In 2019, the Morrison government tasked the Australian Law Reform Commission to review current legislation around religious freedom. This was in response to the recommendations put to the government by the findings of the Expert Panel into Religious Freedom in 2018. As debate continued over what the legislation might look like, Labor’s Senator Kimberley Kitching and Liberal Member for Goldstein Tim Wilson addressed The Sydney Institute to offer their views on the discussion on Wednesday 7 August 2019. 

RELIGIOUS FREEDOM – TWO VIEWS

TIM WILSON

I’d like to begin by paying respect to Aboriginal spirituality which has one of the youngest median ages of adherents, at 28 years of age – while also acknowledging the enduring connection to the land on which we meet, the Gadigal people of the Eora nation.

Thank you Anne, Gerard and Nancy Henderson for hosting this important discussion.

The topic begs the question – what problem are we actually trying to solve?

The topic begs the question – what problem are we actually trying to solve?

The human right of freedom of religion is sacrosanct in our liberal democracy. Apart from property rights, it is the only human right protected by our Constitution. The importance of religious freedom dates back thousands of years and, in the Anglo tradition, people often forget that the principle of the separation of Church and State is not just to ensure that the Church does not interfere with the State, but more critically to guarantee the independence of the Church.

Any discussion on freedom of religion or religious freedom invokes strong views and goes to the heart of people’s sense of individuality and security in broader society.

Any discussion on freedom of religion or religious freedom invokes strong views and goes to the heart of people’s sense of individuality and security in broader society.

People use the terms “freedom of religion” and “religious freedom” interchangeably. They are two distinct concepts. “Freedom of religion” is the right of a person to exercise their conscience to hold a religious faith or spiritual belief, or to not do so.

“Religious freedom” is the freedom to manifest that conscience in word and deed. It’s limited by the need to respect the rights and freedoms of others.

The former is unlimited because it has no material impact on others. Think what you want. The latter is always limited because of what it can license. You should be able to manifest your faith through prayer, collective worship and evangelise, so long as you do no harm to others – a non-negotiable test of a society’s commitment to liberalism.

Religious freedom doesn’t license worship to the extent of public stoning or enacting a holy war against non-believers. Both ends of these spectrums aren’t where there is mainstream dispute. Tensions exist when the private becomes public.

Religious freedom doesn’t license worship to the extent of public stoning or enacting a holy war against non-believers.

Religious freedom in Australia

Secularism means different things depending on the country. In France, it means faith is left at the chapel door. In the United States, it means public faith, but secular government.

At the 1897 Constitutional Convention, Australia’s first Prime Minister argued:

The whole mode of government, the whole province of the State, is secular … the whole duty is to render unto Caesar the things that are Caesar’s, and unto God the things that are God’s. That is the line of division maintained in every State in which there is not a predominant church government which dictates to all civil institutions … the best plan which is so likely to create dissension foreign to the objects of any Church, or any Christian community, is that secular expressions should be left to secular matters while prayer should be left to its proper place. 

Barton’s words need to be put into context. At the Federation census, 96 per cent of Australians identified as some form of “Christian”, dominated by Church of England and Roman Catholics at 41 and 24 per cent respectively.  Therefore, laws and norms were inherited from England and underpinned by what we now call Judeo-Christian values.

At the Federation census, 96 per cent of Australians identified as some form of “Christian”, dominated by Church of England and Roman Catholics at 41 and 24 per cent respectively. 

Since then, Australia has gone on a journey from a Christian to a multi-faith and increasingly post-faith nation through a more secular State and society.

That secularism has taken different forms throughout our history and has twinned with pluralism: secular laws with respecting diversity and choice through institutions funded to provide public services as well as accommodation of faith in the public square to the workplace. 

From every direction

What’s surprising is many seem to have concerns about religious freedom since the recent debate about the legalisation of marriage for same-sex couples. That’s a misdiagnosis. The trajectory was already set.

