Date: 
Wednesday 15 March 2017

Author

Edward.Santow

The lion and the lamb: freedom of religion in multicultural Australia

Affinity Intercultural Foundation: Lunchtime Lecture Series

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Introduction

Acknowledgements

  • Gadigal people of the Eora nation;
  • Ahmet Polat.
  • The Hon Ray Williams MP (NSW Minister for Multiculturalism, and Minister for Disability Services)
  • Dr Elizabeth Coombs, Acting NSW Privacy Commissioner

Australia is a wonderful country: warm, welcoming, open.

It’s the country my father’s father escaped to as the shadow of the looming Second World War was spreading over Europe. It’s the country my mother and her family fled to when the injustice of South Africa under apartheid became intolerable.

My family is a big, largely happy, often chaotic mixture of cultures, religions and languages – and I see that reflected in Australia’s own brand of multiculturalism.

My late father used to talk about our family’s motley religious heritage. Dad’s mother was Anglican; his step-mother was a Quaker; and Dad’s father, my grandfather, converted from Judaism to Quakerism not long after immigrating to Australia. My mother and her parents were Jewish and this, too, is an important part of my heritage.

Because things didn’t seem complicated enough, my wife is Catholic. It feels like, in religious terms at least, I’m closer than I’ve ever been to having a full collection…

There’s enormous diversity in Australia and we should be proud of how well we get along. Yet there are times when our commitment to embrace difference is tested.

In some ways, now might be one of those times. There appears to be increasingly combative rhetoric about the value of multiculturalism in Australia.

Sometimes it helps to keep perspective and a sense of proportion by looking to history. My mother’s family is from South Africa. She grew up in the era of apartheid – a racist ideology that was woven into the fabric of the country.

I was born here in Australia and so it’s hard to imagine what growing up in that country, in that period, was like. Racial segregation was everywhere: your skin colour determined where you could live; how, where and when you could travel; your school; which hospital you could go to; which beach. It even determined which set of bathrooms you had access to.

Segregation governed every aspect of a person’s life. And, needless to say, the justification that life in South Africa was ‘separate but equal’ was a blatant lie. The facilities and services available to non-white people were much, much worse.

At some level, apartheid implicated everyone living in the country. Even if you opposed the regime and the racism on which it was based, your life was so bound up in the apartheid system that you benefited from it or were disadvantaged by it – whether you wanted to be or not.

As an idealistic law student, I travelled to South Africa 15 years ago. The apartheid era was over and I wanted to do whatever small things I could to help in this newly-reborn rainbow nation.

I used to ask people what it was like living in the new South Africa. Many would talk movingly about their hopes to rebuild the country on the foundations of equality, justice and freedom.

A much smaller number of white South Africans felt a keen sense of loss regarding the changes that were taking place. Some would begin an observation by saying, “I’m not a racist but…”. What then followed was usually the sort of racist comment that was once common in apartheid-era South Africa.

Apartheid-era South Africa is an interesting counterpoint to modern-day Australia. We should remember that every major Australian political party rejects racism and embraces a more open, multicultural ethos. Our laws are designed to promote equality and prohibit discrimination on the basis of a person’s race, their disability, their gender etc. We should be proud of these things.

The place of religion in Australia

When I think of the place of religion in Australia, two different dimensions spring to mind:

  • there’s the outward-facing role of religion – the vital role that organised religion and people of faith play in helping people who are vulnerable or disadvantaged, especially in education, health and alleviating poverty; and
  • there’s a more inward dimension – religious observance and practice.

In the first dimension, religion is the protector of people’s basic dignity; in the second, religion itself needs protection.

And isn’t this how most of us live our lives? One moment, we are the lion; in another, we are the lamb.[i]

Returning to my original point, religion can be both a protector of dignity and in need of protection. I want to address each of those dimensions in turn.

Protecting the rights of detainees

We are daily assaulted with bad stories about what happens in places of detention in Australia. But I want to offer some hope.

The story starts with the federal Government’s decision last month – I’d be shocked if any of you were aware of it – to implement a treaty known as OPCAT. The treaty creates no new legal rights. Yet it could be the single most positive development this decade in improving conditions in all Australian places of detention.

What this treaty will do is to enhance how independent bodies inspect places of detention in Australia. The idea is to identify and address problems before they escalate into serious mistreatment and worse.

