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

BENSON, Professor Iain, Professor of Law, University of Notre Dame Australia

BROHIER, Mr Frederick Christopher, Founder, Wilberforce Foundation

ILES, Mr Martyn, Managing Director, Human Rights Law Alliance

FOSTER, Associate Professor Neil James, Private capacity

QUINLAN, Professor Michael Charles, Dean, Professor of Law, University of Notre Dame Australia

CHAIR: I welcome the participants to this second roundtable today, which is designed to encourage a discussion about the subject matter before the inquiry. Do you have any comment to make on the capacity in which you appear before the committee?

Prof. Quinlan : I appear today as a senior member of the Wilberforce Foundation.

Mr Brohier : I am also a barrister at the South Australian bar.

Prof. Foster : I am from the Newcastle Law School and I appear in my personal capacity.

CHAIR: I invite you, if you would like to, to make an opening statement and some remarks at the outset.

Prof. Benson : I would like to thank the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade for the invitation to be here today. I have a confession at the outset. You can tell from my accent that I am actually not Australian. I am Canadian by upbringing. I have been in Australia for a year and a half. You have in your terms of reference three questions to address. The fourth one is focused largely on Australia, so I do not plan on addressing that unless it comes up in something I can contribute to in questions. I will, however, be looking at the first three. I am going to quickly run through what I think are some really key points in my five minutes and obviously we will have a much more interesting and flexible chance to discuss other aspects later on.

My focus for many years as a barrister has been on religious liberty cases, and I have consulted to government in various countries. I have worked extensively in South Africa, Canada and the UK, and I have lived in France for 15 years. My expertise really is on law and religion on an international basis. I think those first three questions are very helpful to approach in terms of what is happening on the international level.

The first is: 'The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses.' This reference term is very broad and obviously could include a massive list of both the enjoyments of religion and belief and an equally wide set of examples of violations and abuses. In order to quickly set out some of the current causes I shall take a couple of examples that I think raise foundational concerns about how we approach religious and conscience rights in general, and I look forward to expanding upon this bit in the time that follows.

I have handed up to clerk Sonya a letter that I sent to the board of the ABC last week. I have had the pleasure of being on various ABC programs in the past year. While there and in conversation with various people, I have realised that there is a serious move afoot to cut back on religious broadcasting. It is not just individuals of note but the whole idea of religious broadcasting that are being circumscribed and sidelined. I view this as very serious because I believe that religion is a very important thing within culture. I will quote Justice Albie Sachs from South Africa in a minute, who has said I think the best statement by any judge anywhere in the world about the importance of religion to culture. This is interesting coming from Justice Sachs because he is an atheist. He appreciates what so many either do not appreciate or, if they do get it, are unwilling for various reasons to say. Justice Sachs has said it, and I am going to read it to you in a minute.

First of all, in the first term of reference, be careful of religious employment exclusions. The problem here is the context within which these tests are being used. This year I have been teaching human rights as well as contemporary legal issues to my students and we have spent some time on some of the European case law, in particular a set of four cases that came out of the European human rights framework known as the Eweida cases involving a British Airways clerk and also involving, for my purposes the most interesting one, a woman called Ladele, who was a marriage commissioner in Islington.

The way that case was handled I think points to a very serious problem in how we understand the public sphere. That is my first point: there is a problem in how we understand the public sphere in many of these Western countries. The problem is this. The public sphere is shared by everybody. Charles Taylor the Canadian philosopher refers to the public sphere as 'a social imaginary'. It is something we hold in our heads. It is not defined anywhere, but it is very important to how we think about the equities between different groups and people. How the courts have dealt with these cases where marriage commissioners have for various reasons had conscience objections to same-sex marriage I think has unfairly treated the public sphere as one that is insulated from particular religious belief frameworks. I think that is a mistake. Here is why. All citizens are believers. The question is not whether they believe but what they believe in. Some of those beliefs are religious; some are not. What is happening in Western cultures is that we are insulating the public sphere from the really important questions about what we believe in together—not just individually or in our religious groups but as citizens. This is the realm of civic virtues, the realm of the principles of citizenship, and we are weak on those. If we are going to get richer in relation to those—and we sure need it now, with what we are seeing happening in various countries, with the splitting apart of different religious groups, and, obviously, terrorism, which no-one on this table supports—we are going to have to have a more robust conception of civic virtue and of what the beliefs are in the public sphere.

In my paper I also develop the need to understand that there is no such thing as the freedom from religion. Sometimes people say, 'You have the freedom of religion but you have the freedom from religion.' This is not correct. What you have is the freedom from religious coercion, which is a different thing. In fact, 'coercion' is the key term in article 18C of the ICCPR document which is part of your terms of reference.

As to actions taken by governments—this is the second term of reference—here Albie Sachs says this very important thing, and that is what I wanted to share with you:

Religious bodies play a large and important part in public life, through schools, hospitals and poverty relief programmes. They command ethical behaviour from their members and bear witness—

this is very important—

to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a people's temper and culture, and for many believers a significant part of their way of life. Religious organisations constitute important sectors of national life and accordingly have a right to express themselves to government and the courts on the great issues of the day.

I am sending a copy of this brief—my comments—up for your benefit later on. So you will get that quotation in context, as well as other things that I wanted to say and now have run out of time to say.

CHAIR: Thank you, Professor Benson. Professor Quinlan.

Prof. Quinlan : I think Chris Brohier will speak on behalf of the foundation. I will just make some brief comments at the end of his speech.

CHAIR: Mr Brohier.

Mr Brohier : Members of the committee, we see the freedom of thought, conscience and religion as a fundamental and a base right in a free society. We think that the threats, both overseas and locally, are best understood by examples. I will just give you three quick examples from overseas, part of which I mentioned in the paper but which I will develop.

The first is Andrew Brunson, who is currently in jail in Turkey, charged with all sorts of things—with being associated with the CIA, the Communist Party and the alleged leader of the Turkish coup who lives in America. He is ill and has been in jail since last year. The second is a man named Slimane Bouhafs, who is in jail in Algeria. He was arrested on 31 July on the basis of insulting Islam because he had published some statements aimed at radical Islam. He was interrogated and tried on the same day, and he is currently in jail for five years. The third is Orhan Kemal Cengiz, who is a Turkish Muslim human rights lawyer; he was a human rights activist and has been charged with sentences which would give him three life sentences, basically for speaking against the government. Those are some of the issues, particularly in what are called the MENA—Middle East/North Africa—countries, facing religious freedom. In Australia, we have highlighted cases in paragraph 5.2. Many of those are cases which I have personally been involved in. But the Margaret Court example that has been in the press recently is a good example. Qantas and Mr Joyce took a stand in relation to same-sex marriage, and they were perfectly free to do that, but when Mrs Court spoke out and withdrew her custom from Qantas, a storm broke out. It is that pressure on people which restricts freedom of religion.

In terms of overseas issues, we say that Australia has a strong role in advocating for religious freedom in cases like I have mentioned. In Australia we say that there is a need for some balancing legislation to reverse the downgrading of religious freedom. Thank you.

Prof. Quinlan : I will just make some comments. Historically in Australia, people have been pretty comfortable with religious freedom being adequately protected, although legislatively there is not very much protection. A couple of things have changed in recent times. Firstly, the federal government and the states—or New South Wales—have passed discrimination legislation dealing with certain areas but not in relation to religion. That leads to a circumstance where you can have conflict between religious beliefs and existing legislation which protects discrimination in certain specific areas.

There has also been a great deal of legislation which inhibits religious belief in a couple of ways. One example of that is the legislation in Victoria and the policy in New South Wales which seek to override the conscientious objection of health professionals who have a conscientious or religious objection to the voluntary termination of pregnancies. Another example of that is the increasing number of states and territories that are introducing exclusion zones around clinics where terminations take place which prevent religious believers from being present in those areas and providing information to people who approach those areas.

The reasons why these issues create problems, I think, are best summarised by Douglas Laycock and Thomas Berg in an article which they have published called 'Protecting same-sex marriage and religious liberty' in 2013 in volume 99, page 4, of the Virginia Law Review. These quotes are not in relation to same-sex marriage specifically but they do sum up the position very well. They said:

… committed religious believers argue that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct.

…   …   …

For religious believers, the conduct at issue is to live and act consistently with the demands made by the Being that they believe made us all and holds the whole world together.

They also said, and this is also very important:

… no religious believer can change his understanding of divine command by any act of will. Religious beliefs can change over time; … But these things do not change because government says they must, or because the individual decides they should. … the religious believer cannot change God’s mind.

Thank you.

