Balance Equal Protection and Religious Freedom People Review

Freedom of Organized religion or Conventionalities and the right to non-bigotry

seven.i

As with all rights, the right to liberty of religion or conventionalities needs to be counterbalanced against other rights. Ofttimes rights volition be closely aligned, and protecting the right to freedom of faith may not involve impeding other fundamental rights. This is seen with the close association between the correct to freedom of religion or belief and rights such as freedom of clan and liberty of speech. Anti-discrimination laws can protect religious minorities from discrimination, and and so the rights to non-discrimination and religious freedom interact in a way which enhances religious freedom.i

7.ii

At other times, yet, different rights may compete with each other and to some extent be mutually exclusive. The most common contemporary example of this is when the right to liberty of organized religion or belief clashes with the correct to not-discrimination. It is worth quoting Professor Evans' articulate summary of the issue at length:

…discrimination laws intersect with religious freedom [when] religious groups or individuals claim that they should be exempt from certain aspects of discrimination law. Religious groups may wish to appoint in discrimination (on the basis of faith or other bases such as sex, marital condition or sexuality). Religious groups believe that information technology is essential that they maintain autonomy when information technology comes to issues such as option of clergy or other central religious appointments. This autonomy is an important element of religious freedom, impacts on a relatively modest number of people and would exist hard to justify removing. Notwithstanding, religious groups frequently as well wish to be permitted to discriminate in other areas in which they are active, for example in relation to admissions to religious schools, employment in religious organisations or the types of groups to whom they rent holding. In such cases, the religious freedom of individuals or groups can come up into conflict with the right of other individuals non to exist discriminated against.ii

seven.3

This potential conflict is the focal point of much of the word nigh religious freedom in Australia and was a common refrain throughout the bear witness received. The Australian Human Rights Commission highlights the consequence, supporting consideration of a "mechanism for ensuring an appropriate balance is maintained".iii

7.iv

Dr Alex Deagon'south paper bears the pertinent title "Australia in the Crucible: Religious Freedom versus Anti-Bigotry",4 and focuses at some depth on this issue. This paper focuses on department 116 and the surrounding jurisprudence, its central argument being:

That the costless do clause should exist understood more broadly to motivate legislative protection for religious freedom from the general operation of anti-discrimination law in detail circumstances.five

7.5

The two master components to this statement are that the interpretation of the free exercise clause of section 116 should be expanded,half-dozen and that religious freedom "should be protected from the general operation of anti-discrimination law in item circumstances".7

seven.6

Different approaches to resolving this tension will have unlike emphases and priorities, and although it is mostly agreed that there is no "hierarchy" of human rights,8 some witnesses have emphasised what they regard as "fundamental" rights, including religious liberty, while others have cautioned against placing too much emphasis on these rights at the expense of others. The Wilberforce Foundation highlighted freedom of faith every bit "fundamental" and even "the boulder and genesis of all human rights discourse".9

vii.7

The Human Rights Police force Brotherhood and Australian Christian Lobby (HRLA and ACL) claimed that liberty of thought, conscience and religion or belief is "in sure significant ways the near fundamental" of all freedoms.10 The HRLA and ACL claims that non-discrimination has been ready as the "paradigm nether which human rights claims are to be resolved", with an "unconventionally broad scope" given to the term "bigotry". Equally ane example of this "paradigm shift", HRLA and ACL cited the example of Cobaw , discussed in Chapter V higher up, claiming that this case has fabricated "equality and non-discrimination the image human being right".eleven

seven.8

The HRLA and ACL farther claimed that there has been a "proliferation" of laws "enshrining far-reaching rights of non-discrimination in Australia",12 arguing that this is "the enactment, essentially, of article 26 of the ICCPR over and over once again", while commodity 18 has non been so enacted. HRLA's Martyn Iles pointed out that there are equally many as 50 protected attributes across Australia'south different jurisdictions.thirteen

7.ix

Some submissions accept had a unlike emphasis. The Human Rights Law Eye argued that the rights to equality and not-discrimination "constitute basic and general principles relating to the protection of all human rights".14 The HRLC submission focused largely on this upshot of balancing competing rights, proverb that this notion is "not radical" simply is a "fundamental concept embedded within the international and domestic" man rights instruments.15

7.10

Referring to the Cobaw decision mentioned above, HRLC's Ms Anna Chocolate-brown commented that the determination was a good decision and that:

its outcome was a proficient example of how these competing rights can exist balanced. If the service is not advertised every bit a service that is Christian and is conducted in accord with item beliefs, in that location was no reason for that group to believe that they should exist turned away from information technology.16

