ĐĎॹá>ţ˙ ‘“ţ˙˙˙Ž˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙˙ěĽÁ%` đż\bjbj"x"x <Đ@@ž2@!&˙˙˙˙˙˙¤6U6U6UˆžU`VVV2VúŽúŽúŽ82ŻĚţŻü2VRŒąą"(ą(ą(ąp˛p˛p˛ŃÓÓÓÓÓÓ$ŢhFh÷Vî˝p˛p˛î˝î˝÷VV(ą(ąH ĹĹĹV(ąV(ąŃĹî˝ŃĹĹĺ0VVŃ (ąú° IS#-ĘúŽœżz PŃ"0Re lŽÂ~Ž Ń Ń \ŽV- ¤p˛ÚJśŔĹ š4>ť°p˛p˛p˛÷÷”Ălp˛p˛p˛Rî˝î˝î˝î˝2V2V2V$QV§¤2V2V2VV§2V2V2VVVVVVV˙˙˙˙  Submission to the şÚÁĎÇ鹨՞ and Australian Multicultural Foundation Freedom of Religion and Belief in the 21st Century project February 2009 Acknowledgements The Australian Christian Lobby (ACL) welcomes this opportunity to make a submission to the şÚÁĎÇ鹨՞ (AHRC) and Australian Multicultural Foundation Freedom of Religion and Belief in the 21st Century project. While this paper takes issue with the very motivation for this project, ACL would want to acknowledge its appreciation for the consideration of AHRC in developing its response and particularly Mr Haas Dellal and Ms Athalia Swartz. Executive Summary The Discussion Paper suggests that the present period is an important opportunity to “define and influence the future of religious freedoms and belief within Australia.” This seems to imply the need for national legislation of the type we have in some states which purport to enhance religious freedom. ACL strongly argues otherwise and believes that: The assumptions embedded in the project, in public statements made by those associated with the project, and in the Discussion Paper downplay the significance of religion to individual Australians and the community; Given the harmony between religious adherents in Australia, and the lack of complaints about religious freedom, there is no need of the inquiry or new legislation in this area; Australia does not require a legislated statement of Article 18 of the International Covenant on Civil and Political Rights (ICCPR/International Covenant), whether in a Commonwealth Religious Freedom Act, or any other instrument such as a charter or bill of rights; Religious vilification legislation and state-based charters of rights already put in jeopardy the fundamental right to freedom of religion; If properly observed, Section 116 of the Commonwealth Constitution and our accession to Article 18 of the ICCPR provide sufficient protection to people of faith from illegitimate state interference in the area of religious freedom; All Australians, regardless of their religious beliefs or affiliations, are entitled to free and open participation in the public processes and institutions of Australia’s democracy, as individuals and in groups; and, Religious organisations, including faith-based charities and educational institutions, should be free to organise, staff, and operate their organisations consistent with their faith values and beliefs, as long as it is a legitimate manifestation of their religion. Format This submission is in two parts: Part I addressing the legal aspects of freedom of religion and Part II some of the other issues raised in the discussion paper. PART I – LEGAL ASPECTS OF FREEDOM OF RELIGION Introduction The major recommendation resulting from the Commission’s 1998 review of religious freedom in Australia is that the Commonwealth should enact a federal Religious Freedom Act which would protect freedom of religion and belief and make discrimination on the ground of religion or belief and certain public acts of religious vilification unlawful. One reason for the recommendation is that Australia acceded in 1980 to the 1966 United Nations International Covenant on Civil and Political Rights (without reservation on the freedom of religion Article 18) and in 1991 acceded (similarly without objection or reservation) to the First Optional Protocol, which enables the Human Rights Committee to hear individual petitions concerning violation of International Covenant rights. In spite of being bound by such international obligations without reservation the Commonwealth has not specifically enacted into domestic law provisions which give effect to those obligations other than in a limited way, such as in the area of hate speech through enactment of the Racial Discrimination Act 1975. This submission, representing those keenly in favour of religious freedom, argues against any enactment (either of a human rights charter or a national domestic equivalent of Article 18 of the International Covenant) for the following reasons: The most suitable model for religious liberty in Australia is believed to be Article 18 of the International Covenant and not a domestic enactment of the text that departs from it; A domestically incorporated version of Article 18 (even in identical terms to Article 18) would be subject to judicial interpretation and application that would result in departure from Article 18; The terms on which the freedom is restricted in domestic enactments (e.g. by human rights charters) habitually depart from Article 18(3), and give the state wider scope for restricting the freedom than Article 18(3) itself, as already illustrated in Australia by the human rights charters of the ACT and Victoria –undermining the rights that are supposed to be guaranteed; It is preferable, in a common law system such as Australia’s, to emphasise that there is freedom to do anything that is not expressly prohibited – the lack of enactment of Article 18 in Australia speaks well of Australia as a democratic society in which the freedom already exists to do everything within the scope of Article 18 – the mere fact that Australia has ratified the International Covenant and recognises the limited circumstances in which Article 18 rights may be restricted is sufficient protection against state action in denying religious freedom. A strong preference is expressed for the avoidance of a charter of human rights. If it is determined that a charter is to be enacted, or any domestic enactment of Article 18, the 4 concerns in this submission are equally applicable to the content of the charter or that domestic enactment. Reform in this area is not necessary but if there is to be any reform it should also be minimal to be effective. The following aims are considered to be of prime importance: Maintain the standard set by Article 18 with least possible erosion through a charter or other domestic enactment that would allow judicial discretion and extension of certain rights at the expense of others. Give effect to the positive guarantee of freedom of religion subject to restriction only on strictly specified grounds (Article 18(3) and Siracusa principles discussed below) and in strictly confined circumstances, as already established in the context of the International Covenant. Avoid some of the serious shortcomings of: The human rights charters of Victoria and the ACT (the ACT’s Human Rights Act 2004 and Victoria’s Charter of Human Rights and Responsibilities Act 2006); and, The religious anti-vilification legislation of Victoria, Queensland and Tasmania. If there is to be any ‘anti-vilification legislation’ on grounds of religion, it is submitted that it should be confined to the narrow scope of Article 20 of the International Covenant in order to prohibit only extreme and clear cases of religious hatred that constitute incitement to discrimination, hostility or violence, and should only be actionable by criminal prosecution. Minimise private litigation in matters of freedom of religion. Parallel rights should not be created which may be asserted in such a way as to undermine the freedom of religion (or other human rights), such as Rights beyond those already recognised in the International Covenant, or Private rights of action based on human rights. Each of these points is considered in turn under the headings as per the Contents page. Article 18 and use of limitation provisions Text and limitation provisions The terms of Article 18 of the International Covenant are clearly understood. The rights in Article 18 may be restricted only to the extent stated in so-called limitation provisions, which specify the grounds and circumstances in which it is permissible for the state to do so. In the case of Article 18 of the International Covenant the limitation provision is found in Article 18(3): 5 Article 18 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. Excessive power in State/Territory legislation to restrict fundamental rights The absence of any positive guarantee of freedom of religion in Commonwealth legislation (beyond limiting legislative power in section 116 of the Constitution) is not known to have resulted in any loss of enjoyment of the freedom of religion. The stand-out feature of current State and Territory legislation in the same field is the breadth of the power available to the state to restrict the rights that are supposedly guaranteed. The contrast is stark. In the case of human rights charters (the ACT’s Human Rights Act 2004 and Victoria’s Charter of Human Rights and Responsibilities Act 2006), text is included which mirrors the positive guarantee of freedom of thought, conscience and religion found in Article 18 (section 14 in both cases). However, the limitation provisions in the charters bear little resemblance to Article 18(3) of the International Covenant in their practical and legal effect. They read as follows: Human Rights Act 2004 (ACT), section 28: 28 Human rights may be limited 1. Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society. 2. In deciding whether a limit is reasonable, all relevant factors must be considered, including the following: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve. Charter of Human Rights and Responsibilities Act 2006 (Vic), section 7: 7 Human rights—what they are and when they may be limited 2. A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including— (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. 3. Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person. Firstly, the departure of these provisions from Article 18(3) is evident from the text: there is no boundary in the grounds on which freedom of religion may be restricted, such as those in Article 18(3) “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. The concept of necessity of the restriction is also not adopted at all. Secondly, divergence from Article 18(3) is evident in the range of matters which go to determine when a limitation is ‘reasonable’ in the charters. This is in contrast to the rigour to be imposed in the use of limitation provisions in the International Covenant, as established by the following Siracusa Principles, relating to the conditions and grounds for permissible limitations and derogations enunciated in the International Covenant in order to achieve effective implementation of the rule of law: 1. No limitations or grounds for applying them to rights guaranteed by the Covenant are permitted other than those contained in the terms of the Covenant itself. 2. The scope of a limitation referred to in the Covenant shall not be interpreted so as to jeopardize the essence of the right concerned. 3. All limitation clauses shall be interpreted strictly and in favor of the rights at issue. 4. All limitations shall be interpreted in the light and context of the particular right concerned. 5. All limitations on a right recognized by the Covenant shall be provided for by law and be compatible with the objects and purposes of the Covenant. 6. No limitation referred to in the Covenant shall be applied for any purpose other than that for which it has been prescribed. 7. No limitation shall be applied in an arbitrary manner. 8. Every limitation imposed shall be subject to the possibility of challenge to and remedy against its abusive application. 9. No limitation on a right recognized by the Covenant shall discriminate contrary to Article 2, paragraph 1. 10. Whenever a limitation is required in the terms of the Covenant to be "necessary," this term implies that the limitation: (a) is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant, (b) responds to a pressing public or social need, (c) pursues a legitimate aim, and (d) is proportionate to that aim. Any assessment as to the necessity of a limitation shall be made on objective considerations. 11. In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation. 12. The burden of justifying a limitation upon a right guaranteed under the Covenant lies with the state. The Siracusa principles which seem to be most neglected are Principle 1 (no grounds of limitation are mentioned, so it is not possible to confine restrictions only on grounds such as to “protect public safety, order, health, or morals or the fundamental rights and freedoms of others”), Principle 3 (there is no mention of strict interpretation of limitations in the domestic charters, or the favouring of the right concerned), Principle 10 (the concept of ‘necessary’ is not imported at all, only ‘reasonable’, and there is no requirement that the limitation answer a pressing public or social need, pursue a legitimate aim etc). Even the basic constraint equivalent to that highlighted by the Human Rights Committee in General Comment No.22 has not been adopted, that “limitations imposed must not be applied in a manner that would vitiate the rights guaranteed”. The third point of divergence from Article 18(3) is that, in the case of the human rights charters, much is left to judicial discretion in the interpretation and application of limitation provisions. More is said of this in the next section (judicial interpretation). In short, human rights charters do not apply the same international standards for the use of limitation provisions. The effect of this is aggravated by the range of judicial discretion available in the application of limitation provisions. By contrast to the rigour which ensures that limitation provisions may be relied on only in tightly prescribed circumstances, State and Territory human rights charters gives enormous scope to the state to remove rights, far greater than is contemplated in Article 18. The result is that the charters enable the state to restrict rights that are supposedly guaranteed in a far greater range of circumstances than are prescribed by Article 18, especially when read in conjunction with General Comment 22 and the Siracusa principles, thus subtracting (to a greater degree than is possible under the International Covenant) from rights that are ostensibly guaranteed under those charters. It is submitted that Article 18 of the International Covenant is, and should remain, the yardstick for the content of the freedom of religion in Australia, where limitation provisions are read and construed in accordance with established principles of international law with no, or only minimal, local judicial interpretation, which would inevitably produce inconsistency and departure from those principles. This would avoid the untenable situation in which positive rights appear to be conferred when in substance they are subject to greater restriction than would be permitted under Article 18. Enactment of a positive guarantee of the same scope as Article 18 is not only not necessary (not even to achieve compliance with Australia’s international obligations) but could be positively damaging, since it carries the risk (as demonstrated by existing Australian human rights enactments) that over extension of limitation provisions itself will result in a violation. Judicial interpretation The content of the fundamental right to freedom of religion should not be susceptible to change by judicial interpretation as in domestic human rights charters One reason for preferring to avoid any domestic guarantee of freedom of religion is that it is extremely important that the scope for judicial influence on the content of the guarantee of freedom of religion should be minimised. The same point applies to whatever model is implemented at the end of the day. Judges, with respect, are unelected and through Australia’s common law system inevitably have enormous potential to influence the content of fundamental rights in this field as litigation ensues. This point has nothing to do with judges trumping the will of parliament. (It is recognised that some human rights models, such as the UK’s Human Rights Act 2000 and the ACT and Victorian charters, do not give the judiciary direct power to strike down legislation (and effectively over-rule parliament)). The concern about the scope for judicial discretion is quite separate. As stated, it is recommended that the yardstick for determining the meaning and content of the freedom of religion in Australia be Article 18 of the International Covenant without the need for national or State/Territory legislation. This would achieve closest consistency with Australia’s existing obligations under the International Covenant. The interpretation of Article 18 is well established. But the existing human rights charters exemplify the risk that judicial discretion will render key human rights devoid of their intended content, for the following reasons. The example of human rights charters The weak and vulnerable in society are often the focus and justification for human rights charters. No one could sensibly disagree with this. It is hoped that everyone would enthusiastically support, for example, all the guarantees in Australia of the obligations set out in the International Covenant and other UN treaties, especially for the protection for minorities, children, those with disabilities and the elderly. However, that is worlds apart from expressing support for a domestic human rights charter. In fact it is because these commitments and their aims are so highly valued that domestic charters are opposed. Experience of Australian charters shows they secure less than for example is guaranteed by Article 18 of the International Covenant. Also more still may be removed from those guarantees through the powers and functions of courts that determine the content of essential guarantees. An example of wide judicial discretion conferred in the determination of fundamental rights is found in section 31 of the ACT charter, which stipulates that, “So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights”. A similar provision is found in section 31 of the Victorian charter. The International Covenant is no longer the yardstick Among the ACT’s laws that are to be interpreted this way obviously is the charter itself (since section 29 unequivocally applies the interpretation provisions to “all Territory laws”) and that includes the freedom of religion in section 14 alongside the other human rights guarantees. Section 31 then deals with how human rights are to be interpreted and does not require international standards such as Article 18 to be the benchmark for interpretation. International law simply ‘may’ be considered: 1. International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right. 