There should be no winners and losers when it comes to the protection of human rights in Australia. The international human rights framework was developed as a language and a set of tools to help us do better at upholding the human dignity of every person, and especially those who are marginalised and excluded in society. But right now, we are seeing an emotionally charged and politicised campaign to declare a limited notion of religious freedom the human rights winner.
Instead of a comprehensive national human rights instrument such as a Human Rights Charter at the federal level, we have a series of a specific and complex anti-discrimination laws covering only some of our international human rights obligations—race, sex, disability and age. It’s not surprising then, with the benefit of hindsight, that the so-called ‘balancing’ of rights (a concept well entrenched in international human rights) has been turned into an unedifying competition. And the Prime Minister’s promise to enact a Religious Freedom Bill has super-charged this competition over which rights, or more accurately, whose rights, are more important.
This belief that there exist competing rights is proving toxic in Australia. The idea of human rights as helping us to uphold the dignity of those most vulnerable has been lost in this largely single-player competition to ‘balance’ competing rights in favour of religious freedom over equality rights. The right to religious freedom is being wielded like a weapon to claim victimhood and/or entrench in law a degree of societal acceptance of ongoing discrimination against LGBTIQ people, who continue to suffer harmful prejudice and exclusion and whose rights, even with marriage equality, remain fragile.
To understand something of the burgeoning and very recent, as Marion Maddox pointed out, politics of religious freedom in Australia, we need to ask where is the power and whose voices are silenced or remain unheard. And in the Australian politics of religious freedom, some are obvious and some less so.
The first review of religious freedom protections in Australia was carried out by the NSW Anti-Discrimination Board. Its report ‘Discrimination and Religious Conviction’ was published in 1984. It described how the gravest abuse of religious freedom was the dispossession of Aboriginal people – from their sacred lands, their language and their culture. It pointed out the difficulties of defining religion for the purpose of the law – the most oft-cited definitions in Australian case law are inadequate, potentially excluding Aboriginal belief systems and some forms of Buddhism, for example. It highlighted the prejudice being experienced by religious minorities, including Jews, Buddhists and Jehovah’s Witnesses and explored issues related to new religious movements and cults. The report recommended that the NSW Anti-discrimination Act be amended to include ‘religion’ as a protected attribute. The backlash from mainline Christian churches was so fierce that the report was shelved. NSW and South Australia are the only states which still do not have protection from religious discrimination enshrined in law.
From 1984 to 2008, with the exception of a brief mention of the need to balance freedom of speech with freedom from vilification, the three reviews and reports dedicated solely to religious freedom conducted by parliamentary committees and the Human Rights and Equal Opportunity Commission (as the Australian Human Rights Commission (AHRC) was then known) were focussed almost entirely on the lack of general protection for religious freedom in laws across all jurisdictions and the need to improve that situation for the benefit of religious minorities, especially Muslim and Jewish Australians, who were increasingly the targets of prejudice, hatred, vilification and physical abuse and violence. It is important to remember, as Carol Johnson and Marion Maddox wrote, that during this period, conservative churches and Christian lobby groups, including Christian schools groups, were strongly opposed to the positive protection of religious freedom in law.
In 2011 (the year that the Australian Labor Party changed its policy platform to support marriage equality), the AHRC released a report that, for the first time described the problem of religious freedom in this country not only as an issue for religious minorities but also as an issue of balancing rights. It did this because a number of submissions to the inquiry expressed concern that anti-discrimination law and religious freedom were incompatible or in conflict because of the protections that were being extended to particular groups of people. This argument gained force over the next few years to the point where, by the end of 2017, the bill which finally delivered marriage equality was named the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. It may be, however, that there is some growing recognition of the unhelpfulness of the ‘balancing competing rights’ discourse. It is interesting to note that that in its submission to the Expert Panel (the Ruddock Review), the AHRC moved away from the language of ‘balancing rights’ to that of ‘managing the intersections’ and that the report from the Expert Panel itself refers a number of times to the ‘equal status of all human rights’.
It is no accident that the rise of the politics of religious freedom in Australia has coincided with the gradual incorporation into anti-discrimination law of sexual orientation and gender identity as protected attributes. Such changes in law recognise the long history of discrimination, prejudice, hatred and often violent abuse suffered by LGBTIQ people and commit us to ending it. Christianity and other religions, but in Australia mostly churches, have to bear some responsibility for that shocking history. But Christianity has a bad track record of fomenting and/or perpetuating prejudice against particular groups of people and the churches are slow to leave behind the bad theologies of the past.
While the politics of religious freedom has been fed by a number of high-profile cases, mostly recently that of Israel Folau, the evidence of discrimination against Christians who hold ‘traditional’ views on sexuality and gender is thin, as both the Expert Panel and the AHRC agreed.
There is more evidence of ongoing religious discrimination against First Nations peoples, Muslim and Jewish Australians, and other religious minorities. But it is their voices, along with the voices of LGBTIQ people and more ‘progressive’ religious voices, which have been drowned out by Christian conservatives leading smart campaigns of fear, which aim not to ensure religious freedom for all (for when do they talk about the abuse of Australian Muslims, or the rise of anti-Semitism, or the religious rights of First Nations peoples?) but the sanctioning in law of discrimination against LGBTIQ people.
A Religious Freedom Act will not end this constructed competition between rights. It will just add to the complex and confusing patchwork of anti-discrimination laws. Along with many others, I believe that the most effective solution is the development of a national Human Rights Charter, which would include positive protection of religious freedom. We have had plenty of time and opportunity to learn enough about how they work to be able to craft one which will ensure that human dignity for every person will be the driving principle of all our efforts to end harmful prejudice and discrimination and continue growing a just and inclusive society.
Elenie Poulos is a doctoral researcher in religion and politics at Macquarie University. She is an ordained minister in the Uniting Church in Australia and was previously the Church’s national director for justice policy and advocacy.