______________________________________________________
JUST FAIR TREAMENT
SUBMISSION TO THE AUSTRALIAN HUMAN RIGHTS
COMMISSION PROJECT ON FREEDOM OF RELIGION AND
BELIEF IN THE 21ST CENTURY
______________________________________________________
February 2009
1
FREEDOM OF RELIGION AND BELIEF IN THE 21ST
CENTURY
This submission is the product of a partnership between Just Fair Treatment and the Social
Justice Advocacy Project.
Just Fair Treatment is a group of lawyers and academics practising, advising and writing in
the fields of international, constitutional and human rights in Australia and around the world.
The submission has been prepared with the assistance of law students from the University of
New South Wales under a pilot Social Justice Advocacy Project co-ordinated by Edward
Santow, Senior Lecturer and Director of the Charter of Human Rights Project at the Gilbert +
Tobin Centre of Public Law.
Just Fair Treatment is very grateful to the following students who were involved in drafting
this submission: Jay Cooper, Shana Krishnan, Ella Kucharova, Jia Lee, Sophie Marjanac and
Jermir Punthakey. Michelle Bradfield and Michelle Pratley, two Australian lawyers practising
in London, together with Edward Santow, co-ordinated and reviewed the submission.
Biographical information on the principal authors of this submission
Michelle Bradfield LLB (Hons) BBus (Dist) LLM (Cambridge)
Michelle is a Research Fellow at the Lauterpacht Centre for International Law and an
Associate Fellow at Clare Hall, University of Cambridge. Michelle is involved in both
litigation and advisory legal work regarding international law. Michelle is admitted as a
solicitor in Australia and has practised in a commercial law firm. Michelle was also the
principal solicitor and co-ordinator of the Homeless Persons' Legal Clinics at the
Queensland Public Interest Law Clearing House and a part-time tutor at Queensland
University of Technology's Law Faculty.
Michelle Pratley BA LLB (UNSW) LLM (Cambridge)
Michelle Pratley is a barrister at 4-5 Gray's Inn Square in London and regularly advises on
the application of the Human Rights Act 1998 (UK). She was previously a Legal Officer at
the Human Rights and Equal Opportunity Commission in Sydney. Michelle was recently
engaged as a part-time consultant to the Equality and Human Rights Commission in
London.
Edward Santow BA LLB (Hons) (Sydney) LLM (Hons) (Cambridge)
Edward Santow is a Senior Lecturer in law at the University of New South Wales, and the
Director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public
Law. His main areas of expertise are Human Rights, Administrative Law and
Constitutional Law. Edward is a Legal Adviser to the Legislation Review Committee of the
New South Wales Parliament. Edward serves on the board of NGOs, including the Refugee
Advice and Casework Service, the Global Alliance for Justice Education and the Australian
Human Rights Group. Edward previously worked at the Australian Law Reform
Commission, as a solicitor at a Sydney law firm, and as Associate to a Justice of the High
Court of Australia.
Coverage of submission
The submission addresses six questions:
(i) Question 1.3: Is there adequate protection against discrimination based on religion or
belief, and protection of ability to discriminate in particular contexts?
(ii) Question 1.4: How are federal and state and territory governments managing incitement to
religious hatred and the question of control and responsibility?
2
(iii) Question 2.1: Is section 116 of the Constitution an adequate protection of freedom of
religion and belief?
(iv) Question 4.1: Security issues in the aftermath of September 11
(v) Question 7.3: How can the cultural aspirations and human rights of Aboriginal and Torres
Strait Islanders be met?
(vi) Question 7.8: Should religious organizations (including religious schools, hospitals and
other service delivery agencies) exclude people from employment because of their sexuality
or their sex and gender identity?
3
Question 1.3: Is there adequate protection against discrimination
based on religion or belief, and protection of ability to
discriminate in particular contexts?
Introduction
1.
Just Fair Treatment believes that there is currently insufficient protection against
discrimination based on religion or belief in federal anti-discrimination legislation.
2.
Given the post-September 11 climate, Just Fair Treatment is concerned that there is a
need for more explicit protection against religious or belief-based discrimination.
States have attempted to afford more protection against discrimination based on
religion or belief. This is demonstrated in attempts to enact legislation that specifically
deals with discrimination grounded in religion or belief (as opposed to legislation that
makes discrimination against race, nationality and descent unlawful). Examples of this
include the Anti-Discrimination (Religious Tolerance) Bill 2005 (NSW) and the Equal
Opportunity (Miscellaneous) Amendment Bill 2008 (SA). However, the NSW bill was
not passed while the South Australian bill has only been tabled in parliament.
3.
There is a need to balance protection against discrimination with the commonly
accepted value of freedom of speech. The approach taken by the Equal Opportunity
(Miscellaneous) Amendment Bill 2008 (SA) could be an example of this. This Bill
intends to protect against religious discrimination by making specific reference to
religious dress or appearance significant to a religion 1. This ensures that the common
basis for religious discrimination is explicitly protected without enacting a farreaching, blanket prohibition on religious discrimination that might impinge on other
rights such as freedom of speech.
4.
Just Fair Treatment submits that there is also a need for clear legislation that protects
against discrimination based on religion and belief. The legislation should not easily
be misappropriated. Introducing clear standards by which discrimination is defined is
a way of diminishing misappropriation of the legislation.
Achieving a balance between protection against discrimination and
promoting freedom of speech
5.
The proposed amendments to South Australian law specifically prohibit discrimination on
the basis of “religious appearance or dress”2 .While this may afford protection to
particularly vulnerable groups such as Muslim women who wear the hijab, it might not be
adequate in protecting against religious discrimination suffered by people who do not
adopt a significant, external religious dress or appearance. Thus, even if the Bill is
1
s85T(1)(f) Equal Opportunity (Miscellaneous) Amendment Bill 2008.
s85T(1)(f) Equal Opportunity (Miscellaneous) Amendment Bill 2008 <
http://www.legislation.sa.gov.au/LZ/B/CURRENT/EQUAL%20OPPORTUNITY%20(MISCELLANEOUS)%2
0AMENDMENT%20BILL%202008/B_AS%20INTRODUCED%20IN%20LC/EQUAL%20MISCELLANEOU
S%20AMENDMENT%20BILL%202008.UN.PDF> (Accessed 1 December 2008)
2
4
adopted, it might still be inadequate in protecting discrimination based on religious belief
or practice despite protecting against discrimination based on religious appearance3.
6.
While Victoria has taken steps to address discrimination based on religion and belief,
there is much uncertainty in the application of its Racial and Religious Tolerance Act
2001 (Vic). Section 9 of the Racial and Religious Tolerance Act states that motive is
irrelevant when engaging in conduct to incite religious hatred. This means that a person
may be liable for inciting religious hatred regardless of whether he or she had the intention
to do so. This is a very harsh provision, and highly unusual among laws that criminalise
particular types of speech. Section 8 prohibits conduct that “incites hatred, serious
contempt for, or revulsion or severe ridicule” based on religious belief. However, there is
no mention that of how such conduct is deemed to incite hatred.
7.
Currently, the law does not clearly state the test that should be used in determining
conduct that breaches the Racial and Religious Tolerance Act, although cases such as
Judeh v Jewish National Fund of Australia4 and Fletcher v Salvation Army Australia
(Anti-Discrimination)5 have adopted objective tests.
8.
Just Fair Treatment submits that in enacting legislation to protect against discrimination
against religion and belief, there should be a test that clearly indicates what constitutes
religious discrimination. We submit that this test should blend subjective and objective
elements. That is, first, in order to fall within the offence, the prosecution must prove that
the defendant subjectively intended to carry out the criminalized conduct. Secondly, the
prosecution must prove that an objective element—namely that a reasonable lay-observer
would feel ridiculed or a reasonable lay-observer would believe that the comment incited
hatred, serious contempt, revulsion or serious ridicule.
Protection of ability to discriminate
9.
In certain contexts, an appropriate balancing of competing human rights means that it is
necessary to permit certain action that would otherwise be discriminatory. This usually
occurs through express exceptions to the operation of anti-discrimination legislation.
However, Just Fair Treatment submits that such discrimination should only be permitted
when the following conditions are satisfied: (i) the discriminatory conduct is strictly
necessary for the performance of a person’s religious belief; (ii) any deleterious
consequences of allowing the discriminatory conduct would not be disproportionate to the
legitimate end referred to in (i); and (iii) there is a proper regime for monitoring the effect
of the discriminatory conduct.
10.