2. In deciding whether material mentioned in subsection (1) or any other material should be considered, and the weight to be given to the material, the following matters must be taken into account: (a) the desirability of being able to rely on the ordinary meaning of this Act, having regard to its purpose and its provisions read in the context of the Act as a whole; (b) the undesirability of prolonging proceedings without compensating advantage; (c) the accessibility of the material to the public. (The equivalent provision in the Victorian charter is section 32.) The result is that international law and the extent to which it may be considered in interpreting a human right is left to the discretion of the judge (note “may be considered”), with the range of matters which are to be taken into account, in deciding whether international law should be considered, being far-ranging and dependent on the judge’s notions of ‘desirability’ and ‘undesirability’ of the factors listed. It is simply inappropriate for judges effectively to award fundamental liberties to the individual or take them away according to such ill-defined principles. This is especially true of freedom of religion which is the subject of Australia’s pre-existing international commitments. The ACT charter purports to give its judiciary the power to trump Article 18 of the International Covenant. This cannot be right. Judicial interpretation of human rights will affect, and be affected by, other laws The rules of interpretation in the ACT’s human rights charter apply not simply to the guaranteed rights in the ACT charter but extend also to everything else in the ACT’s statute book. The charter enables the Supreme Court to make a declaration of incompatibility with a Territory law if an issue arises in a court proceeding about whether a Territory law is consistent with a human right. (This is similar to the approach taken in the UK Human Rights Act 2000 and in sections 33 to 37 of the Victorian human rights charter aimed at preserving parliamentary sovereignty while at the same time bringing pressure to bear for changes in existing legislation.) Provision is also made for the scrutiny of proposed Territory laws, all intended to conform Territory laws to the judicial interpretation of human rights under section 31. The potential reach of that judicial interpretation is unfathomable. Most concerning of all is that it is not anchored to any firm reference point such Article 18 – on the contrary, liberty is given to the judiciary to depart from international law, with ramifications for all other laws in the jurisdiction. Quite apart from the magnitude of the impact of judicial discretion on the interpretation of human rights, which in turn will determine all other laws within the jurisdiction, is the effect that the assertion of any legal rights (not just human rights) will have in private litigation, at a minimum through the reinterpretation of all laws, including those that give rise to private suits, to achieve compatibility with human rights. A declaration of incompatibility under the ACT human rights charter, for example, of itself may not immediately affect the rights or obligations of anyone to the litigation which gives rise to the declaration. But the body of law developed by judges through their interpretation of human rights under section 31, whether in private actions or those directed against the state, will be the law applicable throughout the jurisdiction, and parties to litigation may appeal to the law developed by the judiciary in subsequent proceedings. Widened ambit for judges to rule on conflicting rights even in private litigation Every case which is judicially determined turns on particular facts. In some cases different human rights may be in apparent conflict. In other cases a human right may be seen to be in conflict with a right which is not a human right. Whenever there is judicial interpretation at the expense of a human right, it may have authoritative value in subsequent litigation. The greater the range of contests in which human rights are at issue, greater is the range for uncertainty and inconsistency in the scope of fundamental rights and successive undermining of particular human rights when in conflict with other rights. Human rights thus enter the arena of private litigation. This is wholly undesirable when the content is determined by the judiciary but it is also unnecessary. The context in which human rights are determined in private litigation is quite different from, for example, the UN context which contemplates guarantees actionable only against the state. Decisions made in private litigation are likely to produce results for guaranteed freedoms that would be inappropriate when rights are asserted only against the state. Nevertheless, judicial decision in private litigation will establish general principle and influence the content of human rights. Human rights – a sword and a shield Conventionally, human rights provide guarantees against the state only, not as between private parties. The rights that are listed in the ACT and Victorian charters are drawn from the International Covenant, which itself only requires the contracting state parties to the Covenant to uphold the guarantees in their relations with individuals, but not between individuals. This distinction is not made in the charters but is extremely important. Certain provisions apply only to the state, such as the obligation on public authorities to act in a way that is compatible with human rights. But the most far-reaching, such as the principles of interpretation described above, are not stated to be confined to individual-state relations. For example, the ACT charter clearly states that only individuals have human rights. This applies equally to the individual’s relations with the state and to the individual’s relations with other non-state parties, effectively to secure human rights not only from the state but from other private individuals or entities. The result is to create claims in private litigation that would not otherwise exist on the basis of human rights owed by non-state actors and to broaden the range of human rights issues on which judicial precedent will be developed, far removed from the context intended for the International Covenant freedoms. Erosion of the content of human rights It is submitted in the light of the above that this level of judicial discretion and basic uncertainty in the interpretation of fundamental human rights is unacceptable. In addition, although individual judicial decisions turn on particular facts at issue, they often have (or are taken to have) broader application which may be inappropriate to other factual contexts. It should be a priority to avoid the uncertainty that inevitably results when judicial discretion is permitted in the interpretation of human rights. Private human rights claims encourage intolerance Also, the introduction of private actions based on human rights, so that they may be asserted against private individuals or groups rather than the state only, is divisive. The case law generated by such conflicts will inevitably be at the expense of human rights since one human right or interest will be pitched at another, and one will inevitably have to give way. The International Covenant did not have this in mind at all. If the state is to remain the guarantor of human rights, as indeed it should, then human rights claims should be directed only against the state – and not private parties. As soon as human rights can be asserted by private parties, whether individuals or religious groups, they will be. A culture of rights assertion will be generated on religious grounds when instead tolerance should be the touchstone. The role of the state in securing tolerance It would be a simple thing to apply human rights only against the state and avoid private litigation based on human rights. This is not to forget Articles 2 and 3 of the International Covenant, which require the state (as in Article 2) not only to undertake to respect but also to ensure the guaranteed rights without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, etc and to ensure an effective remedy for violation and ensure that rights are enforced. Article 3 requires the state to “undertake to ensure the . . . enjoyment of all civil and political rights set forth in the present Covenant”. These provisions require action by the state when private individuals or groups interfere with enjoyment of rights by other private individuals or groups. In this way the state is accountable for non-intervention. It also requires the state to be impartial and active in its duty to secure the enjoyment of rights by citizens. This is considered to be the appropriate approach to achieving the enjoyment of rights by private (i.e. non-state) entities in the face of the actions of other private entities. It would also avoid the proliferation of confusing case law resulting from litigation between private parties. Further, it is entirely right that the state should have responsibility in this area and not leave private parties to pursue each other for rights which it is the duty of the state to secure. The strongly preferred approach therefore is for the retention of the text and meaning of Article 18 of the International Covenant devoid of such discretion and uncertainty as to the scope of guaranteed rights, without enactment of Article 18 in isolation or in a charter, but instead by leaving matters as they currently stand. Vilification legislation is not the appropriate vehicle for fostering tolerance Much of the preamble to Victoria’s Racial and Religious Tolerance Act 2001 and its objects are commendable. One would hope few would disagree, in particular, with the Victorian Parliament’s recognition (in the preamble) that: “freedom of expression is an essential component of a democratic society and that this freedom should be limited only to the extent that can be justified by an open and democratic society”, and “the right of all citizens to participate equally in society is also an important value of a democratic society”. Likewise with the objects of the Act to “promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy”, and