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

BECK, Dr Luke, Private capacity

CASEY, Dr Michael, Director, PM Glynn Institute, Australian Catholic University

CLARKE, Dr Tamsin, Chair, Freedoms Committee, Australian Lawyers for Human Rights

DEAGON, Dr Alex Craig, Private capacity

TAYLOR, Dr Paul Malcolm, Private capacity

CHAIR: I resume hearings of the subcommittee and proceed to the first of a series of roundtables. The purpose of these is to encourage discussion about the subject matter of this inquiry. Welcome. Would each of you like to make some opening remarks?

Dr Taylor : I will not repeat anything that is in my submission, but in light of the submissions that I have read I take this opportunity to say a few words about what the UN system requires of the key players in this discussion—namely, the state, and those who exercise rights and those whose rights are compromised, whether by the state or through the acts of others. I do suggest that a combination of formal and informal responses may be appropriate. The first point I would like to make is that the term 'respect' has a particular, and perhaps unfortunately, very narrow meaning under the International Covenant on Civil and Political Rights. The consequence is that it is necessary to rely on additional means to address fundamental concerns about the responsibility of those exercising rights to ensure respect and tolerance for others more generally. Put briefly, it is for the state to respect human rights by not restricting them itself beyond permissible limits and to ensure those rights against incursion by others. There are no specific obligations on rights holders, although those who exercise their freedom of expression do so with special duties and responsibilities, which explains why this right may be restricted for respect of the rights and reputations of others. That is freedom of expression.

There is much more that could be said to elucidate that. It is also possible to argue certain other aspects of respect under the covenant, but that concept is still too narrow to meet the appeals for respect in its non-technical sense. It leads me to suggest that compliance with the international covenant is essential in the context of this inquiry through the enactment of the substance of article 18, preferably along with some close cousins to that right, but it is not sufficient on its own.

My second related comment is to identify specific practical steps to address root causes of prejudice, whether targeting religion or other status. UN initiatives outside the international covenant itself are perhaps more helpful in achieving this. They specifically refer to respect within a stronger package of practical recommendations for overcoming deep-seated bigotry, prejudice and intolerance. A common denominator across a number of submissions—even those from opposing perspectives—was for greater acceptance, inclusiveness and recognition of the individual's inherent human dignity. I have already referred, in my submission, to the 2015 Human Rights Council resolution on freedom of religion. But I shall also mention, in this context, a set of formal and informal steps recommended in 2015 to ensure tolerance towards the LGBTI community. They may already be familiar to you, but to give you a sense of what they cover, they recommend enactment of hate crimes with homophobia and transphobia as aggravating factors for sentencing and non-discriminatory legal recognition for same sex couples and their children. But they also, importantly, recommend less formal responses such as anti-bullying programs; helplines; comprehensive, age-appropriate sexuality education; and public education campaigns to counter homophobic and transphobic attitudes and to address negative stereotypical portrayals of LGBTI individuals in the media.

I should also mention, finally, UNESCO's Declaration on Principles of Tolerance of 1995, which, although a bit long in the tooth, also puts great store on various steps to promote tolerance in a society marked by pluralism and diversity. The range of recommendations from the UN will doubtless develop over time, but I would simply commend them to this committee as possible resources to consider in the shaping of responses to a number of deeply felt concerns reflected in the submissions, in addition to the text of the international covenant itself. Thank you.

CHAIR: Thank you, Dr Taylor. Dr Deagon?

Dr Deagon : Thank you, Chair, and committee members, for the opportunity to contribute to this inquiry. I would like to use my opening statement to briefly outline the constitutional position on religious freedom in relation to the 'free exercise' clause in section 116, compare that with some broader approaches to religious freedom and then indicate some of what I think are contemporary challenges to religious freedom in Australia.

The 'free exercise' clause in section 116—just restricting it to the 'free exercise' element—states:

The Commonwealth shall not make any law … for prohibiting the free exercise of any religion …

In the cases dealing with the 'free exercise' clause, the High Court has interpreted the clause narrowly, saying that unless the Commonwealth law explicitly restricts religious freedom in its terms it will not breach section 116. Even if a generally applicable law has the effect of prohibiting free exercise of religion that will not be enough to breach the clause.

Though religion has been interpreted very broadly, 'free exercise' has been interpreted narrowly. Free exercise does extend beyond the mere belief or holding of a religious opinion to the protection of acts done in pursuance of religious belief as part of religion, but these acts must be religious conduct such as faith, worship, teaching and propagation of religion and the practices and observances of a religion. In other words, the concept of 'free exercise', at least how the High Court has interpreted it, covers only that conduct which is considered overtly religious and typically private in nature such as prayer, or attendance at a religious gathering such as church or something like that. This understanding I think reflects the standard liberal secular approach to religious freedom in the context of the relationship between religion and the state—that religion is only a matter of private belief and private practice and should not publicly influence, support or denigrate public policy discussions and the law.

In my opinion that view is problematic and it does not take proper account of how many religious people actually view their religious beliefs. As many scholars of law and religion acknowledge some religions are intrinsically political in the sense that they regulate and inform public conduct, business interactions, obedience to laws and public debate about controversial social issues with moral dimensions. So, in my view, religion cannot be simply excluded from the category of 'public' any more than any other individual's deep moral convictions or beliefs should be excluded from public actions. I think any attempt to separate religion from the public or political sphere while supporting the public expression of non-religious convictions constitutes hostility against religion itself.

As Professors Rex Ahdar and Ian Leigh note in the second edition of their book, Religious freedom in the liberal state, published by Oxford University Press, although this strict separationist approach appears to be neutral, because the privatisation of religion applies to all citizens, 'religious vocabulary is absent from public discourse in a way that atheist vocabulary is not.' The exclusion of religious arguments is therefore 'an asymmetrical constraint on public officials and citizens with religious convictions which prevents them from invoking their most cherished beliefs and requires them to subdue aspects of their personality before participating in public life.' I think in this way the narrow liberal conception of religion as a merely private matter actually severely restricts religious freedom by unequally excluding religion from the public space and preventing religious citizens from holistic participation in society as citizens. To be fair, I do not think there is any law—that I am aware of, anyway—that explicitly excludes religion from the public space, and it is also likely that at least some religious speech relevant to political matters is protected by the implied constitutional freedom of political communication. I think the legal exclusion, or at least impact, on religion and the expression of religious views is more subtle—for example, the application of antidiscrimination laws to the issue of legalising same-sex marriage and interactions around the provision of services relating to same-sex civil or wedding ceremonies. I refer the committee to the extensive discussions on this issue which occurred as part of the recent Senate committee inquiry into the exposure draft of the Marriage Amendment (Same Sex Marriage) Bill, so I will not say any more on that here.

In addition to this more subtle exclusion, I think there appears to be a type of social exclusion of religious views on same-sex marriage, and a number of examples can be cited in relation to that: Senator Penny Wong's recent statements in the Frank Walker Memorial Lecture saying that religious perspectives have no place in determining the legal definition of marriage; the corporate pressure which came upon Coopers Brewery as they teamed with the Bible Society to produce an advertisement containing a civil discussion of the arguments for and against legalising same-sex marriage, which eventually resulted in Coopers distancing themselves from the Bible Society; and the calls for Margaret Court Arena to be renamed because of views Margaret Court expressed about marriage, which were based on her Christian beliefs—and she has now expressed regret that she publicly stated those views. These examples—and there are others—present, I think, serious challenges to the protection of religious freedom in the sense of allowing religious perspectives to have a place at the table of public policy discussion.

So I think the fact that constitutional protection of religious freedom is limited means that parliament should step in and provide more robust legislative protection of the human right of religious freedom in Australia, particularly the public nature of the freedom as alluded to in article 18 of the International Covenant on Civil and Political Rights. Ultimately, since none of us can justify or advocate for laws free from attachments to our own perspectives of the good, an authentic approach to public discourse requires, I think, that we openly allude to all these entrenched perspectives and consider them equally, without legal or social penalties resulting from the expression of particular views. I think this would produce a forthright and substantive debate containing partisan religious and non-religious moral visions, which the public can then decide between. Furthermore, to protect those with religious convictions about the nature of marriage from antidiscrimination laws—which is getting back to the antidiscrimination issue, as I have indicated in my written submissions and as was also discussed extensively in the recent Senate committee inquiry—I think there should be balancing clauses which enable individuals, business owners and organisations to holistically participate in society without needing to compromise their religious convictions as they do so or be subject to legal penalties if they do not. Thank you.

CHAIR: Thank you, Dr Deagon. Dr Casey?

Dr Casey : I would just like to offer a few remarks to, I suppose, clarify the context of the frame in which I approach questions around religious freedom. It is a bit more sociological than legal. I share a concern with a lot of Australians and other people today about the increasing acrimony and divisiveness of public debate and the way in which we conduct public debate and public discussion around important and sensitive issues. I think it is fair to say that questions around religion and religious freedom mark out one of the fault lines in that situation. They also raise important questions of human rights, as we know.

Religious freedom seems to attract a lot of fear and suspicion. For some people, religious freedom is seen as a stalking horse for bigotry and discrimination and a way of privileging religious claims to exclude vulnerable groups or to discriminate against them. Then among religious people there is often a sense that religious freedom is not sufficiently respected or interpreted generously enough, so they themselves can sometimes feel excluded or marginalised and feel that their beliefs and contribution to society are not taken seriously.