7.11

Ms Brown added that if exemptions go on to exist, something HRLC does non support, there needs to be "a level of transparency and consistency in the way they are operated, and then people can make informed choices".17

vii.12

With a similar emphasis on the correct to not-discrimination, Australian Lawyers for Human Rights argued that the "correct to express one'due south religious behavior does not 'trump' other rights".18 ALHR highlighted Article 26 of the ICCPR, which states that "all persons are equal earlier the police and are entitled without any discrimination to the equal protection of the law". ALHR argued:

Article 26 is a 'stand-alone' right which forbids discrimination in any law and in any field regulated by public authorities , fifty-fifty if those laws do not chronicle to a right specifically mentioned in the ICCPR.19

7.13

ALHR went on to "reject the suggestions that anti-discrimination law conflicts directly with the right to freedom of 'religion'".20

Same-sex matrimony and non-bigotry

seven.14

The tension betwixt the correct of non-discrimination and the religious liberty to discriminate in some cases was a mutual theme received throughout many of the hundreds of submissions from the broader public, and was raised frequently in particular in connection with same-sexual activity marriage.21 It is noted that the recent Senate Select Commission's report on the exposure draft of the Wedlock Amendment (Same-Sexual practice Marriage) Nib, tabled in Feb 2017, considered the connection between same-sexual practice marriage and religious liberty at length, including close test of religious exemptions and exceptions. This Acting Report volition not examine the issue in such particular, but the weight of evidence on the topic warrants some attending in this Interim Written report.

seven.15

Dr Alex Deagon's submission drew attending to the "emerging tension between religious freedom and anti-discrimination law, particularly in relation to sexual orientation and same-sex marriage", arguing that anti-bigotry constabulary "could be used to restrict religious freedom which conflicts with same-sexual activity matrimony".22 It is also important to note Dr Deagon'southward comments that he is non advocating the right to discriminate in full general:

there is no-ane, or at to the lowest degree very few people, who are advocating that at that place should just be a coating right for people to turn down to serve the LGBTI community in terms of goods and services because of their religious convictions… The particular issue is in relation to the back up of same-sex marriage ceremonies through the provision of services. The idea is: by providing a service which directly contributes to a same-sex matrimony ceremony, it implies an endorsement of same-sex marriage.23

7.xvi

The Wilberforce Foundation argued that the "same-sexual activity marriage and gender fluidity movements" take been a cause of religious freedom violations internationally "nether the protection of incorrect pre-eminence given to the correct of non-discrimination".24 The Wilberforce Foundation submission, and several others, cited numerous examples from around the globe that it argued establishes this claim, including the then-called "cakemaker" cases: incidents in which religious people, often in the wedding ceremony services industry, decline to provide services for a same-sex wedding on the basis of religious confidence and are found to accept been in alienation of anti-discrimination police, ofttimes receiving large fines or other sanctions.25

7.17

Several Australian cases of concern were raised, although these were typically examples of people attracting controversy for their comments rather than the "cakemaker" examples from other countries. Maybe the well-nigh prominent example, and that most commonly cited in evidence, is that of the Catholic Archbishop of Hobart Julian Porteous, who was field of study to a complaint under the Tasmanian Anti-Discrimination Act 1998 afterward producing a booklet outlining the Cosmic Church's didactics on marriage for distribution within Cosmic schools.26 The complaint was eventually withdrawn, merely has been cited frequently in evidence every bit an example of the disharmonize between religious freedom and anti-bigotry law, especially every bit it combines with differing views on same-sex activity marriage.27 It is to be noted that Tasmania does non enshrine the correct to freedom of organized religion in the manner that, for example, Victoria does in its Lease of Human Rights and Responsibilities .

7.xviii

In contrast to these concerns, a number of submissions argued that religious freedom is unfairly favoured in a higher place the right to non-discrimination and equality past the current marriage and anti-discrimination laws.28 Much of this argument focused on exceptions and exemptions in anti-bigotry laws, which are discussed further below.29

7.19

Some submitters besides argued that religious liberty is violated by not allowing religious groups to recognise same-sexual activity marriages. Professor Gary Bouma said:

Some [Anglicans] have got the State to support their view and forbid the union of aforementioned-sex couples for all Australians, not just their ain members. But what of my FRB [freedom of religion or belief] since I believe that it is coinciding with my faith and theology just am denied my FRB?thirty

Exceptions and exemptions in anti-discrimination police force

7.20

As highlighted by Professor Evans, at that place are certain contexts in which religious groups may wish to discriminate for a diverseness of reasons. In some cases this will be relatively straightforward, as in the appointment of clergy. In other cases information technology volition exist more than controversial, for instance for employment in or admission to religious schools, or in the provision of services to which the service provider objects on religious grounds. In either instance, there is a demand to determine whether a person's correct to not-bigotry should be given priority over the religious freedom of a religious group.

