The proposal to legislate for freedom of thought ,conscience and religion, as provided in the International Covenant on Civil and Political Rights is a half measure which would leave other rights and freedoms without equivalent protection. And it may not produce the result which is aimed at.
There are now two different official forums considering whether freedom of religion is adequately protected. Philip Ruddock and an expert panel were recently appointed by the Prime Minister to examine whether Australian law adequately protects the human right to religious freedom. Meanwhile the Joint Standing Committee on Foreign Affairs, Defence and Trade has been asked by the Foreign Minister to inquire into the status of the freedom of religion or belief, as recognised in Article 18 of the International Covenant on Civil and Political Rights (ICCPR) around the world, including in Australia. Though broader in scope, this inquiry has attracted submissions which go to the very issues which concern some people in relation to same-sex marriage.
The current calls for greater protection of religious freedom, which have arisen in relation to the recognition of same-sex marriage, are not aimed primarily at securing protection against discrimination on religious grounds. Their main objective is to enable people to claim exemption from existing anti-discrimination laws in order that they may lawfully discriminate against people entering into a same sex marriage, on the basis that such a marriage does not conform with their religious beliefs. Currently, certain exemptions from anti-discrimination laws are given to religious bodies and religious educational institutions, but not to persons or enterprises engaged in commercial transactions.
It would be a novel and dangerous concept to exempt commercial transactions from discrimination laws simply because one’s personal religious beliefs do not accept a civil status recognised by law. Where would this lead? Could an employer then discriminate against a married gay worker, on the ground that he or she was married under the new law? Could someone refuse to provide goods or services to a divorced person who was about to marry again because his/her religion would not recognise such marriage? This would be to drive a huge wedge through our anti-discrimination laws.
Some of the current advocates of greater protection of religious freedom have called for Article 18 of the ICCPR on freedom of religion to be enacted into law, possibly by incorporation into the same-sex marriage bill. This may not lead to the answer they seem to want. The enactment of same-sex marriage does not in itself limit freedom of religion, and selling cakes or engaging in other commercial transactions in relation to same sex marriages can hardly be seen as a manifestation of religious belief. No substantial grounds have been put forward to justify any exemption from anti-discrimination laws, which at present protect from discrimination on the ground of sexual preference.
Nevertheless, the very suggestion that we should legislate part of the Covenant is interesting in itself. The absence of national legislation in Australia to protect against religious discrimination has been criticised frequently in UN forums, and most recently by the UN Human Rights Committee, an independent body. In its recent review of Australia’s human rights record (which does not make pretty reading), the Committee called for comprehensive national legislation against all forms of discrimination on all the prohibited grounds, including religion, as well as access to effective and appropriate remedies for all victims of discrimination.
The Committee went much further than this. It has for long been unhappy at Australia’s failure to implement fully its obligations under the ICCPR to provide comprehensive legal protection of those rights. Once again, it recommended that legislation be adopted to give full legal effect to all Covenant provisions across all state and territory jurisdictions. If we are to consider legislation to protect rights and freedoms, that would be the way to go. Frank Brennan, who is part of Philip Ruddock’s panel, has already put forward a good case for national human rights legislation. It would be remarkable if the conservative elements of politics, in their unwillingness to accept the fact of same-sex marriage, were to restart the debate on whether we should have comprehensive entrenched protection of the human rights in the UN Human Rights Covenants and Conventions which we have agreed to implement.
Incidentally, when asked recently about the international community’s views about Australia’s human rights record, the Foreign Minister referred only to Australia’s election to the political body, the Human Rights Council. Australia was elected to this body along with countries not noted for their protection of rights, such as Congo, Qatar, Burundi, Kyrgystan, Togo, Venezuela, Iraq, Rwanda and Saudi Arabia. But the independent treaty bodies, such as the Human Rights Committee, have another view of Australia’s human rights record. They have frequently condemned our treatment of asylum seekers and indigenous peoples, as well as our anti-terrorism laws. We should give greater attention to their views when we consider whether we are fulfilling our international obligations.
Elizabeth Evatt AC, former member of the UN Human Rights Committee (1993-2000), Commissioner of the International Commission of Jurists.