Permitting discrimination in certain contexts needs to be protected as it balances freedom
of speech and religious choice as a fundamental human right 6, with the right to nondiscrimination. For instance, preserving the ability to discriminate in certain hiring
contexts is required in order to maintain the freedom to practise one’s religion. However,
this must refer to a genuine religious need. To take a hypothetical example: while it might
be permissible for a religious school only to hire teachers of the same religion; there
Hewitt A “It’s not because you wear hijab, it’s because you’re Muslim – Inconsistencies in South Australian
Discrimination Laws” (2007) QUT Law and Justice Journal 4, < http://www.austlii.edu.au/cgibin/sinodisp/au/journals/QUTLJJ/2007/4.html?query=aa1977204> (Accessed 19 November 2008)
4
[2003] VCAT 1254 5
5
[2005] VCAT 1523
6
Blake G “Promoting religious tolerance in a multifaith society: Religious vilification legislation in the Australia
and the UK” (2007) 81 Australian Law Journal pp. 386-405 at 405.
3
5
seems little justification for such a school to impose a similar hiring restriction on clerical
staff or others whose work has little or nothing to do with religious instruction.
11.
Under section 126 of the Anti-Discrimination Act 1977 (NSW), the Attorney-General can
grant exemptions to the application of the Act. For example, the NSW Attorney-General
permitted Boeing to choose employees with reference to factors including their nationality
in order to meet US security requirements7. Such a provision may be necessary to strike a
balance between protecting against discrimination, and promoting other competing rights
and interests, as appropriate. However, the wide discretion given to the Minister, without
clear rules that limit and guide this discretion, is undesirable. As stated earlier, any such
discretion should be limited with reference to the following conditions: (i) the
discriminatory conduct must be strictly necessary for the performance of a person’s
religious belief; (ii) any deleterious consequences of allowing the discriminatory conduct
must not be disproportionate to the legitimate end referred to in (i); and (iii) there must be
a proper regime for monitoring the effect of the discriminatory conduct.
Question 1.4: How are federal and state and territory
governments managing incitement to religious hatred and the
question of control and responsibility?
Specific Religious Vilification Laws in Australia
Jurisdiction
Federal
New South Wales
Victoria
Queensland
Tasmania
Western Australia
South Australia
Northern Territory
Legislation
N/A
N/A
Racial and Religious Tolerance Act 2001
Anti-Discrimination Act 1991 ss124A, 131A
Anti-Discrimination Act 1998 ss19, 55
N/A
N/A
N/A
Federal
12. Incitement to religious hatred is not explicitly prohibited under Federal law. The Racial
Discrimination Act 1975 (Cth) (“RDA”), which is the principal piece of federal
legislation aimed at combating various manifestations of discrimination and vilification,
makes no specific reference to religion or religious activity. Whether the RDA provides
any recourse to those who have suffered discrimination on religious grounds depends,
ultimately, on judicial interpretation of the term “race”. Federally, the definition of race
reflects Article 1.1 of the International Convention on the Elimination of All Forms of
Racial Discrimination, to which the RDA is designed to give effect. Unlawful “racial
discrimination” is understood as:
7
Boeing Given Permission to Discriminate Against Employees
http://www.findlaw.com.au/news/default.asp?task=read&id=23105&site=LE (Accessed 25 November 2008)
6
any distinction, exclusion, restriction or preference based on race, colour, descent or
national or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of
public life.8
13. Pursuant to s 17 of the RDA, it is also unlawful to incite anyone to discriminate on the
ground of race, colour, descent, national or ethnic origin. Alongside the discrimination
provisions, acts of racial hatred have also been made unlawful by the RDA. Under s
18C(1), it is unlawful for a person to do an act, otherwise than in private, if “the act is
reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate
another person or group of people” because of the race, colour, national or ethnic origin
of that person or people in the group. Unlike the discrimination provisions, there is no
concept of inciting another person to an act of racial hatred in the RDA.
14. Whether religious vilification and discrimination can be brought within the rubric of the
RDA has largely turned on the construction of the term “ethnic origin”. In King-Ansell9,
the New Zealand Supreme Court held that Jewish people in New Zealand formed a
group with a common “ethnic origin”. Similarly, the UK House of Lords held in Mandla
v Dowell Lee10 that Sikhs constitute an ethnic group for the purposes of the legislation in
question.
15. Australian courts have adopted these interpretations, finding that Jewish people fall
within the meaning of “ethnic origin” for the purposes of the RDA.11 To date, Australian
courts have not yet been asked to consider whether Muslim people constitute a group
with a common “ethnic origin” under the RDA. It is significant to note however, that the
Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth), which became the
Racial Hatred Act 1995 (Cth) and introduced Part IIA into the RDA prohibiting conduct
based on racial hatred, suggests that Muslims are included in the expressions “race”
and/or “ethnic origin”. It states:
The term ‘ethnic origin’ has been broadly interpreted in comparable overseas
common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per
Richardson J at p.531 and Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord
Fraser at p.562). It is intended that Australian courts would follow the prevailing
definition of ‘ethnic origin’ as set out in King-Ansell. The definition of an ethnic
group formulated by the Court in King-Ansell involves consideration of one or
more of characteristics such as a shared history, separate cultural tradition,
common geographical origin or descent from common ancestors, a common
language (not necessarily peculiar to the group), a common literature peculiar to
the group, or a religion different from that of neighbouring groups or the general
community surrounding the group. This would provide the broadest basis for
protection of peoples such as Sikhs, Jews and Muslims.12
8
s 9(1) Racial Discrimination Act 1975 (Cth).
King-Ansell v Police [1979] 2 NZLR 531 at 531.
10
Mandla v Dowell Lee [1983] 2 AC 548 (HL) at 562.
11
Jones v Toben [2002] FCA 1150 (17 September 2002) at [69].
12
Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) at 2-3 (emphasis added).
9
7
16.
The Explanatory Memorandum makes explicit reference to Muslim people, suggesting
they should be afforded protection within the definition of “ethnic origin”. Yet, as has
been emphasised in many High Court cases, Explanatory Memoranda, are not
definitive in issues of statutory construction. As stated by the majority in Re Bolton, “the
words of a minister must not be substituted for the text of the law.”13 Parliament consists
of many members, each of whom has different opinions and intentions. A document such
as a statute passes through many hands and is the subject of many compromises before it
becomes an Act. The Hon Keith Mason AC states “the Bill itself will often be the product
of last minute horse trading. Late changes may hit their target, but at the cost of skewing
the thrust of the instrument unintentionally” 14. A Minister’s Second Reading speech does
not speak authoritatively to the intention of the Parliament, merely to the intention of the
Executive. If no further legislation is imminent, it will ultimately fall to a court to decide
whether Muslim people are included in the terms “race” or “ethnic origin”. Significantly,
there is authority to suggest that they do not. Cases that have considered the issue under
different laws have found that “Muslims do not share a common racial, national or ethnic
origin because while Muslims profess a common belief system, the Islamic faith is
widespread covering many nations and languages.”15 As HREOC reported in 2004, “At
this stage, on the basis of the case law, it is uncertain whether a court would find that
Muslim people constitute a group with a common race or ethnic origin under the racial
hatred provisions of the RDA.”16 In a post 9/11 society, it is unacceptable for Muslim
people to have no legal remedy for religious discrimination and vilification.
NSW
17.
The Anti-Discrimination Act 1977 (NSW) provides that it is unlawful to discriminate on
the basis of colour, nationality, descent and ethnic, ethno-religious or national origin.17
The “obscure” meaning of the term “ethno-religious” was considered in 2002 by the NSW
Administrative Decisions Tribunal in Khan v Commissioner, Department of Corrective
Services18. This action was brought by an inmate of the Junee Correctional Centre who
was denied access to Halal foods. The Tribunal found that the term ‘ethno-religious’
‘signifies a strong association between a person’s or a group’s nationality or ethnicity,
culture, history and his, her or its religious beliefs and practices’ (original emphasis)19.
The Tribunal held that Khan, as a Muslim, did not necessarily fall within the statutory
definition of ‘race’ or ‘ethno-religious origin’. This conclusion was influenced by the
Minister’s Second Reading speech, which stated:
13
R v Bolton; Ex parte Beane (1987) 70 ALR 225 at 226
Keith Mason, “The Intent of Legislators: How judges discern it and what to do if they find it” in Statutory
Interpretation: Principles and Pragmatism for a New Age, Judicial Commission of New South Wales, Education
Monograph 14 – June 2007 at 36
15
Gareth Griffith “Sedition, Incitement and Vilification: Issues in the Current Debate”, Briefing Paper No 1/06,
NSW Parliamentary Library Research Service (2006), available at
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/57BA30F38D3C969CCA25710F0023442F/
$File/Sedition%20FINAL.pdf as at 5/12/08 at 43. See also, the UK decisions of Tariq v Young (Employment
Appeals Tribunal 247738/88, EOR Discrimination Case Law Digest No 2); Nyazi v Rymans Limited (1988) EAT
86; and JH Walker Ltd v Hussain & Ors [1996] IRLR 11. See also: A discussion of the term ‘ethno-religious’ (a
ground of discrimination in the Anti-Discrimination Act 1977 (NSW)) and the Muslim faith in Khan v
Commissioner, Department of Corrective Services [2002] NSWADT 131.
