Justifications for laws that interfere with freedom of religion

4.89       It is generally recognised that freedom of religion is not absolute. Instead, ‘it is subject to powers and restrictions of government essential to the preservation of the community’.[104] Legislatures and the courts will often have to strike a balance between so-called ‘equality’ rights like anti-discrimination, and other freedoms like freedom of religion:

As a practical matter, it is impossible for the legal order to guarantee religious liberty absolutely and without qualification … Governments have a perfectly legitimate claim to restrict the exercise of religion, both to ensure that the exercise of one religion will not interfere unduly with the exercise of other religions, and to ensure that practice of religion does not inhibit unduly the exercise of other civil liberties.[105]

4.90       An amicus brief by several legal academics to the US Supreme Court case of Obergefell v Hodges,[106] where a majority of that Court upheld the constitutional validity of state-based same-sex marriage legislation, canvassed an argument in favour of balancing different—sometimes competing—rights and interests:

The Court must protect the right of same-sex couples to marry, and it must protect the right of churches, synagogues, and other religious organizations not to recognize those marriages. This brief is an appeal to protect the liberty of both sides in the dispute over same-sex marriage … No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own … The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides.[107]

4.91       The common law provides some authority for when it may be justified to encroach on religious freedom. In Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth, Williams J stated that the scope of s 116 of the Australian Constitution may be limited in the interests of national security.[108]

4.92       Having said this, the common law provides no significant guidance on the limits of religious freedom in Australia. This may in part be due to Australia’s model of parliamentary supremacy:

Even suitably beefed up common law protection is incapable of dislodging the principle of state parliamentary sovereignty. Although a court intent on maximally protecting the common law right to freedom of religion might exhibit unusual reluctance to find that Parliament intended to invade the right, the presumption that Parliament does not intend to interfere with common law rights and freedoms remains rebuttable.[109]

4.93       Stakeholders expressed different perspectives on the scope of appropriate justifications for laws that interfere with religious freedom. Some argued that considerations of religious freedom will always involve a balance between other, competing rights and interests. For instance, Kingsford Legal Centre argued that a law which interferes with freedom of religion is justified if that law protects other important freedoms, such as the right to be free from unlawful discrimination.[110]

4.94       Similarly, the Law Society of NSW Young Lawyers wrote that

the right to freedom of religion is a fundamental right, but that right is not absolute, and needs to be finely balanced against competing rights, such as the right to be free from discrimination.[111]

4.95       Other stakeholders argued that freedom of religion should not be usurped by other rights or interests. For instance, Freedom 4 Faith argued that no limitations can be justified on the right to freedom of religion, warning that ‘religious freedom and associated rights are at risk of being undermined in Australian society due to a disproportionate focus on other, sometimes competing rights’.[112]

4.96       Similarly, the ACL wrote:

Courts and legislatures need to acknowledge the supremacy of the fundamental rights of freedom of religion, conscience, speech and association … [it is] a freedom which must be placed among the top levels of human rights hierarchy.[113]

4.97       Christian Schools Australia Ltd underscored ‘the need to balance rights’, while stressing that religious freedom should not merely be an ‘afterthought’.[114]

4.98       The Church and Nation Committee, Presbyterian Church of Victoria submitted that balancing freedom of religion with principles such as non-discrimination is ‘misguided’, stating that while religious freedom ‘is a fundamental underpinning of our society, freedom from discrimination is not’. They went on to argue that

Freedom from discrimination is not a fundamental human right because it is neither attainable nor universal. Discrimination—that is, to choose something or someone over another—needs to be a lawful part of a free society. To label non-discrimination as a ‘fundamental right’ is inherently misguided.[115]

4.99       Christian Schools Australia Ltd provided the following principles which, in their view, could be applied to test whether laws that interfere with freedom of religion are justified:

  • the importance of religious freedom should not be undervalued;

  • equity and balance must be sought;

  • Christian heritage must be acknowledged and respected;

  • minority views must be protected;

  • freedom to act on religious belief is essential; and

  • the limitations of the law must be recognised.[116]

4.100   There is a wide range of justifications advanced by legislatures for laws that interfere with freedom of religion, including but not limited to protecting people from discrimination in public life, preventing a greater harm, and limitations where laws directly interfere with other legal rights and freedoms. By way of example, there are cases where courts have allowed blood transfusions for a minor where their parents or guardians have refused on religious grounds.[117] Courts have not insisted on life-saving treatment where an adult has made the same decision to refuse life-saving treatment.

4.101   Stakeholders primarily focused on whether laws that interfere with freedom of religion may be justified if they advance the principle of non-discrimination. This issue is examined in more detail below.

Legitimate objectives

4.102   In considering how restrictions on freedom of religion may be appropriately justified, one starting point is the ICCPR. Article 18(3) provides that freedom of religion may be limited where it is ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

4.103   The UN Human Rights Committee has strictly interpreted art 18(3), indicating that general public interest criteria, such as national security concerns, may not be sufficient to justify interferences with religious freedom. [118]

4.104   On the issue of the religious and moral education of children, art 18(4) provides that States Parties must ensure ‘the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

Non-discrimination

4.105   Non-discrimination is one principle advanced to justify laws that limit freedom of religion. However, the way in which this principle is balanced with the often competing interest of religious freedom, is contested. For instance, stakeholder opinions diverged on the appropriate weight to be afforded to non-discrimination in the application of religious organisation exemptions.

