‘The Forgotten Freedoms – Freedom of Religion’
Australian Catholic University
Human Rights Commissioner
Australian Human Rights Commission
Tuesday 29 May 2014
Thank you for your kind introduction.
I would like to begin by acknowledging the traditional owners of the lands on which we are meeting tonight.
I also want to acknowledge the Australian Catholic University.
Universities can play an enormously important role in the life of a country. While relatively young, the Australian Catholic University has established itself as a significant contributor in providing education for an open-minded and compassionate generation.
But I should confess that I am biased. My partner, Ryan, is a graduate of the ACU with both a Bachelor of Education and Masters of Educational Leadership. Surely the measure of the success of any University is in the success of their graduates. Measured against the success of one close-to-home graduate, the ACU is clearly excelling.
It is a great pleasure to deliver a Blackfriars Lecture.
A few weeks ago I gave a speech to the Sydney Institute outlining the approach I plan to take to human rights as the Federal Commissioner titled ‘The Forgotten Freedoms’.
In this speech I outlined that I have concerns about the key freedoms of expression, worship, association and property rights. Reasserting them will be the focus of my tenure as Human Rights Commissioner.
It probably seems odd to refer to freedoms we exercise on a daily basis as ‘forgotten’.
But as foundational freedoms, they are being taken for granted and are consequently compromised.
Any compromise is rarely explicit. Instead, compromises occur through the incremental advancement by government of policies with worthy objectives. But they consequently encroach on rights.
The most recent and notable example has been the debate about the limits on free speech resulting from the Racial Discrimination Act 1975 (Cth) and whether it should be unlawful to say something that ‘offends, insults’ or ‘humiliates’; especially in light of the same standard not being applied to other groups within the community. But it is not alone.
In my second speech on the theme of these forgotten freedoms I will address the challenges facing freedom of worship.
But first, some administrative background.
The office of Australian Human Rights Commissioner
The position of Human Rights Commissioner is established under the Australian Human Rights Commission Act 1986 (Cth).
There are currently eight Commissioners at the Commission, which includes the President and Commissioners that focus on discrimination on the basis of Age, Sex, Race and Disability. There’s also the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Children’s Commissioner.
And then there is my office – the Human Rights Commissioner.
The role of the Human Rights Commissioner differs from the other Commissioner’s portfolios that provide specific focus through relevant pieces of Federal legislation.
International human rights issues, including asylum seekers, predominantly sit with the President.
Since my role potentially encroaches on the policy areas of other Commissioners – and I don’t wish to duplicate or unnecessarily tread on other’s toes – my role is to focus on domestic civil and political rights.
When announcing my appointment late last year, the Attorney-General George Brandis, noted the absence of a ‘rights’ culture in Australia and asked me to focus on advancing rights and freedoms.
Resulting from my classical liberal approach to human rights and views about greater freedom for the individual, the Attorney-General dubbed me the ‘Freedom Commissioner’ – and I can assure you that is precisely what I plan to be. I want to advance rights and freedoms with complimentary responsibilities.
There are competing views about how we should approach human rights and freedoms. After all, human rights are a political construct.
I’ve made it clear that I will be approaching human rights from a classical liberal approach – that human rights are the protection from the abuse of power by government against individuals, people own their own lives and pursuit of their enterprise, while ensuring they do not do harm to others. Human rights are narrow, can be reasonably exercised consistently and rarely come into conflict.
Human rights underpin people exercising their freedom.
Since starting in this role, and engaging with many people, one point is clear: there is a fundamental lack of understanding about what human rights are.
Commentators can ascribe their own reasoning. My conclusion is that the lack of understanding comes from human rights being disconnected from their foundational principles.
Sometimes worthy civil rights and social justice aspirations have been elevated to the sacrosanct status of human rights and anti-discrimination has been conflated with human rights.
I consider what I am about to say to be uncontroversial, but apparently it is not.
One. Human rights are not the same as civil rights. Human rights are universal and exist from birth; civil rights are the gift of citizenship.
Two. Human rights are not the same as social justice. Human rights are about uncompromisingly protecting the autonomy of the individual; social justice is broadly about advancing equity.