I think this highlights more generally for us the difficulties we increasingly seem to have as a community in disagreeing together about deeply held beliefs and values in a spirit of good faith and a spirit of friendship and the difficulty we seem to have in entering into the perspectives of people with whom we disagree, in a spirit of openness and generosity, with a bit of curiosity about why people have the concerns they have and then try to work from there to find a resolution, which does not require people on either side to make significant compromises to beliefs which they hold very dearly.

Obviously, any legislation or laws around human rights and religious freedom can only go so far to address this broader problem, but obviously it can play an important part in setting out some parameters and clarifying some expectations. Religion itself I think at the moment is a subject that attracts a lot of fear. Partly this is a product of developments internationally around terrorism and persecution of religious minorities in other parts of the world, and partly here it is generated by the playing out of concerns locally around particular religious communities. I think when we think about people we are afraid of or suspicious of it reminds us that human rights are, obviously, for everyone and perhaps most especially for those people who are most different from us—people we might be afraid of or whom we treat with a bit of suspicion or wariness. I think this highlights as well a need to approach religious freedom as a way of helping us develop a solution here. I think religious freedom in itself, approached generously and appropriately—obviously emphasising important principles like a shared commitment to the rule of law and to the protection of and respect for the rights of others—can provide a principled basis for mutual respect and for providing each other with appropriate space, which helps us to maintain peace, build strong, resilient societies and avoid conflict.

In 2015 Pope Francis visited the United States. He spoke in Philadelphia to a group of people about religious freedom and he emphasised there the importance particularly of religious believers but of all people coming together to support peace, tolerance and respect for the dignity and rights of others. I think in a way his remarks in Philadelphia outline what you might call the vocation of religious freedom in a democratic society today. And I think a positive understanding of religious freedom—lived generously and in this sort of spirit—can help renew sources of hope and confidence in democratic societies, in a time of increasing division and mistrust. Thank you.

Dr Clarke : I would like to build on what Dr Casey said. I believe that we can do this through the methodology that human rights offers us. So, I am speaking not from a constitutional point of view, unlike my colleagues, but from a human rights point of view. ALHR believes that a legal framework, based on international and human rights law, will best enable a multicultural Australia to protect freedom of belief, promote religious tolerance and combat extremist religion, which must be very much in our minds at the moment. ALHR unreservedly opposes all forms of terrorism and believes that a human rights led response is the best way to oppose extremist ideology. This would be best achieved by a federal human rights act, but, failing that, legislation related to religious matters should be tested against human rights. This is a neutral and fair way of dealing with competing interests in a multicultural society. Australia has historically been at the forefront of international legal formulation of human rights. It was a founding member of the United Nations. Gallipoli hero Colonel William Hodgson assisted in drafting the Universal Declaration of Human Rights. The president of the UN General Assembly at the time was Australia's own Dr Evatt. For ALHR to recommend a human rights framework to this committee is to build on Australia's proud history.

Please excuse me if I am repeating matters already covered by other witnesses or that you already know. The matters I am talking about are well known in jurisdictions that have their own bills of rights but are not necessarily commonly discussed in Australia. Freedom of religion—or, to use its full name, freedom of thought, conscience, religion or belief—has a technical meaning in international human rights law which is much wider than the idea of traditional religions. Logically, to have freedom about something you must also be free not to have that thing. If freedom of religion meant only freedom to choose between traditional religions, it would not be freedom; it would be enforced religion. Therefore, logically, freedom of thought, conscience, religion or belief includes freedom not only to choose between different beliefs but also to hold no belief. So, freedom of religion in a traditional human rights sense is not limited to traditional religions but includes agnosticism, atheism, secularism and other systems of belief more akin to philosophy than what we would normally think of as religion.

Religious freedom can also be subdivided into two separate rights, and the distinction is important for legislation and for managing religious rights. There is the right to hold the belief or no belief, and this is an unlimited personal right, because it has no impact on others. However, there is also the right to express or manifest one's belief, and this can impact on other people and therefore must always be balanced against its impact on others, against other people's rights. This distinction is described as respecting the believer, not the belief.

Now, human rights are not ends in themselves. Think of them rather as a process, a means of testing legislation or policy for best practice. There are two important aspects of this test: good faith and reasonable accommodation. So, what we call human rights involves both potential rights and potential obligations. Insofar as we wish our government to protect our own potential rights, we must also act in good faith and respect the potential rights of others. So, generally behaviour should not be protected by Australian law where that behaviour unreasonably impacts on other people. A proponent of an intolerant religion cannot expect tolerance for their beliefs, no matter how extreme, or expect state protection for their actions. Their right to hold whatever belief system they want is absolute. There is no argument about that. That must be respected. But their wish for legal protection where they act on that belief system must depend on its impact on other people.

No human right is better or more important than any other human right. They are all equally valuable, and they should all be protected to the maximum extent possible. Where rights conflict they need to be balanced. There are some rights, such as the right to be free from torture, where there is little room for balancing. The protection of one's internal beliefs is similarly something that one cannot reasonably be asked to balance. Subject to those exceptions, all conflicting rights have to be balanced so as to reasonably accommodate other rights. A balance might also need to be sought by reference to other rights or other values, such as reasonableness or proportionality.

So, to conclude: from a human rights point of view Australian legislation should not privilege the followers of one religion or belief against another or discriminate between religions or not religions. Any protections or restrictions, to be fair in our multicultural society, need to be generic. A human rights test provides a neutral and fair way to do that. Proposals that impinge on human rights or provide exceptions to human rights should therefore be viewed very carefully. Using a human rights framework to decide what potential rights should be protected in Australia encourages the reform of religions from within by teaching people who are in extremist religions to challenge those aspects of their own religions that do not accord with human rights. It provides a guideline as to how to improve, and it fosters pluralism and tolerance as a means of promoting and preserving democracy. Thank you.

Dr Beck : I am a constitutional law scholar at Western Sydney University, and the principal focus of my research is on the history, meaning and operation of section 116 of the Constitution. The framers of the Constitution described that provision as providing a safeguard against religious intolerance and as preventing any infraction of religious liberty by federal law. Each of the four concepts employed by section 116 is readily understood as being about preventing religious intolerance on the part of the Commonwealth. Religious establishment, the first concept used by 116, or granting official imprimatur or playing favourites among religious beliefs, is intolerant because it frames those who are not members of the favoured religion as outsiders and not full members of the community. The second concept used by 116 is imposing a religious observance, and that has a similar effect, as well as being an attempt to compel conformity to favoured religious practices. Prohibiting the free exercise of religion, the third concept employed by 116, is explicitly the suppression of religious practices. And the final concept employed by section 116, imposing a religious test for public office, necessarily penalises individuals who did not adhere to favoured religious beliefs or who adhere to disfavoured religious beliefs by denying them access to public office.

So, section 116 goes some way towards implementing the right to freedom of religious thought, conscience and belief in Australia but of course not the full way, as Professor Williams said earlier today. The right to freedom of religion involves the freedom to hold or not hold a religious belief and within reasonable limits, individually or in community with others, to manifest that religion or belief in worship, observance, practice and teaching. But freedom of religion does not involve a right to coerce others or to enlist the state or governmental power to coerce others. Freedom of religion does not and cannot mean freedom to impose your religious views on others or to compel others to live their lives according to your religious beliefs. For example, if a Christian can impose her view on others then, by parity of reasoning, a Muslim can impose her view on others. A Muslim would be able to compel that Christian to live her life according to Muslim religious beliefs, and so on with other religions. A Christian's right to religious freedom depends upon a Muslim's right to religious freedom and vice versa, and so on with other religious traditions and atheists as well.

The right to believe may be absolute, but the right to manifest religious belief is not absolute. Religious freedom does not mean freedom to visit harm upon others. For example, if a Christian cake shop owner can claim an exemption from antidiscrimination laws for refusing to sell a cake for a gay wedding because the owner has religious objections to homosexuality, then, equally, a Muslim cake shop owner can claim an exemption from antidiscrimination laws for refusing to provide a cake for a Christian wedding because the owner has religious objections to non-Muslim weddings. Both refusals involve visiting harms upon others, the harm being a denial of the human right to be free from discrimination in the provision of goods and services. The broader point is that each person's religious freedom is dependent on and coextensive with everyone else's religious freedom. In my submission I give a couple of examples of laws that do not quite meet this standard. One of them of course is the law of blasphemy remains a crime in several jurisdictions in Australia. And, protected by parliamentary privilege, I am happy to say that I am probably guilty of that crime in New South Wales. There has been no prosecution since the 1880s, I think, but it is still on the books. I think a lot of people would find that rather odd.

CHAIR: Professor Williams pointed out that you cannot take the fifth!

Dr Beck : Exactly! The other example I put in my written submission to the committee is the practice of having official prayers, which is something that some parliaments in Australia do as well as some local councils and other official entities. Those are religiously intolerant, because having a prayer frames those who are not religious or who are not members of the religion to which the prayer relates as not quite full members of the community. Federal parliament starts with a Christian prayer. It is not just generically Christian; it is actually quite Protestant Anglican in character, because it takes passages out of the Book of Common Prayer. That frames people who are not either Protestant or Christian, if you just want to call it generically Christian, as not quite full members of the community. And quite possibly it is unconstitutional, because your standing orders say that the Speaker 'shall read the following prayer'. The Privy Council says that standing orders are laws and 'shall read the following prayer' imposes a religious observance. A prayer is obviously a religious observance, and compelling the Speaker to read a prayer is to impose a religious observance.

