Date: 
Wednesday 27 September 2017

Author

Mr Edward Santow, Human Rights Commissioner

Western Sydney Open Forum
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Acknowledgements

• Traditional Aboriginal owners: the Darug Nation
• Dr Sev Ozdowski AM

If you’ve read the papers or seen the news in the last few weeks, you might be forgiven for thinking that human rights are somehow radically incompatible with religion, or at least with ‘religious freedom’.

This couldn’t be further from the truth.  In fact, this evening I want to argue that not only are religion and human rights compatible with one another—they actually need one another in a modern, multicultural Australia.

Let’s begin with a bit of history.

In 1948, the world was reeling from the unimaginable horror of two world wars—the apotheosis of ‘man’s inhumanity to man’. The international community came together to find a new way to interact: one based on our shared humanity. This meant identifying the rights that needed protection in order recognise each person’s individual dignity. For example, the right to life, liberty, education and equality before the law—as well as the right to freedom of thought, conscience and religion.

The result has come to be known as the international bill of rights, with the Universal Declaration of Human Rights at the centre. It’s the basis of modern human rights laws, and it’s the standard against which governments are held to account—not perfectly, and not always consistently, but certainly persistently—by the human rights community in Australia and around the world.

There was strong support for the Declaration from many religious leaders and religious communities in 1948, in part because it affirmed something that religious traditions had been insisting on for years: that, in the words of the preamble, ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace.’

Of course, we shouldn’t be pollyanna-ish: since 1948, some have claimed—falsely—that their religious belief justifies actions that violate human rights.

Multiculture and multifaith

Now let’s now jump forward almost 70 years to Australia today.

Australia—and particularly Western Sydney—is truly multicultural.  I know this can sound like a cliché, so it’s important to pause and reflect on what it means. Multiculturalism means more than just lots of people from different ethnic backgrounds living together. Instead, it involves each group being encouraged to hold on to—and share—what’s valuable about their own distinctive cultures and traditions. It’s a commitment to the idea that we’re all enriched by diversity; that culture and identity are not a zero-sum game.

But if we’re committed to multiculturalism, then we must also be committed to freedom of religion—because a multicultural Australia is also a multi-faith Australia.

Earlier this year we saw the results of the 2016 census. The headlines focused on the rise of the ‘no-religions’: almost 30 per cent of Australians now say they have ‘no religion’, and another nine per cent choose not to answer the question.

But just as interestingly, more than 60 per cent of Australians still identify with a religion—whether that be one of the Christian traditions, at 52 per cent; Islam at 2.6 per cent; Buddhism at 2.4; Hinduism at 1.9; Sikhism at 0.5; or Judaism at 0.4.

In a sense, from a human rights perspective, the numbers prove nothing. Freedom of religion is a human right whether there are a million people of faith, or a hundred, or one. Rights are not a numbers game.

But what the multi-faith make-up of Australia today tells us is that if a healthy, pluralistic society is the desired end, then freedom of religion will be an essential means to that end.

Freedom of religion in Australia today

So, how is freedom of religion respected in Australia today?

In 2014, the Commission surveyed the community on this question, and found that religious freedom is generally perceived as well protected in Australia.  However, some threats remain: for example, a level of anti-Semitism is regularly reported by Jewish communities. In the most recent statistics, the Executive Council of Australian Jewry recorded in one year 210 anti-Semitic incidents, including physical attacks, verbal abuse, harassment, vandalism and property damage.  Worryingly, the number of physical attacks in this period was up by 50 per cent from the previous year.

Patka case
Earlier this year in Victoria, a five-year-old Sikh boy, Sidhak, was not allowed to enrol in a Christian primary school unless he removed his patka—the turban worn by Sikh children.  For many Sikhs, removing the patka is simply not an option.  This strict policy was challenged under Victorian law. Last week, the Victorian Civil and Administrative Tribunal determined that the policy was discriminatory – at least as it applied to this boy.

The Tribunal’s reasoning here is interesting and, in a sense, highlights the difficult issues that arise in protecting religious freedom. The case is actually far more complex than it might appear at first blush, and we should be clear about one thing that the Tribunal did not say. The Tribunal did not say that it was inherently discriminatory for a Christian school to organise itself and its pupils in accordance with Christian values, doctrines, tenets or beliefs.

Crucial to the Tribunal’s decision was that the school accepts children who are Christian as well as those who are not Christian. Also, in setting its strict uniform policy, which prohibited manifestations of other religions, the Tribunal determined that the school had not consulted the broader school community.

In view of these facts, the Tribunal concluded that it was ‘not reasonable to accept enrolment applications from students from non-Christian faiths only on condition that they do not look like they practise a non-Christian religion’.