Three. Human rights are not the same as anti-discrimination. Apart from equality before the law, human rights can actually be about exercising discrimination, such as free association; whereas anti-discrimination is about removing unjust prejudice.
Four. Human rights are not about protecting groups of people. Universal human rights can only exist for individuals, by comparison group rights cannot be extended to everyone.
In practice, universal human rights often conflict with these otherwise worthy aspirations.
The four objectives I have outlined are all broadly confused because of the development of treaties under the banner of human rights.
It is understandable that countries sought to internationalise human rights values after the Second World War through treaties. However, this process has disconnected human rights from their origins. Governments negotiated what human rights are. They are no longer seen as rights of birth. They are now perceived as gifts of government.
And the UN system that has continued to add ‘new’ human rights to the list has resulted in the dilution of their integrity.
As argued by Daniel Hannan in How We Invented Freedom and Why it Matters the internationalisation of human rights Europeanised them. Hannan argues:
While the contents of the various European and international human rights codes are generally unobjectionable, the elevation of such codes to the detriment of national sovereignty and parliamentary democracy is wholly at odds with the Anglosphere tradition.
As a consequence, parliamentary democracy comes second to international jurists who establish new standards and challenge democratically elected governments.
But from a classical liberal perspective the much broader challenge is reconnecting human rights to their principled origins.
In his history of the International Covenant on Civil and Political Rights, the Austrian human rights lawyer, Manfred Nowak, wrote about how Articles 19 and 20, the Articles about freedom of thought and expression, perfectly demonstrate the tension between the socialist and liberal traditions on human rights.
According to Nowak in:
the liberal view, every individual has the freedom to form his or her own opinions free from external indoctrination and to defend them in the “free market of ideas” without fear of repression ... The zone of legitimate State intervention commences at the point where the expression of an opinion interferes with the rights of others or constitutes an obvious, direct threat to life in society.
According to the socialist view, human rights are, in general, the embodiment of the very essence of the Socialist State and are marked by an “objective conformity of interests between the citizen and the socialist society freed of class antagonism”.
Nowak’s analysis of the socialist view is infused with the rhetoric of the day. But the broad objective of the socialist view is to interpret human rights as an instrument to ensure democratic participation, not protect the universal rights of the individual.
These are clearly inconsistent approaches. Yet this tension is infused through international treaties which elevate worthy aspirations to the status of sacrosanct human rights principles.
Defending freedom is merely the evolution of past intellectual debates about the relationship of the individual to the State. To the extent that we are having ‘Freedom Wars’, it is merely the 21st Century incarnation of the philosophical, political and legal contest of ideas.
The consequences of this are now being felt in Australian discussions about human rights. Human rights have been debased from their liberal tradition and have been compromised as the socialist tradition has become more pervasive.
I will be taking discussion about human rights back to their origins and will be spending the next five years reconnecting them back to their foundations and their universal applicability.
Human rights are the foundational building blocks of our liberal democracy.
Human rights are not the same as freedoms. Human rights are the protection against government encroachment of the rights of individuals. Freedoms are the exercise of those rights.
To advance rights I will not be focusing on new laws. Instead I will be focusing on how we drive non-legislative cultural change to advance rights and responsibilities.
As I have already outlined, tonight I will address the human right of freedom of worship, or as we commonly refer to it – religion.
The nature of religion
I recently outlined my focus as Human Rights Commissioner to a friend who shares a similar perspective on human rights as I do.
In response to my inclusion of freedom of worship in the catalogue of forgotten freedoms I got a swift rebuke. He argued that freedom of worship is simply an extension of freedom of thought, conscience and its external manifestation – expression. If I surmise him accurately, his argument is that freedom of thought and conscience envelope the spirit of individual religious practice, and that expression is merely the worldly manifestation of faith.
In part, I agree with him. Freedom of religion is a close ally and friend of the absolute freedoms of thought and conscience. Government cannot regulate it, and nor should they. Equally, it is closely allied to freedom of expression.