7.21

Professor Evans notes the "highly controversial" nature of this tension, which is growing in Commonwealth of australia, and as well the trend of a narrowing of "the telescopic of exemptions for religious groups" in many countries. These countries are mainly in Europe, merely there has been "increasing public debate in Australia over whether the exemptions in Australian bigotry Act should likewise exist narrowed".31

7.22

Some witnesses opposed religious exemptions altogether. For example, the Human Rights Law Centre argued that electric current permanent exemptions "do non strike the right remainder", stating that "the mere beingness of these exceptions operates as a barrier to vulnerable people".32 The HRLC submission called existing permanent religious exceptions "unacceptably broad", proverb they may allow for bigotry that is "not reasonable and proportionate". While supporting the right of religious organisations to "organise and conduct affairs closely connected to religious practise and observance… in a manner that accords with their religious behavior and customs", this should require an "intimate nexus betwixt belief and conduct".33

7.23

Further, HRLC stated that justification for a broad religious exemption "materially lessens" when a religious body is providing appurtenances or services "in the public sphere as office of a commercial enterprise". HRLC supported a full general limitations defence, every bit discussed below.34

vii.24

Australian Lawyers for Human Rights had similar concerns about religious exemptions, stating:

Any legislation which impinges upon human rights or provides whatever exemptions from human rights must be narrowly framed, proportionate to the relevant harm, and provide an appropriate contextual response which minimises the overall impact upon all human rights.35

7.25

ALHR argued that it is "not valid for Christians to accept exemptions from Australian laws so as to be able to 'alive out their public faith' free from legal responsibilities to others".36

7.26

Professor Gary Bouma also made similar arguments, stating that the demand by religious groups for broad exemptions is:

a clear example of the change in FRB issues from the chapters of individuals to practice their faiths to groups having FRB rights to practice as they see fit including to act in ways that contradict Australian laws.37

7.27

Other witnesses oppose religious exemptions because, information technology is argued, they place religious freedom in subordination to non-bigotry. The Human Rights Law Brotherhood and Australian Christian Antechamber said that religious freedom is a "plenary" freedom, and "not simply narrowly defined exceptions to a non-discrimination paradigm".38

vii.28

Wilberforce Foundation stated that anti-discrimination acts "reduc[e] the freedom of religion to narrow exemptions from anti-discrimination acts". In the context of the Sexual practice Discrimination Deed particularly, Wilberforce Foundation stated that dealing with the "co-equal" (with non-discrimination) right of religious liberty by manner of an exemption, this "necessarily subordinates information technology to the right to not-bigotry".39 Similarly, HRLA and ACL stated that the "feeble organisation of exemptions and exceptions" have the outcome of:

setting non-discrimination upwards every bit the epitome under which human rights claims are to be resolved. Every bit merely one of several rights, this [is] an inaccurate representation of human rights principles. The actual paradigm is "human being rights" and within it is located each of the rights gear up out in the ICCPR.forty

seven.29

Mrs Lorraine Finlay commented:

When you are dealing with freedom of faith as an exception, it automatically suggests that it is a right that is not every bit important as the principal right, which is the antidiscrimination legislation. That is the wrong approach. We would submit that both are equal. They need to be balanced confronting one another, and anything that presupposes one as being primary is just an wrong approach.41

Genuine occupational requirement test

seven.30

In some jurisdictions, anti-bigotry law exemptions contain within them a "genuine occupational requirement" test in the employment context.42 Equal Opportunity Tasmania submits that it can be appropriate for a religious organisation to crave an employee to share the tenets, beliefs, teachings, principles and practices of the organisation if the employee is seeking to "oversee or lead the rites and/or rituals" of the organized religion. In such a case, a shared faith and shared practices would be a "genuine occupational requirement". In contrast, a person employed every bit a "cleaner or gardener" should not be required to share these attributes, as that person'southward office does not require these attributes every bit part of the occupation.43