At the last Census, the largest group was those who identified with no-religion at 30.1 per cent up from 22.3 per cent from 2011, Catholic 22.6 down from 25.3, and Anglicans 13.3 down from 17.1 per cent.   Concurrently Islam has grown from 2.2 to 2.6, Hinduism 1.3 to 1.9 and Sikhism from 0.3 to 0.5 per cent. Generationally, the median age of Christians is 44 years old, Islam 27, no religion 31 and Sikhism 29. In short, Christians will not be as easily replaced by their children or grandchildren.

It must be said that these demographic changes do not undermine the moral case for freedom of religion. Liberal thinkers since John Stuart Mill have written and spoken of the need to protect minorities from tyrannical majorities.

These demographic changes do not undermine the moral case for freedom of religion. Liberal thinkers since John Stuart Mill have written and spoken of the need to protect minorities from tyrannical majorities.

But, as a society becomes more multicultural, it also becomes more multifaith. And, as society becomes more multifaith, the State needs to proactively decouple itself from religious traditions and become more humanist and secular to accommodate that diversity. And that’s only faith. Then there’s other sections of the community to be considered.   

What are we trying to solve?

The overarching narrative within contemporary discussions appears to be that people want to be left alone to practise their faith without interference. People of faith want to be free to associate with those of like faith and practice. But that is almost impossible when activities concurrently involve outreach for education, charity or commerce.

As the Ruddock Review found:

No one during the review challenged the right to hold, or not to hold, a religious belief. Few took issue with the right of religious institutions to operate freely within certain parameters – for example, to discriminate in appointing clergy, to control the use of their places of worship, and for religious ministers to be able to choose not to solemnise same-sex marriages.

What goes behind the chapel door remains behind the chapel door. But it is what goes beyond the chapel door that matters with the report identifying “a common characteristic of many of the representations made to the Panel was apprehension, even “fear”. People of faith were apprehensive that religious freedom may come under threat in Australia. The Panel heard many examples of changes to legislation or judicial decisions from overseas that underpinned this apprehension.

Religious freedom for people of faith is like anyone’s freedom. Religious freedom no more ends at the chapel door as sexual orientation ends at the bedroom door – these characteristics inform all aspects of our life.

Religious freedom for people of faith is like anyone’s freedom. Religious freedom no more ends at the chapel door as sexual orientation ends at the bedroom door

Increasingly, religiously devout Australians seem to feel that if they outwardly manifest their faith they will be denied employment, face social exclusion or fall foul of the law. That all sounds familiar. It seems that some religiously devout Australians feel like they must act as “Christians in the closest”.

Recent legal cases seem to validate this concern for some people. The Christian Youth Camps v Cobaw Community Health Services case involved CYC breaching Victoria’s Equal Opportunity Act for denying use of their facilities to a group that tolerated homosexuality. Claims Archbishop Julian Porteous breached section 17 of the Tasmanian Anti-Discrimination for offending, insulting and ridiculing people based on their sexual orientation or gender identity by propagating marriage as a union between a man and a woman.

To this add, Baptist Care being pursued in the Queensland Industrial Relations Commission for advocating against marriage for same-sex couples. Israel Folau having his contract terminated with Rugby Australia for claiming just about anyone who’s ever had fun is going to hell. And his cousin, Josiah Folau, being fired from a Catholic school for claiming the Church is the “synagogue of Satan”.

A liberal approach

How you approach religious freedom largely depends on your perspective. A liberal is rightly concerned with freedom of religion, as part of a package of the freedoms and their manifestation for all.

A liberal is rightly concerned with freedom of religion, as part of a package of the freedoms and their manifestation for all.

The question we need to answer is why the manifestation of religious freedom gains any primacy simply because it is linked to conscience, and whether that can be separated from how others manifest their freedom?

A liberal understands that all people are equal, and no one has more rights than others. If you can freely associate with someone the motivation should be irrelevant.