But paralleling the manifestation of worship with expression doesn’t encapsulate the fullness of worship. As the Swiss-born 18th and 19th Century French politician, Benjamin Constant, outlined in his description of faith:
Whatever the cause of the emotion, it bears within it something which quickens the blood, arouses a kind of well-being, and heightens in us the sense of our existence and strengths. We become open to a generosity, a courage, and a sympathy above our everyday disposition. Even the corrupted man is better, when he is moved and as long as he stays moved.
Man has a relationship with his creator. He constructs for himself or is given various ideas about his relationship. This system of ideas is called religion. Each person’s religion is therefore his opinion of his relationship to God. Each man’s opinion being free, he may take up or not take up such religion.
In a more contemporary context, in his discussion of freedom of worship in his ‘Forgotten People’ speeches, Sir Robert Menzies articulated his interpretation of faith to people:
We grope out towards the light, seeing an occasional flash of beauty or of understanding, hearing occasionally the penetrating voices of reason. Civilization is in the heart and mind of man, not in the work of his hands. An in the heart of every man, whatever he may call himself, is that instinct to touch the unknown, to know what comes after, to see the invisible.
In short, religion is about everyone’s relationship to their creator. It is more than just earthly expression. It has the potential to be the expression of an individual’s purpose based on the relationship to their creator, their capacity to fulfil that purpose and the judgement that they may receive as a consequence of their actions in a future life.
But it has earthly limits. Like expression, the manifestation of the freedom of worship is only justified to the extent that it inhibits the human rights of others.
For example, it’s uncontroversial that restrictions on the freedom of worship are justified if an ordinary crime is committed in the process.
But, even then, the nature of the human right of religion has sometimes been offered exemptions if an otherwise illegal practice is necessary to adhere to spiritual observance. It was a point I was reminded of recently that during the early 20th Century failed experiment of prohibition in the United States. In that experiment one of prescribed exemptions for purchasing alcohol was for the purpose of religious ceremonies.
Unsurprisingly there was a sudden spike in the number of religious practitioners and worshippers!
Religion in Australia
The role of religion in Australia is nuanced. The foundation of our country was not based on significant religious conviction or events, though it has never been absent from our national character.
If you want to read the diversity of views about the role of religion in Australian society I recommend consuming the Australian Human Rights Commission’s commissioned report into ‘Freedom of religion and belief in 21st Century Australia’ from 2011. It shows that diversity of views are more contrasting than ever. The diversity of views don't just show that views are strong and deeply held, but that the entrenched positions are arguably becoming deeper, especially as a result of more religious institutions engaging in the provision of public services, such as education.
Based on the most recent census data from the Australian Bureau of Statistics, Australia is still a country where a majority have some form of faith, particularly some form of Christianity. The number of people who identify as Christian has been in decline since Federation; 96 per cent identified as Christian in 1911, but this fell to 61 per cent in 2011. Meanwhile only 7.2 per cent of the population identifies with a non-Christian faith, including Buddhism, Islam, Hinduism and Judaism. But importantly these faiths amount to 67 per cent of the population born overseas. Those with no religion total 22.3 per cent. While faith may be in decline, we are still a nation of faith.
While modern Australia technically originated from the benign theocracy of the United Kingdom, in practice we adopted an essentially Lockean approach to the role of government over religion. In his A Letter Concerning Toleration, John Locke argued:
The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests.
Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.
By comparison, Locke argued faith had a different purpose:
to be a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to Him, and effectual to the salvation of their souls.
According to Locke the role of government was not to advance religion. Though that relationship, at times, vacillated in the early colonies.
As outlined by Stephen McLeish in his 1992 article in the Monash University Law Review on religion and the Australian Constitution, religion has always had an intertwined relationship with government.
The early colony of New South Wales compelled locals to attend Anglican services and funded the salaries of priests in a limited capacity. In my home State of Victoria, government aid was provided to Christian churches until 1870 when State funding for religious education ended to ensure the State was neutral in religious matters. Similar efforts were achieved a decade earlier in Queensland.
Obviously that was reversed by the Menzies government’s funding of independent schools in 1963.
Yet, despite the vacillating relationship between religion and government, legislative limits to regulate faith was one of the few efforts to establish protections of rights in the Australian Constitution. During the drafting process, restrictions on the Commonwealth to legislate on religion were proposed, rejected and proposed again before being adopted.