7.31

This position is contested by some submissions. The Presbyterian Church of Queensland contends that these requirements "chance encroaching upon religious liberty by failing to account for several foundational and distinct attributes unique to religious institutions". PCQ argues that, similar to a political party, for example, which would not be required to utilize a fellow member of an opposing political party, religious institutions may too value a "mission fit" for their employees, regardless of an employee's role within the organisation. Religious groups, political parties, and other associations "are divers by their unifying attributes, being adherence to a legitimate common philosophy, worldview, culture or cause".44

vii.32

Similarly, the HRLA and ACL expressed business that religious bodies would exist "stripped of their right to utilize staff who share their ethos".45 This right was called a "right of positive pick" by Sydney University police professor Patrick Parkinson, who said that it "is rather unlike from discrimination".46

7.33

Professor Carolyn Evans, while cautioning against a "language of persecution" which is "emotive and exaggerated on both sides", acknowledged that "as a society nosotros are becoming less religiously literate". Consequently, at times there is "no existent understanding of the mode religious groups operate, their ethos and so along". This can lead to bug in areas such as genuine occupational tests, although Professor Evans did nuance her comments by noting that some religious bodies employ "tens of thousands of people" and receive "considerable public funds" for doing so, which weakens the argument for allowing too wide an exemption.47

General Limitations Clause

7.34

Against this backdrop of concerns around existing exemptions and exceptions, several submissions highlighted the "general limitations clause" an alternative method of balancing religious freedom and not-discrimination. This was a fundamental recommendation of the Presbyterian Church of Queensland,48 and formed part of a recommendation from the Man Rights Police force Centre to reform exemptions in anti-discrimination law. The HRLC would replace permanent exemptions with a "general defence of justification" which would enshrine the principles of necessity, reasonableness, proportionality and legitimacy.49

7.35

Ramble constabulary scholars Professor Nicholas Aroney and Professor Patrick Parkinson take proposed a version of a general limitations clause which the ALRC has recommended for further consideration.50 This clause is worth reproducing in full:

ane

A distinction, exclusion, restriction or condition does not plant bigotry if:

a.

it is reasonably capable of existence considered advisable and adapted to achieve a legitimate objective; or

b.

it is fabricated because of the inherent requirements of the particular position concerned; or

c.

it is not unlawful under whatsoever anti-discrimination law of whatever state or territory in the place where it occurs; or

d.

it is a special measure out that is reasonably intended to assist achieve noun equality betwixt a person with a protected attribute and other persons.

2

The protection, advancement or practise of another human right protected by the International Covenant on Ceremonious and Political Rights is a legitimate objective within the meaning of subsection 1(a).

7.36

The ALRC notes that the definition includes a proportionality test, and also clarifies "what is non discrimination".51 Such a definition would be consistent with the UN Human Rights Committee's comments in General Annotate 18:

not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.52

vii.37

The HRLA and ACL too recommended the "codification of the principle in Full general Comment xviii" within a consolidated anti-discrimination human activity.53

vii.38

Other submissions contained similar proposals, providing suggestions for clauses which could be inserted into anti-discrimination law. Dr Alex Deagon's suggestions specifically protected "individuals who refuse to express a view or offer goods or services" if doing then would conflict with that individual's "doctrine and practice of their organized religion". Significantly, Dr Deagon'due south proposal did non provide an absolute right to refuse services, stating that the individual may not exist compelled "unless the refusal direct results in concrete hardship for those who seek the expression or service".54

7.39

Along a similar line of statement, although specifically with reference to the Sexual activity Discrimination Human activity , the Wilberforce Foundation proposed an "overriding clause" which would clarify that the Act does non apply to bigotry that is "reasonably necessary" to "act in accordance with" 1's religion. Again, an absolute correct is not proposed, and discrimination would be "unlawful and actionable" if the service denied is "not reasonabl[y] obtainable elsewhere by the person who has been denied the service".55

7.forty

The Australian Catholic University besides supported measures similar to the general limitations clause described.56

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Freedom of Religion or Belief and access to ballgame

7.41

Another area in which careful balancing of competing rights is required involves admission to abortion services. This conflict manifests in two main areas: "exclusion zones" around wellness service providers, and conscientious objection to abortion by medical practitioners.

7.42

Both of these bug were raised numerous times in hearings and submissions.