I think at the federal level not only is that bad in principle but there may well be constitutional issues with that. But we have the same situation with prayers in some state parliaments and also some local governments. Section 116 does not apply to that. But the principle still applies—that it is framing people who do not adhere to that particular religion as outsiders, and that is religiously intolerant. Thank you.

CHAIR: Some of us were here when Professor Williams was before the committee. For those who were not here, I will try as best I can to fairly summarise what I believe he put to us. That was that, effectively, there is very little protection of freedom of religion and belief in Australia. Section 116 goes a certain way, but it is limited and it was in the particular context of the historical debates at the time of the lead up to Federation. There is a provision in the Tasmanian Constitution, but that can be overridden by specific laws. Yes, there are charters of rights in some places and jurisdictions in Australia, but there are limitations in relation to those. There is no specific statute, and we have not incorporated into domestic law our signature to article 18 or, more broadly, the international covenant. I wanted to start because I think it is useful for this committee to have a foundation of what freedom of religion and belief means, and the extent to which the law does protect it. Do you generally agree with the proposition that Professor Williams put to us? Or should I make it easier and ask if there is there any disagreement or nuancing of what Professor Williams said? Anyone is welcome to respond.

Dr Beck : I think there is a need for a more nuanced position. Professor Williams is right in terms of whether there is a formal legal protection of freedom of religion in Australia, and the answer is, as Professor Williams said: not a comprehensive one. Section 116 goes some way. Section 34 of the Tasmanian Constitution is largely useless and there are some charters of rights in certain states, but that is about it. The question, 'Is it officially protected?' is, I think, a secondary question. What needs protecting? Of course freedom of religion is important and needs protecting, but the Soviet Union had a bill of rights and that did not really do very much in practice to help people. So the question is: what do we need in practice, and then how can we fix that? What are the problems, and what are some examples of problems, so we can get a broader view of the types of things we are dealing with? Having a human rights act for the sake of having a human rights act so we can say, 'Yay! We are implementing the ICCPR,' is nice for lawyers, like me, and for Professor Williams, but what does that mean in practice?

Victoria has a charter of rights. New South Wales does not. The Victorian charter of rights protects freedom of speech and freedom of religion. Is freedom of speech and freedom of religion, in practice, better protected in people's day-to-day lives in Victoria than in New South Wales? What is the lived experience of people? What sort of problems are people running into? I think those are the more nuanced questions that a committee like this should get into before making a recommendation to enact a statute. What, actually, would the statute do in practice? What would change in the world? Simply having a statute that does nothing or does not do very much might actually be avoiding the issue, and perhaps you should be doing other things. That is not to say that it is a bad idea, but I think it requires much deeper and more practical thinking.

Dr Taylor : Perhaps I can address the question posed by Dr Beck. The issue is not a theoretical, legal question. It is fundamental to a democratic society and the extent to which it has freedoms within its system of law. I would suggest that a composite set of freedoms gives full expression to that. I think we are agreed that there is inadequate, common law protection for freedom of religion, but the situation is far worse than that. This is the nub of it: how much may our freedoms be restricted? One of the points which was discussed in Professor Williams's submission was: how much may states pass laws restricting freedom of religion? The situation of the lack of common law protections is exacerbated in light of how the common law actually enables restrictions on fundamental rights. The well-known common law principle that everyone is free to do anything, which is derived from a UK telephone-tapping case, applies equally to states and individuals to allow both public and private actors to become the source of a restriction on fundamental freedoms of individuals, subject only to the provisions of the law. Then we look at what the law provides, and Dr Beck quite rightly mentions the charters in Victoria and the ACT. If we look more broadly at what the law may provide, we find that the Commonwealth legislation offers no protection for freedom of religion in the conventional sense. We have already discussed the Constitution. But, worse still, states and territories may pass laws—this is Professor Williams's point—that restrict religious freedom. This was a point of concern to former Chief Justice Sir Anthony Mason when he was advocating the enactment of a positive freedom of religion protection. What is also missing is judicial enforceability of freedom of religion. If I may posit a question that way to address it in terms of a concern that fundamental freedoms are open to restriction by states and territories. This is an issue for compliance with the international covenant. Respect for human rights in the international covenant means that restriction of fundamental rights is prevented beyond permissible limits. I will pause there.

Dr Beck : In terms of judicial enforceability, it is limited, of course, but the question is: what are you enforcing? Freedom of religion: as a general proposition, everybody puts their hand up and says, 'Yes, I agree.' That is not the issue. The issue is when you get to clashes and balancing against other rights. All rights interact with each other, and clash sometimes. For example—a contemporary example—the same-sex marriage debate includes an argument about whether or not there should be exemptions from anti-discrimination laws for bakers and florists and wedding photographers and so on. Some people would say that freedom of religion requires that those private service providers be given an exemption and be permitted to discriminate against same-sex weddings. Other people say: no, that violates the right to be free from discrimination. Freedom of religion and the right to be free from discrimination are both human rights and they are clashing here. The question is: how do you resolve that clash? Good, honest, reasonable people could disagree on how you resolve that clash. So the question is: who should resolve that clash? Should it be the courts, according to a formula set down by legislation, or should it be parliament who resolves the backlash? So it is not: do we support human rights—do we support this human right or that human right? I think in Australia we are beyond that. Of course we support human rights. It is: how do we resolve the clashes and the interactions? And good, honest, reasonable people will disagree about how you resolve individual clashes. So then you have to work out a framework for the process by which that is done and who the entity is that decides the resolution of that clash and that balancing.

CHAIR: Dr Clarke, I think you wanted to join in.

Dr Clarke : Yes. Whether it is the judges who decide that through having a human rights act or whether it is the parliament who decides that through testing its own legislation against human rights, I think the process we then have to have is a balancing. Whoever makes the decision has to weigh up the competing interests and, in my view, try and maximise the human rights of everybody involved and look at the harms that rejection of service would cause and the harms that enshrining that rejection in an exemption would cause, because enshrining that exemption gives the message: no, we do not want to protect same-sex marriage to the same extent as we want to protect the sensibilities of the cake maker or the florist. So there are multiple different levels of communication of a message being given that need to be taken into account by whoever is making the decision. I think the only fair way we can do it is to weigh up those competing interests in the way I have described, trying to maximise everybody's rights and minimise the impact on the respective participants.

Dr Deagon : I just want to quickly address both Dr Taylor's and Dr Beck's points. As far as I am aware, we agree with what both Dr Beck and Dr Taylor are saying. I think they are emphasising two different and important questions which the committee needs to consider. Dr Taylor is emphasising the fact that, as Professor Williams articulated, there is very little legislative protection of religious freedom in Australia, particularly around the issue of states being able to pass laws which restrict religious freedom. Section 116 cannot protect against that. There is essentially no limit on what the states can do in that regard. The only limit would be legislation passed by the Commonwealth parliament that would be inconsistent with any state legislation. So, obviously, that is an important point. But I think Dr Beck's point is equally important. If we are going to have any kind of legislative religious freedom protection, it cannot merely be cosmetic. It needs to address substantive issues, so we do need to consider where these clashes happen and we do need to consider how to balance them, which I think was the point Dr Clarke was making as well. So there are two distinct questions here which are equally important to consider.

CHAIR: That was my question, and I know we are using same-sex marriage as an illustration and we are not inquiring into that—and, personally, I do not want to get bogged down in that issue on this inquiry, but it can be useful to illustrate things from time to time. But is it not the problem here that, in trying to resolve or to balance competing rights that, at law in Australia, not just in statute law but in the common law in the Constitution et cetera, there is no protection of freedom of religion and belief. That is, if you want to make a claim for a protection of freedom of religion and belief in whatever area, unless you can put yourself within section 116, which is extremely difficult, according to what we have heard so far, and very limited and narrow, or you can find some exemption—for example, the employment exemptions in antidiscrimination legislation—there is, more broadly, nowhere else. There is no peg to hang your case on if you wanted to bring some sort of action. Is that fair enough?

Dr Beck : Yes and no. It depends what you want to bring an action for and why. The general proposition at common law is that you are free to do anything at all you want unless some law expressly forbids you from doing it. If you want to do star jumps in the middle of Martin Place, you are free to do that unless you can find some law that says you cannot. If you want to act on your religious beliefs—

Senator MOORE: And if that is part of your religion.

Dr Beck : Yes. If you want to act on your religious beliefs, go for it, unless there is some law that says you cannot do that. As a general proposition, you do not need to find a law to go take a case somewhere. Unless there is a law stopping you from doing something, go ahead and do it. That is the legal position. The problem is not a law authorising you to exercise your religion. You are authorised by law to exercise your religion as you see fit unless some law burdens that. The issue is not a law to allow it; the issue is laws impacting upon or burdening it. So I think your question flips it around the wrong way. The question is not: how do we enable people to do this? It is: what are the laws stopping people from doing this and how do we limit those laws that limit people from exercising their religion if those laws are imposing that limitation in an inappropriate way?

Dr Clarke : There could also be policies and practices that impact on people's human rights that do not reach the level of thoughtful planning to actually be put into law. One example that people often cite is how, in Australian aged-care residences, it is perfectly normal for couples to be split up because people only have available one room for one person, and couples, even within the same home, might be split up, as I know from my own friends, who now have one room over on west side level 2 and another room up in east side level 6. In Europe, that would be regarded as unthinkable as a matter of normal practice, because the human right of the family, the human right to be together with your spouse, is understood to be really important, and those policies would just never get off the ground.