In his speech to the 1897 Constitutional Convention, future Prime Minister, Edmund Barton, encapsulated the view of the role of government over religion at the time:
The whole mode of government, the whole province of the State, is secular ... The whole duty is to render unto Caesar the things that are Caesar’s, and unto God the things that are God’s. That is the line of division maintained in every State in which there is not a predominant church government which dictates to all civil institutions ... The best plan which can be adopted as to a proposal of this kind, which is so likely to create dissension foreign to the objects of the any church, or any Christian community, is that secular expressions should be left to secular matters while prayer should be left to its proper place.
There are four essential points about keeping the State separate to religion.
First, it ensures a secular State and alleviates tensions that can arise between different faiths by not fuelling religious sectarianism and factions.
Second, it limits the risk that the State can intrude between an individual and their God.
Third, it does not create barriers for individuals that have no faith.
Fourth, it protects faiths from the intrusion of government into its activities. Both ultimately advance the interests of religion. Again, quoting Benjamin Constant:
Government does no less harm and is no less impotent when, in the context of sceptical age, it wants to re-establish religion. Religion must be restored on its own according to man’s need for it. When you disturb him with alien considerations, you prevent him from feeling the full force of this need.
This is a theme touched upon more recently by Harvard historian, Niall Ferguson. In many of his works he has outlined that one of the reasons for the ongoing survival of the church in the United States has been the role of competition. Whereas in his native England, the church is essentially a State monopoly, by comparison, in the United States competition continues to drive the expansion of people to sit on pews.
I would argue that the role of religious institutions in a modern democracy is incredibly important in providing a counter balance to the power of government.
It’s often forgotten that government is a unique beast. It is regularly equated to business and individuals as an equivalent interest. But government remains the only institution in our society that can design laws and enforce them. Its power is extreme. The extent of its power is why we have the separation of powers to provide an institutional check on the operation of government. It’s also why we have a Federalist system to have different levels of government capable of holding each other to account.
Counterbalances to government are essential because of the interest it seeks to advance. The interest of government is based on the values and views of those in charge. Government is also approached from a government-down perspective in advancing the best interests of society. That is a very different perspective than the intended design of a liberal democracy based on governing for the individual-up. But we often forget that there is another important check placed on government power in a liberal democracy – the private sector.
The private sector is not just business. The private sector is essentially everything in society that is not government. The private sector is individuals. The private sector is civil society institutions. And the private sector is religious faiths. Combined, all of these provide a counterbalance to the exercise of government power.
The Constitution also determines the relationship between the State and religion in Australia. On the matter of government involvement in religion there are strong parallels between the drafting of the Australian and United States Constitution. But the interpretation has been very different. In the context of the United States, the prohibition has been defined broadly and acted as restriction of any religious advancement by government. By comparison, the Australian High Court has interpreted this section narrowly and ‘does not guarantee an area of individual immunity from governmental interference in religion’. 
As identified by UNSW’s Professor of Constitutional Law, George Williams:
The narrow meaning of ‘establishing’ a religion given in the DOGS Case [the case that upheld the Commonwealth’s capacity to fund religious schools] means that s 116 provides a much less robust level of rights protection than the First Amendment to the United States Constitution, which has been understood to prohibit government from appearing to take a position on questions of religious belief or making adherence to religion relevant to a person’s political standing.
So while the Constitution requires the Commonwealth government to stay out of religion, in practice the limitations on government are relatively narrow and focus primarily on the establishment of religion.
It is in the interaction between advancing the human right to freedom of religion and other governmental objectives that causes controversy.
Two sides of the non-discrimination coin
Anti-discrimination laws are regularly contentious when respecting religious freedom.
It’s important to recognise that there are two components to non-discrimination. There’s discrimination by government and discrimination by other citizens.
Discrimination by government is a violation of equality before the law.
Discrimination by other citizens can often be about exercising human rights.
The most contentious interaction between the advancement of the human right of religious worship, and the secular ambition of laws, surrounds non-discrimination.