Exclusion zones

seven.43

Some states have introduced laws creating "exclusion zones" around wellness service providers, areas in which people may not protestation against abortion or in whatever style impede or intimidate those seeking the services.57

7.44

ALHR stated that it may be necessary to limit "'religious' protests and vigils" in the interests of "protecting the rights of clinic patients and staff", as well as to avoid public disorder.58 ALHR'southward Freedoms Commission Chair Dr Tamsin Clarke stated in Sydney:

some people might think they accept a right to express their religious beliefs confronting abortion, but it must depend on context. If you are standing outside an abortion clinic, screaming and waving placards and actually deplorable the women who are going into that clinic, who probably did not want to have to be going in there anyhow, that is an inappropriate exercise of your gratis spoken language rights, which is hurting other vulnerable people.59

vii.45

On the other hand, Professor Foster argued that in some cases "opposition to abortion may not fifty-fifty be expressed in polite and respectful ways". The Tasmanian law prohibits sure behaviour within 150 metres of a clinic. This behaviour includes "besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding" a person, but also extends to interference "in relation to terminations", which Professor Foster argues could prohibit "quietly hand[ing] out leaflets… on the other side of the route".60

Careful objection

seven.46

Some states have introduced laws requiring a md with a careful objection to abortion to refer a patient to some other medico who is known not to object to abortion.61 The HRLA and ACL argues that this "forc[es] them to facilitate abortions" and is "a grave assail on the person's censor".62 Professor Iain Benson argues that this treats "the democratic moral views of the wellness care worker (md, nurse or pharmacist) as irrelevant".63

7.47

In that location was some discussion on these laws at the Sydney hearing. Dr Michael Casey commented:

it is helpful to recollect that [this] is not just a clash of sensibilities or a personal sense of authenticity… We are talking about very difficult problems around questions of correct and wrong, true and false, not only a clash of sensibilities.64

7.48

Dr Deagon echoed these comments, arguing that it is important that medical professionals, including counsellors, are "not compelled to perform an ballgame or recommend an ballgame".65

7.49

There was some evidence in back up of these provisions.66 Liberty Victoria fabricated the following comments:

Putting a vulnerable woman in distress to the unnecessary and undignified quest for even so another medical appointment is a manifestation of religious conventionalities by the doctor, or the md's employer, which steps well beyond the confines of the devotees of the religion in question…

This raises the question equally to whose human rights prevail: the woman's or the religious doctor's?

…in a secular democracy religious behavior, peculiarly in the context of publicly funded provision of services, should not be privileged over rights such equally unbiased and timely access to counselling or medical services.67

seven.50

It is worth noting that those advocating the protection of conscientious objection have commented that there are other ways of achieving the policy aim of ensuring safety access to, and information about, ballgame services. Professor Michael Quinlan, Dean of Police at the University of Notre Dame, stated at the Sydney hearing:

if the intention is to ensure that people have sufficient information so that they can obtain that service, and then there are ways in which regime could reach that objective without putting someone into an impossible state of affairs of conscientious objection… The state… tin ensure whether there is any absence of that information… without forcing someone to act against their conscience. So legislation like that would help to solve the trouble.68

vii.51

Professor Benson echoed that signal:

on whom is the onus to provide services?... If the state wishes people to accept access to services, at that place is no reason why that burden cannot be on the medical association… in Canada, nosotros take a lawyers referral number. If yous want to seek a service from a lawyer y'all call the general number and the law society provides the listing of practitioners in that area of police. The same thing could be washed easily in medicine.69

Sub-Committee Comment

7.52

The right to freedom of religion or belief interacts with other cardinal human rights. While rights are often harmoniously aligned, their interaction can create tension in some cases. Protecting the correct is about challenging when these tensions arise.

7.53

In contemporary society, this is well-nigh apparent when the right to freedom of religion or conventionalities and the rights to equality and non-discrimination come into disharmonize. The desire of religious individuals to express and act on their religious behavior, and the desire of religious organisations to maintain autonomy over their diplomacy, can compete with the desires of people non to be treated differently or unequally. Striking the correct balance between these competing rights is a challenging and delicate chore.

7.54

There was a great deal of evidence which addressed the remainder between non-discrimination laws and religious freedom. Diverse opinions were put forth on the effectiveness and appropriateness of religious exemptions in non-bigotry laws. Some believe that religious exemptions requite unfair weight to religious freedom over equality earlier the constabulary. Others believe that religious liberty is unjustly subordinated to non-discrimination past religious exemptions. Unlike concerns were raised and a number of solutions to these concerns were suggested.

7.55

Other gimmicky societal challenges were besides raised in evidence. The Sub-Committee notes the difficulty and effeminateness in determining how all-time to strike an appropriate rest, acknowledging the many varying arguments received in submissions and discussed at the public hearings. The Sub-Committee will keep to examine this issue carefully throughout the remainder of the inquiry.

The Hon Mr Kevin Andrews MP Chairman Homo Rights Sub-Committee 30 November 2017

Senator David Fawcett Chairman Joint Standing Committee on Foreign Diplomacy, Defence and Trade thirty November 2017

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Source: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/Freedomofreligion/Interim_Report/section?id=committees%2Freportjnt%2F024110%2F25180

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