Having a human rights act and having a human rights framework for seeing these things actually changes things at a much lower level before you even get to the level of legal impact and legal exceptions. It gives a different way of viewing things which can work through the whole of society. That is why perhaps it is a little early to talk about the differences in places like Victoria and the ACT, which really have not had this legislation for very long. It is going to be a slow process. It is not an area that is discussed much in Australia, because historically we followed an Anglo-Saxon system of law which did not include human rights and was not influenced by the French Revolution.

We have left aside the stream of legislation, philosophy and thought that is so common in Europe and that is perfectly well accepted in Europe. In Europe it is perfectly normal for government to be totally secular. They would not be having prayers in France, Germany or wherever, because they have the history of entrenchment of human rights in their constitutions following on from the French Revolution. There the concept of secularism or what they call in France laicite is a completely normal part of government. This is not to say that people cannot express religious ideas or that expressions of religion are shut down or anything; it is just that government is a space where it is human rights that are looked at first and foremost and religion fits into that depending on how its expression impacts on other people.

CHAIR: Any other questions? Senator Singh.

Senator SINGH: I want to follow up on your response to the chair where you gave that example about aged care here in Australia and the separation of spouses from each other. You talk about how a human rights act gives a different way of doing things at a very grassroots level. I think that aged-care example is quite useful. Are there other examples like that where you would see how a human rights act would be a benefit?

Dr Clarke : One example I gave in my submission was a New South Wales Supreme Court case I came across quite by accident. It involved a testator leaving their estate to their own children on the condition they changed religion and formally became part of the different religion in order to inherit. To me that is such a breach of the human rights of those people to hold whatever religion they thought that I just assumed the court would have said that condition was invalid as a public policy issue and the children could inherit whatever their religion. But, no, the Supreme Court said: 'This is a perfectly valid condition. You didn't convert to whatever it was. Therefore, you don't inherit.' I could not believe that in this day and age we could take that kind of view without either side in the court case apparently having considered the human rights of the beneficiaries involved.

Senator SINGH: That is where, if we were to have some kind of statute that could enshrine those protections—I guess this goes to the notion that it is not just freedom of religion or belief but thought, conscience and that broader definition. I think that, for this committee's sake, we need to explore a bit more what that definition actually looks like. But it is an instrument that then provides some basis for those nonbelievers as much as believers of traditional religions, for example.

Dr Clarke : Yes. If you are going to protect one religion, you have to protect all religions and no religion. I just had a look in the Australian Private Schools Directory. There are over 20 different kinds of religious schools in Australia. Apart from Catholic, government and non-denominational or multifaith you have Anglican, Anglican Uniting, Armenian Orthodox, Assemblies of God, Assyrian Baptist Brethren, Church of Christ, Coptic Orthodox, Dutch Reformed, Ecumenical, Free Reform, Greek Orthodox, Hare Krishna, Islamic, Jewish, Lutheran, Pentecostal, Presbyterian, Seventh Day Adventist and Uniting Church. They are not all going to believe the same thing about everything.

Senator SINGH: Don't forget the Quakers!

Dr Clarke : Yes, absolutely. They were not listed, but I went to a Quaker school myself.

Senator SINGH: My son did too.

Dr Clarke : They are not all going to agree about everything. There are going to be conflicts that we cannot decide theoretically but have to be looked at in the context of the particular cases as they crop up. Any protection of religion is going to protect all those religions. It is not easy. There will be conflicts, and we have to look at a method of balancing.

Senator SINGH: How should we define freedom of religion or freedom of belief? The Australian Lawyers for Human Rights submission talks about how it is generally agreed that freedom of religion and belief—and then you go through A and B—includes the freedom to hold secular or atheistic beliefs and is further divided into the right to hold or change a belief or no belief and so on.

Dr Clarke : That is right. That is the more technical way it is interpreted in international human rights fora and in European jurisdictions where they have constitutional human rights protection.

Senator SINGH: Like in European courts?

Dr Clarke : Yes, like local courts in European jurisdictions. Unfortunately, I think part of the trouble is that, because most of these jurisdictions are non-English-speaking, we do not tend to hear so much about their own case law. There is not a lot of translated work. We only hear about human rights decisions at the level of the European court, where you have everything translated into several languages, or international human rights. Also, for no doubt similar reasons, our media tends to focus on US issues of rights and popular notions of what rights are in the United States, which does not have this same balancing mechanism that is used in international and European human rights law and has a much more restricted bill of rights which is interpreted in a much more formalistic way without this balancing concept or reasonable accommodation concept at all. So we get a quite misleading mainstream view about how human rights work which is very much United States-centric and insufficiently considers how matters are considered even at the local court level in somewhere like France of Germany.

Senator SINGH: Are all the panel in agreement that a bill of rights is not the way forward for Australia, or is that something that is considered—

Dr Beck : I think that is a separate thing. I think that is a much broader question. Should we have a bill of rights, charter of rights or human rights act—however you want to say it—along the UK, New Zealand or Victorian lines? In the former Labor government there was a national human rights consultation, which Professor Williams alluded to. It sort of went nowhere. It collapsed in a heap partly because of partisan bickering but partly because the question of a bill of rights, charter of rights or human rights act is a much bigger question. I do not want to rehash the arguments for and against, but there are bigger issues than just the right to freedom of religion and associated beliefs. It is transferring power to judges, people argue. We are not protecting rights or we are protecting too many rights. What rights do we protect or not?

It is a much bigger issue. Every now and again we have these debates in Australia, and they never go anywhere.

That is not to say that it is not a good idea or a bad idea, but I do not think it is a practical idea. Realistically, if this committee were to recommend, 'Let's have a human rights act,' I think you would be wasting the committee's time, because that is just not going to happen. For better or for worse, whatever the merits of that recommendation, that is not going to happen in the current political climate. There is no way a human rights act would get up. Perhaps you could recommend that, if you think that is a good idea, but, if you rested there, you would be wasting an opportunity to make some more particular, pragmatic and practical recommendations that might stand some chance of being implemented in the nearish future.

CHAIR: Another option, Dr Beck, is to in some way incorporate part or parts of the international covenant—for example, in this space, article 18. There could be other articles in the covenant that we have subscribed to at a high level, but that is pretty meaningless unless we do something in some domestic legislation that incorporates it. Part of the discussion with Professor Williams was: is it possible to effectively incorporate, for example, article 18 into domestic law at the Commonwealth level without going down the track of a full bill of rights?

Dr Beck : You could. You could have a human rights act that applies only to freedom of religion and implement that.

CHAIR: Or you could add other—

Dr Beck : You could add five or six.

CHAIR: Yes, you could have freedom of religion and speech and whatever.

Senator MOORE: The top six.

Dr Beck : Yes, but that is a human rights act.

CHAIR: But it is not a human—I know what you are saying, yes.

Dr Beck : You can give it whatever title, but, if you look at the Victorian charter, it is basically copied and pasted from the ICCPR; the substantive rights are just copied from the ICCPR. They picked the ones they liked—there were some tweaks, but they basically copied the text of the ICCPR rights that they liked. Can that be done? Yes, absolutely.

CHAIR: I am only having the discussion, not necessarily advocating anything at the moment.

Dr Beck : Parliament can do it. Parliament has the power. I do not think that would get up. That is a human rights act argument. That is a bill of rights argument. My sense of the political situation is that that unleashes a can of worms and it is not going to go anywhere. If there are particular issues—say, the testator example or the aged-care housing example—then perhaps you can recommend that.

Senator SINGH: Are the other panellists as pessimistic as Dr Beck?

Dr Taylor : A bill of rights would be aspirational. It would have the very clear merits of achieving compliance under the international covenant. That is a very significant issue for Australia generally, across the whole of the covenant—the issue of general covenant compliance, that is. The distinguishing feature between a bill of rights, as I understand it, as opposed to the charter—say, the Victorian charter or the ACT charter—is that a charter simply list the rights as if they were values and they do not apply them in the legislation as rights that can be invoked in a particular way. When I referred to judicial enforcement earlier, I should perhaps clarify that what I meant was, in the hands of the rights holder, it should be possible—at least according to UN jurisprudence—to appeal to the state.

I am not suggesting a system of private rights enforcement, because I think that would be possibly divisive and create and engender more hostility than we would wish. The essence of a bill of rights, even though it has certain attractions as far as compliance with the UN system is concerned, is that it defines each of the covenant rights. They are so interrelated, interconnected and interdependent that they define the rights in such a way that the terms of limitation are prescribed for each right. They are separate. Unlike the Victorian charter, there is no single umbrella term of limitation that applies to all of the rights. I do not think that achieves anything towards covenant compliance. If anything, it is the reverse. For example, for article 18 you have not only the strict terms of limitation; there are particular grounds of limitation, and from our discussion earlier with Dr Beck and Dr Clarke there were concerns particularly about the rights and freedoms of others. It is a critically important point of interaction.

A system of rights, such as the bill of rights, such as the international covenant itself, establishes the terms on which each right may be restricted. In fact, it is not just the terms of limitation. A number of disciplines apply in addition. For example, 'necessity' is required under article 18, and for a number of other provisions—necessity, that is, in the sense of being directly related to and proportionate to the specific need on which the restriction is based. Also part of this set of disciplines—and Dr Clarke touched on this briefly at one point—is the necessity to achieve least restriction in a situation where there are concurrent rights. In a nutshell, the covenant has the beauty of establishing all the rights and the terms of limitation specific to each of the rights, but they do interact to a very significant extent. However, it may be possible to isolate the ones that are most important, particularly—if I may take Dr Beck's and Dr Clarke's concern—to protect non-religious rights and your question, Senator Singh, about what should be protected within the concept of religion or belief. There is no doubt that, under European law and under the UN system, atheistic beliefs are protected—pacifist beliefs. The Europeans have developed the concept under some very old law that beliefs must have a certain cogency in order to be protected.

