The Prime Minister Scott Morrison has called recently for laws to protect religious freedom, in order, he says, to safeguard personal liberty. While there is little evidence that religious freedom is under threat in Australia, there is a demand in some quarters for legislation to extend the exemptions from laws which protect against discrimination on the ground of sexual preference. This is unnecessary and would be regrettable.
The Prime Minister is quoted as saying that “at the end of the day, if you’re not free to believe in your own faith, well, you’re not free” (SMH, David Crowe, 7 September 2018). His comments appear to confuse the freedom to hold a religious belief, which is hardly under threat, with the right to manifest such belief.
There is no real threat in Australia to the freedom to believe in any religion or faith. Discrimination against a person on the ground of religion is protected by some State laws, and there may be grounds for supporting a national law to protect against such discrimination. But the current debate in Australia, which has been heated at times, is not really about freedom of religious belief. It is not about the problems a person may encounter or be confronted with because of their religious beliefs.
The real debate in Australia is about whether there should be legislation not just to protect a person’s freedom to believe in a religion or faith, but also to protect by law those who, on the basis of their faith, want to be free to discriminate against others who they do not accept, for example, on the ground of their sexual orientation or participation in a same sex marriage. This is the point at which the manifestation of religious belief cuts across the right of others not to be subject to discrimination.
I argued earlier that it would be a novel and dangerous concept to exempt commercial transactions from discrimination laws simply because a person’s personal religious beliefs do not accept a civil status recognised by law, whether it be same sex marriage or remarriage of a divorcee. This would be to drive a huge wedge through our anti-discrimination laws.
If freedom to manifest religious belief were to be protected by laws which allow this kind of discrimination, the rights of other people to live in equality and dignity in their own community would be adversely affected. This should be resisted.
We have not been favoured to see the report of the Ruddock Review, which was established to deal with the consequences of the marriage equality legislation in so far as they may affect freedom of religion. Father Frank Brennan, a member of the Ruddock panel, has supported the idea that religion should be included in the categories protected by law from discrimination. Beyond that, he observed that nothing more than a tweak is needed to the legislation in order to maintain religious freedom, and gave some examples of minor changes.
The Prime Minister has not explained what he means by laws to protect religious freedom. When he argued that children in public schools should not face curbs on Christian traditions he failed to acknowledge that this freedom must of course apply to children of all faiths. But, as mentioned, this kind of freedom is not the main issue.
Nevertheless, his comments should alert us to the danger that the government may introduce religious freedom legislation framed in such a way as to erode the protection of LGBTI people provided by current anti-discrimination laws. Vigilance is needed to ensure that the current exemptions of religious bodies from anti-discrimination laws are not extended any further.
Elizabeth Evatt AC, former member of the UN Human Rights Committee (1993-2000), former Commissioner of the International Commission of Jurists.