16
Human Rights and Equal Opportunity Commission, “Isma - National consultations on eliminating prejudice
against Arab and Muslim Australians” (2004) available at
http://www.hreoc.gov.au/racial_discrimination/isma/index.html as at 5/12/08 at 31
17
Section 7(1) Anti-Discrimination Act 1977 (NSW).
18
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131.
19
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [20]
14
8
“The proposed amendment to the definition of race will not allow members of ethnoreligious groups, such as Jews, Muslims and Sikhs, to lodge complaints in respect of
discrimination on the basis of their religion, but will protect such groups from
discrimination based on their membership of a group which shares a historical identity
in terms of their racial, national or ethnic origin.”20
18.
In Khan, it was held to be insufficient for the complainant to rely solely upon his Muslim
faith in order to come within that ground and that there ‘must be some evidence that there
exists a close tie between that faith and his race, nationality or ethnic origin for him to be
regarded as a member of an ‘ethno-religious’ group’21. Concerning, as it does, a matter of
judicial interpretation, this law continues to evolve. In Trad v Jones22, involving
controversial broadcaster Alan Jones, counsel for Mr Jones argued that “Mr Trad’s claim
that ‘Muslims’ or ‘members of the ‘Muslim community’ constitute … an ‘ethno-religious’
group for the purpose of the Act, is unsustainable”.23 Counsel for Mr Jones referred to a
long line of authority within the Tribunal that Muslims do not fall within the statutory
definition of race. In response, counsel for Mr Trad submitted that “there is no binding
authority on this issue and the Tribunal constituted for the purpose of determining his
complaint is not bound to adopt the approach taken by differently constituted tribunals.”24
The Tribunal accepted this submission and stated that it was open to it to “determine this
legally complex issue.”25 The result is pending.
19.
In 2005, a Private Member’s Bill, the Anti-Discrimination Amendment (Religious
Tolerance) Bill was introduced into the NSW Parliament. The Bill proposed to make
religious vilification unlawful and create a new offence of serious religious vilification. 26
Sponsored by the Hon Peter Breen MLC, the Bill was advanced to fill perceived gaps in
NSW discrimination law. Its proponents argued that the “inclusion of ‘ethno-religious’ in
the definition of ‘race’ under the anti-discrimination legislation is no substitute for the
express inclusion of vilification laws on the ground of religion.”27
20.
The then Premier Bob Carr opposed the religious vilification legislation from the outset,
describing the laws as “highly counterproductive”. He argued they had been misused in
Victoria and were destabilising:
“Religious vilification laws are difficult because just about anyone can have resort to
them and because determining what is or is not a religious belief is difficult. It can be
defined as just about anything. It is subjective. It is a personal question. As they are
used in practice religious vilification laws can undermine the very freedom they seek
to protect – freedom of thought, conscience and belief.”28
20
cited in Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [16]
Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 at [21]
22
Trad v Jones & anor [2008] NSWADT 272 (3 October 2008)
23
Trad v Jones & anor [2008] NSWADT 272 at [31]
24
Trad v Jones & anor [2008] NSWADT 272 at [32]
25
Trad v Jones & anor [2008] NSWADT 272 at [34]
26
Gareth Griffith “Sedition, Incitement and Vilification: Issues in the Current Debate”, Briefing Paper No 1/06,
NSW Parliamentary Library Research Service (2006), available at
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/57BA30F38D3C969CCA25710F0023442F/
$File/Sedition%20FINAL.pdf as at 5/12/08 at 68
27
Ibid at 70
28
Answering a question on 21 June 2005. As cited in Gareth Griffith “Sedition, Incitement and Vilification:
Issues in the Current Debate”, Briefing Paper No 1/06, NSW Parliamentary Library Research Service (2006),
available at
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/57BA30F38D3C969CCA25710F0023442F/
$File/Sedition%20FINAL.pdf as at 5/12/08 at 69
21
9
21.
Mr Carr stated that NSW discrimination law, with its reference to ethno-religious’ groups,
was adequate protection. The Anti-Discrimination Amendment (Religious Tolerance) Bill
was opposed by both the Government and the Opposition and failed to pass.
Victoria
22.
The Victorian Parliament controversially passed the Racial and Religious Tolerance Act
in 2001. The Act was directed at promoting “racial and religious tolerance by prohibiting
certain conduct involving the vilification of persons on the ground of race or religious
belief or activity.”29 It prohibits conduct that “incites hatred against, serious contempt for,
or revulsion or severe ridicule of,” a person or class of person on the basis of their
religious belief or activity.30 The Act creates a two-tiered system, declaring certain
conduct “unlawful” (but not an offence) and making other, more serious conduct, a
criminal offence. For “unlawful” conduct to be proved, the “person's motive in engaging
in any conduct is irrelevant.”31 Moreover, there is no requirement that the conduct must
threaten physical harm towards person or property. The more serious offence provisions
require an intention to engage in conduct that “the offender knows is likely” to incite
hatred for other persons or classes of persons.32They also require a threat to person or
property.33
23.
The Victorian Act were criticized by many sections of society. In July 2005, Justice
Young wrote, “What in fact appears to be happening in Victoria is that groups of
fundamentalist Christians, Muslims or Jews are attending each others places of worship
to take notes of any utterance that might be constructed as contempt for the others
religious views”.34 In 2004, then Federal Treasurer Peter Costello described the Racial and
Religious Tolerance Act as “bad law”35. The first test case of the Act saw the conviction
of two Christian pastors, Daniel Scot and Danny Nalliah, in the Victorian Civil and
Administrative Tribunal for inciting the religious hatred of Muslims. The hearing opened
in October 2003 but the tribunal did not make its final order until June 2005. The pastors
lodged a successful appeal to the Victorian Supreme Court. The entire process took five
and a half years. The case was very controversial and opponents of religious vilification
laws in Australia and overseas pointed to it as an example of the dangers of religious
vilification laws that restrict freedom of speech.36
Queensland
24.
Queensland’s Anti-Discrimination Act 1991 explicitly prohibits discrimination based on
religious belief or religious activity. 37 Unlike in NSW, religion is included as a separate
ground of discrimination. Pursuant to s 124A of the Act, it is unlawful to “incite hatred
towards, serious contempt for, or severe ridicule of, a person or group of persons on the
ground of race, religion, sexuality or gender identity”. Section 131A creates a criminal
29
s 1 (a) Racial and Religious Tolerance Act 2001.
s 8 (1) Racial and Religious Tolerance Act 2001
31
s 9 (1) Racial and Religious Tolerance Act 2001.
32
s 24 (1) Racial and Religious Tolerance Act 2001.
33
s 24 (1) Racial and Religious Tolerance Act 2001
34
As cited in Gareth Griffith “Sedition, Incitement and Vilification: Issues in the Current Debate”, Briefing
Paper No 1/06, NSW Parliamentary Library Research Service (2006), available at
http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/57BA30F38D3C969CCA25710F0023442F/
$File/Sedition%20FINAL.pdf as at 5/12/08 at 65.
35
Quoted in New South Wales Parliamentary Debates, 12.10.2005, p 18400
36
See the comments of Baroness Cox in “Blackadder's revenge hits the hate bill”, The Sunday Times, October 9,
2005 available at http://www.timesonline.co.uk/tol/news/uk/article576449.ece as at 5/12/08.
37
s 7(i) Anti-Discrimination Act 1991 (Qld)
30
10
offence for “serious vilification” on the same grounds. It is expressly stated that a person
must ‘knowingly or recklessly’ incite the conduct at issue. This conduct must include
threatening physical harm to persons or their property, or inciting other to threaten such
harm.
Tasmania
25.
Under s 19 of the Tasmanian Anti-Discrimination Act 1998, “A person, by a public act,
must not incite hatred towards, serious contempt for, or severe ridicule of, a person or
group of persons on the ground of … the religious belief or affiliation or religious activity
of the person or any member of the group”. This provision is qualified by section 55,
which provides for defences on various grounds, including where a public act is done in
good faith for ‘academic, scientific or research purposes, or any purpose in the public
interest’.
UK’S Racial and Religious Hatred Act 2006
26.
