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Joint Standing Committee on Foreign Affairs, Defence and Trade
06/06/2017
Status of the freedom of religion or belief

WILLIAMS, Professor George, Private capacity

Subcommittee met at 09:00

CHAIR ( Mr Andrews ): I declare open the first public hearing of the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade for the inquiry into the status of the human right to freedom of religion or belief. I indicate that Dr Aly will be coming online, when we can make a connection, from WA and Ms Claydon is currently stuck in traffic and will be here shortly.

I advise that, in giving evidence to the subcommittee, you are protected by parliamentary privilege. I also remind witnesses of the obligation not to give false or misleading evidence. To do so may be regarded as contempt of the parliament.

These are public proceedings, although the subcommittee may agree to a request to have evidence heard in camera or may determine that certain evidence should be heard in camera. If a witness objects to answering a question, the witness should state the grounds upon which the objection is taken and the subcommittee will determine whether it will insist on an answer, having regard to the ground which is claimed. If the subcommittee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course be made at any other time.

I ask witnesses to refrain from naming individuals who may be associated with current cases, so as to protect the privacy of individuals. In accordance with the committee resolution on 12 October 2016, this hearing will be broadcast on the parliament's website and the proof and official transcripts of proceedings will be published on the parliament's website.

I now welcome Professor George Williams. Thank you for the submission that you have made to the committee. Would you like to make some opening remarks?

Prof. Williams : Thank you, Chair. Thank you for the opportunity to appear before this important inquiry. There are three propositions that I put to the committee, and I will expand on one in my opening remarks. The first proposition is that it is accepted, and should be accepted, that freedom of religion, thought and belief are fundamental cornerstone principles to Australian democracy—and, in fact, any democracy around the world—and that a vibrant and tolerant community depends upon strong protection for these rights. I would say of course at the moment that the protection needed is particularly important. We live in a society where we are dealing daily with conflicts, whether it be terrorism or other forms of conflict, that are raising questions about the role of religions in our society. We are also dealing with a series of policy debates, including on same-sex marriage, which are also raising questions about the proper balance between religion and other interests. It is particularly important in these debates that we are informed by a strong standard that does provide for protection of freedom of religion.

The second point that I make, which I will expand upon in a moment, is that, at present, freedom of religion, thought and belief receive inadequate protection under Australian law. In fact, it is not just inadequate; it is the lowest level of protection in any democracy in the world of which I am aware. Australia has no national clear protection of freedom of religion, bar the constitutional provision that I will mention, which is narrow and largely ineffective. When compared to the other nations that I set out in my submission Australia ranks very poorly in terms of the protection we provide nationally to this important right.

The third point is that, given the inadequacy and given the importance of the protection, my view is that the law should be changed to provide better protection to these rights. There are a variety of ways of doing that, and I am happy to talk about those with the committee. When we are faced with the need in the sorts of debates we are having at the moment and the inadequacy I think that should lead to legal change.

Just for a moment I will expand upon the point about the inadequacy of legal protection. Here I am just focusing upon the law. I do recognise also that other parts of the community, such as the culture of a community, political leadership and other factors, are especially important when it comes to the protection of any right, but the law itself plays a key role, particularly at the hard end of debates in determining how courts interpret laws and how the community structures its actions.

As my submission sets out, we do have freedom of religion in the Commonwealth Constitution, but it is a protection that is not expressed in any form as being a positive protection, as we find in the International Covenant on Civil and Political Rights. It is entirely negative in only applying to prevent certain Commonwealth laws being enacted. It is important to recognise that this federal protection, section 116, has not on any occasion been applied by the High Court to strike down the law, and it has no application whatsoever to any state law. In fact, it means that there is no constitutional protection at all for freedom of religion at the state level. The only possible exception to that is a clause in the Tasmanian Constitution that I note in my submission, but that is not entrenched against state laws, meaning that it can be overridden by any state legislation should they wish to do so.