One aspect draws significant attention – the extent that religious faiths can legally discriminate against others based on the tenets of their faith. Yet the civil right of non-discrimination by an individual or non-governmental institution against others can often be a consequence of individuals exercising their human rights.
But there is another side – discrimination against religious faiths by a secular state – that gets much less attention. Resulting from the human right of equality before the law, discrimination against faiths is not justified.
On discrimination by religious faiths, I should acknowledge my slight conflict of interest in this discussion.
My role as Australian Human Rights Commissioner requires me to defend religious liberty in Australia. But, in the absence of a dedicated Commissioner for this purpose, I am also the de-facto Commissioner responsible for issues that affect lesbian, gay, bisexual, transgender and intersex Australians, including addressing the unjust discrimination they experience. As I am sure you are all aware, the latter group represents the group discriminated against by the former.
Traditionally, religious institutions have been given wide exemptions to ensure the exercise of their human rights has not been infringed upon. The principle has been codified in various anti-discrimination law exemptions around the country.
Though, that changed last year.
Under changes to the Sex Discrimination Act (Cth) last year, the exemptions for religion did not extend to discrimination on the basis of accessing aged care facilities, many of which are owned and run by religious institutions. Yet grounds for faith-based discrimination remain for many other services.
So what is the future for the breadth of anti-discrimination laws? This issue is being explored through a case currently being challenged in the High Court from a group that was denied the use of a campsite owned by the Christian Brethren on Phillip Island on the grounds of the religious exemptions under Victorian law.
I won’t comment on the specifics of this case for legal reasons. But the decision of the High Court has the capacity to re-establish the breadth of these exemptions.
Assessing the appropriate conclusion from a human rights perspective is complex.
There are potentially numerous human rights at play, including religious freedom, property rights, freedom of association and speech. On the converse side is the civil right to non-discrimination.
But even in that context, how can we define the manifestation of the human right to worship? A narrow definition would suggest that religious faith is something simply practiced in formal ceremonies on church on Sunday. A broad definition would say that the inspiration of faith informs every action of an individual.
Not being a man of faith, I find it hard to be convinced that all aspects of life can be inspired by faith. But equally, the bias should always be toward the full realisation of a human right which lends itself to a broad definition justifying broad exemptions for faiths.
Coming to a firm conclusion is even more complex when public funding is thrown into the mix. Public funding used to discriminate can compromise the human right to equality before the law. But it is added onto both sides of the ledger.
How is it both sides?
On the side of religious faiths: They may face discrimination by government in not being able to bid for services if they do not shelve their religious practice to pursue secular objectives.
On the side of the discriminated individuals or groups: Failure to advance secular objectives with public money can also be a violation of equality before the law.
While both examples have common traits, the line of discrimination by government is not equivalent.
The line of direct discrimination by the State against individuals or groups because they have faith is clear.
But the line of indirect discrimination by the State against individuals or groups because they seek to access publicly funded services through faith-based providers is fuzzier.
Many have argued that in advancing a secular state, it is not the role of government to finance services that may advance religious pursuits such as schooling and the currently contested school chaplaincy program.
But so long as we are a secular society and government services are outsourced to private providers, there is no justification that faith-based bodies be excluded from that process. The primacy of the human right to freedom of worship should not be simply dismissed in pursuit of advancing the civil right to non-discrimination.
The challenge is not about if religious bodies participate. The question is how governments remain a neutral party in deciding the allocation of funding so that the connection between consumer-demand is most closely linked with the service funded. Models exist.
A vouchers-based allocation of government resources for the education sector achieves this objective. Under a vouchers-based system any government funding is allocated directly to the individual and is ‘cashable’ at a registered body based on whether a parent chooses that service as their preferred provider.
In my opinion, there are lots of other benefits to a vouchers-based system. But on the principle issue in front of us – how to ensure government neutrality consistent with individuals exercising their rights – preserving government neutrality in a marketplace where religious providers compete, ensures that government remains a neutral party and avoids the need for discrimination. Under vouchers the allocation of any public funds is based on the choice of the consumer, not government.
Making the government a neutral part in the allocation of public funds is the human rights compliant approach to avoid discrimination against faith-based providers and irreligious individuals and groups.