at the same time “to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate”. The points of concern arise in the almost impossible task of legislation which seeks to balance these rights, particularly the means to ensure that “such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons” and to “promote conciliation and resolve tensions between persons who .. vilify others on the ground of race or religious belief or activity and those who are vilified” which in practice are counter-productive and inimical to those objects. The operative provisions of the Act are too broad and defeat its declared aims. The Act is far too restrictive of essential freedoms for all religions and open to misuse at the hands of private litigants. In substance it confines free speech and religious practice to its most conservative forms and is stifling of the sort of free speech in society which can and should be used to expose the grotesque attitudes that incite religious hatred. It is impossible to make a workable distinction between religious beliefs and non-theistic or atheistic beliefs (no such distinction is made, for example, by the Human Rights Committee in relation to Article 18) yet it would be unthinkable to apply anti-vilification legislation to non-religious beliefs as to do so would offend basic principles of political and other forms of expression. Article 20 of the International Covenant is considered to offer the appropriate model for legislation in this area, provided it is actionable only under criminal law, at the behest of the Director of Public Prosecutions or the Attorney-General, according to a standard which would comfortably prohibit the extreme forms of hate speech incitement that have been exhibited amid the Yugoslav wars, in Rwanda and by neo-Nazis, but not so as to discourage open debate and opposition to or criticism of religious or other beliefs. In addition, anti-vilification laws have much in common with blasphemy laws in that their use may be motivated by offence, based on statements directed against religious belief, or may be used simply to deter statements against a particular belief system (even if legislation is framed primarily to catch conduct that incites hatred only against those who hold particular beliefs). For as long as private remedies are available they are likely to be used in this way. Also, blasphemy laws have a long history of being discriminatory (including the historical approach to blasphemy which favours only Christianity). Minority religions in Australia, particularly immigrants in recent history, are among those who have the most to say of value in informing public debate on important religious issues based on their experience which may be critical of other religions. Of all societies Australia, for its multi-faith, multi-cultural composition, should preserve the essential liberties of citizens that characterise a free democratic society (which so many come to Australia to enjoy). At the same time, there are more effective means, such as education, to address bigotry, intolerance and prejudice by positive means. More detailed consideration is now given to Victoria’s Racial and Religious Tolerance Act 2001, including the following issues raised by the Supreme Court of Victoria’s decision in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc since the judgment in that case exemplifies some of the problems with attempting to legislate for tolerance. Liability is too easily triggered and in reality impossible to assess Liability under the Act is too easily triggered. It is also impossible to make a sensible assessment of whether any statement will be caught. Whether conduct will have the effect of inciting hatred or other relevant emotion will depend on the perception of the audience. Even the principles by which the speaker is to assess the audience in order to avoid liability are far from straightforward. In the Catch the Fire case, Nettle JA reviewed the approach to this task taken in the decision in Kazak v. John Fairfax Publications Ltd, to the effect that one was to ignore any special characteristics or proclivities to which the audience or potential audience might be subject and to assess the matter by reference to the standard of the “ordinary reasonable reader”. In other words, one was to assume a “person of fair average intelligence who is not perverse, morbid, suspicious of mind or avid for scandal”. By contrast to that approach, Nettle JA in Catch the Fire considered that “one may usually assume a degree of reasonableness . . . But . . . the perception of a reasonable member of the class of persons to whom conduct is directed will not always be the same as the perception of the so-called ordinary reasonable reader . . . for the purposes of s.8 I think the test is different. It is a question of whether the natural and ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case.” However, even this is not so straightforward. As Neave JA pointed out, the concept of “a reasonable member of a class” may be inappropriate in the context of racial or religious vilification (highlighting the absurdity of applying the test to determine whether anti-Semitic comments would incite a ‘reasonable’ neo-Nazi). Neave JA preferred instead to consider the effect of words or conduct on an ‘ordinary’ member of the class to which it is directed, also allowing for changing social context such as sensitivities during times of war. With respect, these distinctions are too fine to apply in practice and as a result too inhibiting in the light of the risks of liability. In addition, these distinctions still do not overcome the fact that it is impossible to be aware of the entire composition of an audience. Even if that is possible, it is impossible to predict the perception of the audience. Yet this is what at the end of day determines liability. At this point it is necessary to look at the effect of the practical operation of section 8 in the Catch the Fire case. The seminar in question was directed at evangelical Christians but attended by three recent converts to Islam who could not have been identified as such. Only one of them was present at any time. It cannot be right that the presence of a solitary person is sufficient to invoke section 8 even if that person is not representative of the class to whom the relevant conduct is directed. If free speech is curtailed because of the presence of a single audience member that does not belong to the target audience, the legislation is overwhelmingly restrictive. Yet that was precisely the situation for the Catch the Fire pastors. The matter has been remitted to the Tribunal to be heard and decided again without the hearing of further evidence, and may or may not be determined differently. The effect of the legislation so far has undoubtedly been to silence an enormous range of expression, both religious and otherwise, and irrespective of whether ultimately it falls under the Act. It will be necessary to give the Act a wide berth in order to avoid liability, which for most individuals could result in personal bankruptcy, given the cost of defending an action. It is also noted that liability can be incurred without causing hatred or serious contempt or revulsion or serious ridicule at all. Protection given to fundamental rights only by way of defences that must be proved Some of the most fundamental human rights, namely the right to freedom of thought, conscience and religion (including the outward expression of religion e.g. by promoting particular beliefs and teaching), and the right to freedom of expression are relegated, in the Racial and Religious Tolerance Act, merely to the status of available defences. It is important to appreciate the structure of the Act. The causal connection with ‘the ground of the religious belief or activity of another person or class of persons’, relevant to section 8, is the effect on the target audience i.e. whether the audience was incited to hatred, contempt etc. The question is not whether the alleged inciter was actuated by the religious belief or activity of the alleged victim, and so the alleged inciter’s motive is irrelevant, as indicated in section 9. The motive and purpose of the offending statement only seems to be relevant for section 11 purposes in determining whether a defence is available. The result is that once an action is brought, it is for the defendant to discharge the burden of proving the relevant activity falls within an available defence, i.e. the burden of establishing that the conduct was engaged in bona fide and reasonably for a genuine purpose within the meaning of section 11 is on the defendant. This burden is not so easily discharged. As Nettle JA acknowledged, on the question whether conduct was engaged in reasonably for a genuine purpose (just to take one element) still remains a difficult one to answer. What is ‘reasonable’ involves impossible boundary detection in the weighing of different interests and perceptions of society. Where such a low threshold exists for invoking section 8 liability, the risks and uncertainty remain for anyone to defend their action on the basis that it was engaged in ‘reasonably’ and in ‘good faith’ for a ‘genuine’ ‘religious purpose’, where each of these terms is subject to judicial interpretation. This is beyond the professional capability of most religious leaders, for example, yet is frequently an essential part of their vocational training that they be taught comparative aspects of religion, and often an essential part of their vocation in an open multicultural society that they teach or preach with comparative content and encourage those in their pastoral care to be better