Mr I les : Mr Brohier has mentioned the fundamental nature of the right to freedom of religion and belief. In that vein, Chief Justice Mason and Justice Brennan have said in the Church of the New Faith case:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society …

That is a quote that tells us that freedom of religion is at the heart of freedom itself, and that it is a freedom from which other freedoms which flow.

This is so because without the core of religious freedom, which is the freedom to believe, the remainder of that freedom—the expressive element—but also other freedoms become fairly meaningless. The freedom to speak enables citizens to communicate and share their beliefs by declaring them, debating them and either correcting or affirming them through the speech of others. Freedom of expression enables citizens to live out their beliefs in daily life—to do or to abstain from doing things on account of their convictions, both in private and in public. Freedom of association describes the freedom to gather around shared beliefs in community with others, including the formation of groups and institutions which protect and promote those shared beliefs.

Freedom of religion and belief, far from being restricted to groups of religious adherents that attend traditionally religious institutions, is a human right that belongs to all people by virtue of being human and it is enjoyed by them. It protects their right to believe and not to believe, and is an enabler of speech, expression and association. So it is of the essence of a free society, as their honours have said.

All of those components of the freedom are found in its codification in article 18 of the ICCPR, where it talks about the freedom to manifest one's belief in private and in public, and in community with others in observance, worship, practice and teaching. Chief Justice Mason and Justice Brennan go on after that quote to point out that what someone feels compelled to do or constrained not to do on account of their faith in the supernatural is a part of their freedom of religion, and is subjected to prima facie—on its face—a presumption of immunity. Incursions upon the freedom ought therefore to be taken very seriously by policymakers. It is key to freedom not merely at a societal level but at an individual level. Justice Redlich, in the Cobaw case, said that a person's faith is a central part of their identity, and therefore violations of it must be minimised and taken seriously.

The fact that such a plenary and fundamental freedom is largely protected in Australia at the moment in practice by very narrow exemptions to other laws is wrong and deserving of review. Many antidiscrimination laws do not adequately acknowledge and protect other human rights from incursion. The overlegislation of a single right is out of step with international human rights principles and is therefore a threat to the healthy protection and expression of human rights in Australia, including freedom of religion and freedom of belief.

These concerns are not merely academic. They are also grounded in reality. I say that in my capacity with the Human Rights Law Alliance. We are about a year old. We have only had a year to get public recognition and so forth, but we started with a particular focus on this right and the related freedoms. In that time we have had roughly 25 cases that we have been aware of and provided some assistance to that have had a connection with incursions to freedom of religion. They have included discrimination in the workplace cases, including people losing jobs or being subjected to discipline on account of religious belief and expression. They have related to detriment in conscience in professional practice, including medical professionals; associational rights, the rights of institutions to exist and function; schools, groups on university campuses and so forth; and also harassment cases. These are grounded in reality and are deserving of further examination.

CHAIR: Thank you. Professor Foster.

Prof. Foster : Thank you very much, Mr Chairman and members of the committee. It is a great privilege to be able to come here and speak to you. I should apologise, I guess, for the overall length of the submission that I made to the committee. I attached some long papers which I thought would provide resource material that the committee could draw on. What I will do, though, is just very briefly speak to the covering letter that I have given you, in terms of the structure of religious protection in Australia, and make a few comments about the need for legislation. Of course, I am very happy to answer questions.

To give you some background, I am a legal academic at Newcastle Law School. I teach other areas but I do have the privilege of teaching an elective in law and religion to law students. It is one that has been running for the last couple of years. And I run a blog where I comment on some of these issues as well, which the committee might find of interest.

Broadly speaking, religious freedom in Australia, as has been said today, is protected in a patchwork sort of way. I identify about five or six ways in which religious freedom is protected. Section 116 of the Constitution, of course, is the obvious one, although it is very limited in its application, as we have heard today already—particularly limited to the Commonwealth but also limited in the way that it has been interpreted.

We do have protection under international instruments, although those are not directly justiciable in Australia. They can be used as interpretive guidance in some cases but they are not very satisfactory as guiding instruments.

There is some protection under common law principles but, again, that is very minimal. Possibly an interpretive principle in favour of religious freedom might be argued for, but it is certainly at the very early stages.

There is protection of religious freedom under state charters of rights, which are in Victoria and the ACT, and I was interested to hear Professor Williams this morning say the Queensland one, he thinks, is about to start up soon. So there is some protection in that area.

There is also protection provided by those state laws which make discrimination on the grounds of religious belief unlawful, but that is not present in all states. There is no such protection in New South Wales or at the Commonwealth level and a very minimal amount of protection in South Australia.

Finally, there is protection for religious freedom provided through what I have called balancing clauses that have been inserted into discrimination laws, which balance the human right to religious freedom, which, as we have heard, is a fundamental part of people's identity and existence, along with the very important human right not be discriminated against on other criteria. Those balancing clauses are designed to balance out these two significant human rights.

I will not go through the particular cases that I have discussed there in any great detail, other than to say that the Hoxton Park case is a very important case that the committee ought to look at if it is interested in this area of section 116. It is one of the very few appellate decisions on section 116 in the last couple of decades. It is not at the High Court level; it is the New South Wales Court of Appeal, but it is a very significant decision. It applies general principles that we have seen from cases like the Jehovah's Witnesses case.

Perhaps I might pause on the Jehovah's Witnesses case to say that I think that is probably one of the most significant religious freedom protection decisions in Australia. It makes it clear, though—and it is worth stressing this in the current context—that of course religious freedom protection cannot be used to justify violence or terrorism or activities which attack the foundation of society. That was clearly part of the teaching of the Jehovah's Witnesses case, but it was a very significant decision which affirmed the importance of religious freedom, where Chief Justice Latham says that it is a contravention of section 116 if a law is an 'undue infringement of religious freedom', which of course gives rise to a lot of debate about what 'undue' means, but it is a test that I think is worth looking at.

I have mentioned a couple of cases under state charters, one to do with approval of planning development for mosques, which is an important area, where the Victorian charter has supported the decision that Muslim people should be able to get permission to put in religious buildings, which is an important principle. A challenge has been mounted to particular legislation in Victoria in relation to protests outside an abortion clinic. There is a very interesting case which explores the Tasmanian provision that we were talking about before and I think Senator Singh was asking Professor Williams about, a decision called Corneloup v Launceston City Council. It touches on the meaning of the Tasmanian provision, although it does not feature prominently.

Let me conclude by going to the last part of the covering letter, which is: 'Is reform desirable?' I think it is. I very much support the views that were put forward by Professor Williams this morning and by other members of the other panel that came up this morning. The Commonwealth has undertaken to provide religious freedom protection in the international sphere through the ICCPR and its commitment to that covenant. It would be entirely appropriate that this commitment be translated into law, and it would seem fairly clear that the external affairs power would support implementation of an international human right to free exercise of religion. We can discuss the sort of legislative form that that might take, but I think it is a gap in our country's protection of human rights that ought to be addressed. If it is addressed in terms of article 18 by legislating clear and workable balancing clauses to ensure religious freedom of different groups is accommodated by implementing the limitations provisions of article 18(3), I think that such legislation would be both constitutionally valid and an appropriate policy response of the Commonwealth government. That is all I have to say at the moment.

CHAIR: Thank you, Professor Foster. Maybe I can start the discussion on that note. I think you were the only one of the current panel who was here this morning when Professor Williams spoke.

Prof. Foster : Yes, I caught the train from Newcastle and decided I may as well get here early.

CHAIR: Good. It is faster than the car transport, I think. It is a fair summary, I believe, to say that the preponderance of evidence before the committee today accords with your summary, and I think that is true of Professor Williams's summary also, and that is that there is inadequate protection of religious freedom and belief in Australia; that section 116 of the Constitution is narrow and limited in its application; that any implied freedoms are quite limited; that—perhaps contra what Dr Beck was saying about a common-law right to do anything that is not otherwise prohibited, generally the view of the previous panel, with the exception of him, perhaps, was that—the common law does not provide much protection in this regard; and that, in relation to the international covenant and article 18 in particular, whilst Australia has subscribed to that document, we have not incorporated it into domestic law, and therefore it can be freely ignored by the courts.

I just want to start at the outset—because I think it is useful for us as a committee to have a common position in terms of what the law provides at the present time—and ask whether that summary, inadequate as it probably is, nonetheless reflects your general view of the extent to which religious freedom is protected in Australia. Perhaps I could put it the other way. Is there any dissent from the sort of view that I suppose you, Professor Foster, expressed and Professor Williams was expressing this morning? No? Good.

