Our submission to the Expert Panel on Religious Freedom

Submissions for the Federal Government inquiry into religious freedom are now closed, and the committee is due to report its findings on 31 March.

Thank you to all of our supporters who joined us in standing up for religious freedom by writing and lodging a submission.

Below is the AFC submission to the panel, which argues there are significant challenges to religious freedom here in Australia, and that strong, positive protections for religious freedom should be written into Australian law.

1. About us

The Australian Family Coalition is a grassroots network of thousands of Australians.

The AFC exists to defend the family, promote a society grounded on values, and to safeguard basic freedoms under threat today.

We do this by exploring key issues and equipping and encouraging supporters to take action.

2. Terms of reference

Objective: The Panel shall examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion.

Scope: In undertaking this Review, the Panel should:

Consider the intersections between the enjoyment of the freedom of religion and other human rights.
Have regard to any previous or ongoing reviews or inquiries that it considers relevant.
Consult as widely as it considers necessary.

Submissions are due by 14 February 2018 and the panel will report its findings to the Prime Minister by 31 March 2018.

https://www.pmc.gov.au/resource-centre/domestic-policy/religious-freedom-review-terms-reference

3. Basic principles – international

Any consideration of basic freedoms must begin with an understanding of the basic principles in play.

Aside from moral or theoretical questions of basic human rights, Australia is a signatory to numerous international instruments designed to protect such rights.

An extremely relevant document in this instance is the International Covenant on Civil and Political Rights (ICCPR). Among its other articles, article 18 of the ICCPR upholds freedom of thought, conscience and religion:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.[1]

Further, article 19 covers freedom of opinion and expression:

Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.[2]

This is obviously not an exhaustive list of Australia’s international obligations, but provides an overview of the some of the rights Australia should uphold, rather than diminish.

4. Basic principles – Australia

Basic freedoms within Australia are provided for by a somewhat eclectic mix of common law rights and statutory laws.

While Australia does not have a single document that lists these freedoms, much less guarantees them absolutely, there are numerous instruments and case studies that point to them or provide a partial protection.

For example, the Australian Constitution provides, in section 116, that:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.[3]

Likewise, in recent decades a broad right to political communication and expression has been found in the Australian Constitution:

“Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community.”[4]

Even the manner in which these basic freedoms can be exercised is now governed by precedent. For example, the free exercise of religion cannot be restricted to a mere thought or belief, but must include the ability to act out that belief within reasonable bounds – something extremely relevant in light of recent changes to the Marriage Act 1961.

In the so-called ‘Scientology Case’ (1983), the High Court found that:

“[T]he criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion.”[5]

The words “which offend against the ordinary laws are outside the area of any immunity, privilege or right” bear direct relevance as to whether religious freedom is adequately protected when laws, such as the Marriage Act 1961 or various anti-discrimination acts, are changed in such a way as to then conflict with sincerely held beliefs.

5. Experience of anti-discrimination law

It is self-evident that anti-discrimination laws, by their very nature, erode personal and corporate rights and freedoms. The question is whether this erosion is justifiable and in what manner and to what degree.

Both Australian and international experience provide countless examples of such laws having an overbearing effect to the detriment of people’s wellbeing, their livelihood, and so on. Many of these examples concern people with conscience or faith-based concerns regarding same-sex marriage or similar relationships.

Several such cases follow.

In the United Kingdom, an infamous 2008 case saw a devout Christian couple penalised for declining a booking for their guesthouse from a same-sex couple. Hazelmary and Peter Bull, of Chymorvah House in Cornwall, declined the request for accommodation because of a “religiously-informed judgement of conscience”. Mr & Mrs Bull lost cases at county court level, the Court of Appeal, and finally at the UK Supreme Court, despite their stated opposition to any sexual relations outside marriage (that is, not merely same-sex relationships). The courts also ignored the fact that the Bulls were providing accommodation under their own roof, with damages awarded in favour of the same-sex couple.

Following a hearing, Mrs Bull said of the case: "Our B&B is not just our business, it’s our home. All we have ever tried to do is live according to our own values, under our own roof." Regardless, the UK Supreme Court ultimately ruled against them.[6]

In 2015, Barronelle Stutzman, a 70-year old American florist was found guilty of failing to provide services to a same-sex wedding.

Her home state, Washington, redefined marriage in 2011, but Stutzman, the Christian owner of Arlene’s Flowers, could not in good conscience act against her faith – despite selling flowers to the same customers in an ordinary capacity for some years. For her, being forced to beautify a same-sex wedding crossed a line. She was found guilty after numerous lawsuits and requests to settle (for fines and donations to LGBT youth centres).[7]

These examples and others highlight the negative consequences of anti-discrimination law for those whose conscience or faith does not allow them to support certain forms of relationship.

These outcomes are not confined to overseas jurisdictions, but are becoming more common in Australia.

Under Australia’s anti-discrimination legislation, a considerable number of unjustified cases have been brought to bear on individuals and bodies, resulting often from their beliefs on same-sex issues. Many of these occurred in an environment when marriage was still legally defined as the union of one man and one woman, so it seems clear that such cases will only grow in number following the 2017 legal redefinition.

Following are several Australian case studies.