The reason that Australia has such weak constitutional protection for freedom of religion is that the framers, back in the 1890s, rather than seeking to protect freedom of religion, actually sought to do the opposite. The clause 116 in the Constitution is there because the framers thought that the reference to Almighty God in the preamble to the Australian Constitution might enable the Commonwealth to make laws about religion. They were concerned that that not happen, hence this restriction on federal power. They were equally concerned that the states could continue, if they wished, to discriminate or limit certain religions. The convention debates are littered with references to where the states must be permitted to continue to restrict certain religions if they wished to do so. What it means is that our constitutional structure has built within it a recognition that it is permissible and in fact acceptable that the states, in particular, can restrict religious freedom, and nothing has been done in the years since to prevent that occurring.

The other quick point I will make is that if we turn to other parts of Australian law, again we see inadequacy when it comes to religion. Federal legislation, as we know, is very limited in the protection it provides. There is some limited employment protections. If some religions can claim protection on the basis of ethnic origin they can get protection, but it is scattered and often ineffective. The common law provides no effective protection. At the margins it may well be useful in interpreting statutes, but it is not recognised as a right that can trump any legislation.

Finally, if we look at the Parliamentary Joint Committee on Human Rights, it of course has a scrutiny function when it comes to examining statutes and regulations for trespassing against religious and other freedoms. But having looked at that very carefully and conducted a major study over its first four years, I am unable to identify that it has been effective in actually protecting religion or, indeed, other rights. There are many examples of where parliament has acted despite reports of that committee indicating that the right would be limited. I would also say that I cannot identify any case where that committee has been effective in preventing a particularly significant law from being enacted.

If you put those things together, what it means is that we have a system that depends upon restraint by the federal parliament not to restrict freedom of religion. That is not accepted as an acceptable protection in any other country. Despite the importance of this particular right, I believe that it is not given adequate recognition and protection in Australian law.

CHAIR: Thank you very much, Professor Williams. I will start with some questions, and I am sure my colleagues will have some as well. In terms of section 116, you make the observation that the High Court has never struck down any provisions reliant upon that. Have there been any cases in which claims have been made?

Prof. Williams : Yes. There have been several cases where claims have been made. They have all failed. The High Court has emphasised that this provision is not a personal right; it is simply a limited restriction on what the federal parliament can do. They have also pointed out drafting differences between this particular provision and the United States clause, indicating again that the Australian provision is to be narrowly applied. It means that if you were to wonder when section 116 might actually have work to do, it is where you have a federal law which directly targets a religion and imposes a negative outcome on it. Of course, the federal parliament does not pass laws of that kind. It tends to affect religions with laws directed to some other purpose, without specifically targeting religion. So it is quite possible, and indeed it does happen, where there are a range of indirect negative outcomes on religions that are simply not covered by this clause.

The closest I can think of a law that has been debated in recent times is if this parliament passed a law that said, 'A person cannot wear the burqa.' That may well fall foul of section 116, because it directly targets a religion, religious dress and free exercise. But you would need something that precise in going to a particular religion. Of course we have never had such a law passed by federal parliament. I would also say that if that law were passed by a state parliament there could be no problem with that, because there is no protection against any such law being passed at that level.

CHAIR: It has been a while since I studied constitutional law, so bear with me. The High Court has implied certain rights in a series of cases, as I recall. It has not gone anywhere near doing that in relation to freedom of religion or belief?

Prof. Williams : No. The implications relate to political communication and protection of the judicial process, but none of them relates to freedom of religion. Even where rights such as association have been discussed, religion has not been mentioned in that context. So it is really a vacuum. I think also there would be no likelihood that the High Court would go down that path in any event, because where it has implied rights it has implied them from the broader structures of the Constitution—to establish a judiciary, a representative government. We have nothing of that kind in the area of religion—just one clause which does limited, largely ineffective work. So in the advice that I give as a barrister in this area, my advice is that there is simply no effective protection that you are likely to access in the court.