That leads me to the second question. What do we do to improve the situation if there is an inadequacy here? Perhaps I could start with you, Professor Foster, and invite any others who want to contribute to do so. On the suggestion that in some way we incorporate the provisions of the covenant into domestic law, would you do that in a general way that basically used the external affairs power and made reference to the covenant and maybe the article or articles in it and then leave it to the courts to interpret, subject of course—because it would be an ordinary statute, not a constitutional provision—to any reinterpretation or any amendments made by parliament from time to time? I am interested in what mechanism you would employ.

Prof. Foster : There are different options. I think perhaps one might start by saying that a fairly minimal option would be to enact a religious discrimination act at Commonwealth level, parallel to the Racial Discrimination Act, the Sex Discrimination Act, the Age Discrimination Act and the Disability Discrimination Act. All of those acts, as far as I can recall, are based primarily on international conventions or treaties. Recognition and implementation of article 18, to my mind, so long as the legislation followed the text of article 18 sufficiently closely or the policies of article 18 sufficiently closely, would arguably be constitutional. Certainly it is not my main area, but I am very glad to hear that one of Australia's most significant constitutional lawyers, Professor Williams, did seem to think that that would be arguably one way you could go.

In terms of discretions given to courts, I think Dr Taylor, earlier in the day, was talking about the fact that article 18 does have very precise limitations in the convention. It is not completely open ended to whatever a judge feels is right. There are certain precise parameters that have to be met before the freedom of religion can be departed from or the freedom to exercise religion can be departed from. Of course, they do not solve every case for you, but they do delimit judicial discretion, in my view, in a reasonable way. In fact, it seems pretty clear that some of the charters, for example, in Australia are not consistent with article 18(3) at the moment because they set that exemption broader than article 18(3) does. Certainly I think that that could be argued in the case of the Victorian charter, which seems to have a much broader and more general exemption than is allowed by article 18(3) in relation to the specific religious freedom right.

So I think legislation of that sort would be sensible. Of course, in that legislation, one would have to recognise that any law on religious discrimination has to take account of the fact that different religions have different views about other religions, so you would allow religions to make robust comments about the truth or otherwise of other religions. You would allow religions to exercise their own religious freedom in the way they run their affairs et cetera. But there would be careful discussion that would need to take place in that area, particularly as I think—this is not really my area, but certainly pragmatically and politically my impression is—that, in the past, some churches have resisted the idea of a religious discrimination law because they feared that it would unduly impair the way they ran their religious institutions. So you would need to accommodate that in discussions with religious bodies. But I think myself that that could be done, and I think that that would be a sensible model.

Professor Williams then went on to talk about other possibilities such as a human rights charter of the sort that is in place in Victoria and the ACT and in New Zealand and the UK, which broadly have a similar model. Certainly I think that there are cases that can be made for that. That is a slightly larger process of going beyond simply a discrimination law and talking about other ways of implementing religious freedom. Perhaps that would be another model. At the moment I think it would need careful consideration, but I think it is possible that that could be workable.

CHAIR: Are there any other comments? Yes, Professor Benson?

Prof. Benson : I would urge upon you the holding together of article 18 of the universal declaration from 1948 as well as article 18 of the ICCPR. The reason for that is that article 18 of the universal declaration recognises not just the right to join a religion but the right to leave one. I think that is an important addition that you should not overlook.

Secondly, I would urge upon you great attention to the remedial framework of whatever legislation you were to suggest. In particular, I like the model that Victoria has and some of the other Australian laws in which the courts are given a declaratory power, not the power that courts, for example, in Canada or South Africa have, which is to effectively legislate. One of the things I have noticed since I have been here is that Australia has a very independent approach and recognises the importance of the legislature on an ongoing basis, and that is important to preserve. In the US Supreme Court and in the Canadian Supreme Court, we have seen the spectacle of judicial usurpation, frankly, of principles that should be left to democracy.

CHAIR: Can I just tease that out—sorry, I am a Victorian. How does that work under the Victorian charter?

Prof. Benson : You spell out in the legislation that the judicial power is simply declaratory. They do not have the ability to read into legislation, which is what typically an entrenched constitutional framework allows to the judiciary.

CHAIR: A bit more detail—what can the court declare?

Prof. Benson : They would declare that the act in question is inconsistent with the rights that are articulated in the human rights framework, leaving it to the legislature. They can give varying degrees of guidance to the legislature, but it leaves to them the determination as to how precisely the law is formulated in response to the judicial declaration.

CHAIR: Can the legislature ignore that advice?

Prof. Benson : I would defer to my colleagues here, but generally the answer is, yes, they can.

CHAIR: This has an encouraging sort of aspect in terms of the court saying: 'You've passed this charter. Our judgement is that, on this particular provision in the charter, this law doesn't come up to scratch, and we invite you to go back and have a look at it.'

Prof. Benson : There is a gloss here that a Canadian can comment on, and that is the possibility of a non-obstante provision, or a notwithstanding clause. In the Canadian constitution, the Canadian Charter of Rights and Freedoms, section 33, there is a provision that allows a law to continue in force and effect notwithstanding a judicial declaration of inconsistency with the constitution. What that does is interesting. It puts weight, it puts pressure, on the legislature, because a declaration under section 33 only lasts for five years. What it does is that, if the populace thinks sufficiently strongly about a measure and believes the politicians are not responding favourably, it can become an election issue. It forces it, as it were, onto the table. That is a very useful push-back to the other problem, because of course these are tensions. This puts the tension back on the legislature to respond or risk the possibility of a legislative overturn on the point.

Prof. Foster : Iain, though, if I could clarify, that is in the context of a Canadian model which allows the courts to rewrite the law. That is not what the Victorian model is. It is very much an advisory model, sometimes spoken of as a dialogue model, where the courts recommend certain changes and parliament has a chance to consider them. The trouble is that I am not sure that I know all the details. But I understand that there are some constitutional issues with the Victorian model that have been brought out by the High Court in terms of its application to federal law—whether there can be advisory opinions. I think the Momcilovic case raised some of those issues. So there are things to be thought about there in terms of state law, and there are definitely considerations for a federal model as to whether judicial power would extend to giving advisory opinions about legislation without ruling on someone's rights and duties. I think that that is a possible problem under chapter III of the Constitution with implementing that model at the federal level. But George Williams and others have no doubt explored that in other contexts, I am sure.

Prof. Quinlan : I would like to say two things in relation to that. In relation to the present Victorian charter, one of the issues—and this is found in other religious discrimination legislation as well—is a focus on doctrine. If you focus on doctrine, it causes the consequence that, in order to show that someone's religious rights have been offended, you have to actually point to a specific doctrine that applies in the specific circumstance, which is the particular circumstance that has arisen. It is pretty rare that you are going to find a specific doctrine that specifically applies in that particular circumstance. The Christian Youth Camps case, for example—I am sure the committee is familiar with that case; there was a Victorian Supreme Court of Appeal decision—related to a camping site which was operated by a company which was owned by a religious group, the Christian Brethren. They had a conservative view about sexual morality. A suicide prevention group for same-sex attracted young people wanted to hire their venue. Part of what they wanted to do in the course of their conference was talk to young people about same-sex sexual activity and say that that is morally permissible, which was inconsistent with that church's position, so they declined to take the booking. Part of the reasoning in the judgement was that the church could not point to a doctrine that says that, if you have a camping site and you are asked to provide the camping site for a group that wants to promote a viewpoint that is contrary to the teachings of the church, then you are prohibited from doing so. Obviously, you are not going to have a doctrine which is that specific. When you concentrate on doctrine like that, it has that problem.

Another problem that it has is that religious belief is ultimately personal. Obviously, most religious believers are believers of one particular denomination or one particular faith, but ultimately they make up their mind about individual items of doctrine. If you focus on overall doctrine of a church and, for example, someone's religious position is that they have such a strong belief in the divine instruction about marriage that there is no way they could provide any service which might be considered to be the use of their artistic endeavours or in some way interpreted as support for a particular view of marriage which is inconsistent, it is probably unlikely that you would find a doctrine of an individual church that specifically prohibited the provision of a service or the provision of properties or whatever it is. Nevertheless, that is part of that particular person's deeply-held religious belief. Courts have found that such a view is part of individual people's personal religious belief, but then they have overridden that in the United States and the UK because of the particular form of legislation that exists there. That is an issue with the Canadian thing.

In the submission of the Wilberforce Foundation, we suggest another possible way of approaching some of the issues around religious freedom, and that is by looking at the United States Religious Freedom Restoration Act. That is an act which deals with the government's ability to interfere with people's religious rights. That is extracted at paragraph 7.1.13 of the Wilberforce Foundation's submission. At 7.1.14, we interpret that into an Australian context. What we have suggested for consideration in an Australian context would be legislation that says something like this:

(a) Government shall not substantially burden a person’s exercise of religion except as provided in subsection (b).

