FRANK BRENNAN. Same sex marriage and freedom of religion.

Sep 21, 2017


NZ Prime Minister Bill English was being interviewed by Fran Kelly on ABC RN Breakfast on Monday morning.  Fran asked him about same sex marriage which is now law in New Zealand. He stressed that freedom of religion is important. She observed: “You voted ‘No’ in 2013 but you’ve said if the vote was held now, you would vote ‘yes’. Does that mean that the New Zealand experience of marriage equality has been a positive one for your country?”  Prime Minister English replied: “It’s been implemented. There are a number of people taking advantage of it. We haven’t had quite the same challenges around free speech and religious freedom as here but I think it’s really important that that’s maintained. But it’s a pretty pragmatic approach really. It’s in law. I accept that that is the case: we have same sex marriage in New Zealand and we’re not setting out planning to change it.”

“There is a clear legal reason why New Zealand has not had the same challenges around free speech and religious freedom. That’s because they already had in place a national law recognising and protecting these rights. We Australians don’t. And that’s the thorny issue. That’s the issue being aired so constantly now by John Howard and Tony Abbott.  In the past, they have been strong opponents of any statutory bill of rights.

The New Zealand Bill of Rights Act 1990 provides:

  1. Freedom of thought, conscience, and religion – Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
  2. Freedom of expression – Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
  3. Manifestation of religion and beliefEvery person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

We have no such provisions at a national level in Australia. Before, or at the same time as, legislating amendments to the Marriage Act, our politicians need to attend to this shortfall in Australian human rights protection.

I don’t think this is best done during an emotional national plebiscite campaign. I think it is better attended to by the Parliament once the public has given the go ahead for consideration of legal reform. Of course, the best way would have been for the government to publish proposed legal protections prior to the conduct of the plebiscite. But that wasn’t done.  The government has been on notice about this problem for some time.

Back in November 2016, the Minister for Foreign Affairs, the Hon Julie Bishop MP, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire into and report on The status of the human right to freedom of religion or belief.  The committee received 340 submissions, including those from some of the nation’s leading academic constitutional lawyers.  For example, Professor George Williams wrote to the committee on 1 March 2017:

“Australia is exceptional. Indeed, we stand alone in being the only democracy without some form of national bill of rights incorporating protection of freedom of religion. The same problem applies to a number of other rights, including those that underpin our democracy, such as freedom of speech and association. Put simply, Australia does not protect freedom of religion and other rights as is thought appropriate in every other like nation.

“This should be remedied. Without stronger protection, freedom of religion, along with other basic rights, are vulnerable to abrogation by Parliament. In addition, public debates and policy discussions are not informed by legal structures and standards that ensure freedom of religion and belief is given the status in Australian society that it deserves.”

Professor Carolyn Evans, who was Dean and Harrison More Professor of Law at Melbourne Law School at the University of Melbourne at the time, told the parliamentary committee on 7 June 2017:

“We need a more comprehensive human rights act. I have been saying that for a long time. I do not have any naive assumptions that that will change quickly. It is part of the problem. We have cherry picked a couple of rights which have been given a very strong status, and others have been given a lesser status in various ways. The danger at the moment is that various religious groups say, ‘We need a religious freedom act,’ then the media say, ‘We need a media protection act,’ and you could end up multiplying the problem rather than resolving it. To me it makes sense to incorporate it all into a single act. That would not make the need for discrimination law simply disappear, because that is a very specific set of issues, particularly around employment and some core services. Ensuring all Australians have access to those fundamentals is still important. That is why I argue for a human rights act that includes not only religious freedom but other rights as well.

Those in the Liberal Party who are espousing a ‘Yes’ vote without further ado could blow their campaign, big time.  They need to get out there with a solid commitment to legislating for freedom of conscience, religion, belief, expression etc.  All equivalent countries such as UK, US, Canada and NZ have some form of national protection of these rights in place, constitutional or statutory.  We don’t.  So when something like same sex marriage comes along, there is a vacuum that requires attention.  Voters fall into four groups:

  1. Yes NOW
  2. Yes, providing you do X
  3. No, not until you do X
  4. No, Never.

If Malcolm Turnbull continues fudging it (with Bill Shorten’s support), the risk is that voters in category 2 will coalesce into categories 3 and 4.  But if they come out with a clear statement on the freedoms, those in category 3 could migrate to join categories 1 and 2.

This ABS optional survey has a long way to run, and it’s not just about same sex marriage.  Messrs Howard and Abbott have made sure of that.  Our politicians need to commit to legislative protection of freedom of religion once the ‘yes’ vote is in.  This legislative protection will not be part of the Marriage Act.  But it needs to be put on the books at the same time as any amendment to the Marriage Act.

Fr Frank Brennan SJ AO is CEO of Catholic Social Services Australia

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