CHAIR: Presumably the international covenant does not take protection any further because effectively it has not been adopted in domestic legislation—is that right?

Prof. Williams : That is right. We have agreed that we will adopt it in domestic legislation, but have never done so. It is like freedom of speech and a range of other rights that exist at the international level but do not have the same protection domestically. People can take a complaint to the United Nations. They can take those sorts of steps, and that happens in a variety of areas, but there is no obligation upon Australia to act. Remedy Australia have looked at the responses that Australia has had to violations of religion and other rights and they have found that Australia has not given an adequate remedy in 85 per cent of cases. Again, that means that, if I advise a client on whether they should go to article 18 and take a complaint to the UN, my advice is usually no, because there is no likelihood that it will lead to a domestic outcome.

CHAIR: And the special rapporteur has made comments from time to time about the inadequacy of protection in Australia.

Prof. Williams : Yes.

Senator MOORE: I have never studied constitutional law, and I have to admit that some of the submissions were a bit confronting because they were like High Court judgements. I have just a couple of questions, Professor Williams. One relates to what would be a favoured way to progress this issue. Your submission concentrated on the fact that we do not have adequate protection. I would like to have some comment from you about what you think would be an effective way forward. I am also unashamedly going to ask you about some of the things that came up in some of the other submissions that are showing a difference of view in this space. The submission by Dr Taylor spoke a lot about free exercise and made comparisons in his presentation about an effective democracy and looking at different interpretations and some of those cases you mentioned. I am interested to hear a bit about your views in that space. The other one—I am throwing these out so other people can jump in as well—is the issue about there being no hierarchy of rights and that everyone is quite comfortable until rights seem to collide. A lot of the submissions for today talk about the issues where people's ability to manifest their religion butts up against something through the antidiscrimination process. That dynamic impact seems to be going through most of the submissions, at least for today. They are the three areas I am interested in.

Prof. Williams : How about I start with the first of your areas? Let me start by saying that one of the problems in this area is that the legal position is clear, but the community does not see it that way. There is a lot of misunderstanding of this. I am often confronted with people who have a set of assumptions that freedom of religion or freedom of speech is well protected. One survey taken just a couple of years ago asked Australians, 'Do we have a national bill of rights?' Sixty-one per cent said yes. That is the situation in which we are dealing with this issue—there is complacency and a level of ignorance which is very disturbing. When people find that their religious rights might be infringed, they suffer great anxiety, I find, when they find that in fact the protections they thought they had do not exist.

As to why they do that—this committee is a valuable process in education—when I was in Victoria talking about religious and other rights in the drafting of the charter down there—I chaired the process down there—I went around the state asking, 'Would you want freedom of religion and other rights protected in Victoria?' The answer I got very often was no. I said, 'Why?' and they said, 'Because we know it is protected in the Australian bill of rights—you do not need double protection.' I said, 'Apart from freedom of religion, what is in this Australian bill of rights?' The thing that came up first, often, was speech. They knew that was protected. The thing that came up next most often was they knew they could 'take the Fifth' if they were in court. I think this is part of the broader context of this debate, that we have a really tricky situation where people do not understand just how threadbare the system is in key parts. Education is clearly part of the solution here, because it is hard to get reform and change and proper protection for speech and religion and things like that without people understanding that there is an imperative to actually make change.

As to the change you could make, certainly constitutional change is a possibility. In 1988, there was a referendum which would have extended this protection to the state, but it really would have only done part of the job, because we need broader protection than 116, in any event. But I am not in favour of quick form constitutional change. Referendums are very hard to get up, they are expensive and there are other issues on the agenda anyway around Indigenous recognition and other matters. I think it is much wiser, if we want to do that, to build up over a longer period of time. The obvious place to start is statutory change. There I think we should recognise that a number of rights which can conflict with freedom of religion are already given statutory protection in antidiscrimination law, for example—subject to exemptions, of course. But it means that we are currently interpreting a range of rights within federal legislation but without any countervailing statutory protection for religion, and I would also say speech is another major one that is often left out in this area. For me, I would say that if we recognise other rights deserve statutory protection, why wouldn't we also recognise rights that we think are just as important?