(b) ... Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest—

I am not 100 per cent happy with that, but that is the language we have suggested there—


(2) is the least restrictive means of furthering that compelling governmental interest.

You could look at that in a particular Australian context, in relation to the override of conscientious objection of health professionals, for example. This is a subject which I have written a paper on for the Brigham Young University Law Review. If the purpose of legislation is to override health professionals' conscience so that they give a referral or provide directions to a person who is seeking to obtain a termination of pregnancy, if the intention is to ensure that people have sufficient information so that they can obtain that service, then there are ways in which government could achieve that objective without putting someone into an impossible situation of conscientious objection. As I explained in the paper, which specifically focuses on the problems that such legislation causes for Roman Catholic health professionals, if they participate in a voluntary termination of pregnancy, that is an automatic excommunication from the church, which means that they can no longer receive any of the sacraments. That is a really big deal for a practising Catholic. The state, on the other hand, can ensure whether there is any absence of that information—and if you google 'termination services' or 'abortion services' in New South Wales and Victoria you will find it is very easy to find that sort of information—without forcing someone to act against their conscience. So legislation like that would help to solve that problem.

Prof. Benson : That raises an important point: on whom is the onus to provide services? This is insufficiently examined in many cases. The suggestion is that the physician must bear the onus of getting the patient to the service that is needed. There is no reason for that selection. If the state wishes people to have access to services, there is no reason why that burden cannot be on the medical association—in the same way, for example, that in my home jurisdiction, in Canada, we have a lawyers referral number. If you want to seek a service from a lawyer you call the general number and the law society provides the list of practitioners in that area of law. The same thing could be done easily in medicine, but for some reason, because this debate has been political ping-pong, it has not been thought through sufficiently to provide a more nuanced response by the state.

Mr Iles : We are now getting into some of the specific examples of where there could be incursions on religious freedom. I know most of the debate has been about whether or not a right to religious freedom should be enacted in legislation, which is one way to go about it. Another way might also be—and our submission goes to this—to find out whether there are any key sources of incursion onto the freedom. Earlier the principle of freedom was mentioned, which is that everyone is free to do anything unless prohibited by law under the common law system. Whilst that does not provide any positive remedies, it does mean that the only reason the freedom is being limited is that there are laws which infringe. To be able to identify, maybe, some of those laws and recommend action in those areas is another way to improve the protection of religious freedom without enacting substantive right in an act anywhere.

We go, for example, into the balance that is struck in the human rights legislation that currently exists in Australia, which is almost entirely the right to nondiscrimination, with four Commonwealth acts and at least one in every state and territory—and more than one in some—that contain similar rights. It is the enactment, essentially, of article 26 of the ICCPR over and over again. I have done a survey of all the acts, and you can have as many as 50 protected attributes across the nation across the different legislative regimes. If you amalgamate some of those for similarity, you still get down to 30-odd. The Human Rights Commission itself is in a similar place, where they have seven commissioners and all of them have a discrimination portfolio of some kind somewhere in their responsibilities. So whether or not the imbalance that is being placed on human rights legislation and the understanding of human rights in Australia could be responsible for infringements upon other rights, including religious freedom, is an open question. And whether that regime could be addressed by the Commonwealth is another idea.

Mr Brohier : Just on that very minimalist approach, to address specific legislation, we have proposed a section for discussion in 7.1.11 of the submission as an alternative to a broad religious freedom act, some sort of provision in, say, the Sex Discrimination Act or the Age Discrimination Act—an overriding provision.

CHAIR: The challenge with that is that it becomes an exemption or an exception to another right, whereas, as I understand the purport of the international instruments, these are coexisting and equal rights that have to be balanced in particular cases from time to time. In talking about religious freedom, article 18(3) provides some guidance to how that balance might occur because, in terms of manifestation, the limitations are those necessary to protect public safety, order, health, morals, fundamental rights or freedom of others. So it starts from the position that freedom from discrimination and freedom of religious belief are coexisting and equal rights and then you have to try and balance them. If you make it an exemption, aren't you downgrading one of those rights almost from the outset?

Mr Brohier : The proposal that we are suggesting is not an exception, but an override. You interpret the Sex Discrimination Act with this freedom in mind.

Prof. Benson : There are a couple of things that are very important to do that maintain the parallel with the international instruments. The first is to frame whatever laws you develop in terms of the recognition of rights, not the creation of rights. The UN documents, in their preamble statements, are very clear to point out that these rights are recognised and they use terms like 'whereas'. In the same way, the American Declaration of Independence speaks of certain matters being self-evident. This is very important because what law gives, law can take away. It is important to be able to challenge the justness of laws by the idea of principles that are larger than themselves. This became very clear to us in the 20th century through the Nuremberg trials and so on. But it is important that any laws you frame be recognitions of the pre-existing rights. They are not given by the document.

Second, because we are so lacking in nuance about discrimination, it is important to take a page here from the South Africans, where their constitution speaks of unjust discrimination. This is important because we have discrimination in the law all over the place, and we need it—age discrimination, for example, for driver's licenses. Typically, you would not be allowed to discriminate on the basis of age, but it is a just discrimination. Similarly, with respect to disability, certain jobs require able-bodied people. You can justly discriminate against the disabled there. This is very important, therefore, that your law reference this notion of the unjustness or justness of a discrimination. It is important that your law contain something that is not yet in western law, but needs to be, and that is a presumption in favour of diversity. It is very important to establish the context within which equality claims are made, so that you do not have this idea that a broad, amorphous category can dominate the associational difference that exists within a culture. This is a kind of creeping domination of vagueness that has come into western law, so terms like state neutrality, equality—they hang in midair, but they only become real through contextual interpretation. This sounds a bit technical, but context matters and a way of pointing to that is to frame a presumption in favour of diversity as well as pointing out that there is unjust discrimination and that equality includes religion. Make sure that religion stays in your non-discrimination provisions as a category. I spell out in my brief, which you will get later, the detail of how this works, but it is very important not to buy into the rhetoric of cases involving what is often described as equality versus religion. That is not accurate. Equality includes religion, so what you actually have in these cases is a conflict between different conceptions of equality. The way you resolve a conflict like that is through context.

Mr Iles : In relation to some of the practical application of what has been said about just and unjust discrimination—and it goes to the first question about whether an exemption should be included—perhaps the better terminology is to include a balancing clause. At the moment, they are exemptions and exceptions and they are very narrow and they are different across the jurisdictions. But if you included a clause that was a balancing clause, which, for example, said that in a case where a discrimination complaint has been raised, the adjudication of that complaint is to be subjected to balancing the right to non-discrimination with the other human rights in the ICCPR, which is how non-discrimination appears in the ICCPR in the first place. So you actually have those other rights, including religious freedom, enlivened insofar as a non-discrimination complaint is being adjudicated. That really becomes the definition of what is unjust discrimination. It becomes discrimination that is not balanced with the other human rights, that is arbitrary, that is unreasonable and is not in a good faith pursuit of a fundamental human right. That is unjust discrimination. So, rather than exceptions, balancing clauses can be a way to simply ameliorate that problem of discrimination.

Prof. Benson : And here again the Canadian experience is relevant. There is a lot of criticism in the academic literature, right across the spectrum, of the way balancing tests have worked. Justice Iacobucci, in a decision, said that the goal of these test should be 'reconciliation of rights conflicts where possible'. Rather than subordinating one right to another, what you try to achieve—because the statement is there is no hierarchy of rights in constitutional law—is a reconciliation that leaves, as much as possible, both rights in place. That is very important. Sometimes the judges are tempted towards a kind of 'choose one' approach, where you get a winner and a loser, but it is not, at the end of the day, in anyone's interest to have that kind of approach to litigation.

Mr Brohier : What we have suggested in 7.1.6 is:

… "Nothing in this Act applies to discrimination by a person against another person on the basis of that person's, sex, sexual orientation, lawful sexual activity, marital or relationship status parental status or gender identity if the discrimination is reasonably necessary for the first person act in accordance with the doctrines, beliefs or principles of their religion and the Act is to be interpreted according to this principle" …

That is a way. That obviously is going to be debated, but that is taking it out of the exemption and bringing it into an interpretive provision, an override.

Senator MOORE: Thank you. I am really keen for people to keep talking, but I am interested, just on that last point, in what can be drawn into a reconciliation of people having reached a position of respect so that they are balanced to a definition that it is unjust. Mr Iles, you were talking about 'unjust discrimination' automatically putting a hierarchy of rights, whereas, Professor Benson, you are talking about a process that draws people together. It is not a judgement over some discrimination, of some people being just and some people being unjust. That is what I am having difficulty understanding.

Prof. Benson : It is complex. The thing is: how does one determine what is a 'just discrimination'?