Because there is an inevitable overlap with freedom of expression, I would suggest that freedom of religion and freedom of expression go hand in hand to make it seamless across both religious and atheistic or anti-religious belief systems. Article 18 and article 19 in the covenant are also important to put together in a system that also addresses blasphemy. I agree the question of blasphemy is, in a sense, not difficult. It is discriminatory in its text and in its operation. It is difficult to support, frankly.But freedom of expression is needed for religious groups and, equally, for opponents of religion because there's not always a clear, bright line between freedom of religion—particularly when you're propagating religious beliefs—and freedom of expression. As Professor Williams said earlier, it is necessary to retain robust debate on this subject.This is where 18C is different from the equivalent on grounds of religion. This is why in the UN it was possible to establish a racial discrimination convention within a small handful of years and yet decades later we have not been able to achieve anything equivalent in the area of religion. It is because of the importance of free speech, including speech that is critical and that disturbs and offends. In fact, that language was born out of a comment by a human rights committee member in a case in which there was censorship of broadcasts depicting the plight of young gay people in Finland. The purpose of the broadcast was to raise understanding for that particular situation in the 1970s.

There would have been no progress since had there not been that kind of freedom of expression. But there is a cost to the freedom to use that type of, if you like, extreme speech. There are also clear limits under the covenant—the hate speech provisions prevent incitement that would cause, to give the example of a case in Canada, a school environment poisoned against Jewish schoolchildren because of the anti-Semitic remarks of a schoolteacher. So there are clear limits. Also—and here I am borrowing from a European Convention case—there was a blasphemous film decades ago that established the principle at least that there are limits in how far it is possible to go before even the right to hold a religion may be affected by someone's extreme forms of expression.

I will stop there, other than to say I think we are all agreed that there needs to be a system of limitation, a system of restrictions. Even in the case where everyone is free to do anything they like in Martin Place, I think that Dr Beck, in that instance, would still accept that there must be appropriate restrictions even on freedom of religion. The question is: what rules of restriction do we apply? We have a very clear set under the international covenant which is different for each of the rights, so I would caution against adopting a generalised balancing formula or even reasonable accommodation. That is not the orthodoxy of the Human Rights Committee. The question is: would the covenant model serve a purpose in offering a set of rules for restriction that would certainly achieve compliance? It is certainly tried and tested.

With the issues we see emerging from the Human Rights Committee, we could benefit from the way these are resolved. But as for the package—as for the set, if you like, of principles or rights that should be collated if we were to have a Human Rights Act—that is as a different question. What I would say it is that freedom of religion and freedom of expression go hand in hand. We have freedom of religion to protect community rights and the rights of the organisational aspects of religion. Therefore, freedom of association may be appropriate as a corresponding right where it is less clear whether it is a matter of freedom of religion to form a religious group or not.

Privacy is also strongly associated with antidiscrimination, should that question arise. The case of Toonen in Australia was a classic case of invasion of privacy, albeit one decided on what we now know to be the wrong basis—it should have been article 26, but that was adjusted. So privacy is another candidate, but I would suggest freedom of religion, expression, association and assembly—if you like, the expressive freedoms.

Dr Beck : In implementing this human rights act, would you just say that X, Y, and Z rights are enforceable, full stop? Or would you make it different—that with these rights public officials have a duty to act in accordance with them unless some law makes that impossible? Or would it be that parliament cannot enact legislation contrary to these rights? What would actually be the legal mechanism for putting this into place?

Dr Taylor : I would suggest—and again, this goes back to my fundamental approach to this whole question, following the way in which the Human Rights Committee approaches it—that the rights are guaranteed by the state, not by others. Fellow rights holders owe responsibilities when it comes to freedom of expression, because that is part of the terminology of freedom of expression. But otherwise, rights holders would not be encumbered but they could take action where the state either itself restricts rights beyond the permissible limits because that is the essence of respect; that is the essence of securing guaranteeing rights. And it could also take action against the state where it fails to secure those same rights from private sources.

I question any suggestion that these obligations of rights holders in any sense stem from their being rights holders. It is for the state to guarantee, for example, the right to life against drunken drivers. They do not exercise any covenant freedom when they are a liability to others but, nevertheless, it is the state's obligation under article 6 to preserve and protect life against arbitrary loss by others. Again, I would resist at least in concept the notion that obligations arise because of the exercise of rights, except in the context of freedom of expression.

Dr Beck : In the example of the drunk driver, if a jurisdiction did not have drink-driving laws, for example, could a family member of someone who was killed by a drunk driver go to court and get an order to say that the court orders parliament to pass drink-driving laws? The question with the Human Rights Act is how do we implement that? How do you translate that mechanism into Australian law? Because constitutionally, the courts cannot simply compel parliament to enact laws. You would have to radically change the Constitution. So would it simply be an obligation that public officials must act in accordance with the chosen rights in the exercise of their official functions? How would you translate that into Australian law? It is not just picking which rights; it is how you make that work legally in Australia, because you cannot just say that parliament has not made a law that sufficiently protects this particular right and therefore the Supreme Court of that state issues an order saying the parliament must change a law. That simply cannot happen. That does not work.

CHAIR: But from time to time, for example in the criminal realm, judges—how can I put it—encourage, extort possibly embarrass governments into changing laws. A judge might make comments in a sentence bringing to the attention of the Attorney-General that there is a deficiency in the law in such and such a case.

Dr Beck : That might work at a state level but at a federal level the judicial power of the Commonwealth is limited to matters. There has to be a particular right, duty or obligation in the issue. At a state level, that could work because judicial powers at a state level are not limited to matters, but at the federal level, federal judicial power is limited to matters. The High Court has explained that matters involve some immediate right, duty, obligation or interest; it cannot just be a hypothetical advisory opinion type thing. Federal Courts simply lack the constitutional power to do that. So there is a real question about how you implement these rights in Australian law. At the federal level, you could pass a law under the external affairs power that says that all public officials have a duty to act in accordance with the chosen human rights unless some law prevents them from doing that. That would be one way of implementing your chosen rights but you could not just have the courts issue advisory opinions. The High Court has said, quite emphatically, that that is simply unconstitutional; that is not an option available.

Dr Deagon : I think that is a reasonable suggestion from Dr Beck. Having something like that would address the issue of states passing laws which restrict some kind of religious freedom or freedom of religion or conscience belief et cetera. It would depend how you framed it, I suppose, but it probably could be framed in such a way that if a state passed a law that was inconsistent with the federal law then obviously the state law would not apply so that would address that problem. I am not sure that it addresses the problem of particular instances or clashes between various competing rights, so perhaps we could have that public official as a general overarching framework and then, in conjunction with that, where particular clashes have been identified, there could be particular amendments to legislation such as anti-discrimination provisions or, as Dr Clarke has talked about, in aged care, succession law or wherever it might be. That might be a possible approach to implementation.

Ms CLAYDON: I just want to pick up on Dr Beck's submission and the two recommendations that you want the committee to adopt. One was around the practice in Australian parliaments and councils of commencing daily business with official prayers. You make a point that that in fact privileges a certain specific religious tradition and practice. I did smile when you thought it was difficult to get a national human rights act through, but we would somehow be able to manage to stop prayers in parliament quite readily. I think it has been tried several times.

Dr Beck : That would be political issues.

Ms CLAYDON: One observation I just want to make on that—or whether you had a view about the implications, if any, that might have for the acknowledgment to country.

Dr Beck : No, none necessarily. I think prayers and acknowledgment of country are separate—they happen at the same time at the start of daily business but, conceptually, I think they are quite different. Prayers are inherently a religious observance, whereas acknowledgment of country is not religious. I do not think it is a religious thing, because we cannot say that all Aboriginal people have a particular religion. Aboriginal people are as diverse as any other group of people: some are Catholic, some are Anglican, some are Muslim, some are atheists and so on. But acknowledgment of country is about all Aboriginal people being Indigenous people. It is about their indigeneity, not about their race, their culture or their traditional religion to the extent that some still adhere to that. It is about their status, I think, and status as Indigenous peoples is quite different to whatever or no religion they may or may not have. Aboriginal people have a great variety of religious beliefs, so my argument about official prayers in parliament being an interference with the right to freedom of religion I do not think holds.

I do not think you could make a freedom of religion argument against acknowledgment of country. You could make perhaps a parallel argument that it privileges a race of people over other races of people, but that is not a religion argument. It is not about race per se; it is about Indigenous peoples. It is about historical circumstances, and it just so happens that it is a race of people. It is not really about race; it is about the status of Indigenous peoples. Even if you want to say that acknowledgment of country is profoundly racist, which I understand some people make that argument, it is not a freedom of religion argument; that is another argument.

Ms CLAYDON: Some people have made the argument on the basis of religion as well, but that is okay. I just wanted to have your thoughts around that. It would be of personal concern to me, if there were implications for that practice.

Dr Beck : I don't think so.

Ms CLAYDON: The other issue which you illuminated us on is the abolition of blasphemy as an offence. I am just wondering why you think that has not happened already.