There are two ways of doing that. One way is to adopt what some of the states have done and that is to say, 'Let's just give particular protection against discrimination on the basis of religion.' And I cannot see why we would not take that as a sensible step, as we have done for other discrimination measures. Or you could also do what the federal parliament has done with respect to privacy, and that would be to say that we pass a statute saying that freedom of religion is generally protected, it has equivalent status to other rights within federal legislation, so it is a countervailing and balancing interest whenever other rights come into play.

The difficulty with doing that is that it is what we have at the moment. It is a really ad hoc system; we protect a few rights and not others. I think it is difficult to protect religion in that context without doing the same for speech, because very often speech and religion do need to be considered quite carefully together and we want robust debate about religion. We do not want to go back to past situations where people are prosecuted quite vigorously for blasphemy, for example, whereas today we would accept it is a reasonable comment to make about somebody's beliefs. We respect their beliefs, but they should be subject to robust debate in a community. That is why, even though I would support as a first measure individual statutory protection, I think ultimately this drives towards what we have seen in the ACT and Victoria. That is a statute that protects on a par what we see as the basic, core democratic rights, which are already recognised through the scrutiny function through the parliamentary joint committee, but giving them a status that that process does not give speech, religion, association and voting, those core set of rights in some form of national human rights act that would actually do what other countries do and see as the minimum form of actually protecting those forms of rights. That is where I would drive to. If you did not get there immediately, yes, I would say protect religion but, ultimately, I think going to that is better than the ad hoc approach where things like religion are just given inadequate protection at the moment, to say the rights we value are put on a level playing field as opposed to some favoured and some not. Do you want me to talk about any of the other issues you mentioned?

CHAIR: Before you do, can I tease out something else on that, Professor Williams. Is it possible in any way to effectively incorporate clause 18 of the covenant, or the equivalent in the United Nations declaration, into domestic law, or does it have to be done in a specific way which says—along the lines of what you were speaking about—that there is a specific statute to protect privacy, or a specific statute to protect freedom of speech or freedom of religion, or is there a way of incorporating, in effect, clause 18 and then allowing the courts to interpret how that might have application in particular cases?

Prof. Williams : Yes, there is, and I think that is the preferred approach. Even if you went to the human rights act approach I am suggesting, you would simply incorporate clause 18, and other clauses—like the speech clause, for example. That is the safest way because we know you can use the external affairs power in the federal Constitution to do that. You have a good secure hook upon which to do it. In fact, where it gets dangerous constitutionally is where you start moving away from that to, in fact, say, lessen the standard or increase the standard. What we are safe in doing is incorporating article 18 in our law using that power and putting whatever enforcement mechanisms, interpretation and other mechanisms that we may wish to put with it.

Senator MOORE: If we get time at the end, I would like to know a little bit more about the free exercise argument that was made by Dr Taylor. It was the core of that particular paper.

Prof. Williams : I have not read that submission, I am sorry. You had so many submissions. I was not sure which ones to read. But, if you can fill me in a bit, I am happy to respond to it.

Senator MOORE: I will let other people ask questions, and remind myself what he said. I do not want to verbal Dr Taylor by my interpretation of what he said.

CHAIR: I think he is coming in later, so he can tell you.

Senator MOORE: He is; he is in the next group.

Senator SINGH: As a Tasmanian senator, it would be remiss of me if I did not ask about the Tasmanian Constitution Act, which you referred to, Professor Williams, in the sense that where other states may pass laws that restrict religious freedom of belief there is a limitation in section 46 of the Tasmanian Constitution Act. I do note that you talked about the fact that it is not entrenched in that constitution, so therefore it can be overridden and it is probably not worth what is written in it. Is there anything that can be learnt from that? Tasmania seems to be the only state that has gone some way to address the issue of religious freedom. Is it worth anything?