Senator MOORE: Exactly.

Prof. Benson : The answer to that is it has to be done in context. What is just in one setting would not be in another setting. Let us use a classic case in this area: an employment distinction based on religion. Typically your religious ground would breach human rights legislation, but in a religious setting it does not because, by and large, most people would recognise that Jews should be entitled to hire Jews, Catholics to hire Catholics and so on and so forth. Or as the case law in Canada has shown, a women's domestic violence centre should be entitled to hire only women. There was a case involving a transgendered person. The women did not feel comfortable working with someone who was transgendered, but there you have got a sexual orientation versus women's rights issue. These things are always nuanced and it is essential to understand them in a contextual way.

Prof. Foster : Can I suggest that maybe another way of referring to it is to ask whether the criterion is relevant to the decision or not. In the example that Iain has given, if you have a Catholic religious organisation that has an ethos that all employees should be Catholic, because they want to—let us take an uncontroversial example. They are all teaching Catholic doctrine to people, so it is relevant that the person be Catholic. On the other hand, if you have another organisation such as McDonald's, it is irrelevant whether someone is of a particular religion or someone is of a particular race or other things when selling hamburgers. The concept of relevance is a really important one, and 'unjust discrimination' is where you are applying a criterion that is not relevant to the decision that is being made. In many cases that provides an important key into asking—yes, we are looking at the context, I agree with Iain on that, but part of the context is this question of is this criterion relevant? An obvious example: if you are casting a movie about the life of Martin Luther King Jr, are you allowed to employ an African American person as the lead? That is a relevant decision, whereas in most other contexts race would be completely irrelevant for employment. So the question of relevance is there and usually the legislation includes clauses that balance out this issue of relevance when you look at any legislation.

Mr Iles : If I may address the point about unjust discrimination and the hierarchy of rights, it is not so much whether there should be rights that prevail or do not; it is just a question of: what is discrimination in the human rights context? We all discriminate all the time, in one sense, because we all have differences of treatment inherent in the way we act. A pertinent example, given the context, would be that membership of political parties is a discriminatory matter. If you want to be a member of the Greens political party or Labor or Liberal, you have to subscribe to their political beliefs. Political conviction is a prohibited ground of discrimination in nearly every state, but there are specific exemptions for political parties in some states. That is why political parties can discriminate in their membership on the basis of political conviction. That is not discrimination, in a sense—it is, but it is not. That is why that word 'discrimination' is a little unhelpful. The United Nations Human Rights Committee at paragraph 13 of general comment 18 on article 26, which is the non-discrimination provision, says:

… the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

The covenant referred to is the ICCPR. What they are saying is: what is, actually, the human right to non-discrimination? Is it mere difference? It cannot be, because that is going on all the time and nobody thinks it is unjust. So what is meant by discrimination is perhaps very sloppily defined and understood in some of our legislation. That is just to clarify that point about the hierarchy issue.

Senator MOORE: But we are talking about an issue of service provision, so this is actually discriminating in service provision. Mr Brohier and Mr Iles, the examples you used were talking about service provision. If there is service being provided and there is a decision made that that service will not be provided to some people, I am interested as to how that can be seen as equality?

Mr Brohier : If you look at the Canadian jurisprudence, the case of Brockie, which I think was a case that Professor Benson actually argued, at the Canadian Supreme Court—

Prof. Benson : No, it was the Ontario court.

Mr Brohier : The Ontario Court of Appeal, which is probably the second—

Prof. Benson : It was actually the Ontario Divisional Court. It was a review of the Ontario human rights inquiry. I acted for Mr Brockie. He was a printer who refused a particular print job. Without being technical—it does not require a technical explanation—Brockie refused to print materials for a gay and lesbian archives on the ground that he believed that furthered an agenda of a group he did not agree with. He was successful on appeal—overturning the tribunal. Why? Because he proved that his concern was the cause not the person. Do you follow? He was not objecting to serving gays and lesbians; he was objecting to his print shop printing materials that were advancing a cause with which he disagreed.

Senator MOORE: Were other services available? We had this discussion this morning. It was a really interesting discussion about the need for a consideration of the impact of harm. I do not want to verbal, but it was along the lines that if there were alternative printing services available that would be a justification to say that this would not be causing harm to the people who were requiring the service. But if there were no other printing services available—that issue was raised this morning—that could be a factor in terms of discrimination. And that goes back to the service provision that you were talking about before.

Prof. Benson : It does, and it turns on the nature of the service. Again, the evidence in the Brockie case was that the group was able to find another printer within 20 minutes.

Senator MOORE: I think that is a really significant issue.

Prof. Benson : It is, but it does not get us over the medical provision problem, and that is why I raised the point earlier—

Senator MOORE: That is why I am going back to the provision of service.

Prof. Benson : I raised the point earlier about whom the onus is on. I think, very strongly, that if the state is going to require a service provision the onus is on the state or the medical group, not on the physician. This is very important, because individual conscience matters in a society. It is what stands between us and an omnipotent state, actually. The state should bear the onus; the individual conscience should be protected. Unfortunately, these things come in heated political frames—abortion, euthanasia, pharmaceuticals et cetera—but we have to remember that conscious does not just stope there; conscience is very important in a lot of settings, many of which we cannot even foresee. But the establishment of the principle that the individual conscience should to the maximum extent be accommodated is a very good one in a society.

Prof. Quinlan : Could I just make some comments? In Australia today we do a really good job in some instances of helping people deal with their conscience and their religious faith in particular circumstances. I am sure you are all familiar with the decision of Canterbury-Bankstown until recently to have an employment contract with one of their key players which enabled him to not play football on a Sunday because that is when he needed to deal with his religious observances.

Senator MOORE: Which has now been overturned.

Prof. Quinlan : He is changing his position.

Senator MOORE: He has changed him mind.

Prof. Quinlan : Which is perfectly legitimate for him to do. Also, Usman Khawaja, the Australia cricket player of the Islamic faith, finds that his faith prevents him from wearing advertisements for alcoholic beverages, so the Australian cricket board and the advertisers agreed that he did not have to wear them. Politicians, certainly when they are dealing with life issues, in Labor Party have a conscience right to vote. In the Liberal Party—theoretically, at least—they have a conscientious vote in relation to everything, but certainly in those life issues they have the conscience right. Our electoral requirements for people to vote give an exemption for people who cannot vote on particular days because of their religious beliefs or who cannot vote at all because of their religious beliefs. These all show good ways in which we have been able to accommodate people. Similarly, the Defence Act has an exemption for people who have a conscientious objection to serving in the armed forces.

When we look at our overall community we are a multifaith, multiracial, pluralistic society with diverse people with different beliefs and different faiths. We should do our best to try to accommodate those faiths and those positions. That is an obligation of the whole community. Traditionally, I would have thought, if you go to a bookshop seeking a Papal encyclical and it is a Protestant bookshop they will not order it for you, but that does not cause offence; it is just not what you were expecting.

Senator MOORE: They may refer you to another bookshop.

Prof. Quinlan : They may. If you want to buy a Holy Communion cake and you go to a Jewish cake maker, they will not make it for you because they would not have the equipment to do so. Similarly, some people in Australia—who knows what percentage of people it might be, but it is probably a very small percentage of people—have gone into the service industries probably at a time when the possibility of same-sex marriage was never something that was even in contemplation. So it is not like they have made a decision, probably, to go into those industries where they might face this conscientious problem or this religious issue, but they find themselves with that problem. I do not know what my position would be in that circumstance—probably not the same position—but for some people that is a big problem for them. So Laycock and Berg have looked at all of those cases in the United States, and they found in all of those cases there was an alternative supplier, so it is not a situation where the only place you get the particular service was from that particular supplier. One asks oneself: if someone has such a strong position in relation to a particular topic that they will not provide you with a service, would you really want to get that service from them and give them money to make them profits?

Prof. Benson : There is another dimension here, and it has to be named. It is the use of legal principle to force political outcomes. It is very marked now in Canada. I think it is fair to say that the Canadian litigation experience is probably a decade ahead of Australia, or maybe less. Whether that will change, I do not know. But some of the litigation ongoing in Canada is very aggressive. At the moment there is a case going to the Supreme Court of Canada to be argued in November of this year involving a university in western Canada called Trinity Western University. There is a very, very interesting example of where these kinds of debates can go if you do not have the principle of accommodation spelled out very strongly. What has happened there is an evangelical university wants to have a law school. It has a community covenant, as they call it, that says that marriage is essential for anyone on their campus who is involved in sex, heterosexual or otherwise. They define marriage in the traditional evangelical Protestant way of one man and one woman; that is it. This has been framed as a discrimination against gays and lesbians when in fact, if you pull the lens back a bit, it is actually a discrimination against heterosexuals as well. But the politically charged environment under the rubric of equality has made this an extremely aggressive litigation in which—listen to this—two-thirds of the members of the bar in British Columbia, my home province, voted against Trinity Western having the right to graduate students in a law school that had already been accredited by the bodies that had the task of looking at libraries, staff and so on. The point here is that, when it got to the BC Court of Appeal, five judges to zero ruled in favour of the university but the lawyers in their thousands voted against it. What is going on there? I think what is going on is a great deal of rhetorical power under the movement—sexual orientation recognition and equality, but a lack of respect for, and understanding of, diversity.