Dr Beck : Because it hasn't happened.

Ms CLAYDON: But why hasn't it?

Dr Beck : In the early 1990s, the NSW Law Reform Commission did an inquiry into the law of blasphemy in New South Wales and a recommendation that it be abolished, which we think is a very logical, sensible recommendation and the New South Wales parliament did not implement that. Perhaps the New South Wales parliament might get around to doing that—they might not—but the federal parliament could certainly exercise its power under the external affairs power and in conjunction with section 109 abolish the law of blasphemy throughout all of Australia in the same way that parliament exercised its power under the external affairs power in conjunction with 109 to abolish the criminality of same-sex consensual activity. The federal parliament could abolish state based blasphemy laws in that manner.

CHAIR: Correct me but I recall reading somewhere—maybe in the submissions—that the ACT has actually introduced blasphemy legislation.

Dr Beck : In my submission. The ACT crimes legislation also has blasphemy.

CHAIR: And that is more recent?

Dr Beck : Yes, that would be more recent. I think that is simply because the ACT copied the New South Wales legislation. When the ACT was setting up their criminal statutes they just sort of imported holus-bolus the New South Wales legislation.

Ms CLAYDON: Is it just ACT and New South Wales that have it?

Dr Beck : Off the top of my head, I think it is just New South Wales and ACT.

CHAIR: I must say I have not studied blasphemy laws—

Dr Beck : My submission has a definition of what blasphemy is.

CHAIR: Is it restricted to an offence, broadly speaking, against Christianity or is it any religion?

Dr Beck : It is Christianity, and probably only Protestant Christianity to the extent that that differs from Roman Catholicism. The definition given by the Federal Court is:

The essence of the crime of blasphemy is to publish words concerning the Christian religion which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with or believer in Christianity.

So being scurrilous about Christianity and outraging the feelings of a Christian is blasphemy. Being scurrilous about and outraging the feelings of a Hindu or Buddhist—

CHAIR: It would still be a fairly brave prosecutor to take on the case, wouldn't it?

Dr Beck : Yes. It would not happen, but it is still a crime, technically. People every now and again try to bring this on. You might remember the Piss Christ art controversy. Cardinal Pell—Archbishop Pell at the time—tried to get an injunction through the courts to prevent that being displayed on the basis that its display would be a criminal offence. Although no prosecutions have been brought you can see that attempts can still be made to use it. Off the top of my head, Pell lost that case not on the merits but simply on the grounds that he had no standing to bring it. So perhaps someone with standing might have gotten a little bit further, whatever the merits or demerits of that particular artwork. I do not think there is any good reason to have the law of blasphemy a crime and being scurrilous and outraging a Christian about their religious beliefs could land you in prison.

CHAIR: Dr Deagon wants to add something.

Dr Deagon : Dr Beck, I just had a question. I recall reading in one of your articles where you expand upon this argument—correct me if I am wrong, obviously—that the main reason you had for saying that blasphemy laws infringe upon freedom of religion is because they specifically privilege Christianity above other religions. Is that correct?

Dr Beck : No, but that is part of it. One argument against the law of blasphemy is that it privileges Christianity. You can be scurrilous and outrageous about any other religion you like; that is fine, just do not do it about Christianity. Obviously, there are historical reasons why that is the case. One argument against the law of blasphemy is it is playing favourites among religions, and the law probably should not be playing favourites among religions.

Dr Deagon : But there is an additional argument that the intrinsic principle of blasphemy restricts religious freedom.

Dr Beck : There are two related arguments that come under that umbrella. The law of blasphemy is, in effect, the state enforcing religious dogma. Blasphemy is a sin, so the state is enforcing religious dogma, and that is wrong. It is not for the state to compel people to conform to religious practices.

Dr Deagon : Could you perhaps view it as a form of hate speech in general rather than specifically an offence of blasphemy?

Dr Beck : That would not be blasphemy. A crime of inciting hatred against Christians—there may well be good public policy reasons to enact a law prohibiting inciting hatred against people of particular religious groups. But hurting people's religious feelings or being scurrilous about their religion and about their religious beliefs is quite a different thing. I think Dr Clarke made the point earlier on about the distinction between respecting a belief and respecting a believer. I do not have to respect everybody's religious beliefs, but I should have to respect everybody. Obviously, we do not all respect each other's beliefs. As a Liberal, Chair, you do not respect Labor beliefs—you think they are wrong—but equally you respect Labor Party people. So there is that distinction that the law cannot protect belief should not properly respect belief per se. Protecting people is fine. Preventing inciting hatred against individuals—

Senator SINGH: But it is people that hold those beliefs, so it is still connected.

Dr Beck : Quite. But the law of blasphemy protects belief as such, whereas hate speech laws protect people as such. So it is not about the belief. In a hate speech case, targeting belief might be part of the evidence to demonstrate you are inciting hatred against people, but you are not protecting the belief. Simply being offensive or hurting people's feelings would not quite cross the line to hate speech.

CHAIR: Senator Moore.

Senator MOORE: Thank you. One of the things that came through some of the submissions was the fact that there is absolutely no problem with freedom of religion so long as it is personal and internal. And that brings into it a lot the issue of what I called earlier a dynamic relationship. This is when the people who are manifesting their beliefs under religion actually do it by condemning other people who have now already got rights under antidiscrimination. The common theme through many of the submissions has been around gay rights and gay marriage. That is understandable because of the debate we are having in the nation at the moment.

What I am having trouble with is hearing people talk very openly about being reasonable and having a reasonable response to this process, but very often there is no reason when people get talking about something about which they feel very strongly. I am still very interested to hear what all of you have to say about how we actually put the balancing effectively when people who have strong religious views which may impact on a whole range of issues—the ones that have popped up in submissions have been euthanasia, abortion and gay rights; they are the ones that people have felt they needed to tell us about. So you have people who feel that because of their strongly felt religious beliefs, the way they need to manifest these beliefs is to put clearly why they think other people are wrong, and in fact take that to a level beyond wrong and talk about them being 'sinful' and talk about them 'breaking God's law'. The group of people who are the target of that statement claim that they have been discriminated against because they have been made to feel they are lesser humans. So it is not just offence; it is not just being hurt by it; it is the perception they have been demonised and judged. That is where it abuts. I am really interested to hear—and I have read all the submissions—what would be a balanced, reasonable way to approach that process.

Dr Beck : I think it depends slightly on context: I am a gay man and people have said all sorts of horrible things to me. And that does give me the feeling that I am being denigrated. If it is on the street and people are just being really horrible and nasty—unless they cross the line into criminality and make me feel fearful for my physical safety, which is just the common law offence of assault—I do not like it, but that is life. There are nasty people in the world. I do not think you can necessarily pass a law requiring respectful conduct by all people at all times in public. That would be impossible. So when it comes to these clashes of human rights. Certainly in the gay rights and same-sex marriage debates, people might think, 'It is a violation of my right to religious freedom to have to sell flowers to this gay wedding,' whereas gays will say, 'You're discriminating against me'.

Senator MOORE: As a citizen.

Dr Beck : As a citizen. And the answer is yes, because it is not just a debate or a discussion in the street. The law says, where you are providing goods and services in the public sphere, you must provide them in a non-discriminatory manner and that means non-discriminatory on the grounds of race, sex, sexuality, disability et cetera. So the law has said that in the context of provision of goods and services in the open market you must not discriminate. So it is about in what context you impose the rule and how you draw the balancing. I do not think there is a case to have a rule saying, 'You must not ever discriminate.' And I do not think people make that argument. People make the argument, 'You should not discriminate in particular contexts', for example, in the provision of goods and services in the open market. It would not include dinner party conversation. It is context. People do denigrate people all the time, but—

Senator MOORE: I would not have thought dinner party conversation would come into the discussion at all, because I would have seen that as internal. What I am trying to get across is about when you have this debate clearly in the open space. Your position is clear. I am sure—and I have read so many of these recently; I apologise if I have them confused—there are at least a couple of people who have taken a different position to that, in terms of—

Dr Beck : Inciting hate.

Senator MOORE: individual rights—that the religion does not only apply to organisations or education facilities; it should apply to the protection of the individual who has a feeling of religious belief. That gives them the right to say: 'No, I don't want to because of my religious belief. It is impossible for me to actually provide goods and services. That is impinging on my freedom of religion.'

Dr Beck : That is the question of exemption. That is where you have the two rights clashing; how you draw the balance to maximise—

Senator MOORE: How do you balance that feeling? Because there are people who do not believe—

Dr Clarke : Personally, I would say you have to go back to: if you are asking for protection from the government, a special exemption, to not have to sell flowers to gay people whether for weddings or not, you have to be able to justify that by your bona fides, showing what you are choosing to do under the terms of your religion hasn't got an inappropriate impact on those other people. So the trouble is people can say that they are discriminating for religious reasons, but that might not be their reason at all; they might just be discriminating because they are a mean person or they dislike gays for some other reason. Where does it stop? If you are going to be able to say, 'I chose to go into the business providing goods and services to people. That was completely my free choice. But now I am in that business I want to start picking and choosing who I provide for', where does it stop? You can use religion to make any discriminatory decision you want to. I would say that is an unreasonable response by a service provider or product provider who knew they were getting into the provision of service and products for everybody.