4.106   On the one hand, several stakeholders stressed the importance of safeguarding the right to be free from discrimination when discussing appropriate limitations on religious freedom.[119] Kingsford Legal Centre and PIAC argued, for example, that existing exemptions for religious organisations undermine the Australian Government’s commitment to international law that protects vulnerable groups, such as women, from discrimination.[120]

4.107   Some stakeholders drew specific attention to the way that legislative provisions that protect religious freedom may undermine the rights or freedoms of lesbian, gay, bisexual, trans and intersex (LGBTI) Australians (primarily the right to be free from discrimination).[121]

4.108   Other stakeholders argued that freedom from discrimination should not be considered an equivalent right to religious freedom. For instance, the Church and Nation Committee argued that the ‘desire for equality’ is incompatible with religious freedom:

The problem is that freedom and equality are not mutually compatible. Unfortunately, we cannot all be free and completely equal at the same time. Freedom implies an inequality that goes hand-in-hand with difference. We cannot all be equal except in the eyes of the law. As a society we need to work out what we cherish more: freedom or equality.[122]

4.109   There is also an argument advanced by some stakeholders that the practices of religious organisations—such as in the areas of employment—lie outside the ‘commons’ or public sphere, and should thus be excluded from government intervention.[123] Dr Joel Harrison and Professor Patrick Parkinson defined the ‘commons’ as ‘places or encounters where people who may be different from one another in all kinds of respects, including gender, sexual orientation, beliefs and values, can expect not to be excluded’.[124] They highlighted voluntary associations, like book clubs, educational, voluntary, charitable, commercial and religious associations, as the kind of groups that exist beyond the ‘commons’.

4.110   Freedom 4 Faith also argued that religious organisations operate outside the ‘commons’, explaining that, like voluntary associations, religious groups should be able to set their own criteria for selecting members.[125]

4.111   International human rights law provides some guidance on the relationship between religious freedom and non-discrimination. Article 4 of the ICCPR provides that some ICCPR rights may be derogated from in times of public emergency, however States Parties must ensure that

such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

4.112   Anti-discrimination provisions in international human rights law may constitute a permissible limitation on religious freedom. Articles 2, 4, 21 and 26 of the ICCPR provide that the protection of individual’s rights must not be ‘without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, property birth or other status’.

Proportionality and religious freedom

4.113   Some stakeholders adopted a proportionality approach when assessing appropriate limitations on religious freedom.[126] PIAC recommended that the ALRC adopt a proportionality test when determining whether an infringement of religious freedom is justified. PIAC recommended that limitations are only reasonable where it is necessary and can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.[127]

4.114   Daniel Black also promoted the use of a proportionality approach to reconcile laws that require a balance between freedom of religion and other rights. He was highly critical of the justificatory processes employed by relevant parliamentary committees and government departments, arguing that

an adequate level of analysis isn’t always being provided by departments (including the Attorney-General’s department) putting forward human rights compatibility statements in a much more broadly considered approach (as per the APS code of conduct). Rather the current approach seems to avoid controversial areas to push though legislation advocated by the government of the day. As such considering statements of human rights compatibility to legislation without considering the responses of the Joint Parliamentary Committee on Human Rights reports and potentially parliamentary submissions is accepting a potentially biased view, especially on controversial topics.[128]

[104]       Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 149 (Rich J).

[105]       Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) 204. Some stakeholders disputed this balancing: see discussion below on non-discrimination.

[106]       Obergefell v Hodges 576 US (June 26, 2015).

[107]       Douglas Laycock, ‘Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger and Edward Gaffney as Amicus Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v Hodges Etc)’ [2015] Public Law and Legal Research Paper Series 1–2.

[108]       Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 161.

[109]       Denise Meyerson, ‘The Protection of Religious Rights under Australian Law’ 3 Brigham Young University Law Review 529, 542.

[110]       Kingsford Legal Centre, Submission 21.

[111]       Law Society of NSW Young Lawyers, Submission 69.

[112]       Freedom 4 Faith, Submission 23.

[113]       Australian Christian Lobby, Submission 33.

[114]       Australian Christian Schools Ltd, Submission 45.

[115]       Church and Nation Committee, Presbyterian Church of Victoria, Submission 26.

[116]       Australian Christian Schools Ltd, Submission 45.

[117]       See, eg, X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294. In this case, the New South Wales Supreme Court held that a 17 year old could not refuse life-saving therapeutic treatment on the basis of their religious belief, despite finding that the minor had ‘Gillick’ competency as a mature minor to refuse the treatment.

[118]       United Nations Human Rights Committee, General Comment No 22 (1993) on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 [8].

[119]       Law Society of NSW Young Lawyers, Submission 69; Maronite Catholic Society Youth Submission 51; NSW Gay and Lesbian Rights Lobby, Submission 47.

[120]       Public Interest Advocacy Centre, Submission 55; Kingsford Legal Centre, Submission 21.

[121]       National Association of Community Legal Centres, Submission 66; NSW Gay and Lesbian Rights Lobby, Submission 47.

[122]       Church and Nation Committee, Presbyterian Church of Victoria, Submission 26.

[123]       Freedom 4 Faith, Submission 23.

[124]       Patrick Parkinson and Joel Harrison, ‘Freedom beyond the Commons: Managing the Tension between Faith and Equality in a Multicultural Society’ Monash University Law Review 39.

[125]       Freedom 4 Faith, Submission 23.

[126]       Public Interest Advocacy Centre, Submission 30; D Black, Submission 6.

[127]       Public Interest Advocacy Centre, Submission 55.

[128]       D Black, Submission 6. For further discussion of parliamentary scrutiny mechanisms, see Ch 2.