The UK passed the Racial and Religious Hatred Act in 2006. Most of the provisions of the
Act became law in October 2007. The Act makes it an offence for “a person [to use]
threatening words or behaviour, or [display] any written material which is threatening,
[…] if he intends thereby to stir up religious hatred.”38 This law was designed to protect
groups or individuals from discrimination based on their religious affiliation. While
people of the Jewish and Sikh faiths, for instance, were already protected by racial hatred
laws, including the Public Order Act 1986, because (through judicial interpretation) they
are considered racial groups, this new law extends this protection to ethnically
heterogeneous religious groups, such as Muslims and Christians. The law generated
significant controversy when it was proposed. Some Members of Parliament and
community and religious groups expressed concern that the new law would hinder
freedom of speech, open debate, and religious preaching. Comedian Rowan Atkinson
argued that the law would leave comedians open to prosecution for making religious
jokes39. However, the law was amended to strengthen the test for the offence. To be
convicted under the new law, a person must be shown to have intended to incite religious
hatred, and to have used or disseminated words or images that were “threatening” rather
than merely offensive. The Act explicitly protects freedom of expression in its assertion
that it cannot be read in a way that “prohibits or restricts discussion, criticism or
expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the
beliefs or practices of their adherents.” As the then Lord Chancellor, Lord Falconer,
argued, "the bill will not have the impact on freedom of speech which opponents say it
will. Incitement to religious hatred represents a gap in the criminal law and it is right that
it be filled."40 Lord Falconer is correct in his assessment. While the Racial and Religious
Hatred Act 2006 does impose certain limitations upon freedom of speech, these
limitations are not unwarranted, excessive or unprecedented. The Act merely extends the
protections afforded to, and considered legitimate for, racial groups. Furthermore, the Act
is stringent in its protection of freedom of speech. The law does not apply to expressions
of abuse or ridicule about religions, their adherents or practices.
38
s 29B Racial and Religious Hatred Act 2006 (UK)
Danielle Demetriou, “Atkinson takes fight with religious hatred Bill to Parliament” The Independent,
Tuesday, 7 December 2004 available at http://www.independent.co.uk/news/uk/politics/atkinson-takesfight-with-religious-hatred-bill-to-parliament-679152.html as at 5/12/08.
40
Stephen Bates and Julian Glover, “Christian group may seek ban on Qur'an” The Guardian, Wednesday
October 12 2005 available at http://www.guardian.co.uk/uk/2005/oct/12/religion.immigrationpolicy as at 5/12/08
39
11
Conclusion
27.
Just Fair Treatment submits that federal legislation should be enacted explicitly to prohibit
discrimination and incitement to hatred on religious grounds. Religious freedom is a
fundamental human right, recognised by the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights. In a multicultural, morally
pluralistic society such as Australia, the protection of this right should be explicitly
enshrined in federal legislation, not subject to the vagaries of judicial interpretation,
specifically in relation to the term “race”. The right to religious freedom would be best
protected by a separate and specific piece of federal legislation. Religion is conceptually
distinct from race. Though in some cases, race and religion may be linked; unlike one’s
race, there is usually an element of personal choice exercised over one’s religious
adherence (or non-adherence). Like issues of age, sex and disability, freedom of religion
should be protected by its own piece of federal legislation.
28.
Overseas, and in Australian jurisdictions such as Victoria, the introduction of laws that
criminalise the incitement to religious hatred has been controversial. Opponents argue that
they unjustifiably infringe freedom of speech and are subject to abuse. Freedom of speech
has long been recognised as a cornerstone of any democratic society. Yet freedom of
speech is not absolute and, as with all rights, it must be balanced against other values.
Speech used to incite acts of religious hatred and threatening behaviour need not be
protected.
29.
In drafting a piece of federal legislation, Just Fair Treatment submits that the government
should look towards the UK Racial and Religious Hatred Act 2006, rather than the
Victorian Racial and Religious Tolerance Act 2001 for guidance. The Victorian Act has
proved problematic because of its broad nature. It prohibits conduct that “incites hatred
against, serious contempt for, or revulsion or severe ridicule of,” a person or class of
person on the basis of their religious belief or activity. This test unduly restricts freedom
of speech and is overly inclusive for its purpose. There is no requirement, in some of the
provisions, for such conduct to be threatening or even intended. This allows for situations,
such as referred to earlier by Justice Young, whereby fundamentalist religious groups can
“attend each other’s places of worship to take notes of any utterance that might be
constructed as contempt” and then use court time and resources pursuing a claim. By
contrast, the UK Act requires that a person must be shown to have intended to incite
religious hatred, and have used or disseminated words or images that were “threatening”
rather than merely offensive. This is a more appropriate balancing of the values of
freedom of religion and freedom of speech.
12
Question 2.1: Is section 116 of the Constitution an adequate
protection of freedom of religion and belief?
30.
Section 116 reads:
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. 41
31.
Section 116 of the Australian Constitution has not provided adequate protection to
freedom of religion and belief. There has not been a single case where an individual or
religious organisation has been able to rely on this provision to invalidate a
Commonwealth law that inhibits religious freedom.
32.
The High Court has interpreted the term ‘religion’ broadly, finding that it includes faiths
beyond the well-established religions.42 In all other respects, however, Australian courts
have interpreted the scope of the protection provided by section 116 very narrowly. The
dominant interpretation of section 116 is that it is not an express right. Rather it is a
limitation on government power. It follows, on this approach, that the government has no
positive duty to ensure protection of freedom of religion and belief.
33.
The following part of the submission outlines the scope of s 116 and analyses the cases
that have considered s 116. It considers the problems with relying on section 116 to
protect religious freedoms and beliefs.
What is section 116?
34.
Section 116 has four separate protections or prohibitions. The Commonwealth shall not
make any law for:
• establishing any religion;
• imposing any religious observance;
• 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.
35.
Section 116 expressly prohibits the Commonwealth from making any law establishing or
imposing or prohibiting any religion. While other sections, such as sections 51(xxxi)43,
8044 and 11745, protect particular rights, section 116 is unique as a formal guarantee of a
personal freedom. Such a right is akin to those found in the Bill of Rights in the United
States Constitution.46
41
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c12, s9; s 116.
See, eg, Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 76 CLR 116.
43
The section provides that acquisition of property must be on ‘just terms’.
44
The section provides that trials for indictable crimes shall be by jury.
45
This section provides that a resdient in any one state shall not be discriminated against in any other state.
46
Jean Ely, The establishment clause in section 116 of the Australian Constitution – an interpretation (1979), 4.
42
13
History and context of section 116
36.
It is important to recognise the context in which our Constitution was formed. The
Australian Constitution was drafted in a different context to that of the United States
Constitution. In the United States, the Constitution was a result of civil war and a fight for
equality and rights. On the other hand, our Constitution was the result of a peaceful move
away from Australia’s colonial status and was characterised by the desire to share powers
and responsibilities between the colonies and the soon-to-be-established Federal
government47. The emphasis was on defining and limiting powers between State and
Federal governments rather than protecting the individual from the powers of the
government. Professor George Williams goes as far as to suggest that to some extent, the
framers were hostile to certain ideas of rights, particularly any notion of racial or sexual
equality.48
37.
The history of section 116 is important as judges often consider the drafter’s intentions
when ascertaining the meaning of section 116. Whilst early drafts included a provision
similar to section 116, interest in the section did not resurface until the framers inserted a
reference to God as a source of law as a result of political pressure from various advocacy
groups.49
38.
The drafters were concerned that a reference to ‘almighty god’ may interfere with the
separation between church and state and thus section 116 was introduced. The words of
the section were heavily influenced by a similar provision in the United States Bill of
Rights.
39.
Evans suggests that both the inclusion of a reference to God, and also the limitations
regarding religion placed on the Commonwealth, were “a matter of political pragmatism
rather than high principle”50 and there was not a great deal of discussion about the scope or
meaning of the words used. This has important implications as she suggests that the
pragmatic rather than the principled approach appears to have influenced the High Court
in its interpretation of the section.
The limited protection of religious freedom in s 116 jurisprudence
40.
There has been limited case law dealing with religious freedom in Australia. Section 116
is almost identically worded to the freedom of religion provision in the American
Constitution. However, there is a stark contrast in the amount of cases that have been
heard under this section in Australia. The United States Supreme Court, on the other hand,
has heard in excess of 50 cases since 1918.51 The limited Australian jurisprudence reveals
an approach markedly divergent from the American focus on rights52.
41.
As noted, while the Australian courts have interpreted “religion” broadly to include a wide
range of practices and beliefs, a narrower approach has been adopted in interpreting what
government conduct might breach the prohibition against establishing or prohibiting
religion. The weaknesses of the prohibitions include:
47
Peter Hanks, Constitutional Law in Australia (2nd ed., 1996), 495–96.
George Williams, Human Rights Under the Australian Constitution (2002).
49
H Irving. ‘Fair federalists and founding mothers’, in H Irving (ed), A Woman’s Constitution? (1996).
50
Carolyn Evans, 'Religion as Politics not Law: the Religion Clauses in the Australian Constitution', (2008) 36
(3) Religion, State and Society 283, 286.
51
Ibid, 283.
52
Ibid.
48
14
• they only apply to the Commonwealth and do not apply to State laws;
• it is a purposive test. This means that section 116 will only be infringed where the
Commonwealth make a law for the purpose of establishing/imposing or prohibiting a
religion, and it will not infringe the Constitution if the law in question merely has such an
effect;
• the High Court has adopted a very narrow interpretation of the terms of the section and
has in effect left the role of protecting religious freedoms to Parliament; and
• a person or organisation cannot sue the Commonwealth or its officers for breach of
section 116.