Similarly, there is the impact on other people. If you look at something like euthanasia, if you are the end of your life and you are in great pain and you want to die, it is not going to hurt anyone else if you do it. Other people's religious sensibilities might be delicately offended but really the importance of you having control over your life from a human rights point of view surely outweighs that. You are not harming anybody else. Abortion—some people might think they have a right to express their religious beliefs against abortion, but it must depend on context. If you are standing outside an abortion clinic, screaming and waving placards and really distressing the women who are going into that clinic, who probably did not want to have to be going in there anyhow, that is an inappropriate exercise of your free speech rights, which is hurting other vulnerable people.

People will disagree with me on how we weigh up these things. Whoever makes the decisions in these cases—whether parliamentarians or judges—will no doubt be informed by popular opinion on these issues, and personal opinions will differ, but I think these are the balancing things that we have to do; looking at the impact on the other people, the beneficiaries or the victims of the behaviour that we are asking the government to privilege. We are asking for government protection for a particular kind of behaviour so it is really important that that behaviour does not hurt other people.

Senator MOORE: And the difference being that in those three cases—and I am really keen to hear from you, Dr Casey; you have been very quiet; I did read your submission closely—they are not legal. Euthanasia, abortion and same-sex marriage are not legal rights in Australia. Abortion is in some places, but euthanasia and same-sex marriage are not legal rights yet. So that puts them into that unsure category.

Dr Clarke : That is true, and it is very hard to discuss these things theoretically.

Senator MOORE: 'What if's. Dr Casey.

Dr Casey : Just to take those examples you highlighted around abortion, euthanasia and sexuality issues, it is helpful to remember that what we are talking about here when people disagree on these things is not just a clash of sensibilities or a personal sense of authenticity that allows you to feel okay about one thing or another. They are actually questions about what people think are right and wrong. What people think are true and false. Euthanasia highlights this most dramatically—which everyone can see. Someone may wish to end their life and seek assistance for it, but, potentially, there is a wrong in actually asking or expecting someone else to do that when they are concerned that they really should not be involved in killing, even killing in those sorts of circumstances. So there are significant issues. I think it helps if we can bring that more back into focus. We are talking about very difficult issues around questions of right and wrong, true and false, not just a clash of sensibilities.

Senator MOORE: Which are core religious beliefs.

Dr Casey : Yes—that is right. I think sometimes when the conversation does focus on the sensibilities it obscures that. As those examples show, too, I think, if we take at face value people who might have concerns about abortion, euthanasia or questions of sexuality—like all justifications, they can be used disingenuously to cover up other motivations—when they say they have a religious or conscientious objection to some of these things, I think we have to take that on its merits. What is behind that is probably a long time of reflecting and reading about these sorts of things, thinking about what the right thing is and coming to a reasoned, settled conviction about it which people find compelling. With cooperation in euthanasia, for example, they feel that they cannot cooperate with that and they feel that it is also wrong for them to be required to cooperate with it or coerced to cooperate with it.

In some ways, I suppose, this frames the whole thing with much greater weight. But I think, too, that with a lot of the discussions that we get into today we see seem to moralise them very quickly. It has an effect of escalating the whole thing. I suspect the paradox in some of these issues is that while we should not require people to step back from their deeply held convictions or to run soft on them—I think we should acknowledge them frankly and try to enter into them sympathetically and imaginatively, even when we disagree with them completely—they need to be mediated politically in this sort of context that we are talking about today. That means finding a way of coming to a consensus on a way forward which does not inevitably force one side or the other into a corner where they feel that they are completely excluded or it is a zero-sum game and they have completely lost.

I suppose those are a few pointers about some of the things I think we need to keep in mind in doing this. It does not necessarily make it easier, but I think it does help us if we are quite frank about acknowledging the stakes here, which are very high, and then perhaps being prudent to try to avoid taking things always to their logical conclusion. Part of the Australian genius in policy and politics is: we are a pragmatic people and we are also a very deeply principled people but we have a way of doing things where we do not always insist on following the line of logic to its absolute conclusion and leaving no room for anyone else to move. If we can maintain that sort of spirit in addressing some of these questions, it would be a bit more helpful.

Senator MOORE: In a rights framework?

Dr Casey : Within a rights framework.

Senator MOORE: You believe it would be within a rights framework? We use the verb 'balance' a lot in this discussion. But it would be pragmatic, principled—

Dr Casey : And trying to avoid as much as we can imposing an outcome on one side or another where people feel that their deeply held beliefs and convictions are compromised or that they feel that they are forced to—

Senator MOORE: Thank you. Dr Deagon, your paper was about free exercise?

Dr Deagon : Yes. That's right.

Senator MOORE: I struggled through that.

Dr Deagon : Sorry about that. I wanted to address the points made about service providers in relation to same-sex marriage or other kinds of commitment ceremonies. And because abortion and euthanasia were raised, as well, I will just make a couple of comments about that. I think the first point which is really important to emphasise is that, as far as I am aware, there is no-one, or at least very few people, who are advocating that there should just be a blanket right for people to refuse to serve the LGBTI community in terms of goods and services because of their religious convictions. I do not know of anyone who is advocating that. The particular issue is in relation to the support of same-sex marriage ceremonies through the provision of services. The idea is: by providing a service which directly contributes to a same-sex marriage ceremony, it implies an endorsement of same-sex marriage. And that endorsement is—

Senator MOORE: Is the point.

Dr Deagon : inconsistent with the religious convictions. So that is the fundamental point.

In terms of the issue raised in relation to the idea that by going into the business of service provision it is essentially a free choice, and then you are obligated to provide services to anyone. I think, first of all, that is not really how it works in reality anyway. You see caveats everywhere in businesses that they reserve the right to refuse people for X and Y reasons. So businesses reserve that right. So that is something to consider.

The other issue in terms of specifically religious convictions or objections to same-sex marriage ceremonies in the context of service provision is that, like members of the LGBTI community, it is an identity issue—not in the same way, obviously. But it is not just something that is a private conviction that you leave at the door of your home when you go out for work. For many businesses, and particularly small businesses, the business is an expression of the religious conviction and the business is conducted in a way which is consistent with and informed by the religious conviction. To require service providers to compromise or act in a way which conflicts with their religious convictions is actually, in effect, restricting, I would say, their ability to practice their religion in a full holistic sense. So then that raises, obviously, the issue of balancing. Okay, so we are saying that we want, perhaps, to allow religious people to run their business in a way consistent with their religious convictions. What if that impacts or effects a same-sex couple who want to get married and want some services to go towards their marriage. How do we balance that and what kind of exemptions could or should be in place?

I think it is also important to acknowledge that the reason for religious exemptions when it comes to this issue, or at least one of the reasons, is that people running businesses informed by religion are affected by anti-discrimination provisions specifically and particularly in a way that non-religious people are not. Non-religious people obviously do not have a religious objection to same-sex marriage. So there is no kind of requirement in terms of equality for any kind of exemption or balance. That requirement does exist for religious people running such a business. That is kind of a rationale. What about the practicality of it? I outlined what I think is an example in my submission. It is on the first page. You do not have to work through all the complexity—

Senator MOORE: But I did. And you put it on the last page, too.

Dr Deagon : For the recommendation that I made as an example kind of protection or balancing clause—I will not read the whole thing out because it is wordy, and you can look at the my written submission for it—basically the idea is: where there is a refusal to provide goods and services in a way which conflicts with the doctrine and practice of their religion, and that is allowed, they are not subject to the anti-discrimination provisions unless the refusal directly results in concrete hardship for those who seek the service.

Senator MOORE: So it is the definition of concrete hardship. If there is no other service provider that—

Dr Deagon : Reasonably available.

Senator MOORE: And that would be the assessment point?

Dr Deagon : Yes. So that is the point where, for example, the court could make a judgement: 'Is there another service provider which was reasonably available?' In my submission I give an example of a case of a photographer commissioned to photograph a same-sex commitment ceremony in the US at the time before same-sex marriage became legal there. In that example, the photographer lost and had to pay significant legal fees. As a small business, that was crippling for them. It, essentially, pushed them out of the industry. In that instance, there was no evidence provided that another photographer was not reasonably available. Indeed, the same-sex couple were able to get another photographer at no evidenced cost additional to them. That is the sort of example where I think that religious balancing or protection should apply, but there is a good balance there because it does prevent a religious person or, indeed, any other person from arbitrarily refusing a service and causing distress, harm and hardship through their refusal. There is a reasonable balance there.

Regarding abortion and euthanasia, Dr Casey made an excellent point that these are not just abstruse and abstract religious views about things. Ultimately, the moral argument is based in the religious sphere, but it does come down to a moral argument as to whether you think abortion or euthanasia are right or wrong. Many religious people just believe that abortion is the intentional killing of a human being and they object to the legalisation of abortion on that basis as equivalent, in a sense, to murder. Whether you agree or disagree with that we can have a substantive debate about, but the point is that that is the point of objection. So religious protections are particularly important for counsellors or medical professionals so that, if they do hold that conviction, they are not compelled to perform an abortion or recommend an abortion and can assign it to a different provider who may have no issue with doing that—and similarly with euthanasia.

The issue of protesting abortion was raised. This is significant in Queensland, and also in some other jurisdictions where legislation came before the parliament but was eventually ditched because it did not have the numbers to pass.

Senator MOORE: It was referred to the law commission.

Dr Deagon : Yes, it was referred to the Law Reform Commission but ditched in the sense of it being discussed and debated. That bill would have removed abortion from the Criminal Code and also provided limits on protesting and so forth outside of abortion clinics, and I think there are important questions there to think about. We need a more substantive debate about where religious convictions fit in there. One could imagine—and I use a more extreme example for illustration here—if people sought to make the killing of, say, pre-school-age children legal. I acknowledge this is an extreme example.