informed about the distinctiveness of their beliefs in contrast to the beliefs of other faiths. This is all the more the case with faiths that may be in contradiction to their own faith, or indeed direct opposition. It was necessary to explain, by means of the recently added Section 11(2), that a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising. The fact that it was necessary to add this is indicative of the uncertain scope of the legislation as a whole, the level of its encroachment on rights that in other contexts (such as the International Covenant) are axiomatic, and the fact that objection to proselytising and teaching is so easily foreseeable. These matters should not be the subject of defences in order to avoid liability but should be the subject of a positive guarantee. Judicial discretion Mention has been made separately above of judicial discretion. By way of illustration in the context of the Racial and Religious Tolerance Act, as with all matters of statutory construction, the terms ‘proselytising’ and ‘teaching’ are susceptible to judicial interpretation. It would be highly undesirable if the terms were given an interpretation that departed from that established in the United Nations (quite apart from the inappropriateness of it being something for the defendant to prove). These terms might, for example, be construed to apply only to statements made by reference to one’s own faith. They might be construed to prevent any negative statement about another faith. This would be highly damaging to freedom of religion and freedom of expression yet is easily foreseeable. It is simply the result of enactment of prohibitions on free speech with a low threshold, subject to judicial interpretation, and with the burden of justification of legitimate acts on the defendant. Liability may be incurred even when speaking the truth in a balanced way The absurdly wide ambit of the legislation is evident in its application to speaking the truth even in a balanced way. As Nettle JA rightly observed in the Catch the Fire case: The . . . verity of Pastor Scot’s statements about the religious beliefs of Muslims was irrelevant to the matters in issue. The question for the purposes of s.8 was whether what was said by Pastor Scot taken as a whole and in context was such as to incite hatred of or other relevant emotion towards Muslims on grounds of their religious beliefs. Whether his statements about the religious beliefs of Muslims were accurate or inaccurate or balanced or unbalanced was incapable of yielding an answer to the question of whether the statements incited hatred or other relevant emotion. Statements about the religious beliefs of a group of persons could be completely false and utterly unbalanced and yet do nothing to incite hatred of those who adhere to those beliefs. At the same time, statements about the religious beliefs of a group of persons could be wholly true and completely balanced and yet be almost certain to incite hatred of the group because of those beliefs. In any event, who is to say what is accurate or balanced about religious beliefs? In point of fact, the most that could ever be said is that a given point of view may diverge to a greater or lesser degree from the mainstream of generally accepted views on the subject. In my view it was calculated to lead to error for a secular tribunal to attempt to assess the theological propriety of what was asserted at the Seminar. (Underlining added) It is plain then that entirely true and perfectly balanced discussion about, for example, the practices of adherents of a religion which are detestable by any decent standards of society (child sacrifice, molestation) would be caught by section 8 if they incite hatred against, serious contempt for, or revulsion or severe ridicule of those devotees. That cannot be right. Inhibiting effect The type of orders made in the Catch the Fire case are also illustrative of the stifling effect on free speech. They purport to prevent the respondents saying anything in substance or to the effect of the statements identified as having been made in the relevant seminar, newsletter and article when there was nothing in many of those statements which could conceivably contravene section 8. Even if the order were confined to particular offending statements, they cannot be made, published or distributed, according to the Tribunal’s order, in any manner at all, even in a manner which would not otherwise be prohibited by section 8. The effect of such orders is to prohibit the future conduct of anyone subject to them, including a range of what would otherwise be perfectly legitimate conduct. The harmful effect of the Racial and Religious Tolerance Act should not be underestimated. It has an obvious and undesirable deterrent effect in the enjoyment of essential freedoms by society as a whole, when instead of being confined, these freedoms should be positively guaranteed both as a matter of compliance with the International Covenant and as a feature of an open and democratic society. Religious beliefs distinct from those that hold them An extremely important distinction was maintained by Nettle JA between religious beliefs, on one hand, and individuals or groups that hold those beliefs, on the other. 15. The idea of the “ordinary reasonable reader” [referred to in para 13] belongs to the law of defamation. It has as its object the protection of individuals against false allegations calculated to lower them in the esteem of their fellows. Contrastingly, s.8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. 34. No doubt the purpose of the Act is to promote religious tolerance. But the Act cannot and does not purport to mandate religious tolerance. People are free to follow the religion of their choice, even if it is averse to other codes. One need only think of the doctrinal differences which separate the several Christian denominations or the Muslim sects in order to see the point. Equally, people are free to attempt to persuade other people to adopt their point of view. Street corner evangelists are a commonplace example. Rightly or wrongly, that is the nature of religion, or at least it is the nature of some religions as they are understood, and in this country it is tolerated. Accordingly, s.8 goes no further in restricting freedom to criticise the religious beliefs of others than to prohibit criticism so extreme as to incite hatred or other relevant emotion of or towards those others. It is essential to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view. (Underlining added) Just as the Tribunal failed adequately to make the distinction between religious beliefs and adherents to those beliefs, so also will offended litigants. Many are likely to perceive they have a cause of action under section 8 (and financial remedy) as a result of the same error that the Tribunal easily made, as pointed out by Nettle JA, by treating conduct which mocks beliefs of persons as necessarily equivalent to conduct which incites hatred or other relevant emotion of or towards persons because of their religious beliefs. Religious defamation legislation is opposed For similar reasons, legislation which would prohibit defamation of religion, any religion, is opposed. An example of such a prohibition is found in UN Human Rights Council Resolution 7/19 of 27 March 2008 Combating Defamation of Religion. The following observations are made concerning the resolution. The resolution is restrictive of: freedom of expression, and external practise of religion, especially in the teaching and propagation of religious beliefs which are perceived to be in conflict with the beliefs of others; Defamation of religion has equivalence with blasphemy laws which have been used in various countries to silence minority religious groups; Prohibitions against defamation of religion are likely to be discriminatory in favouring certain religions at the expense of others; Defamation of religion prohibitions would be irreconcilable with narrow limitation provisions in Article 18(3), 19(3) and 20 of the International Covenant; ‘Defamation of religion’ otherwise has no basis or recognition in international law (defamation traditionally protects reputation of individuals and a religion as such has no reputation to be protected); Certain religions (e.g. that promote human sacrifice) warrant scrutiny, public debate and public denunciation; Individuals, not religions, should be the subject of protection with ‘respect’ accorded to their religious freedom within the scope already recognised by international law; Anti-discrimination measures, coupled with those that prohibit hate speech, incitement to discrimination, hostility and violence are sufficient. Hate speech: the better vehicle to address vilification and religious defamation Measures prohibiting vilification and defamation of religion do not engender tolerance. Naturally, provocation and hostility is talked up in pursuit of litigation, rather than down. Litigation is more likely to be pursued by those with resources at the expense of those without. It also works to the detriment of those religious groups with a proselytising mission, be they traditional (Muslim, Jewish, Christian) or non-traditional, which include minority interests in Australia. It is no answer to say that proselytising religions are invasive and anti-social. It is impossible to draw a line between proselytism and teaching and both are fully protected under Article 18 as a matter of religious freedom and should be protected in Australia. Equally, it is impossible and inappropriate to draw a distinction between proselytising religious beliefs and political and other (e.g. atheistic) beliefs. Of course there is a range of hate speech which it is necessary to curtail and this is the ground covered by Article 20 of the International Covenant. It captures racial and religious hatred to a standard of severity which is more appropriate than vilification. Two observations are made on possible further enactment of Article 20. Firstly, any restriction on hate speech should be by way of criminal, not civil, prohibition (by contrast to Victoria’s Racial and Religious Tolerance Act 2001). An example of the model which is supported in this submission is the United Kingdom’s enactment of the Racial and Religious Hatred Act 2006, which focuses on incitement to religious hatred with the following formula: “A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred”. This creates only a criminal offence of stirring up religious hatred based on ‘incitement’. Prosecution may only proceed with the consent of the Attorney-General. These are necessary limits to avoid the aggravation and escalation of faith-based disputes. Secondly, in the United Kingdom legislation, freedom of expression and freedom of religion are properly preserved (by contrast to Victoria’s anti-vilification legislation). Section 29J of the Racial and Religious Hatred Act 2006 reads: Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system. This, it is submitted gets the balance right and is suggested as the best model for implementing Australia’s obligations under Article 20 of the International Covenant in relation to religious hatred. Private rights of action Freedom of religion should not be the subject of private litigation between individuals or groups. The question of private rights of action was raised above in the context of judicial discretion but is so important that it deserves separate mention as a general issue. One of the greatest threats to the enjoyment of the freedom of religion and religious expression is the possibility of private action by those who do not agree with the tenets of that religion or what is expressed. As noted above, a critical distinction exists between, for example, the rights in the International Covenant, which confer protection in favour of the individual in respect only of state action (or inaction) in violation of Covenant and those, such as those found in Victorian Racial and Religious Tolerance Act 2001, which confer rights on individuals or groups in respect of the actions of other non-state individuals or groups. It is submitted that Commonwealth and State/Territory legislation in the area of all human rights should be confined primarily to state-individual relations, not those between individuals or groups, both in order to avoid certain religious interests being armed with private legal actions against others (which has the inevitable consequence of fuelling and entrenching intolerance) and in order to preserve neutrality in the enjoyment by everyone of freedom of religion. Litigation will be encouraged if private actions are to be allowed, and the threat of private action is likely to be a continual source of inter-religious conflict as individuals and groups are enabled to assert rights at avoidable cost to both parties and the public purse. Summary of Conclusions – Part I As noted above, the preferred approach to freedom of religion suggested in Australia is to rely on Australia’s accession to the International Covenant without further enactment. Anti-vilification legislation is also opposed for the reasons given above. So also is religious defamation legislation. Both have laudable aims but legislation is not believed to be an effective vehicle for creating an open and tolerant society. This is the function of education in its broadest sense, to foster positive attitudes in Australian society. Religious groups may have an important role to play in that process. The underlying aims of anti-vilification legislation are better served by allowing free and full discussion, in part to allow the evils of attitudes giving rise to vilification and bigotry to be exposed. The cost has already been shown to be too great both to free speech and religious expression. A strong preference is expressed for the avoidance of a charter of human rights. If it is determined that a charter is to be enacted, or indeed any domestic enactment of Article 18, the concerns in this submission are equally applicable to the content of the charter or that domestic enactment. PART II – GENERAL ISSUES RAISED IN THE DISCUSSION PAPER The public role of religion in Australian society While it may be said that there is much in common between section 116 of the Constitution and the First Amendment of the United States Constitution, it is clear that judicial application of First Amendment principles has resulted in interpretation arguably far removed from the intentions of the original drafters and certainly far removed from any interpretation capable of being rendered under section 116. The area of greatest departure is in the potential for the US Church-State separation to marginalise religion in society or to exclude religion from the public sphere. That is a development which would be highly undesirable in Australia. Religion, in all its conspicuous diversity, is a positive and commendable feature of Australian multi-faith society. It should be fostered in the tradition of least legislative or other interference, without an overly strict approach to neutrality such as would eliminate religion from all visibility in public institutions, or an overprotective approach towards ‘tolerance’ which would inhibit outward religious practise or confine it to private places of worship. The outward expression of religion should be a conspicuous part of Australian society. The Freedom of Religion and Belief in the 21st Century project Discussion Paper mentions “a balance to be struck between the freedom to practise a religion and not pushing those beliefs on the rest of society”. It is unclear in what sense at all there is evidence in Australia of religious beliefs being pushed on society. The comment itself is of concern if it refers to the promotion and communication of particular beliefs, or if it refers to use of the democratic process by lobbyists motivated by particular beliefs. Each religious group is fully entitled to express itself, including its beliefs and ethical framework shaped by those beliefs, in the full protection of Articles 18 (freedom of thought conscience and religion) and 19 (freedom of expression) of the International Covenant, and to suggest efforts need to be made to prevent any religious group or individual ‘pushing’ their beliefs on society is to advocate the denial of those rights. Also, the use of the democratic processes by any religious group is a fundamental human right protected by Article 25 of the UN International Covenant on Civil and Political Rights (International Covenant) to which Australia is bound. Article 25 reads: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country. The authoritative interpretation of Article 25 is General Comment No 25 by the Human Rights Committee which unambiguously states: Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association. Religious groups may freely exert their influence through public debate and dialogue unashamedly in the name of their religion, as a guaranteed right. The fact that religious beliefs are inextricably linked to political beliefs is yet another reason why it is essential not to fetter debate on religion or religious beliefs. To prevent criticism of a religion which plays an important part in the shape and content of policy or the manifesto of a political party would be anti-democratic. At the same time, the way many issues are taken up by religious groups does not reflect their beliefs so much as their ethics. They should be entirely free to voice their beliefs and ethics, whether in support or in opposition to the beliefs and ethics of others, without excessive limits being imposed by anti-vilification legislation and without their liberty to do so being subject to erosion through judicial interpretation. Religion and ‘undue influence’ It is particularly disappointing that a guiding question in the project Discussion Paper seeks feedback on whether religious or faith-based groups have “undue influence” over government. This is an amazing question for a review which purports to be trying to preserve freedom of religion, implying that the right of participation in the democratic process should be somehow restricted for those with belief. Religious or faith-based groups do not enjoy any special privileged position in their influence over government. In a democracy that respects freedom of religion and freedom of belief, religious individuals or faith-based organisations have the same right of access to the political process as all other citizens and groups within Australian society. In doing this their advocacy is subjected to the same tests as anyone else’s. The veracity of their case and degree of public or community support for it are similarly tested through the normal conventions and processes of democracy. Christians and/or Christian organisations have been particularly active on issues of morality and justice, with celebrated examples including the abolition of the slave trade and the US civil rights movement. Such reform has not only represented Christian belief but represented or provided leadership for popular opinion. The 2004 amendment to the Marriage Act is a more recent example. Although clarifying that marriage in Australian law as the “union of a man and a woman to the exclusion of all others, voluntarily entered into for life” was