The next section expands on the above weaknesses.
Limited Application to States and Territories
42.
Unlike initial versions of section 116, the final version of section 116 excluded its
operation on the States. Henry Higgins said:
My idea is to make it clear beyond doubt that the powers which the states individually have of
making such laws as they like with regard to religion shall remain undisturbed and unbroken, and
to make it clear that in framing this Constitution there is no intention whatever to give to the
Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights
to the states where they are, to leave the existing law as it is.53
43.
This essentially means that section 116 affords no protection for interference with
religious freedoms by State laws.
44.
In addition to section 116 not applying to State laws, there remains a question as to the
application of the section to laws made by the Commonwealth in relation to territories.
The decision in Kruger casts some doubt over whether section 122 of the Constitution,
which allows the Commonwealth government to pass legislation for the territories, is
restricted by section 116. Toohey and Gaudron JJ held that it was a constraint on power.
Dawson and McHugh JJ doubted that it did and Brennan CJ and Gummow J did not
decide the issue.
45.
In 1988 there was a referendum on a proposal to extend s116 to cover all government acts
rather than just legislation. The proposal also included an expansion of other rights. The
triggers for Constitutional amendment contained in section 128 of the Constitution were
not achieved and consequently the proposal failed. Considering that only 8 amendments
have been made to the Constitution and that Australia is considered the “frozen
continent”54 when it comes to constitutional change by leading constitutional expert
Sawyer, this is not surprising.
46.
While the Australian Capital Territory and Victoria have statutory bills of rights55
presently there is no constitutional protection for the religious freedoms of individuals
against the laws of other states and potentially other territories. This is an undesirable
Kruger v Commonwealth of Australia (1997) 190 CLR 1(‘Stolen Generations Case’), 60 (Kruger J).
G Sawyer, Australian Federalism in the Courts (1967), 208.
55
The Human Rights Act (2004) in the ACT and the Charter of Human Rights and Responsibilities Act (2006) in
Victoria.
53
54
15
situation, as it creates a gap in the protection of rights of individuals depending on the
state in which they reside.
Narrow interpretation of the terms of the provision
47.
The jurisprudence in this area has largely related to the prohibition on establishing a
religion and the prohibition on free exercise of a religion. There is limited case law on
religious observance or religious test cases.
48.
Jurisprudence has construed section 116 very narrowly and has effectively disabled the
potential role the Constitution may have in protecting freedom of religion and belief. The
one exception is the broad definition the court has attributed to ‘religion’.
Interpretation of ‘Establishing’ a religion
49.
The prominent case on this prohibition is Attorney General (Vic); Ex Rel Black v
Commonwealth (‘DOGS Case’)56, which considered whether Commonwealth funding of
Catholic schools established a religion in contravention of section 116. The applicants,
who argued that the practice was discriminatory, relied on American jurisprudence which
strictly forbids state sponsorship of religious schools. The applicant proposed that the
similarity between the First Amendment and section 116, together with its availability to
the drafters of our Constitution, suggests that they should be interpreted in a similar way.
50.
Only one of the judges, Murphy J, agreed with this proposition. He warned of the dangers
of creating wealthy religious bodies with the public purse57 and held that ‘non-preferential
sponsoring of or aiding religion is still “establishing” religion’.58 Murphy J adopted a
rights-based approach to the Constitution, taking an expansive interpretation of
“establishment” in order to protect the fundamental right of religious freedom. However,
this approach, which seeks to protect religious freedom, was that of the dissenting judge.
The majority, who delivered 5 separate judgments, limited the ability of section 116 and
the anti-establishment provision to protect religious freedoms in the following ways:
(i) Section 116 was considered a limitation on government power, rather than an
individual right, and as such should be construed narrowly;59
(ii) The majority judges distinguished section 116 from its American counterpart by
reference to apparently insignificant differences in wording. It was held that a law
‘respecting’ the establishment of a religion, as in the American Constitution, is a lesser
threshold that a law ‘for’ the establishment of a religion. Barwick CJ went as far as to
suggest that in order for a law to be invalid under section 116, it must have the objective
of establishment as ‘its express and…single purpose”.60 However, considering that the
Constitution does not give the Commonwealth the power to make laws on religion
directly, it would be difficult to conceive of a law that would have as its express and
single purpose an establishment of a religion, as it would be beyond the power of the
government regardless of the existence of section 11661; and
56
(1981) 146 CLR 559
DOGS Case, 625.
58
DOGS Case, 624.
59
DOGS Case, 603 (Gibbs J), 605 (Stephen J).
60
DOGS Case, 579 (Barwick CJ).
61
Stolen Generations Case, (Gaudron J).
57
16
(iii) The words ‘any religion’ in the section were interpreted to mean that ‘establishment’
necessitated the promotion of a particular state church or national institution rather than
the discriminatory funding of religious institutions over others62.
Free exercise of a religion
51.
The prohibition against the free exercise of religion has also been narrowly interpreted.
The precedent for this approach came from Barton J and Griffith CJ, leading up to World
War I, in Krygger v Williams63. The claimant in that case refused to attend obligatory
training for the war because his belief in Christianity required him to be a contentious
objector. The Court dealt with the case dismissively, declaring the appellant’s position to
be ‘absurd’.64 Griffith CJ held that the training had nothing at all to do with religion, and
that it did not prohibit the applicant from the free exercise of his religion. Despite this, the
same judge also pointed out that the Australian laws did not appropriately take into
account contentious objectors.65
52.
Similar to the reasoning of the High Court in anti-establishment cases, in the Stolen
Generations Case, some judges gave consideration to the scope of the free exercise
clause, holding that the law must be ‘for’ the purpose of preventing the free exercise of
religion to be unconstitutional.66 Evans points out that a number of the judges quote cases
in which it was also held that it is the law that is in question and not the administration or
effect of that law.67 Gaudron J pointed out that this may have the effect of allowing
governments to do indirectly what they are not allowed to do directly. 68
53.
In general, the courts have recognised that the freedom to exercise religion is not an
absolute freedom. In the Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth
(the Jehovah’s Witnesses Case)69, Latham CJ coined a compromise between the need to
protect religious freedoms and the desire not to restrict the government unduly. His
Honour held that only interferences which are an ‘undue infringement of religious
freedom’ are unconstitutional.70
54.
While this appears to be a healthy balance between the interests of the state and the
individual, Evans comments that “the restraints put on religion freedom have at times
proved very onerous without a breach of section 116 being found” 71. For example, the
decision in the Jehovah’s Witnesses Case upheld government regulations that dissolved
the Jehovah’s Witnesses because of their opposition to war. The very wide-sweeping
regulations were validated on a very wide interpretation of the defence power of the
Commonwealth. However, this raises an important issue of the difficulty of ensuring
religious freedom during times of national emergency. It questions the extent to which
provisions protecting rights can be read down by courts, so that seemingly wide
62
DOGS Case, 577–78 (Barwick CJ), 598 (Gibbs J), 608 (Stephen J), 615 (Mason J).
(1912) 15 CLR 366.
64
Krygger v Williams (1912) 15 CLR 366, 371.
65
Krygger v Williams (1912) 15 CLR 366, 370-371.
66
Stolen Generations Case, 40 (Brennan CJ), 60–61 (Dawson J), 86 (Toohey J).
67
Carolyn Evans, n 9, 296. See also Stolen Generations Case, 86 (Toohey J), 131 (Gaudron J).
68
Stolen Generations Case, 131 (Gaudron J).
69
(1943) 67 CLR 116.
70
Jehovah’s Witnesses Case, 131 (Latham CJ).
71
Carolyn Evans, n 9, 297.
63
17
protections are given only narrow effect, especially when marginal religious groups are
involved.72
No individual right of action
55.
Professors Blackshield and Williams suggest that the express limitations on power
contained in the Constitution have been interpreted so as not to give individuals or
organisations, whose interests have been damaged, a claim against the government for
remedies.73 This contrasts with the finding of the United States Supreme Court in Bivens v
Six Unknown Named Agents of the Federal Bureau of Narcotics74 which held that breach
of the United States Bill of Rights can give rise to an action for damages, although
limited. In considering section 92 of the Constitution, which guarantees that interstate
trade, commerce and intercourse shall be absolutely free, Dixon J of the High Court in
James v Commonwealth75 said that:
Prima facie the Constitution is concerned with the powers and functions of government and the
restraints upon their exercise. There is, in my opinion, no sufficient reason to regard sec 92 as
including among its purposes the creation of private rights sounding in damages. 76
56.
The assumption that this analysis applies to all constitutional limitations on legislative and
executive power was affirmed in Lange v Australian Broadcasting Corporation77 and
reaffirmed again in the Stolen Generations Case where Brennan CJ, Toohey and Gaudron
JJ, substantially supported by Gummow J, held that even if the provisions authorising the
forced removal of Aboriginal children from their homes were unconstitutional, any
resulting entitlement to damages would depend on the ordinary principles of tort law.