Prof. Williams : Yes, I think there is. And we can talk about the fact that this is legally ineffective, but I think in some ways that is a secondary issue, because what we have here is, in the highest law within a state, a very clear affirmation that this is an important right deserving of protection. I think that is significant. It sets out what Tasmania sees as a value that deserves regard and respect. Of course, it is not just religious freedom; it is freedom of conscience and other matters as well.

I have been asked to advise on this at different times in my capacity as a barrister in terms of recent debates in Tasmania around same-sex marriage and also around antidiscrimination exemptions and things like that. My advice—which has been released publicly, so I can talk about it—is that it is not clear that this section can do much work in terms of its actual effectiveness. So, you have a clear statement of value, a clear statement of importance, but they have just got the drafting spectacularly wrong. It is very poorly done in terms of putting it in a document with an expectation that it will have meaning and effect but not putting in what you would find in all other state constitutions with clauses that do like work—not on this topic—and that is saying that you must comply with it unless you have a special majority of parliament.

There are easy ways of dealing with it, but the form of it is just not right in terms of what they are looking to do. That could be fixed at the state level if there was a desire to do. Or the way you could go, if you had a federal statute, such as the incorporation of article 18—this would be a choice for the committee—is that either you could say, 'Article 18 operates with respect only to federal laws, federal actions, federal policies,' or you could say, 'Article 18 operates as a standard Australia wide.' Under section 109 of the Constitution, that would then operate, to the extent of any inconsistency, to override any state laws. And there are federal considerations there that, of course, have to be considered. But, given the complete absence of effective protection of freedom of religion in the state constitutions, that is a path that would be open to the federal parliament. And you could, very effectively, set down a strong guarantee of religious freedom nationwide. As a result, section 46 would not matter so much. It would not have work to do. Frankly, it would be better if the states themselves lifted their own game and legislated appropriately, as Victoria and the ACT have done with their separate laws.

Senator SINGH: Do you think, in light of there not being any federal instrument, that for now that is something that could be pursued? Tasmania, for example, could redraft that section of the act so that it did have some substance behind it rather than just a value statement.

Prof. Williams : I t hink so, and I think Tasmania is the place to start. Put aside the separate laws, the charters and two jurisdictions; Tasmania has the only constitution which has clear, explicit protection of conscience and religion. Yes, I think Tasmania could embark on this debate. The reference may have already gone to the Tasmanian Law Reform Institute to look at changing the Tasmanian constitution to modernise it. To be frank, the Tasmanian constitution is in the worse shape of any constitution in Australia at the state level. It is often extremely poor in terms of drafting and it just has not been updated compared with others. And so the Tasmanian law faculty—in fact, in a few months, I will be at an event down in Tasmania talking about this—with bipartisan support, is looking at a project to modernise the Tasmanian Constitution and have a rewrite. If you did so, this is a clause where you would say: 'The value is apparent; let's get the drafting right on this next occasion.'

Senator SINGH: I do not want to monopolise too much of the committtee's time by talking about my state but at the moment in Tasmania there is a reignited debate to have a bill of rights at a state level. Is that a way religious freedoms could be protected—if states had their own human rights act, bill of rights or whatever you want to call it? Is that a possibility in light of that not being anything in place federally?

Prof. Williams : It is, and the ACT and Victoria are both doing this. I would not use the language 'bill of rights' because I do not support anything like the American instrument, which means courts can strike down laws. I favour the UK approach, which means the courts interpret statutes; and so they effectively take direction from parliament that, in applying anti-discrimination and other laws, there are certain important rights and values that must be taken into account. With freedom of religion, if a court finds that they cannot interpret it, that there is an insurmountable overriding of that right, then it would send it back to parliament and say, 'Parliament, freedom of religion is not being given the weight that the Human Rights Act thinks it should, so you should debate it again.' But it is up to parliament; parliament can retain the position, or not, if it wishes.