Ms CLAYDON: Very extreme.

Dr Deagon : It is not at all equivalent, but the point that I am making is that, if that was, hypothetically, the case, would we really want to prevent people from protesting or from trying to dissuade people from doing that in the context where it is happening? People have raised hypotheticals with this proposed abortion law that it would prevent, say, family members from walking to the clinic with their sisters or daughters or whoever and trying to explain to them that perhaps this might not be the right way to go—this law would actually potentially prevent that kind of thing. That might be a problem more with the framing of the law than with the principle of the law as it is intended to be implemented. But certainly the issue of morality and conscience, which is kind of a subset of the discussion we are having here about freedom of religion, thought, conscience and belief, needs to be discussed more substantively. So, in that sense, it is good that we have this committee doing that.

Dr Casey : Senator Moore, with your question you opened up something which I take very seriously, which is the feedback you have had in the submissions around people feeling that moral judgements are passed on them for the choices they make. I think that cuts both ways. I can certainly understand some people reporting that they feel that opposition to abortion comes to them as a judgement on their life circumstances. Increasingly, if you look overseas at some of the developments happening around the areas of protection of conscience, it seems to be going the other way so that, if you have an objection to some procedures, you can be seen to be, for example, not fit to practice medicine in some way. What that highlights to me is a couple of things. It is the nature of these issues. Because they are concerned with questions of right and wrong people can feel that someone holding a different view is a judgement on their own position or their own circumstances. We need to take great care to try to avoid that.

One way is to acknowledge it is, inescapably, part of the situation where we have deeply held differences over these sorts of questions. It also reminds us, more generally, that disagreement should not be seen as disrespect. Even vigorous full-bodied disagreement should not be seen as disparagement or disrespect. Sometimes our response to these experiences of feeling judged is that we treat simple disagreement, even respectfully offered—in a full, frank and robust way but still respectful—as intolerant, judgemental or exclusionary. We need to reflect too on the general resilience that we try to encourage in public debate. Funnelling it down to that point where disagreement becomes a form of disrespect is not helpful for discussing and coming to a better place on some of these issues.

Dr Taylor : I appreciate Dr Beck's comments about hurtful speech and I would agree that black-letter law is not an effective mechanism for addressing that. But I would suggest the UNESCO Declaration of principles on tolerancebecause they, maybe, would provide a more flexible and, maybe, an effective means of addressing this impart. They contain a very detailed definition of tolerance, meaning:

Tolerance is respect, acceptance and appreciation of the rich diversity of our world's cultures, our forms of expression and ways of being human.

Tolerance is 'harmony in difference' not 'concession, condescension or indulgence'. It is 'active attitude prompted by recognition of the universal human rights and fundamental freedoms of others'.

Tolerance is the responsibility that upholds human rights, pluralism … democracy and the rule of law.

The declaration goes on to state that what this type of tolerance requires is just and impartial legislation, and new legislation where necessary. It does not suggest that tolerance itself should be legislated, but in a fairly lengthy provision on education it stresses that education is one of the most effective means of preventing intolerance and could be considered an urgent imperative. That is the UNESCO suggestion aimed at countering influences that lead to fear and exclusion. I would just contribute that, if I may.

CHAIR: If you go back, Dr Taylor, to Locke's essay concerning toleration, it was essentially dealing with this issue. They had had these religious wars not only in the UK but also in Europe that had gone on for decades; one side would win and then the other side would win and there were all the reprisals, each which way, depending on who happened to be the victor from time to time. And there was an attempt by not only Locke but also others to quarantine—this may not be the best expression of it, from my understanding—the holding an expression of religious faith and religious beliefs from the way in which the country was governed and operated so that there was a freedom for all to express their religion. It seems we are back in the same situation 300 years later, in a sense.

Dr Taylor : Yes, religion and identity.

Senator MOORE: Dr Beck, you piqued my interest in the original discussions around the Constitution. I am now going to have to find out what people were saying at that stage and the interpretation of why they phrased things in certain ways and what their fears were about this very issue, the dominance of religion.

Dr Beck : That is what my PhD was on, so I can give you the short version of that—I can give you the very short version of that!

Senator MOORE: I did not want to take up more time, Chair—I just wanted to acknowledge that!

Dr Beck : The particular phrasing of section 116 was not a deliberate choice. It is, essentially, a rough copy and paste from the US first amendment plus a clause prohibiting enforced religious observances. The argument is, really, quite odd. At the time, the Seventh-day Adventists got into their heads that the protestant churches, council churches, had this campaign to recognise God in the Constitution. And after bombarding the constitutional convention with petitions and lobbyists the politicians gave in and put a reference to 'almighty God' in the preamble to, basically, shut them up and send them away.

Senator MOORE: So nothing much has changed.

Dr Beck : At the same time, the Seventh-day Adventists thought that it was a device by which parliament would be able to enforce Sunday closing laws across the whole country, whereas Seventh-day Adventists do Saturday as the Sabbath. They thought that was offensive. They did their own lobbying campaign and wanted to have a provision to prevent that. So the convention put in a bit of both, to make everybody happy—they did not think there was much to this—to make sure that federal parliament could not pass laws about religion, because they thought that was something that should stay to the states. Federal parliament was not to deal with religion. So they put in section 116, roughly copied and pasted from the first amendment—

Senator MOORE: From the US.

Dr Beck : added religious observances because that was the principal thing it was directed at. Then they all moved on. The precise phrasing of 116, there was no deep thought given to that particular—they did not think it was, really, much of an issue. It is a historical accident, really, not careful consideration.

Senator MOORE: That is fabulous.

CHAIR: Are there any other questions or final comments that any of you would like to make before we draw the session to a conclusion?

Dr Beck : Dr Casey's point that pragmatic recommendations are useful throws back to what I was saying before. If the committee wants to have impact, grand human rights acts, I do not think, politically, are going to get up. If there are particular issues, some particular pragmatic recommendations to address those particular practical issues might be more beneficial because those might get up and have some benefit, in practice.

Ms CLAYDON: You have made a very practical suggestion around prayers, which I suggest would be very difficult to get up. I would like you to think more about that acknowledgement to country and whether there are any logical implications, because I could give you decades of anthropological work that would counter your suggestion that it would not fit within that broader definition of thoughts and conscience, and religious and belief systems. It requires a little further thought, but we can have a discussion about that another time.

Dr Clarke : Isn't acknowledgement of country a matter of politeness?

Ms CLAYDON: Not in some people's view, no.

Senator MOORE: It is contested.

Ms CLAYDON: It is a very hotly contested area and I do not think we should be naive about that. That is why I am pushing you around thinking through that. There could be very unintended consequences. It is a problem we should exercise our thoughts around. I am not a constitutional lawyer but I am an anthropologist.

Dr Taylor : I may have recalled wrongly, and perhaps you could correct me, Dr Beck, if I have, but your submission suggested there should be no prayers held in parliaments—in other words, state buildings.

Dr Beck : No, compulsory official prayers. If private members want to have a prayer breakfast, go for it, but in terms of having the Speaker officially start each day with prayers, no.

Dr Taylor : Thank you for clarifying that.

Dr Casey : I have just a small point on prayers and acknowledgement of country. I think Ms Claydon's point about the concern around it—to my mind, at least, without knowing a great deal about it, if prayers are looked at as more an expression of heritage and tradition an argument can be made for that, especially given the fact that, with respect to Dr Beck, prayers can be said without being religious. A lot of music we can think of—perhaps Handel's 'Messiah' or something like that—is full of religious words and sources but we receive it as a piece of music not as an act of worship. To my sense, in watching from time to time how the prayers are said at parliament, it does not seem to be expressly a religious act because it has got that double meaning as partly from a religious source and expressing a heritage. If it is seen in that sense, perhaps it just goes to underscoring your concern about the follow-on effect.

Ms CLAYDON: My initial observation is that they are treated very differently in the Senate to how they are treated in the House. The House would not have 50 per cent of people in attendance for prayers. That would never happen in the Senate.

Senator SINGH: No, there is attendance in the Senate, but the senators are not saying the prayer.

Ms CLAYDON: I acknowledge that, yes.

Senator SINGH: Wouldn't you say, Senator Moore!

Senator MOORE: It differs on both sides of the chamber.

CHAIR: As someone who has been in parliament the longest, the practice has actually changed in the House. When I was first elected in 1991, the Speaker read the prayers and nobody joined in. The practice of members in the House joining in came about in approximately 1996-97, when there were members who, of their volition, joined with the Speaker, and the Speaker did not say, 'You can't'—

Senator MOORE: So it evolved?

CHAIR: It evolved, yes.

Ms CLAYDON: Thank you, Chair. I did not know that piece of history.

CHAIR: That is just a piece of historical trivia, for what it is worth. It sometimes pays to have been around for a while! On that note, can I thank you all very much for a very interesting and informative discussion. It will be useful as we think through this over the coming weeks and months. This is not a short inquiry. We will take the time because it is 20 years since the parliament last looked at this issue, and who knows when it will again in the future. But it is an important subject and we can work through it carefully. Hopefully, we may be able to at least provide some information and education to the broader Australian community as to what recommendations might flow. That is anybody's guess at this particular stage. Thank you very much for your participation.

Proceedings suspended from 12:01 to 13:28