There is no cause of action against the Commonwealth or its officers for breach of
constitutional rights.78
57.
This reflects a major limitation in the ability of the Constitution to protect and bring
justice for an encroachment of an individual’s right to freedom of religion and belief.
Conclusion
58.
On the basis of the above analysis, Just Fair Treatment submits that section 116 of the
Constitution does not provide the means necessary to protect freedom of religion and
belief. The courts have interpreted the protections people can rely on to declare a law
unconstitutional under the section very narrowly. This precedent, as well as the high cost
of litigation, makes it difficult to change this interpretative approach and to read section
116 in light of protecting fundamental personal rights. Amendments to the Constitution
are also unlikely. Thus the ability of section 116 to protect the freedom of religion, now or
in the future, is extremely limited. This strengthens the need for well considered
legislation at the federal and state levels that provide comprehensive protection to freedom
of religion and belief.
72
Ibid, 298.
Tony Blackshield & George Williams, Australian Constitutional Law and Theory, (3rd ed, 2002), 1092.
74
(1971) 403 US 388.
75
(1939) 62 CLR 339
76
James v Commonwealth (1939) 62 CLR 339, 362 (Dixon J).
77
(1997) 145 ALR 96.
78
Tony Blackshield & George Williams, n 32, 1094.
73
18
Question 4.1: Security issues in the aftermath of September 11
59.
Just Fair Treatment believes that some of the new anti-terrorism laws, passed since 11
September 2001, contribute to a social stigmatisation suffered by people of Arab-Islamic
appearance. In this part of the submission, we identify the aspects of the legislation that
have manifestly induced social stigmatisation of certain religious groups and hence
inhibited their freedoms.
60.
Just Fair Treatment recommends education programs and certain legal amendments to
alleviate the unjustified discriminatory impact of these laws on religious expression in
Australia.
Social impact of terrorism amendments
61.
The negative perception of Muslims is partly a result of the context in which the terrorism
amendments were produced. The legislative amendments were largely passed in response
to an ‘Arab-Islamic’ threat of terrorism.
62.
Social policy measures that mitigate the negative perception of Muslims in Australian
society are needed to help Australians differentiate between non-threatening Islamic
worship and that which may jeopardise national security; the key distinction being
discernible with reference to espoused belief rather than generic religious adornment.79
63.
Research by Poynting in 2004 has confirmed the occurrence of regular, and in some cases
increasing, discrimination against presumed phenotypical Muslims.80 For example, as
Poynting notes, in addition to repeated assaults on Islamic women wearing headscarfs and
also against men of Middle Eastern appearance, there have been similar complaints of
discriminatory conduct against turbaned Sikh men, who are part of an entirely distinct
religious and ethnic group.81
64.
The introduction of anti-terrorism legislation has created and solidified social fear of an
‘Arab other’82 such that any icon of difference can be seen as a direct challenge to the
dominant Australian cultural group.83 Research has shown that representations of the
Daniel Pipes, ‘Islam and Islamism faith and ideology’ (2002) 18 (1) Policy [22-26]
<http://search.informit.com.au.viviena.library.unsw.edu.au/fullText;dn=20022378;res=AGISPT> at 25
November 2008.
80
Scott Poynting, ‘Living with racism: the experience and reporting by Arab and Muslim Australians of
discrimination, abuse and violence since 11 September 2001’, Report to the Human Rights and Equal
Opportunity Commission, (2004) Isma Listen: National Consultations on Eliminating Prejudice Against Arab
and Muslim Australians,<http://www.hreoc.gov.au/racial_discrimination/isma/report/index.html> at 25
November 2008.
81
Scott Poynting, ‘Living with racism: the experience and reporting by Arab and Muslim Australians of
discrimination, abuse and violence since 11 September 2001’, Report to the Human Rights and Equal
Opportunity Commission, (2004) Isma Listen: National Consultations on Eliminating Prejudice Against Arab
and Muslim Australians,<http://www.hreoc.gov.au/racial_discrimination/isma/report/index.html> at 25
November 2008.
82
Scott Poynting, ‘Living with racism: the experience and reporting by Arab and Muslim Australians of
discrimination, abuse and violence since 11 September 2001’, Report to the Human Rights and Equal
Opportunity Commission, (2004) Isma Listen: National Consultations on Eliminating Prejudice Against Arab
and Muslim Australians,<http://www.hreoc.gov.au/racial_discrimination/isma/report/index.html> at 25
November 2008.
83
Michael Humphrey, ‘Culturalising the abject : Islam, law and moral panic in the West’ (2007) 42(1)
Australian Journal Of Social Issues [9-25]
79
19
Islamic community in popular media have further compounded these negative social
attitudes.84
65. The Commonwealth Government’s response to September 11 and later terrorist attacks,
by enacting terrorism legislation without addressing its potential social consequences on
religious communities, has therefore created social conditions that restrict moderate
Islamic worship in Australia.
Problematic aspects of terrorism legislation
Religious belief as an element of a terrorist offence
66.
The terrorism amendments criminalise acts connected to a religious cause, terrorist
training and association with prescribed terrorist organisations. For example, section 100.1
in the Commonwealth Criminal Code Act 1995 defines a terrorist act as follows:
Terrorist act means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political,
religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or
a State, Territory or foreign country, or of part of a State, Territory or foreign country;
or
(ii) intimidating the public or a section of the public…
67.
Explicit reference to religious conduct as an element of a criminal terrorist offence, in the
context of a politicised Arab-Islamic terrorist threat, has the social consequence that
ordinary Islamic religious practice may be viewed as criminal and threatening. This
problem is exacerbated by a lack of education programs to help the public to differentiate
between the use of Islamic teaching and symbols as justification for violence, and the
peaceful practice of the Islamic religion.
68.
While the anti-terrorism laws prima facie apply equally to all people in Australian society;
the context in which they were enacted give rise to unequal social conditions that make
indirect discrimination against Arab-Islamic religious worship more likely.
Recommendations
<http://search.informit.com.au.viviena.library.unsw.edu.au/fullText;dn=20071912;res=AGISPT> ISSN at 25
November 2008.
84
Peter Manning, ‘Media Representations of Arabs and Muslims in an “Age of Terror”’, Australian Arabic
Council, <http://www.aac.org.au/media.php?ArtID=67> at 23 December 2008; Barbara Perry and Scott
Poynting, ‘Climates of hate : media and state inspired victimisation of Muslims in Canada and Australia since
9/11’ (2007) 19(2) Current Issues In Criminal Justice; [ 150-171]
<http://search.informit.com.au.viviena.library.unsw.edu.au/fullText;dn=20080718;res=AGISPT> at 19
November 2008.
20
69.
The popular terrorist stereotype promulgated by the media, that terrorists appear as ArabIslamic, must be directly addressed. Two practical suggestions are to implement
information and education campaigns, and to review the effectiveness of legal protections
of religious freedom.
70.
Information and education campaigns are an effective policy response because they can
diffuse the stigmatisation of Islam and its icons by promoting an understanding of the true
nature of Islam and Muslim people. These campaigns are most effective when
administered at all levels including primary and secondary school, media advertisements,
geographically-diversified community programs and high-level political representations of
what constitute ‘Australian values’.
71.
These measures would support existing education programs. For example, in 2007 the
federal Government announced an eight million dollar commitment to establish a National
Centre of Excellence for Islamic Studies to encourage knowledge and understanding of
Islam. In addition to this, a comprehensive information program touching all education
institutions is required to overcome systematic discrimination.
72.
Media campaigns are also required.85 The Islamic Council of Australia awards journalists
for sensitivity towards the Islamic community and efforts to encourage journalists to
provide balanced media regarding religious minorities have experienced a degree of
success.86 Once again, such efforts need to be supplemented by larger media campaigns
and political support to achieve the social goal of overcoming the social stigma fostered
by the terrorism amendments.
Review of legal mechanisms protecting religious freedoms
73.
Legal mechanisms protecting religious freedoms are most effective where they do not
involve processes that intimidate or humiliate the victim. Poynting estimated from his
consultations in 2004 that only 6.5% of victims of religious discrimination reported this to
the police. Levels of reporting to other bodies such as the Ombudsman were even lower.87
74.
This suggests the need for a system that facilitates the opportunity for victims to report to
representatives of their own gender, religious and community background and in nonconfrontational circumstances.
75.
Poynting further noted in 2004 that the peculiar categorisations of religions in current
jurisprudence meant that victims of discrimination on the basis of their Islamic observance
alone were not protected by anti-discrimination legislation. This is because, unlike Sikhs
or Jews, Islam is yet to be recognised by the courts as falling within the scope of the
See Barbara Perry and Scott Poynting, ‘Climates of hate : media and state inspired victimisation of Muslims in
Canada and Australia since 9/11’ (2007) 19(2) Current Issues In Criminal Justice; [150-171]
<http://search.informit.com.au.viviena.library.unsw.edu.au/fullText;dn=20080718;res=AGISPT> at 19
November 2008.