The human rights act form—I drafted the equivalent for Victoria—is something I do support. The Queensland Premier has indicated, and I expect legislation in that jurisdiction in the next two weeks, that a Victorian style human rights act will be introduced into the Queensland parliament. Yes, the Tasmanian debate is starting up again, and in New South Wales. And these things go in waves. Tasmania, Western Australia and Queensland have all had reports in favour of this change—community based reports. The thing that drives it is speech, religion and core social, civil and political rights. When people discover that we do not have a bill of rights, that motivates them to think they would like to see not an interference in what the community does but clear standards for government to operate against in delivery of services and also in terms of making sure we put important rights on a par with other interests. At the moment, that does not happen. So, yes, I would support that for Tasmania. As you know, I have spoken about it in Tasmania a few times. I think it is the right time to be talking about these things again.

Ms CLAYDON: Thank you, Professor Williams. It is good to see you again. I want to go back to one of the issues that Senator Moore raised—that there is a pattern through the submissions that there is tension between the protection of rights butting up against the anti-discrimination bill in particular. There are people who are arguing that religious exemptions are too broad. There are others arguing they are too narrow. Others are saying there need to be other general limitation clauses or balancing clauses inserted. Do you have a view around that issue? It is obviously exercising the thoughts of a lot of people.

Prof. Williams : It is. I do not have a view in terms of the specifics in the sense that I am not an anti-discrimination law expert. You can pick apart very specific exemptions and others. You have almost got to go through it bit by bit. There is no clear answer in terms of 'all of this or all of that'—and often people will like some exemptions but not others. As a constitutional lawyer, I look at that debate slightly removed and say it is not being conducted in a very effective way. What you have on the one hand is clear anti-discrimination statutes that do provide a certain value in terms of not discriminating against people on race, sex and other grounds. I support that. I think it is an appropriate protection that we have those things. But on the other hand we have the countervailing values of religion and speech inadequately recognised and protected except through exemptions, which is not a good way of dealing with these. Other nations, typically, do not do it in quite that way. The exemptions framework is a very imperfect, and often ineffective, way of giving regard to those other interests, such as speech and religion. It is an entirely negative way of dealing with it. You end up, often, in a debate—you can go in circles because, in the end, there are no clear answers to these things. We are dealing with: what weight do we give to religion, in a scheme where the law itself does not give it any form of privileged protection, unlike other rights? And constitutionally speaking, it has no great protection either. That is why I come back to that and say, 'Well, how do other countries more effectively deal with these things—religion, speech and the like?'

They start with the proposition that you do need anti-discrimination protection, but you need equivalence of protection for religion, speech and other values, and that then puts them on a level playing field that leads to a more productive and effective outcome, particularly in the courts, I would say, as well. In other countries, where you have these matters, such as exemptions, arising, they can be examined in light of a more general, stronger protection of freedom of religion. It can be looked at systematically, rationally and carefully, in light of what happens in other countries, and in terms of the value. That leads to more nuanced and effective outcomes than we tend to have at the moment, which often can be a very hot political debate, but often just does not go anywhere because of the difficulties of ever resolving it. So we have got an often ineffective political mechanism for dealing with these things, whereas other countries say, 'Well, you have to have politics leading, but you also need the courts playing an effective role.' Here, they play a large role in interpreting those, but without any particular regard to the rights that I think should be taken into account in that process.

Ms CLAYDON: With regard to the proposition for a national human rights act, is there another jurisdiction internationally that you are looking at in particular? Where would we look to for an international best practice around a national human rights act?