Central to its decision was the Tribunal’s assessment that imposing this policy would have a disproportionate, negative impact on Sidhak. The Tribunal emphasised that the school had failed to show that ‘prohibiting head coverings of a non-Christian faith’ would actually achieve the goal the school claim its uniform policy was promoting: to foster ‘uniformity, inclusivity and protection from inadvertent discrimination’. The Tribunal also referred to a number of other concerns including that it would be ‘a reasonable adjustment’ to its uniform policy to allow Sidhak to wear a patka in the same colour as the school uniform.

The Tribunal seems to be saying that the school couldn’t have its cake and eat it. If a Christian school (and we can assume this would apply to any other school faith) opts to accept children who adhere to other faith traditions, then it is reasonable to expect such a school to try to accommodate a child (and the child’s parents) in how they manifest another faith.

I should emphasise again that this case was decided under Victorian state law. As Australia’s federal law does not specifically prohibit discrimination on the basis of a person’s religion, a court is likely to approach this issue differently.

Experience of the Muslim community
Australia’s Muslim communities also report rising levels of negative attention.  In September 2014, an Islamophobia Register was launched, where Muslims could report incidents of abuse and discrimination.  243 verified incidents were logged in the first 14 months of operation.

It’s important to remember that these are not simply statistics—there are real people behind every number.  One Muslim woman who had been verbally abused and pelted with eggs said:  ‘I’m shocked, saddened, angry and just heartbroken right now.’ 

Another victim of verbal abuse and intimidation reported that no-one stopped to help or defend her. She said: ‘[E]veryone else who was walking kept their heads down and moved away… Since the incident I have had trouble sleeping, had trouble with mood regulation, been hypervigilant and have had to take extra safety precautions that I shouldn’t have to take.’  A Muslim mother said:  ‘I know for a fact my daughter will no longer catch a bus or train home.’

Calls to ‘Ban the Burqa’; opposition to planning applications for mosques; verbal abuse of visibly Muslim people, particularly women, in public places; and anti-Muslim sentiments expressed at the highest levels of public life, including in the federal parliament, affect all Muslims—and they add up to a genuine threat to religious freedom in Australia.

So, what can be done?

As a lawyer, my instinct is to ask whether our law needs to change. As I mentioned a moment ago, our federal law prohibits discrimination on the basis of a person’s race but there is only limited protection against discrimination on the basis of a person’s religion. This means, for example, that if a Muslim Indian woman is refused a rental property because she is Indian, this will be unlawful discrimination; if she’s refused because she’s a woman, this is also likely to count as unlawful discrimination; but if she’s refused because she’s a Muslim, it is not.

Some state and territory laws do protect against religious discrimination, and so we should at least acknowledge the incongruity in our federal law, and ask whether religious discrimination should be unlawful.

But no human right is adequately protected by the law alone. When it comes to freedom of religion, it matters how people of faith are spoken about in politics and the media.

We should respect freedom of religion by rejecting the kinds of false and damaging claims that are sometimes made about religion, especially Islam. All too often we hear that there’s an intrinsic link between a particular religion and violence, or that a religion is nothing more than a mask for a violent political ideology.

These claims are not only false; they’re dangerous. The genocidal history of the twentieth century should make us wary of blanket slurs against entire groups of people.

Freedom of religion and anti-discrimination

Of course, freedom of religion must not only be protected; it must also be balanced against other rights. This doesn’t mean that freedom of religion is a ‘second order right’. In fact, in international law the right to freedom of religion is ‘non-derogable’, which means it can never be suspended, even in a time of public emergency.

But—and here’s where it gets tricky—international human rights law does distinguish between the freedom to hold a particular religion or belief, which is absolute, and the freedom to manifest one’s religion or belief in conduct, which is not.

This is a difficult distinction. Many people of faith report that it’s hard to see the point of holding a belief if they can’t also act on it. Religion, after all, is supposed to shape one’s daily life.

But that’s not in fact what the law is saying.

The International Covenant on Civil and Political Rights provides that freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Of course, determining when this is the case can be difficult. Any effort to do so will be fiercely contested. Our consultations show that some people in Australia today think freedom of religion is too often protected at the expense of other rights; while others believe it’s too often compromised in the name of those rights.

These tensions are particularly evident when it comes to balancing the right to freedom of religion with the right not to be discriminated against on the grounds of gender, race or sexual orientation. And the problem comes into sharp relief in the current debate about marriage equality.

Marriage equality

The first thing to say is that the Commission is not a neutral observer. We have a position: civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation, gender identity or intersex status.

There’s a growing consensus on this question overseas. The right to equality has become increasingly influential in parliaments and courts in countries like the US, UK, New Zealand, Canada and, recently, Germany. Now, all of these countries allow two adults to marry regardless of their sex or gender.

In short, the Human Rights Commission supports marriage equality. We think this is necessary to promote the fundamental human rights of equality before the law and non-discrimination.

We know some disagree. Some argue in favour of the current legal definition of ‘marriage’, and say that not all discrimination or differential treatment is inherently unjust.