The importance of tolerance
The final point I want to make tonight is on the importance of tolerance. It was a central theme of Locke’s approach to religion in the 17th Century, and it remains true today.
Threats to the manifestation of religious freedom do not just come from laws.
Tolerance remains a vital component in the respect for religion, both between faiths, toward those without faith, and from those without faith towards those that do. Tolerance is the end of rights and the beginning of responsibilities.
While faiths may have the legal capacity to discriminate, it does not mean they should. If those of faith want tolerance, then they have to exercise it themselves.
Equally, in a free society every citizen is within their rights to exercise their voice about what they approve, and what they do not. But that cuts both ways.
One of the most disturbing societal trends is the number of people that are happy for individuals to have their faith, but are not prepared to accept that it can be a factor that informs their thinking on matters of public policy.
I was particularly struck by the necessity of the need for tolerance for religious faith during a recent debate in the United States. Only a few months ago Brendan Eichm, the CEO of major internet company Mozilla, resigned from his position after it was revealed he had made a modest donation to campaigns to fight marriage for same-sex couples in California.
His resignation was prompted by protests of consumers against the business because of the exercise of his unpopular view.
I should note that religion has not been presented as Eichm’s defence of his donation. Thankfully, at least as far as I am aware, there has not been an explicit equivalent event in Australia resulting from this issue.
But in light of the rhetorical heat around marriage for same-sex couples, tolerance of those motivated by faith is just as legitimate as those motivated by secular values.
It’s understandable that irreligious people dislike religious faith used as the motivation to advance a particular public policy outcome. Cries of ‘separation of church and state’ are common in these situations.
But in a liberal democracy it is not justified to limit advocacy or participation because it is motivated by faith. It is as legitimate a motivation as any other.
Tolerance for viewpoints is vital in discussions about the complex intersection of religious freedom and civil rights.
Both perspectives go to the heart of identity and individual dignity. That should not be forgotten.
 D Hannan, How We Invented Freedom and Why it Matters, Zeus Publishers (2013).
 M Nowak, U.N. Covenant on Civil and Political Rights CCPR Commentary (second edition), N.P. Engel (2005), p 439.
 Nowak, above.
 B Constant (translated by D O’Keeffe), Principles of Politics Applicable to All Governments, Liberty Fund Inc. (2003), p 133.
 Stanislas-Marie de Clermont-Tonnerre, ‘Opinion sur la propriete des biens du clerge, Novembre 1789’ in Recueil des Opinions, pp. 74 – 75. Constant has not given us the following passage: ‘he can keep it or leave it. If opinions are free, no one can bind the opinions of others. No one can bind even his own, for being free, he reserves the right to abandon it if he judges it wrong’, cited in B Constant (translated by D O’Keeffe), Principles of Politics Applicable to All Governments, Liberty Fund Inc. (2003 ), p 146.
 Sir R Menzies, The Four Freedoms - Freedom of worship, (Speech broadcast on radio in 1942). At www.menziesvirtualmuseum.org.au/transcripts/ForgottenPeople/Forgotten4.html (viewed 29 May 2014).
 Australian Human Rights Commission, Freedom of Religion and Belief in 21st Century Australia (2011). At https://www.humanrights.gov.au/publications/2011-freedom-religion-and-belief-21st-century-australia (viewed 29 May 2014).
 Australian Bureau of Statistics, Reflecting a Nation – stories from the 2011 census, (2012). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/2071.0main+features902012-2013 (viewed 29 May 2014).
 J Locke, A Letter Concerning Toleration (1689).
 J Locke, A Letter Concerning Toleration (1689).
 S McLeish, ‘Making Sense of Religion and the Constitution: a fresh start for s 116’ Monash University Law Review: 18(2) (1992).
 E Barton, Constitutional Convention Debates, Vol III, pp 1187-88.
 B Constant (translated by D O’Keeffe), Principles of Politics Applicable to All Governments, Liberty Fund Inc. (2003), p 140.
 G Williams and D Hume, Human Rights Under the Australian Constitution (2nd ed), Oxford University Press (2013), p 259.
 G Williams and D Hume, above, p 265.