I am hoping that, on the basis of the principles of diversity, the Supreme Court of Canada will come down on behalf of the university. The strong argument against it is a particular configuration of the public's fear in which the argument has been made—that law is a public thing, and that all public things must be same-sex marriage favourable. I think that is a mistake. The public's fear is diverse, and what we can request of the public's fear is respect. We cannot demand, at the end of law, acceptance. We cannot do that and, if we do that, we will have moved the ground towards a kind of illiberalism of what William Galston, the great American political theorist, calls 'civic totalism'. And I think he is right. I think something is going on in law that we have to be very careful of, and that is the use of rhetoric, particularly vague terms like 'equality', to effect political outcomes.

Senator MOORE: I accept that, Professor, I really do, but I keep thinking that if this had been 50 years ago or 80 years ago, we could have been talking about women, or we could have been talking about people of different race. At different times, if you go back into history, people used their personal religious beliefs to say that women should not be involved in public enterprise, and there was certainly some issues around race. I accept your argument, but I keep wondering whether people have the right to agitate for what their definition of equality is. Your original comment was about bringing people together—I am trying to remember the words, but I will get them from Hansard. What we are trying to do is to actually bring people together, as much as possible, without harm. But as you were making that argument, the historical aspects of that process were going through my mind.

Prof. Benson : The key is: can we learn to embrace the principle of 'live and let live' on the public's fear?

Senator MOORE: It would be good.

Prof. Benson : That means learning to live alongside people with whom we are in disagreement. That principle is essential for the law to figure out how to articulate that better.

Prof. Quinlan : Could I just add that there is a very big difference between discriminating against people because of their characteristics, which is what was involved when there was miscegenation laws and laws that prohibited women from voting and so on, because that has nothing to do with your ability to vote and it has nothing to do with your ability to get married. What Trinity Western is talking about is a particular religious viewpoint on what they consider to be moral behaviour. It is a university that people can go to if that is what they want to do. Nobody is forced to go to that particular university and, if they do go to that university, the university asks them to subscribe to an overarching moral code, as does Brigham Young University in the United States and a few other universities around the world. You exercise your choice to join with that community if you are not from that community, to study there. That is not a position which says no women can apply, no people of particular racial groups can apply, no same-sex attracted persons can apply or no persons from the LGBTI community can apply. All it says is that, while you are on campus and living at this evangelical Christian university, we have a particular code of behaviour that applies to everybody so, if you would like to come to the university, then this code will apply to everybody.

Similarly, with the service providers, if it were the case that a service provider refused to provide service because someone was same-sex attracted or they were a member of the LGBTI community, then that should be prohibited, and it should be unlawful. On the other hand, the concern of the particular service provider or property owner may be that they would be seen to be endorsing behaviour that they considered to be immoral by providing a particular service—say they provided an Ernie and Bert wedding cake, or whatever. Firstly, they probably would not have the facilities on site to provide such a service but, if they were, then they would feel that they were endorsing a moral position with which they disagree. That is quite different, I think, to refusing to provide a service simply because of someone's sexual orientation.

Prof. Benson : Just as a point of information here: the American bishops opposed the miscegenation laws in the case of Loving v Virginia, which was the leading case in the States about interracial marriage. The religions strongly opposed that interracial marriage prohibition.

Senator MOORE: It took a while though, did it not?

Ms CLAYDON: That is what I was going to say—it was a long time coming!

Prof. Benson : I am not saying this was universal, but the point is—look at the West generally. It took millennia for it to understand that slavery was something that should be outlawed. The point here is: I think we ought to be pretty careful what we hitch to the wagon of advancement when it is claiming to supress other viewpoints. The ability for a religious community to say it has a certain sexual moral view is one, I think, that we should maximally respect, not stamp out. I think the reason the DC court of appeal voted 5-0 in favour of Trinity is because they were looking at something deeper in the law. Particularly, they were looking at diversity and the importance of different belief systems to culture. I think that is something very important to maintain.

Mr Brohier : If I could just give a personal example of discrimination: about a month ago, I was invited to speak at the Adelaide law students' social justice breakfast on the topic of marriage equality and the Constitution. I have been an advocate for preserving the definition of marriage, and that is well known—I have appeared at committees before this parliament. About a week before I was to speak, they rang me up and uninvited me because my views did not match their views. Arguably, I had a case for discrimination because it was a political belief or activity. But I asked myself, 'Why should I have the right to sue those students when it is really nothing that affected my practice at all?' I have not lost a dollar—in fact, I have gained time in fees. I asked myself, 'Why should the law give me a right to sue those young students?' I say if I cannot point to any actual monetary or reputational loss, which I have not, I should not be able to sue.

At 7.1.7 of our submission, we have highlighted what you have been talking about, Senator Moore: that if there is no actual loss—reputational or monetary—if you can get the service down the road, why should you not get it? In the American case of the flower lady, Barronelle Stutzman, she referred the man on to lots of other florists in the town, but she is now facing a $150,000 damages claim for hurt feelings. I say in Australian jurisprudence we should not go that way. It does not help social cohesion, and it does not help that reconciliation of differences that are always going to be in this community. We are talking about the same-sex marriage debate: if it goes the way of same-sex marriage, then, for social cohesion, we have to give the third of the population who have a different view a sense that they have been (a) heard, but (b) are adequately protected, to maintain social cohesion.

Mr Iles : May I add one thing quickly? I think it is relevant to what Mr Brohier said about his experience.

CHAIR: Yes, Mr Iles.

Mr Iles : It is also well known that I have worked for the Australian Christian Lobby in a management position. It was a matter of course for people to decline services and bookings to the Australian Christian Lobby. It was pretty common. You could ring a hotel and they would say, 'Sorry, we don't agree with your political opinions.' There are a lot of people who would say, 'Well, good!', but you have got to be the same both ways: there is a question here of equality in itself. When it comes to these questions where it is a conduct and a belief more than it is the personhood that is at issue, it is genuinely a balancing situation because you are dealing with the competing identities of two people. Justice Redlich makes this point in the Cobaw case where he says religious faith is a fundamental tenet of a person's identity, and it is as much a violation of their identity to be compelled against their conscience, which is real harm, as it is for the other person. So it is not as straightforward in these cases where real adjudication takes place. That is why I would take us back to what the UN committee says with its balancing clause on the differentiation of treatment—is it reasonable, is it objective and is its aim to achieve a purpose legitimate under the covenant? You can apply those questions to those cases and you may get different outcomes depending on the precise circumstances.

Ms CLAYDON: I think there are profound challenges involved in these balancing acts that everyone is trying to do. This morning Dr Taylor put it to us that we should be looking the UNESCO principles of tolerance as providing perhaps a more effective means of addressing very strongly held differences. Are you aware of those UNESCO principles and, if so, might they be a useful tool?

Prof. Benson : These are the recent ones from UNESCO? Which ones are you looking at?

Ms CLAYDON: I do not have a date for them.

Senator MOORE: I get the impression they have been around for a while.

Ms CLAYDON: Yes, it did not sound like they were recent. Dr Paul Taylor was recommending them to us this morning.

Prof. Benson : Can I say a quick word on tolerance. I have used some of these vague terms myself—for example, 'respecting the dignity of the other'—but I always want to bring them back to context and respect for difference. To me, that is the real keynote in law. What we are seeing is that the legal philosophers are pointing towards the use of law to effect homogeneity—that is, sameness—across culture. That is not freedom, that is not a democratic and open society; it is actually authoritarian. As you would know, one of the great thinkers on authoritarianism was the novelist and essayist George Orwell. In his famous 1946 essay 'Politics and the English language', Orwell identified terms which he said were meaningless and which tended towards authoritarianism. They include the following: equality, values and progressive. Orwell understood that terms like 'tolerance', if they are not firmly hooked to the reality of difference, could effect authoritarian outcomes. And I think he is right.

Prof. Foster : Can I briefly comment. To be honest, I had not looked at the UNESCO tolerance principles before. But now, through the wonders of Google, I have called them up here.

Senator MOORE: Are yours 1995?