Some go further, and argue that a change in the Marriage Act would violate their freedom of religion in a special way.  It’s important not to dismiss concerns about freedom of religion in Australia; but nor should we assume that religious freedom and marriage equality are mutually exclusive.

The most recent parliamentary inquiry that considered this issue produced a unanimous, multi-party report. The report made clear that any bill to amend our marriage law would also protect freedom of religion. In particular, the report made crystal clear that no religious minister – that is, no priest, imam, rabbi or other religious leader – would be required to solemnise a same-sex marriage if it contravened the religious minister’s faith.

This is an important compromise. It means that a religious minister will be guided by their faith alone in determining whether to solemnise a marriage between two women or two men.

Some people have sought to channel the debate about marriage equality into a broader debate about the religious freedom of individuals and organisations.  It’s important to stress that the multi-party parliamentary committee that reported earlier this year sought to apply the same approach to religious freedom that has applied since the Sex Discrimination Act was passed in 1984. Just as a religious organisation can provide accommodation, goods and services, education and employment in accordance with the doctrines, tenets or beliefs of their own faith, this approach means that a religious organisation would also be able to solemnise marriages on the same basis. 

There’s an important distinction between religious and civil marriage. While I respect that there are differing views on this issue, I believe that stopping same-sex couples from engaging in civil marriage is a disproportionate restriction on equality.

It’s also important to point out that the divide in this debate is sometimes presented in simplistic terms. Not everyone who opposes marriage reform is religious, and not everyone who is religious opposes this reform.

In 2011, Australians for Marriage Equality commissioned Galaxy Research to determine support for civil marriage equality. 53 per cent of people who identified as Christian supported same-sex couples being allowed to marry. Earlier this year, Galaxy Research conducted a further poll on behalf of Parents and Friends of Lesbians and Gays, and the results were almost identical, with 54% of people who identified as Christians supporting marriage equality.

The voices of people of faith who also happen to identify as LGBTI have sometimes been missing from the national debate. This is beginning to change, and it’s vital that these voices and concerns continue to be heard, not least because LGBTI people of faith fall into some of the higher risk categories of poorer mental health outcomes.

Common causes

It would be a great pity if we allowed the bruising debate on marriage to divide us as a community – especially on religious versus secular lines.

Religious traditions offer some powerful ways of thinking about what it means to be human, and what a ‘common humanity’ might look like in practice.  Religious traditions have long insisted that every human being possesses intrinsic value, and that no human being exists simply to be used or exploited by others.  In other words, every human being has value, worth and dignity simply by virtue of being human—which is another way of saying that every human being has rights.

It’s no wonder, then, that the Commission and contemporary Australian religious communities share many of the same goals. As Human Rights Commissioner with responsibility for freedom of religion, I’m particularly eager to find ways we can work with religious communities on areas of common concern.

These may include matters related to poverty, indigenous rights, prisons, refugees and global religious persecution—all areas where religious individuals and communities are actively working to protect human dignity and promote human rights, even if they don’t use that language.

To take just one example: recently, 18 Australian religious leaders wrote to the Prime Minister, Malcolm Turnbull, urging him to enact a Modern Slavery Act in Australia. These included very senior Muslim, Buddhist, Christian, Jewish and Hindu leaders.

These faith leaders pointed out that 45 million people still live under conditions including slavery, human trafficking, forced labour, debt bondage, organ trafficking, forced or servile marriage, and the sale of and exploitation of girls, boys, women and men.

This is of deep concern to anyone whose faith tradition tells them that every human being is sacred and inviolable. And it directly contradicts Article 4 of the Universal Declaration of Human Rights, which states that ‘no-one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’

A Modern Slavery Act would help to ensure that the goods and services we consume in Australia are not produced on the back of slave labour. And this is just one example of an area of potential collaboration between the religious and human rights communities.

Conclusion

To return to my beginning: freedom of religion is not only a human right. It’s an essential ingredient in a successfully multicultural Australia. Promoting this freedom is a task for people of all faiths and none.

At the same time, we must acknowledge that rights sometimes sit in tension with one another.  This is true of all rights, not just freedom of religion. As Human Rights Commissioner, I’m very concerned that the occasional moments of tension between competing human rights don’t overshadow opportunities for cooperation between religious communities, the Commission and the broader human rights community.

Religion and human rights are certainly not foes—and nor should they simply pass each other like ships in the night.  I believe that if there is not a close dialogue between religious traditions and the human rights community, both sides stand to miss out.

The human rights community will miss out on the input of one of its founding influences, and be denied a rich source of thinking and practice around what it means to recognise human dignity and serve human value.

And religious communities will miss out on the opportunity to help shape our common efforts to recognise in law and in practice what they have been preaching for so long: that every human being has an intrinsic dignity that must be protected and promoted.

And so the dialogue between religion and human rights must continue, and I’m grateful for the opportunity to help continue it this evening.

Address

Sydney NSW
Australia