I mention this in part because people of faith have been at the forefront of identifying problems in prisons, immigration detention centres and other places where we detain people. One of the reasons I became interested in detention issues was because my father’s father opened his own home as a kind of informal ‘half-way house’ for people who had been released from prison.

We should be under no illusions about the scope of detention problems in Australia. Countless reports say we need to improve conditions of detention. Horrifying images, such as those broadcast last year from the Don Dale youth detention centre, show we must act now.

Terrible things can happen in detention. Yet, in Australia, mistreatment is almost never the result of a deliberate policy to do harm. Problems tend to be caused by something subtle but insidious: policies and practices that haven’t been properly thought through or reviewed.

One of the most haunting cases from my previous life as a lawyer concerned Mark Holcroft. Mark was a knock-about Aussie bloke: loved by his family and friends, and a bit rough around the edges.

Mark was sentenced to seven months’ prison for drink driving. After a few days of processing, he was transferred from Bathurst prison to a minimum-security facility to serve out the bulk of his sentence. The journey takes a few hours by prison van.

Not long into the journey, Mark was sick. Soon he was screaming in agony and frothing at the mouth. He and the other prisoners in the van pleaded for the officers to get medical help. Rigidly applying policy, the officers refused and the van drove on.

When they reached the destination, Mark had died of a heart attack. The inquest revealed the denial of medical care was a critical failure.

No one deliberately wanted to harm Mark, but system-wide problems needlessly put him at risk. For example, prisoners couldn’t easily communicate with corrections officers transporting them and prisoners often weren’t given the basic things – like regular food and water – that can keep people safe and well on long journeys.

Mark’s case led to change. But it received attention for the most tragic reason – because it was an inquest. OPCAT can help identify and address such problems before tragedy strikes.

When a person is detained – in prison; a mental health facility; anywhere – they remain human. Protecting their basic dignity is just as important as it was before they were detained. We should do it because it’s right.

But protecting a detainee’s basic rights is also in all our interests. If a person is brutalised in detention, they will be more dangerous on their release. By contrast, treating detainees humanely presents an opportunity for education, reform and healing.

Dostoevsky said that a community’s degree of civilisation can be judged by entering its prisons. And this is true.

But it’s not enough just to go inside. We need to get our hands dirty; to work within the system to make sure we live up to the standards we have set for ourselves. Ratifying OPCAT presents an opportunity to make sure that people who are detained in Australia have their basic rights respected.

And I’m saying we all have an interest in this. People of faith have been some of the most active and constructive in working with people inside and outside prison. They have also been at the forefront in pushing for Australia to ratify OPCAT. This is a significant victory for the protection of the basic dignity of some of the most despised, but also vulnerable, members of our community.

 

Freedom of religion

I also want to talk about the rights of people of faith.

International law

For me, as a lawyer, the starting point is to ask: what has Australia committed to in protecting freedom of religion, as well as the allied notions of conscience and belief? Probably the most important provision in international law is Article 18 of the International Covenant on Civil and Political Rights, which enshrines the right to freedom of thought, conscience and religion – and indeed to hold no religion at all.

International law makes an important distinction between two elements of religion. First, the freedom to hold a particular religion or belief – this is essentially freedom to think – is absolute. It can never be limited or restricted.

The second element is the freedom to manifest a religion or belief. These are the actions a person might take in how they worship or practise their religion. For example, for some people, their religious practice involves avoiding certain foods, wearing particular clothes or praying at particular times and so on. International law also protects this second element of religious belief, but it recognises that this is an area where one person’s freedom can come into conflict with another’s, and so reasonable limitations on religious manifestation have always been permissible – largely to apply the ‘harm to others’ principle.

Finally, international human rights law also prohibits religious hatred and discrimination – prohibiting any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, as well as discrimination on the basis of religion. 

 

Australian law

Australian law doesn’t automatically apply international law. Our governments have to choose which elements of international law should be made part of our own country’s laws. Only when international law is directly incorporated into our own domestic law does it become a source of rights and responsibilities for individuals.

The way that incorporation has been undertaken has been a bit haphazard and so, now, we have piecemeal protection for freedom of religion.

There are some strong protections. For instance, the Australian Constitution stops the Government from establishing an official state religion. It also stops the Government from making a religious test a requirement for a job. But these are quite narrow protections. It’s worth noting that the High Court has never invalidated a law for contravening the Constitution’s religious protection.