Prof. Williams : Yes. The advantage for us in this area—ours being the only democracy that does not have a bill of rights or a human rights act or the like—is that we can learn from others' experience. And it is mixed, of course. There are some countries, like the United States, where we can learn the experience that they do not pay due regard to parliamentary sovereignty in the approach that they take. They transfer power to the courts in not an appropriate way. On the other hand, we can look to New Zealand, for example, which is an entirely different approach, and this is where the Victorian and ACT models, and also the UK, follow a similar path. That is really the modern approach—not the US going back two centuries or more, but a modern approach that says that political institutions need to lead, but they need to lead in a context that gives due weight to democratic values that we think are enduring, are important and should not be forgotten; and that they should help channel, particularly the work of the courts in interpreting the actions of parliament, which otherwise are unconstrained, in terms of the weight that they might give to some of these interests. And also I think it should be an ordinary act of parliament, which means it should be changeable. What is interesting about the ACT is they are up to, I think, their fourth amendment to their human rights act—so they start with a narrow set of rights, they protect, something does not work as well as they want, and they move—they have incorporated education, and they have improved their remedies provision. So for me, we actually should adopt a model that is about a journey. Let us not pretend we can get it right the first time. We can learn the experience but we should say, 'This is an organic instrument, like any other statute, that recognises the ongoing capacity of parliament to change.' And we do that over a period of time. That, I think, gets the balance appropriately right between the institutions of government.

In those systems, when you look at freedom of religion, the debate about those matters is entirely different. Because freedom of religion is there, people can point to it directly in the context of anti-discrimination statutes. If they think they are wrong, they can go to court to get a ruling. Courts can interpret anti-discrimination statutes in light of that human rights act. If they think there is a clear breach, they do not overrule anything; they send it back to parliament to restart a political debate about that. And, from my studies of that, it is much more effective in giving weight to values that our society thinks are important—or thinks are in a bill of rights anyway, but they are just not.

Ms CLAYDON: Certainly, the ability to have a an organic, living document would overcome some of the concerns that have been raised about having a fixed notion of what human rights might be and then, a couple of centuries later, struggling with that—as we see in the US. A final question from me: why do you think it has been so difficult for Australia to arrive at a position, whether it be a bill of rights or a national human rights act? You have been in this space for a long time.

Prof. Williams : It is true. One of the greatest impediments is where I started—that Australians think we have it. I encounter this all the time. It is very hard to win a policy debate to achieve something people think we have already won: 61 per cent is the starting point, but that was just the people who said yes. That does not include the people who did not even have a view. We are dealing with the largest segment of the population thinking their rights, including religion, are adequately protected. As I said, I see the other end of that, where people who need the protection find it is not there, and that leads to anger and anxiety. That frays the public confidence and all sorts of things we need. It is a very dangerous thing for a democracy to have such a mismatch between community expectations and the reality of how the system works. That is one reason.

Another reason is political mismanagement. It has been both sides of politics. The first attempt to bring about any form of charter or bill of rights was the National Party in Queensland in 1959. The Nicklin government up there drafted a bill and it went into parliament. Both the conservative and the left side of politics have pursued it at different times. The conservative side often look to the fact that the strongest supporters of bills of rights are Republicans and other conservative parties. Over in the UK the current government is arguing for a British bill of rights. But, when it gets into parliament, it is like our dire referendum record. People often bring forward proposals that have broad community support. The education of the community and the salesmanship are inadequate. We have often seen too much partisanship in this area, where there has been point-scoring as opposed to focusing on common values around speech, religion and other things.

There has also been overreach. When it comes to a human rights act I look at previous attempts which have tried to do everything in one go and the model that says, 'Let's do for the next 20 years what we need,' whereas my approach is, 'Let's just focus on those interests that have overwhelming cross-party support and stick with those, and, if it's a smaller set, that's fine, and let's go the organic path, let's debate and change over time.' That is a much more modest proposal. It is why it got up in those two jurisdictions, Victoria and the ACT. It is why Queensland is moving down that path and it means for the first time in Australia's history we have a model which is reasonable. The evidence from Victoria and the ACT is they have been effective at low cost in changing outcomes within government without generating litigation, or very minor amounts of litigation. They have worked, so we have a model. Perhaps that gives us a better chance of doing something at the national level.

CHAIR: Quite a number of submissions to this inquiry, contrary to the 61 per cent, are pointing out that there seem to be inadequate protections in this area, as you say. Does that reflect some changing mood in the community at the moment around more recent events, or is it that the people who make submissions to parliamentary committees are more knowledgeable about certain aspects of the inquiry?