86
Barbara Perry and Scott Poynting, ‘Climates of hate : media and state inspired victimisation of Muslims in
Canada and Australia since 9/11’ (2007) 19(2) Current Issues In Criminal Justice; [ 150-171]
<http://search.informit.com.au.viviena.library.unsw.edu.au/fullText;dn=20080718;res=AGISPT> at 19
November 2008.
87
Scott Poynting, ‘Living with racism: the experience and reporting by Arab and Muslim Australians of
discrimination, abuse and violence since 11 September 2001’, Report to the Human Rights and Equal
Opportunity Commission, (2004) Isma Listen: National Consultations on Eliminating Prejudice Against Arab
and Muslim Australians,<http://www.hreoc.gov.au/racial_discrimination/isma/report/index.html> at 25
November 2008.
85
21
Racial Discrimination Act 1975 (Cth).88 An assessment of legal mechanisms available to
those suffering discrimination on the basis of their falsely presumed ‘terrorist’ phenotype
is required.
Conclusion
76.
A range of policy measures is required to counter-balance the unintended stigmatisation of
religious expression in Australian society. These include measures to increase awareness
and understanding of non-threatening religious observance such as through education
programs, media campaigns and political efforts. Assessment of the legal protections is
required in order to ensure that those discriminated against have realistic access to
remedies.
Question 7.3: How can the cultural aspirations and human rights
of Aboriginal and Torres Strait Islanders be met?
Cultural aspirations of Indigenous peoples
77.
The significance of land to the Aboriginal and Torres Strait Islander peoples has been
documented.89 It is not confined to ownership of the land simpliciter, but spans the
protection, preservation, custodianship,90 respect, reverence, recording, acceptance,
appreciation, and recognition91 of land. Just Fair Treatment supports the preservation and
recognition of Indigenous religious and cultural expression in Australia, and recognises
the inherent connection Indigenous people have with land.
International treaties
78.
International human rights law increasingly recognises and urges the preservation of
Indigenous religious and cultural expression. Article 18 of the International Covenant on
Civil and Political Rights92 provides for freedom of religion generally and a freedom to
manifest a religion, while Article 12 of the Declaration on the Rights of Indigenous
Peoples (“DRIP”) strengthens the right to maintain, protect, and have private access to
their religious and cultural sites, the right to the use and control of ceremonial objects, and
imposes an obligation on the State to enable access and/or repatriation of ceremonial
objects in their possession. While Australia was one of only four States that voted against
Scott Poynting, ‘Living with racism: the experience and reporting by Arab and Muslim Australians of
discrimination, abuse and violence since 11 September 2001’, Report to the Human Rights and Equal
Opportunity Commission, (2004) Isma Listen: National Consultations on Eliminating Prejudice Against Arab
and Muslim Australians,<http://www.hreoc.gov.au/racial_discrimination/isma/report/index.html> at 25
November 2008.
89
Larissa Behrendt, Achieving Social Justice (2003) at 34.
90
Larissa Behrendt, Achieving Social Justice (2003) at 34.
91
Lorraine Inje, Chairperson, Aboriginal Language Centre, quoted in Australian Reconciliation Convention,
Book 3: Human Rights and Indigenous Australians, Proceedings of the Australian Reconciliation Convention,
26-28 May 1997 (1997). G Yunupingu, ‘What the Aboriginal People Want’, The Age (Melbourne), 26 August
1987; reprinted in B Attwood and A Markus (eds), The Struggle for Aboriginal Rights: A Documentary History
(1999) at 314.
92
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] ATS 23,
art 18 (entered into force 23 March 1976).
88
22
the DRIP in the UN General Assembly, prior to the 2007 election the ALP indicated its
support for the Declaration.93
79.
In short, Australia has a special obligation to protect and foster religious and cultural
expression among Australian Indigenous peoples. As Battiste and Henderson state:
Discrimination with respect to the ownership of property, individually or collectively is
proscribed by article 5(d) of the International Convention on the Elimination of All
Forms of Racial Discrimination (1965). A government’s failure to protect Indigenous
peoples’ collective rights to their heritage may be discriminatory, if this failure is
justified by the argument that Indigenous peoples have a lesser right than the state or
museums and academic institutions.94
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
80.
The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(Cth) (“the Act”) is to preserve and protect from injury or desecration “areas and objects
that are of particular significance to Aboriginals in accordance with Aboriginal
tradition”.95 Indigenous people can ask the Minister to make a declaration to protect an
area or an object which is under threat of injury or desecration. Declarations can be short
term or long term, and it is a criminal offence to breach such declarations. The Act is
concerned with protection of areas and has no direct effect on native title or land rights
claims; rather, it provides a distinct function in the protection and preservation of areas
and objects.96 The Act was originally designed as a temporary measure, proposed to last
for two years. However, the Act has hardly changed since its enactment, apart from the
repeal of the sunset clause.97
The Evatt Report
81.
A comprehensive review of the Act was undertaken in 1996 by the Hon. Elizabeth Evatt.98
The Review received almost 70 submissions and conducted consultations with community
groups around Australia. It identified systemic problems with the Act and made
recommendations to the federal parliament to resolve these issues.
82.
Of those issues identified, the most prominent include: uncertainty and delays in decision
making, fair procedures not spelled out (reliance was placed on Federal Court decisions
for clarification of procedures), delays and costs to development planning processes, lack
of Aboriginal involvement and respect for custom (for example, confidentiality of
spirituality and beliefs). These issues remain unresolved; for example, an applicant
petitioned the Minister in March 2001 to make a declaration over Angel’s Beach in
Jenny Macklin (Shadow Minister for Indigenous Affairs and Reconciliation), ‘International Declaration on the
Rights of Indigenous Peoples’ (Press Release, 14 September 2007).
94 Marie Battiste and James Y. Henderson, Protecting Indigenous Knowledge and Heritage (2000) at
174.
95
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 4.
96
The Hon. Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(1996) (“the Evatt Report”) at 7.
97
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 33, repealed by Aboriginal and
Torres Strait Islander Heritage (Interim Protection) Amendment Act 1986 (Cth).
98
The Hon. Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(1996).
93
23
Ballina under s 10 of the Act and the decision against the applicant was not made until
December 2003, 21 months later.99
Privacy and respect for Indigenous cultural knowledge and property
83. The importance of confidentiality of Indigenous spirituality and beliefs, and the
preference or need for secrecy about the existence and significance of a sacred site is often
underestimated by non-Indigenous people.100 Ensuring restrictions on knowledge
associated with sacred areas, sites, and objects is critical to ensuring that Indigenous
people retain the capacity to maintain and practise their religion. As the Evatt Report
encapsulates:
By failing to protect restricted information, or by requiring Aboriginal people to
divulge information against their traditions, heritage laws have contributed to the
desecration of what they were specifically designed to protect.101
84.
The Evatt Report recommended national standards for the protection of restricted
information, minimising the information required to be divulged and introducing a public
interest test for exemption of disclosure of restricted information.102 This, however, is only
a ‘bandaid’ remedy specific to heritage protection that does not address the broader issue
of protection of confidential Indigenous beliefs and spirituality.
85.
The issue of confidentiality within traditional laws and customs of Indigenous groups has
been addressed in a number of Australian Law Reform Commission (“ALRC”) reports,103
including the Privacy Report. In its 2008 report, the ALRC recommended that the federal
Government undertake an inquiry to consider whether further (presumably, sui generis)
legal recognition and protection of cultural rights is required, and the form it should
take.104 The ALRC was concerned that Australian law currently provides inchoate and illadapted mechanisms for protecting Indigenous cultural knowledge and property: privacy
rights, relating to the “identity, dignity and autonomy of Indigenous people”; or
intellectual property, protecting “laws and customs… expressed through music, dance,
song, ceremonies, symbols and designs, narratives and poetry.”105
86.
Intellectual property has been described by a Justice of the High Court of Australia as “illequipped to provide full protection of the kind sought”.106 Privacy laws currently do not
exist to protect the collective interests of Indigenous people in restricting the
dissemination and use of Indigenous cultural knowledge, although the broadcaster SBS
has developed Independent Indigenous Protocols to protect and respect knowledge
Anderson v Ballina Shire Council [2006] NSWLEC 76 at [57] – [61] (Cowdroy J).
The Hon. Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(1996) at 48.
101
The Hon. Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(1996) at 48.
102
The Hon. Elizabeth Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(1996) at Recommendations 4.1 – 4.4, 7.3 – 7.5.