very much an issue championed by religious organisations, this important legislative amendment received the support of both major political parties and the broader population. Rather than exerting ‘undue influence’, the representations of the religious community gave expression to the broader expectations of society. In the same way the elevation of Global Poverty and the Millennium Goals to be a major issue in the Federal election was mainly the result of activation by faith based groups under the Make Poverty History banner line. Religious or faith-based groups are just some of the myriad organisations that make representations to government. Faith groups influence over or against that of other societal interest groups can hardly be labelled ‘undue’ given the number of Australians who identify with a particular faith, and the democratic nature of their engagement with politics. On the other hand, recent governments in Australia have sought to increasingly influence the activities of religious groups, and particularly their manifesting of their religion. The recent Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality is a notable example. The majority report recommended the serious alteration of important exemptions in that Act pertaining to religious bodies and educational institutions established for religious purposes. These exemptions exist to allow those organisations to employ staff and maintain a structure that is consistent with the ethos and values of a particular faith. They protect the right of faith communities to manifest their beliefs in practice and teaching in accordance with the ICCPR. By recommending the modification of these carefully-drafted exemptions the Committee is encouraging Government to impose its influence upon the teaching and theology of faith groups. Governments must understand that to remove these exceptions is to limit the freedom of religious bodies to manifest their religion and that such interference in not by any standard reasonable, given its consequences for believers and for the character and purposes of the churches and organisations with which they choose to associate. Questioning the appropriateness of faith groups and individuals participating fully in the democratic process is not only an intellectual nonsense, but an affront to religious groups, for the implication it carries that their participation is in some way improper. Religion and the State – practice and expression In an equally puzzling proposition the project Discussion Paper raises the need to balance the expectations of faith-based organisations with civil society organisations as a significant issue in an increasingly multi-faith nation. The ‘emergence’ of faith-based services as major government service delivery agencies, it is posited, is central to this issue. The role faith-based organisations play in the delivery of services is a fact of Australian life and is both valued and respected. These groups provide important services in the areas of health and aged-care, education, training and job placements, counselling, crisis accommodation, and many more besides. The work is invaluable, and necessarily supplements the efforts of government, often in a more cost-effective, and usually in a more client-centred way. Even the notion that the faith based groups are somehow recently ‘emerging’ into this space needs to be debunked. Churches and faith-based groups have a long history of involvement in these areas, arising from their deep concern for the disadvantaged and vulnerable. Their 'concern preceded that of governments and if anything, the state has ‘emerged’ overtime to increasingly take on responsibility for these areas. In doing so they have chosen to use established faith based structures where they could achieve more cost effective solutions in partnership with these often strongly volunteer organisations. This involvement of Christians in both the community and politics has plainly had an overwhelmingly positive influence in Western nations, and is a good part of the reason for their comparatively free and socially compassionate character. Yet despite this record, there is an active campaign by anti-faith movements to squeeze Christianity and faith out of the public square. This is often on the pretext that a faith based worldview should not inform these organisations modus operandi, while all the time ignoring that every individual and organisation is equally informed by some worldview. The reality is that faith-based organisations not only operate with no more bias than any other organisations, but their existence provides choice for those seeking services and not comfortable with secular humanist approaches. The provision of pregnancy counselling services is a relevant example. Many women with an unplanned pregnancy do not want to find themselves encouraged to have an abortion as the default option, as is so often the case in counselling services linked to abortion clinics. Pro-abortion advocates are continually trying to limit the ability of people of faith to manifest their religion in what for the great majority is this most critical area of the sanctity of life. This has ranged most recently from not only attempts to limit the advertising of pregnancy counselling services offering alternatives to abortion, but to denying those whose conscience will not allow them to perform or assist in abortions the right to exercise that manifestation of their faith. Faith-based organisations have provided a disproportionate value to society through both inspiration and practice. These organisations benefit a multi-cultural society as much by the very diversity they represent in an increasingly secular humanist world and their existence and success in society are naturally determined by their cost effectiveness and the quality of their service. If the Project is suggesting we need legislation to artificially restrict this process and to put in jeopardy the benefit these organisations bring society, it is very much in error. Religion, cultural expression and human rights This section of the Discussion Paper is grounded in the unfortunate assumption that tension is the necessary connection between religious expression and human rights. Mirroring the title and content of Tom Calma’s unfortunate ‘oil and water’ speech at the launch of the project, this approach seems to question whether freedom of religion is indeed a human right. At the very least, it downplays the fundamental nature of freedom of religion as a human right. The assumption that freedom of religion inhibits human rights, as if freedom of religion was not such a right, is particularly embedded in the trite questions throughout this section of the Discussion Paper. The questions seek to force religious organisations to justify their right to freedom of religion even though such a right has been guaranteed through international covenants. In a world increasingly appealing to ‘tolerance’ as the ultimate value of human dignity, there appears to be significant intolerance towards the values held and expressed by religious adherents. Religious schools The role of schools with a religious foundation or character deserves special acknowledgement in the context of the discussion paper. The right to establish and operate such schools is a fundamental constituent of religious freedom. The specific guarantees include Article 18(4) of the International Covenant (as repeated for example in Article 5 Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief), as a right belonging to the individual (parent and child) to ensure the religious and moral education of children in conformity with their own convictions. In addition, separate rights exist for the corporate enjoyment of religion in Article 6 of that Declaration. Both the individual and collective rights are at issue in the context of religious schooling. The traditional framework for considering religious schools has been discrimination, without any express acknowledgment of these positive rights. The source of anti-discrimination laws is Article 26 of the International Covenant, which provides for equality before the law, guaranteeing to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 serves to prevent adverse treatment on the basis of that status. It is not intended to erode the clear guarantees of religious freedom but instead is intended to support them. The fact that non-discrimination is not intended to be the cause for removing rights that are clearly expressed elsewhere in the International Covenant is made clear by the Human Rights Committee’s application of Article 26. It is interpreted to exclude from the definition of “discrimination” any differentiation that is “reasonable and objective” “if the aim is to achieve a purpose which is legitimate under the Covenant”. The purpose of meeting fundamental guarantees in the Covenant, in this context for the proper functioning of religious schools, is manifestly legitimate. The use of anti-discrimination measures to deny fundamental freedoms is not legitimate. Anti-discrimination laws applied too restrictively to religious schools would destroy the reason for their existence. Religious schools are under threat if they cannot promote the values and integrity of the faith of the children and parents for whom they established. This is achieved primarily through the shared convictions of parents, pupils and staff, not just teaching staff. The promotion of the faith and ethics is therefore defeated by inappropriately narrow exemptions in the field of employment. The ethics and values of a great many religious schools are the very reason for their existence. It is