Prof. Foster : Yes, the one I am looking at says 1995. I will have to go and have a look at it in more detail, but in article 1 talks about the meaning of tolerance—'respect, acceptance and appreciation of the rich diversity of cultures' and those sorts of things. I think paragraph 1.4 is helpful. The second sentence there says: 'Tolerance means that one is free to adhere to one's own convictions and accepts that others adhere to theirs.' So tolerance involves not necessarily changing my mind to agree with you but accepting that other people are entitled to hold their views. The classic principles of tolerance involve accepting that there are differences between people but not penalising people for those differences and on the other hand not abandoning one's own principle simply because there are different opinions. Tolerance generally, it seems to me, classically—and I suspect it is probably reflected here in this discussion—is the idea that one allows others to have their opinion but you are still free to debate that opinion with them. I would like to think that I am tolerant in the sense that there are people from other religious traditions that I get on well with and have social interaction with. Next week, I am going to an Iftar dinner that I have been invited to by a Muslim friend. But that does not mean we agree on all religious issues. We are prepared to discuss those things and we may differ. So I think tolerance is always an important value in that sense.

One of the dangers of tolerance, sometimes though, is that 'being tolerant' is interpreted to mean, 'I must never criticise someone else's opinion', and I do not think that is an appropriate meaning of tolerance. I think I am allowed to have a friendly and respectful debate with people, and that does not undercut the fact that I am tolerant of those people.

CHAIR: As I said this morning, Professor Foster, at least going back to Locke, toleration was a political settlement. It was the way in which we could try and end the war of all against all religious wars of the time. It did not mean that people ended up agreeing with each other; it just meant that we did not have a winner-takes-all attitude based on which religious group happened to win the latest war that had been going on.

Prof. Foster : Yes. That is right.

Prof. Quinlan : And if we are talking about tolerance, you cannot go past DA Carson, who has written a book called The intolerance of tolerance. Other people have used the expression as well. What he is talking about there is what Professor Foster was just talking about in relation to the changed meaning of the word 'tolerance'. He says that the classical meaning of the word tolerance, which sounds like the meaning which is reflected in the UNESCO principles, is just what you described, Mr Chairman. He describes the 'new tolerance' as the principle that everybody's viewpoint must be equal—so, I cannot express a view which is contrary to your view; I must accept your truth as at least equal to my truth, which means that I must accept what you say as being correct—which is not 'tolerance'. That is actually moving to something different.

An example of that may be what the United States court in the Elane Photography case described. Justice Bosson in the first instance decision in the Elane Photography case, which is one of these cases involving religious views and same-sex marriage, said that at some time in everybody's life they must learn to compromise in a society like ours. So his compromise was that Elane Photography got fined. They had to go to a re-education program, and ultimately—I am not sure—I think they went of business for refusing to provide services for a same-sex wedding because they thought using their photographic ability and their artistic abilities could be seen to be an endorsement of a form of marriage that they believed was contrary to the will of God. That is the way they put it. That does not sound to me to be an accommodation at all. That does not sound to me to be tolerant. Of course, there are other ways in which that particular issue could be dealt with.

I think part of the issue around this is, frankly, a misunderstanding about the motivations of religious people. As I said before, if the motivation of those religious people is to discriminate against people for no reason—to discriminate against same-sex attracted people and not provide them with services—then that is one thing, and that should be prohibited. If, on the other hand, their concern is about endorsing a moral position with which they disagree then that is a different thing entirely I think.

Ms CLAYDON: Of course accommodating diversity within all of those religious traditions and faiths is also another challenge. Mr Iles, you are part of the Human Rights Law Alliance. What cases have you taken on? I think you mentioned you have been working on about 20 cases. I am just wondering if any of those involve a contest of ideas with other religious traditions, or are they all Christian-based?

Mr Iles : I do not think there are any that have involved a contest between two, shall we say, traditionally identified faiths—so, Christians versus Muslims, or Muslims versus Buddhists or something. We have not had any of those. These have been more cases of people who have been acting in accordance with their convictions in various ways and have themselves suffered detriment as a result of that. Now, you might argue that everybody has conviction and belief, and whether it is an atheistic 'religion', or whatever it is that they are conflicting with, that is another question. So, in some sense, it is religious conflict. But it is ideological conflict, I suppose, that is going on for the most part.

Prof. Benson : If I can make an observation there. A lot of my work in Canada was with interfaith coalitions that got together on matters of concern. This goes back to the mid-nineties when I was part of an interfaith coalition on one of the early cases dealing with the nature of marriage. We were assured in that case, Egan and Nesbit 1994, by Equality for Gays and Lesbians Everywhere, that a case dealing with the language of conjugality in a benefits act had nothing to do with marriage because, according to her, gays and lesbians had no interest in the category of marriage. That was 1994. The religions—Sikh, Hindu, Muslim and Christian—hired counsel, us, to say that they were concerned, as religious communities, that, if you changed the language of conjugality, it would put pressure on marriage. I mention this because time can move very quickly in relation to principles. Right now, it is a fact that the same-sex LGBT movement is the most powerful cultural movement there is. They are no longer arguing from the position of a destabilised minority. They dominate the airwaves. I mention this because it is important to adjust your frame of analysis to ensure that you are balancing the equities properly.

Trinity Western University in Canada, where you have the vast majority of lawyers and all the law deans unanimously across Canada supporting the challenge against the Christian group, shows you that you now have Christianity on the back foot. You also have religions on the back foot in many cases when we are dealing with secularism, the anti-religious ideology. You have to be extremely careful that these now powerful movements do not dominate the analysis of how you balance the principles that are at issue.

I was one of the drafters of the South African Charter of Religious Rights and Freedoms, which was signed by every religion in South Africa in 2010. That was an amazing experience because all of these religions—African customary religions, their equivalent to the Aboriginal frameworks in Australia; Jews; Muslims; Catholics; Protestants; Rastafarians; Ismaili Muslims—all came together over a large series of meetings over several years and eventually signed a document. This is the relevance to your committee's work: pursuant to an unusual provision in the South African Constitution, section 234—which I am going to suggest you consider. This provision, section 234 of the South African Constitution, in order to deepen the culture of democracy, urged the creation of civic charters by civil society.

Earlier, Senator Moore, you expressed an interest in reconciliation. I think you may have an opportunity through your committee's work to recommend something innovative, and it is this: do not leave the development of these human rights principles merely within the legislature and the courts. There is a really important dimension of culture that needs to be engaged, and that is civil society. So the question the South Africans dealt with in section 234 was: how can we bring civil society into this question of legal development? I urge upon you the possibility of stipulating something in a future legislative frame that involves, on an ongoing basis, the involvement of different belief communities in Australia. Get them talking. Get them around a table. Get them working out a modus vivendi—how do we live together? That is the real problem in the UK with terrorism at the moment. They have to figure a way to get people to the table to release pressure within communities. We are not going to do it if we just leave development of society as legislation and law as judicial determination. I think you occupy a very important role here in possibly looking at an alternative way of thinking about human rights in Australia. Involve civil society.

Senator SINGH: Just before I ask my question, which is probably more to Professor Foster, we do have, Professor Benson, interfaith dialogue in Australia that does bring different religious views together at that civil society level. I think civil society in Australia is actually quite active. The missing component, and obviously something that this committee is inquiring into, is what legislative framework—where are the gaps there? Of course, as politicians, we should not be in separate institutions from those who we legislate for, but I think we all, including my lower house friends here, go out of our way to make sure that does not occur. I think interfaith dialogue, at least, is happening and perhaps could be happening more. I do not know. At least, I know that that is a positive in the sense of activity of bringing peace in our community.

My question was really relating to Professor Foster's submission. You provided quite a lot of information there. I wanted to firstly go to where you ask—I think it is on about page 7—'Is reform desirable?' which is obviously of interest to this inquiry. You talk about the fact that we have acceded to the ICCPR and that it would be appropriate that the commitment we have made to ratifying the ICCPR be translated into law. I am interested in that particular point because we have heard some other evidence today that article 18 of the ICCPR is something that we could look at adopting in some kind of legislative framework. I think it is something that the Victorian Charter of Human Rights and Responsibilities Act did, in the sense that it looks specifically at article 18 of the ICCPR. Is that something that you think this parliament should look at? You talk about it as a commitment that we should translate into law. What would it actually look like if we were to do that?

Prof. Foster : One possibility is to enact legislation that broadly protects religious freedom based on the principles of article 18. Earlier we discussed the possibility of dealing with discrimination on religious grounds. That would build on, perhaps, other international conventions on religious discrimination that exist. There are UN instruments that deal with religious discrimination. But in terms of implementing article 18, it would seem to me that an act called something like the religious freedom act could be brought in to provide a general principle that people would have the rights given by article 18—rights to hold religious beliefs, rights to practise within the limits set out in article 18.3, to live and practise one's life in accordance with the one's religious commitment.