Greenpeace shouldn’t be compelled to hire workers who whale in their spare time. Liberals shouldn’t be forced to hire people who think true Marxism has never been properly trialed. Or that there can’t be women’s only gyms, male only gay nightclubs or Indigenous only cooperatives. If we have chosen to draw a distinction between conscience and commerce, then faith shouldn’t give you bonus freedom above others.

Liberals shouldn’t be forced to hire people who think true Marxism has never been properly trialed. Or that there can’t be women’s only gyms, male only gay nightclubs or Indigenous only cooperatives.

In contemporary Australia, successfully defending religious freedom depends on consistency for everyone’s freedom. So long as we believe in the principle of non-discrimination it should accommodate what is necessary. Presently that exists, except for religious institutions – where their exemption is general and all encompassing. And let’s not pretend they aren’t used. They are, and most of the time discreetly by mutual agreement. Then there are the few cases that rise to the surface.    

The Principal of Foundation Christian College in Mandurah, Western Australia bullied a seven-year-old because of the sexual orientation of her father. In a study into the use of exemptions under Anti-Discrimination Law by Professor Carolyn Evans from the University of Melbourne – she found that, among others, an unmarried pregnant teenager would be excluded from Islamic schools.

She found that, among others, an unmarried pregnant teenager would be excluded from Islamic schools.

Since the topic of religious freedom has risen in public discourse I’ve seen the initial reaction from the “quiet Australians” of suburbia range from “does that mean Priests don’t have to report pedophilia from the confessional” to bringing back haunting memories and social isolation from single mothers fanned by faith leaders in the 1970s and 1980s, to whether we would be tolerating female genital mutilation. Apart from the devout concerned for their own security, the instinctive response has been cautious.

A Religious Anti-Discrimination Act

A Religious Anti-Discrimination Act is designed to fill the gap between the other Race, Sex, Age and Disability Discrimination Acts making it unlawful for people to mistreat someone simply because of their faith, or lack thereof.

I suspect most Australians will have no issue with such a proposal – so long as it remains a religious Anti-Discrimination Act. Where tension could arise is if it becomes a Religious Freedom Act designed to shift the discussion from protecting people of faith from unjust discrimination to dictating the free licence those of faith will have.

Where tension could arise is if it becomes a Religious Freedom Act designed to shift the discussion from protecting people of faith from unjust discrimination to dictating the free licence those of faith will have.

Philosophically that is a challenge. Liberals don’t believe in legislating permission; freedom is the default, and justification is made about why laws should encroach upon that freedom. A Religious Freedom Act would likely give rise to inconsistencies where people of faith have more freedom than other, non-religious Australians. This could work to significantly undermine our social cohesion and national unity.

When the idea of the Ruddock Review was first floated, many were warned that if the objective was to enlarge religious freedom it would backfire. Instead it was more likely to inform Australians about the wide-ranging rights religious institutions already enjoy and which have long flown under the radar. The leaking of the report before its official release showed this to be correct.

The leaking of the report before its official release showed this to be correct.

Attempting to specifically legislate further “freedom” not enjoyed by the rest of the community is unlikely to be met with enthusiasm. Strategically it may also not be the best pathway for success. While there is a section of the community that is hostile to faith, in my experience most Australian’s attitudes reflect the observations of the Prime Minister:

As for religion, it’s our own personal business. What you believe is up to you, and no-one should give you a hard time about it. Just don’t tell us what to believe, or use your religion as an excuse to not obey our laws.

And the foundation of that perspective is an Australia built on mutual respect. The law should respect citizens, but mutual respect lives in our culture. If you want your freedom respected, you need to respect the freedom of others to live their lives too. That hasn’t always been reciprocated and, where it hasn’t, trust is understandably low.

That hasn’t always been reciprocated and, where it hasn’t, trust is understandably low.

For those who know what it is to be in the minority face choices: and it is whether to show the grace they have felt denied but fighting for everyone’s freedom.

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