not the operation of such a school for its own sake that is at the heart of its being but the expression of those beliefs and values in schooling. The familiar exemptions for ‘genuine or inherent occupational qualifications’ and ‘religious susceptibilities’ of adherents to a religion or creed are necessary but too narrow. They need to be broader and clearer in scope than currently in Commonwealth legislation in order to serve their intended purpose. The exceptions should, it is submitted, permit religious schools to determine which jobs, not just teaching positions, should be filled by those with the qualities, including commitment to the faith of the school in question, that promote the school’s values and ethical framework. This would meet the standards required to give effect to the above guarantees. It would not exceed them. Furthermore, broad exemption for employment in religious schools would not offend the basis of anti-discrimination laws. Differential treatment would not even qualify as discriminatory, applying the ‘objective and reasonable’ test above. Nothing prevents an applicant whose characteristics do not meet the faith and ethical requirements of the employer school from seeking employment anywhere else. On the other hand the impact on schools (pupils, parents, staff, community at large) affected by their inability to maintain their essential character is huge. The failure to make sufficient allowance for religious schools to discriminate in these circumstances would be to deny fundamental freedoms. This applies equally to exemptions that are made too narrowly. Schools should not face uncertainty in their operation by virtue of unclear or narrow exemptions. Another consequence of restrictive exemptions concerns the need for schools to safeguard limited funds. The government support currently provided to faith based schools is of critical importance to their continued existence, and highly valued, and it is unthinkable that such essential funding should be expended in litigation as a result of disputes from unsuccessful job applicants, particularly those opposed to the faith in question. In short, the primary aim of the exemptions is to support the culture and ethical character of religious schools, considered so important that without it there would be little reason for such schools to continue. Australian society would become the poorer and it speaks ill of a democratic society if it does not pay adequate regard to the proper enjoyment of positive rights and does not support the conditions necessary for religious schools of all faiths to thrive. Anti-discrimination laws should be supportive of the positive guarantees that are contained in the International Covenant, and must not deny them, especially freedom of religion for parents and children through faith-based schooling. Summary of Conclusions – Part II The Discussion Paper addresses the issues of religion and sexuality and gender along with those discussed above, but the principles to be applied to these are exactly the same. Religious bodies should be free to manifest their religions as they see fit and is legal, and particularly within the religious community with regard to these issues. Throughout Part II we have addressed issues which for the main would seem to be beyond dispute or not even issues of public concern. The rights of religious bodies to participate fully in society and government while maintaining the distinctiveness of their communities are guaranteed in international covenants and must continue to be honoured by Australian governments. A stable democratic society like Australia has conventions and processes that acknowledge that individual rights are never absolute in a civil society where the profusion of rights will inevitably collide. The democratic process must be left to determine the community view on rights. Governments must ensure that they do not allow those who have an agenda to minimise the place of religion, or particular faiths in society, by pursuing contrived grievances that are so often constructed about the issues in this discussion paper. The reality is that those seeking admission or employment invariably have some other club they could join or place to be employed – those of faith only have those faith bodies and they depend on them keeping their religious character uncompromised. CONCLUSION AND RECOMMENDATIONS One of the disappointing aspects of this AHRC project is the lack of objectivity demonstrated at its launch, which has left most people with little faith in its outcomes. Commissioner Calma presented a speech entitled, “Like oil and water: The intersection of freedom of religion and belief with human rights”. The title and contents of that speech strongly imply that societal conflict is the unavoidable consequence of religious freedom and that religious freedom is somehow inconsistent with a modern, democratic society. This theme resonates strongly through the Discussion Paper. We have attempted to demonstrate that that not only is freedom of religion well accepted in mainstream Australia, but supported by international law. If the concern of the AHRC is as much a concern for harmony in our multi-cultural society, it should take note of the disharmony caused by state attempts to further legislate what is already guaranteed by international law and our Constitution, and ensure that the Commonwealth doesn’t commit the same mistake. ACL recommends that the Commonwealth Government: Not legislate in the areas of Charters / bills of rights Federal religious anti-vilification laws, or Religious freedom; Ensures the protection of religious organisations by maintaining the current reasonable exceptions to anti-discrimination laws; and, Continues its support for Christian churches and organisations as they seek to bring the love of Christ into the nation at large. ACL National Office February 2009  United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984).  General Comment 22, para 8  Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Article 3 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.  The core provision are as follows: 8 Religious vilification unlawful (1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons. Note Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material. (2) For the purposes of subsection (1), conduct— (a) may be constituted by a single occasion or by a number of occasions over a period of time; and (b) may occur in or outside Victoria. 9 Motive and dominant ground irrelevant (1) In determining whether a person has contravened section 7 or 8, the person's motive in engaging in any conduct is irrelevant. (2) In determining whether a person has contravened section 7 or 8, it is irrelevant whether or not the race or religious belief or activity of another person or class of persons is the only or dominant ground for the conduct, so long as it is a substantial ground. 11 Exceptions—public conduct (1) A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith— (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for— (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report of any event or matter of public interest. S. 11(2) inserted by No. 25/2006 s. 9. (2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising. 12 Exceptions—private conduct (1) A person does not contravene section 7 or 8 if the person establishes that the person engaged in the conduct in circumstances that may reasonably be taken to indicate that the parties to the conduct desire it to be heard or seen only by themselves. (2) Subsection (1) does not apply in relation to conduct in any circumstances in which the parties to the conduct ought reasonably to expect that it may be heard or seen by someone else.  Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284.  Kazak v. John Fairfax Publications Ltd [2000] NSWADT 77 at para 31.  Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, paras 18-19.  Para 158.  It is sufficient that the conduct appear as likely to stimulate hatred, serious contempt or serious ridicule, whether it did in fact do so or not. Nettle JA would allow incitive conduct to be capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. “As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic” [para 13].  Neave JA at para 141; Nettle JA at paras 23-24.  Para 95.  Para 36.  The point is helpfully illustrated by Morris, J. in his decision as President of the Tribunal in Robin Fletcher v. The Salvation Army Australia Southern Territory General Work, [2005] VCAT 1523 [7] and [8].  Para 74.  Article 20 1. Any propaganda for war shall be prohibited by law. 2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”  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 (order public), or of public health or morals.  “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.”  “(a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; (b) To establish and maintain appropriate charitable or humanitarian institutions; (c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief; (d) To write, issue and disseminate relevant publications in these areas; (e) To teach a religion or belief in places suitable for these purposes; (f) To solicit and receive voluntary financial and other contributions from individuals and institutions; (g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief; (h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief; (i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.”  “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  UN Human Rights Committee’s General Comment No. 18.  Calma, T. (2008, September 17), Like oil and water? 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