103
Australian Law Reform Commission, The recognition of Aboriginal customary laws, ALRC 31 (1986) at
[213]; Australian Law Reform Commission, Equality before the law: justice for women, ALRC 69 (1994) at
[5.29]; Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice –
Privacy Beyond the Individual, ALRC 108 (2008) at [7.24].
104
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice – Privacy
Beyond the Individual, ALRC 108 (2008) at [7.24], [7.50], Recommendation 7-2.
105
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice – Privacy
Beyond the Individual, ALRC 108 (2008) at [7.25].
106
Western Australia v Ward (2002) 213 CLR 1 at [582] (Kirby J).
99
100
24
restrictions.107 The inability of the Anglo-Australian legal system to accommodate the
needs of Indigenous people has been explained by McRae, Nettheim, and Beacroft:
Indigenous legal systems revolve around group rights and group control, whereas the
Australian legal system has developed out of a more individualistic tradition, with
greater emphasis on personal rights and freedoms.108
87.
The ALRC considered that further inquiry ought to be undertaken as to whether a sui
generis legal mechanism should be designed to protect Indigenous cultural knowledge and
property. Just Fair Treatment endorses this recommendation.
Recommendation on dealing with failures
88.
The Australian Government should follow the recommendations made by the Evatt
Report, and which are designed to reform the Aboriginal and Torres Strait Islander
Heritage Protection Act 1984 (Cth). Those recommendations would simplify the
procedures in the Act, making them more inexpensive, while also setting down clear
statutory guidelines for the Act’s procedure.
89.
Given the gaps in the legal protection of Indigenous cultural and spiritual knowledge,
beliefs and practices, the Australian Government should undertake an inquiry, as
recommended by the Australian Law Reform Commission in 2008, to consider how best
to protect in law the cultural rights of Indigenous people.
Question 7.8: Should religious organizations (including religious
schools, hospitals and other service delivery agencies) exclude
people from employment because of their sexuality or their sex
and gender identity?
90.
The need to afford meaningful protection to the principle of freedom of religion often
highlights the tension that arises when religious principles are not in accord with other
human rights. Many religions condemn homosexuality and advocate differential treatment
of the sexes. The principle of non-discrimination in Australia109 can assist religious
minorities by protecting them against vilification, but insisting that religious bodies do not
discriminate may in some cases interfere with their right to ‘manifest…religion or belief
in teaching, practice, worship and observance’.110
91.
It is necessary to achieve a balance when assessing these competing rights. The starting
point is that the right to freedom of religion and belief should only be “subject 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”. 111 The right of
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice – Privacy
Beyond the Individual, ALRC 108 (2008) at [7.32].
108
H McRae, G Nettheim and L Beacroft, Indigenous Legal Issues (1997) at 136, quoted in Australian Law
Reform Commission, For Your Information: Australian Privacy Law and Practice – Privacy Beyond the
Individual, ALRC 108 (2008) at [7.26].
109
See, eg, Racial Discrimination Act 1975 (Cth) and Anti Discrimination Act 1977 (NSW)
110
Article 18(3) International Covenant on Civil and Political Rights [1980] ATS 23
111
Article 18(3) International Covenant on Civil and Political Rights [1980] ATS 23
107
25
citizens to equality before the law112 and the right to freedom from discrimination are some
of the most fundamental human rights, providing basic norms with which to guide the
conduct of states in all interactions with citizens. Freedom of religion cannot be absolute.
It must, to some extent, cede to the recognition of these other rights.
92.
Fundamental to the principle of freedom of religion, is that the state should avoid
wherever possible interfering in the private or religious sphere, and where such
interference is warranted, the state must be careful to do so only to the minimum extent
necessary to pursue another lawful end. Regulation of the internal domain of religious
communities may compromise their right to self-determination, as well as the individual’s
right to freedom of religion.113 The central dilemma is that of the private-public divide, and
where the line should be drawn in the state’s relations with its citizens. It is a fundamental
principle of liberal political theory and human rights law that equal treatment should apply
in the state’s interactions with its citizens. If discrimination laws are not equally applied to
all groups in the public sphere, then this principle may be compromised.
Australia’s Legislative Regime
93.
In NSW, the Anti-Discrimination Act 1977 (NSW) does not apply to “private educational
authorities” employing individuals in the areas of sex discrimination, 114 transgender
discrimination, disability discrimination and homosexuality discrimination. The Sex
Discrimination Act 1984 (Cth) (SDA) provides exemptions for educational institutions
established for religious purposes, and for religious bodies.115 This means that such
institutions are not prohibited from discriminating in the area of employment on the
ground of sex, marital status or pregnancy. The section notes that the exemption is
available “if done in good faith in order to avoid injury to the religious susceptibilities of
the adherents of that religion or creed.”116 The exemption similarly applies to religious
bodies that administer health and other services in the community.
Analysis
94.
Reports discussing this exemption have noted that it was included as a product of political
convenience designed to ensure the passing of the SDA 117 and no longer reflects current
discrimination law jurisprudence and community standards.
95.
Considering the level of funding that non-government schools receive under
Commonwealth funding arrangements, which accounts for approximately 30 percent of
their total revenue,118 to provide a special exemption from the discrimination provision that
applies to all other bodies and persons in the public sector requires strong justification. All
bodies receiving resources from the state should prima facie be required to comply with
112
Article 26 International Covenant on Civil and Political Rights [1980] ATS 23
van der Vyver, J. ‘Freedom of Religion or Belief and Other Human Rights’ in Facilitating Freedom of
Religion or Belief; A Deskbook (2004) Martinus Nijhoff Publishers 99
114
Section 25(3)c) of the Anti-Discrimination Act 1977 (NSW).
115
Sections 37 and 38 Sex Discrimination Act 1984 (Cth)
116
Section 38 ss (1) & (2) Sex Discrimination Act 1984 (Cth)
117
See, eg, Sex Discrimination Commissioner Report; Review of Exemptions (1992). This Report recommended
that the exemption be abolished within three years. See also the report of the Senate Standing Committee on
Legal and Constitutional Affairs, ‘Effectiveness of the Sex Discrimination Act 1984 in eliminating
discrimination and promoting gender equality’ published December 2008. Accessed 19/12/08 at
http://www.aph.gov.au/senate/committee/legcon_ctte/sex_discrim/report/index.htm
118
Association of Independent Schools Website - http://www.isca.edu.au/html/funding_main.htm as at 18/12/08.
113
26
discrimination law. As it currently stands, the blanket exemption in s 38 applies to all staff
employed by religious organisations, regardless of their role in the propagation of faith or
religious instruction. It does not seem fair that religious service providers should be
allowed to discriminate in employment of all staff, including support staff.
96.
A test that reconciles competing interests should include an element of reasonableness in
the section. Such a proportionality test would be influenced by the impact that the activity
or person has on the religious activities and integrity of the organisation. Where the person
is only involved in the provision of services and not in religious instruction, the onus of
proof should be on the faith organisation to show that the exemption is warranted. The test
would eliminate discrimination where it is unjustifiable and preserve the right to employ
persons conforming to religious standards where they are relevant, necessary or inherent
in the description of the role. The more significant the impact on broader society of the
activity that the organization undertakes, the higher is the burden to show a real
justification. This would of course leave the private functions of religious organizations in
tact, such as ritual and the selection of religious leaders, exempt from the provisions.
97.
Although the autonomy model effectively separates the public from the private
sphere, it is clear that in a society where more services are being provided by the private
and religious sector, the money that they accept from Federal and State Governments
already compromises this autonomy. Religious organizations can exercise their
independence by refusing public funding, and thus retain total autonomy from
discrimination law.119 This need not be an inflexible principle, and exemptions may be
necessary when most funding is provided by the institution, however there should be an
obligation on the religious organization to justify in good faith why they should be exempt
from anti-discrimination law in respect of each of the activities for which they would like
an exemption. This ensures that the state treats all groups in society equally while
allowing flexibility for smaller interest groups.
Recommendations
98.
Just Fair Treatment makes the following recommendations:
(1) Abolish the exemption in 38 of the SDA. The equivalent State provisions should
be amended in the same way. A test of reasonableness should be inserted.
(2) When providing a service to the general public, religious institutions should have
to demonstrate that serious disadvantage to the integrity of their ability to deliver that
service, in accordance with the fundamental tenets of their religious belief, would
result if they had to abide by discrimination legislation. This would be formulated
into a proportionality test requiring organisations to justify why an exemption is
necessary to maintain the religious integrity of their organisation.
(3) As with all other anti-discrimination law, the legislation should be amended
to impose a positive obligation on employers not to discriminate on the basis of
sex, race, sexuality or disability. This would increase the effectiveness of all antidiscrimination legislation in Australia, provide clarity to employers and success
in claims for victims of discrimination.
Evans, C & Gaze, B. ‘Between Religious Freeodm and Equality’ (2008) 49 April 21, Harvard International
Law Journal Online http://www.harvardilj.org/online/136 as at 18/12/08.
119
27