As far as I can tell, given the fairly extensive scope of the external affairs power that the High Court has held and the Australian parliament has, that would be a perfectly legitimate exercise of the Australian parliament's authority or legislative power in that area. Again, that would involve the precise terms of it—the discussion of where you provide balancing clauses. I have used this phrase 'balancing clauses'. When I use it, I am not sure I am using it quite the same way Martyn has, but I have used it to describe different types of provisions which balance out different rights. One would have to have balancing clauses in legislation that implemented article 18 to allow recognition of the fundamental human rights of others which are mentioned in article 18.3 and work out some way of drawing those lines. There would be lots of controversial decisions to make in that process, but it would seem that would be a very important way of signalling that Australia is serious about this international commitment.

The other thing—and others perhaps could comment on this—is that we are aware that one of the big problems, as we have been very conscious of over the last couple weeks, is radical extremist Islam and the problems caused by violence generated by people from within that wing of Islam. To me, signalling religious freedom protection at a broad level in the Commonwealth sphere actually reassures the vast majority of Muslim people in Australia that we are committed to protecting their rights, because religious freedom protection legislation does not simply protect Christians. It protects people from all faiths within appropriate limits.

Of course, you will not protect people who are advocating violence or oppression of women and those sorts of things, but it will signal the fact that we are a multicultural society and we value the contributions of all members of society and all religions. It actually has the potential to provide reassurance to people from within, say, the faith of Islam, in particular, that we are serious about protecting their rights and to undercut some of the discourse that is sometimes there about the West being the enemy.

Mr Brohier : Just following on that line, we have debated religion and same-sex marriage issues. One of the strongest proponents of the current definition of marriage in terms of religious faiths is the Sikh religion. They are very firm in their view that marriage is between a man and a woman; they have given evidence to a number of committees of this parliament and they say that will never be changed. It is not just a Christian-LGTBI conflict; it is a multifaith conflict in that sense—a Sikh-LGTBI conflict. So what Professor Foster is saying is very important: it signals to the wider ethnic community that their view is respected.

Senator SINGH: Just for the record, Mr Brohier, and so as not to confuse you, my surname and family lineage does not have any connection to the Sikh faith.

Mr Brohier : That is not why I raised it.

Senator SINGH: I am just putting it on the record.

Prof. Benson : If I may and I do not want this to be lost in all the things we have been discussing, but this notion of a presumption in favour of diversity is very important. It may have utility in a preamble statement but it spells out your commitment in your legislative framework is to maintain a space for a diverse culture. It is important because of this ideology of civic totalism, which is using law to try and effect homogeneity, and I think anything that can be done to resist that is very important.

The other thing is: in your terms of reference we were not asked to address specific legislative frames. Speaking for myself, and I expect my colleagues would agree with this, if you were to move towards specific legislative language and so forth on limiting provisions and wanted our input, I for one would be more than willing to come back and spend some time on that in a more precise way.

CHAIR: I am not sure whether all of you but I think Professor Foster agreed with Professor Williams that neither federal nor state constitutions adequately protect freedom of religion currently in Australia. Some of the evidence we heard today talked about how freedom of religion and freedom of expression go together. Would that be something you would consider worth exploring as part of some kind of legislative instrument—which actually looked at both of those concepts? Obviously, when we are talking about freedom of religion or belief, it should also include freedom to hold secular or atheist beliefs. It should not just be a term for those traditional religions; it could be other types of belief. We talked about Indigenous dreamtime believes and the like. Does something like freedom of expression encapsulate more? Is that a kind of foundation for protection for what we are talking about?

Prof. Benson : Typically the term that extends beyond religion, for example in the Canadian Charter, is 'conscience and religion' or 'religion and conscience'. In South Africa the term 'belief' is used. I think your point is well taken. It is generally understood that by putting 'belief' alongside 'religion', you are going to deal with atheists and agnostics, and I think that is important. But I would like to see conscience brought up because this point we mentioned about the pressures put on individuals to conform in different areas can sometimes lead us to diminish the rule that conscience plays and it is very important.

CHAIR: There is a formula in article 18.

Prof. Quinlan : Yes, thought, conscience and religion.

Prof . Foster : Senator Singh, I think there is a lot to be said for bringing together religious freedom and freedom of speech. One obvious way of demonstrating that is to look at the first amendment to the US Constitution, which contains both rights, interestingly, bundled up together. The framers of the US Bill of Rights obviously thought they were very closely connected because they are two different limbs of the first amendment.

On the one hand, I know Professor Williams this morning was arguing that freedom of expression—freedom of speech—could, he thought, be considered in the same exercise. In general, I am not opposed to that; although I would like to do the lawyer thing and say I would like to think about that some more as well because there are different issues. But on the other hand, it is certainly the case.

I attached a second paper to my initial submission on religious speech because a very important part of religious freedom is the question of the ability of people of faith to speak about their faith, to speak with others about their faith and those sorts of things. So the ideas of free speech and religious speech are often tied up very closely and, in fact, it could be argued that the two should be dealt with together; although I am reluctant to push that too hard because if you tie too many things up in any one reform then they can be slowed down by the lowest common denominator or by the person arguing most against it.

Freedom of speech, if I can speak bluntly, is an issue that is always debated very hotly in the role of the media, people's reputations and all sorts of other things. We have seen that over the years with debates on defamation and those sorts of things. Freedom of speech is an important principle, absolutely. We already have the High Court developing an implied freedom of political speech in our Constitution, which has gradually been gaining more and more prominence. They go together logically, but I am not entirely persuaded that they need to be done together. There is certainly a lot of synergy between the two of them; I agree with you on that one.

Prof. Benson : I have a couple of points here on speech. Please be careful to inform yourselves about the problems with hate speech. In recent political debates in Australia about 18C, interestingly, most of the language in 18C was found unconstitutional in Canada in the Whatcott decision, a case I argued some years ago. In Whatcott, the language that was struck down is what is in your 18C, pretty much. In South Africa, when we did the Charter of Religious Rights and Freedoms, we limited 'offensive speech' to 'incitement to violence'. I think that is important. It demarcates that if you are trying to incite violent outcomes, that is the point at which the guillotine of the law comes down. The hurt feelings extensions are too soft; they rope in way too much in speech, and I think people become concerned when you have the spectre of Bishops, as happened in Canada and also here in Tasmania, taken before tribunals for pastoral letters on marriage. I think that is absurd, and that kind of spectre ought to make us concerned about how these things can be used.

Mr Iles : If I could add to the question about the expressive element of religious freedom, I think I am on safe ground in saying that religious freedom is an expressive right. To change that would be to change the understanding of religious freedom both in our legal system and in the human rights law at an international level. If it were just a belief right, it is hard to understand what the purpose would be because you cannot ultimately regulate the realm of the mind; it has got to have some expressive element.

In the Church of the New Faith case that I quoted in my opening statement, Chief Justice Mason and Justice Brennan said:

What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of his legal immunity, for his freedom to believe would be impaired by restriction upon conduct to which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself.

Chief Justice Latham in the Adelaide Company of Jehovah's Witnesses case drew attention to the fact that section 116 talks about the free exercise of religion, expressive right. He says, of section 116:

refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.

I could mention a few other cases as well, but that is why I think article 18 goes so far as the education of children. It is an expressive right and has always been understood as such.

Mr Brohier : I put a caveat that this is not meant to be a party political submission, but on the hate speech issue, in April of this year, The Australian carried Chris Merritt's article that the Labor Party was thinking of increasing 18C to cover offensive speech in terms of religion. I do not know if that is party policy or not but that was in the paper.

Senator MOORE: No, it was not. It was proven that that was not true. If you actually read the paper the day after, you would see that.

Prof. Benson : One further point here that is really important is article 18 of the ICCPR is not as strong as it might be in terms of the community; it can be read individualistically. I think one of the things that we need to be aware of is that religion can be driven in two directions. One is into the private sphere, and the public is invited, and 18C expressly refers to public and private. It is important to keep public in there. The second thing is it can be driven in an individualistic direction in ignoring the community. It is very important to keep community and the right of association alongside expression and religion. Those are key dimensions to whatever you come up with.

CHAIR: Thank you very much for your submissions and also for a most informative and interesting discussion, which will certainly help us in this ongoing process of looking at the subject. There may be an opportunity, depending on which direction the committee goes with this, to invite some or all of you back for a further discussion. You will be sent a copy of the transcript of this session and will have an opportunity to request any corrections to the transcript. Thank you.

Resolved that these proceedings be published.

Subc ommittee adjourned at 15:18