necessary” diverges from the ICCPR and international human rights jurisprudence.’
While the introduction of a ‘bill of rights’ type instrument might ostensibly appear to protect religious freedoms the experience to date in the Australian context seems to suggest quite the opposite. In passing such legislation domestically Governments seem insistent on providing lesser constraints on their ability to restrict freedoms than our obligations under the international covenants we have adopted provide.
When is a right not a right? When it can be taken away by the State.