In one case, the Catholic Education Office of the Archdiocese of Sydney refused an applicant classification as a teacher because of her “‘high profile as a co-convenor of the Gay and Lesbian Teachers and Students Association and her public statements on lesbian lifestyles”. The Catholic Education Office claimed a religious exemption under the Sex Discrimination Act 1984 on the basis that homosexual behaviour ran contrary the “doctrines, tenets, beliefs and teachings of the Church”, which a teacher would be required to uphold. The matter was decided by the Australian Human Rights Commission.[8] The Human Rights Commission found against the Catholic Education Office, not only acting as arbiter of what constituted Catholic teaching, but ruling that Catholic beliefs ran in favour of the complainant, Jacqui Griffin. An Australian statutory body sought to play not only judge, but effectively theologian.

In its ruling, the Human Rights Commission went so far as to say: "If the employment of Ms Griffin would injure the religious susceptibilities of these students and their parents, the injury would be founded on a misconception. Indeed it would be not an injury to their religious susceptibilities but an injury to their prejudices."

In 2015, then Federal Greens candidate and transgender activist Martine Delaney lodged an antidiscrimination complaint in Tasmania about a Catholic booklet aimed at preserving the current definition of marriage.[9] The booklet, entitled Don’t Mess With Marriage, was distributed in Catholic schools across Australia.

Ironically, the booklet raises the prospect of pro-marriage advocates eventually falling foul of the law and being ostracised – a fear that to some extent became a self-fulfilling prophecy.

Delaney sought an apology from both Julian Porteous, the Catholic Archbishop of Hobart, and the entire Australian Catholic Bishops’ Conference (which produced the booklet). The Tasmanian Anti-Discrimination Commissioner, Robin Banks, decided there was a case to answer – and Archbishop Porteous and the Bishops’ Conference were given 21 days to respond. Both sides agreed to mediation.

Only after a lengthy process did the complainant decide not to proceed further and drop the complaints.

These examples and many others serve to highlight that basic freedoms are being undermined by anti-discrimination laws at both state and federal level – a process that will only accelerate following the legal redefinition of marriage.

6. Freedom of conscience regarding life issues

A disturbing development in recent years has seen medical professionals compelled by law to participate in acts contrary to their conscience and/or religious beliefs.

The 2008 amendment to Victoria’s abortion laws, compounded by incoming euthanasia and assisted suicide laws, marks a dramatic erosion in the ability of medical professionals to opt out of either abortion or euthanasia-related activities.

The fact that a general practitioner, for example, must refer a woman to abortion services compels that GP to be a party to the process, regardless of his or her beliefs on the taking of life.

The 2013 case of Victorian Dr Mark Hobart, who refused to refer a couple for a sex-selective abortion, clearly points to a violation of rights that needs addressing.[10]

7. Abortion-related exclusion zones

Exclusion zones have been legislated around abortion clinics (and, in some cases, more broadly) in Tasmania, Victoria and the ACT.

Introduced only in recent years, the radius of the zone varies – as does the prohibited behaviour within. On the surface, such laws purport to protect abortion clinic staff and clients from being accosted, harassed, or subjected to protests.

In several cases, however, these laws have led to fines and charges on the basis of praying in public. Prayer can hardly be considered a form of protest.

Victims of the ACT laws being applied in this manner include Kerry Mellor, John Popplewell and Ken Clancy.[11] Kathy Clubb has been charged in Melbourne.[12]

Not only are exclusion zones causing the effective prohibition of prayer in certain public places, they are more broadly impinging on constitutionally-implied right of freedom of political communication and expression.

No one would suggest that abortion clinic staff or clients should be subjected to abuse or violence, but in the absence of evidence that this is a significant issue, the right of Australians to pray and offer support to vulnerable women should not be summarily removed.

This issue is likely to become further exacerbated as Queensland reviews its abortion laws. Just this week, the chief executive of abortion provider Marie Stopes Australia, Michelle Thompson, called for exclusion zones to be rolled out across New South Wales, Queensland and Western Australia.[13]

8. Conclusion

A brief submission can hardly do justice to such a broad topic as freedom of religion, belief, thought and conscience. The Australian Family Coalition hopes, however, that in concert with other similar submissions, the Panel will form the view that current protections are hopelessly inadequate.

There is currently no protection for individuals and businesses that have a religious or conscientious objection to same-sex marriage. Such people or businesses might include (but are certainly not limited to) photographers, florists, reception venues, accommodation providers, bakers and so on.

Further, even the exemption granted to ministers of religion and to religious bodies and organisations relies on wording that has previously seen the Australian Human Rights Commission attempt to determine religious beliefs – that is, attempting to play theologian (ref. the Sydney Catholic Education Office case study outlined earlier).

Exemptions should not be open to challenge by anti-discrimination bodies.

Protection for parents exercising their right to oversee their child’s educational, moral, social, values-based and religious upbringing is also lacking.

Exemptions granted under anti-discrimination law can easily be wound back or repealed by a subsequent parliamentary vote. Another key problem is the false underlying concept that freedoms can be completely and arbitrarily wound back to a point where their only legal exercise falls within a narrow government-sanctioned window (that is, by exemption).

Various other encroachments on religious freedom and freedom of conscience exist – and are at risk of being further exacerbated.

To counter these problems, a legislative affirmation of ICCPR rights is needed and an end to viewing positive rights as mere “exemptions”.