Prof. Williams : It is the latter. The odds are anyone who knows about this inquiry will probably know enough about the level of protection or know whether we have a bill of rights or not. As you know, inquiries like this do not tend to make it into the mainstream media very often. A relatively small, self-selecting audience make submissions. If you contrast that with, for example, a focus group held in Western Sydney or other places, asking people who do not know about this process for their views, you would find—and the survey evidence is clear—a different view. The other factor is that when you have an inquiry of this type, if you think things are good and well enough, you will not be motivated to put in a submission anyway. You would not bother. You will come to this process, make a submission and put the effort in because you identify a problem and think reform is needed.

Nonetheless, your submissions as a matter of fact illustrate there is an underlying legal problem that should be addressed. Equally, the surveys and other community aspects show that, once people are educated, they do not have the protection they think they have, they clearly would like to see that remedied. It is not opposition; it is just lack of knowledge. In separate cold polling on human rights acts and the like done by the Brennan committee a couple of years ago—'Do you support this type of change?'—support started in the 60s and went up. Other polls go to 80 per cent. Typically I have seen it fall within the 60 to 80 per cent range, depending on the jurisdiction and survey. We are dealing with broad support for this sort of protection. The question is: do we have the capacity to now deliver on what the community broadly would like to see?

Senator SINGH: We have been talking this morning, as per the title of this inquiry, about the human right of freedom of religion or belief, but I want to know whether you think that is too narrow a focus and whether we should be also looking at freedom of thought, conscience and those kinds of non-traditional religions. There are atheists and agnostics. Should it be more encompassing than specifically looking at a statute that focuses narrowly on the human right of freedom of religion or belief?

Prof. Williams : That is right. Here you have article 18, for example, and many other examples, that it is a mistake. This is a problem with section 116 of the Constitution—that religion is clearly one of those things but is not necessarily broad enough to capture the full spectrum of beliefs and values that we think are deserving of protection. We would say in our society that we recognise broadly that people are entitled to what they would like to believe in. It does not mean they can always act on that belief, but nonetheless we would say that. So yes, we should be dealing with, in the Tasmanian provision for example, conscience, thought, belief. This can particularly be a problem for not just non-mainstream religions but Indigenous religions. The High Court has grappled with this. How do you take a belief system such as that of Aboriginal people, for example, dealing with Dreamtime and other beliefs? They do not easily fit into definitions of religion, yet surely we would say they are entitled to their belief system as well. This is a really fraught and difficult area. It is very hard to define religion. One High Court justice, Lionel Murphy, refused to even define religion, because he said it was impossible and such an individual thing. Breadth is important.

But as to the narrowness of the inquiry, it is wise for the inquiry to keep in mind that whatever protection we think of for religion cannot be in a vacuum. We have that problem at the moment with anti-discrimination and other statutes; they are too narrowly focused without the broader context. Here, being alive to freedom of speech, for example, and other counterbalancing or supporting interests is very important. In giving evidence to the section 18C inquiry recently I made the same point: in the end that inquiry was always going to be hamstrung by the fact that you cannot solve these problems with a narrow focus. These are about broader societal values, political leadership, cultural reinforcement and a legal scheme that does not cherrypick things but says, 'Here are the things we think are important, and we will give them a consistent level of protection,' as opposed to the inconsistent ad hoc approach we have at the moment. As for freedom of speech, my advice was if you deal only with section 18C or speech, you are doomed to failure, because in the end you pick a fight you cannot win; it is at the wrong level. Even though I supported change to that provision, I felt it was always likely to run aground for that reason.

CHAIR: That has exhausted the questions. Thank you very much both for your submission and more importantly for coming along today and discussing it with us. It is an important subject, and I am sure we will have many more such discussions over the coming months as we work through this process.

Proceedings suspended from 09:43 to 10 : 00