Beyond the Constitution, our ordinary law offers some very limited protection against discrimination or vilification on the basis of religion – especially in a work context.

Interestingly, the Racial Discrimination Act doesn’t explicitly prohibit discrimination on the ground of religious belief. But the courts have decided that a religious group may be protected where they have a common ‘ethnic origin’. For example, courts have interpreted the term ‘ethnic origin’ as including Jewish and Sikh people.[ii]

Our law also protects religion in a different way. Australian anti-discrimination laws don’t apply to religious bodies (including religious schools and hospitals), meaning that those organisations can discriminate on, say, the basis of a person’s sex in deciding who to employ.

 

Reform

When you add all this together, there are some real gaps in how Australian law protects freedom of religion.

In 2014, the Commission surveyed the community and found that there was no  general view that freedom of religion was at dire threat. But this experience is not universal.

In that same consultation, concerns were raised about the negative impact of calls to ‘Ban the Burqa’ and opposition to planning applications for mosques.[iii] A recent Scanlon Foundation survey found significantly more negative attitudes toward Muslims than Christians and Buddhists.[iv] In its 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.[v] We also see too many reports of attacks on places of religious worship or people who are visibly religious.

We need to improve how the law protects freedom of thought, conscience and religion and the rights of people of faith. One way of doing that would be to protect freedom of religion in our federal anti-discrimination law. This is an idea that I’ll be working on further this year.

Reform beyond the law

But we also need to understand the limits of the law in fostering a harmonious multicultural society. (As a lawyer, this is especially important for me to remember: for a person with a hammer, every problem is a nail…)

The law is very effective at regulating non-contentious behaviour. For example, everyone understands that for our system of commerce to work effectively, the law has an important role in holding people to the promises they make when entering a contract.

Imagine I offer you $100 for a box of apples; you duly provide the apples; but I decide to eat the apples and hold on to my $100. The law is quite effective at stepping in. It will say that I must give you the $100. In other words, the rule and the remedy are clear.

But what if a person’s human rights are violated? What if my boss threatens to give me the sack if I continue attending a particular church?

Even if the law says that my boss’s behaviour is unlawful, there’s a risk I’ll no longer feel comfortable and safe in my workplace. And if I am fired, what amount of money should my boss be required to pay me for my dignity being attacked?

In other words, the law has an important role to play here, but it’s perhaps more subtle than in other areas and it does have limits. What the law can do, and what it should do, is provide a mechanism to resolve these sorts of disputes informally – wherever possible, taking the heat out of the situation.

But perhaps more importantly, the law can also play an important educative function. We are essentially a law-abiding nation. With the possible exception of jay-walking and certain road rules, we tend to follow the law.

What human rights law can do is that it can set boundaries, helping to inhibit behaviour that violates people’s basic rights – so that it doesn’t occur at all.

 

Conclusion

I started this speech by observing that Australia’s commitment to multiculturalism is broad and enduring. A community that acknowledges and values difference is better able to draw strength from the various constituent parts of the community.

Such a community also recognises the lion and lamb in one another – that we can be simultaneously strong and vulnerable and that we should accommodate both of these qualities.


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FOOTNOTES

  1. See Revelations 5:5-6. In this passage, the lion and the lamb both refer to Jesus Christ. He is both the conquering lion of the tribe of Judah and the lamb that was slain. The lion and lamb are descriptions of two aspects of Christ’s nature.
  2. Australian Human Rights Commission, Federal Discrimination Law (2016) 39-40. At https://www.humanrights.gov.au/our-work/legal/publications/federal-discrimination-law-2016 (viewed 8 February 2017). See also King-Ansell v Police [1979] 2 NZLR 531; Mandla v Dowell Lee [1983] 2 AC 548; Macabenta v Minister for Immigration and Multicultural Affairs [1983] 2 AC 548-562; Miller v Wertheim [2002] FCAFC 156.
  3. Australian Human Rights Commission, Rights & Responsibilities Consultation Report 2015 (2015) 27-28. At: https://www.humanrights.gov.au/our-work/rights-and-freedoms/publications/rights-responsibilities-consultation-report (viewed 8 February 2017).
  4. Andrew Markus, Australians Today: The Australia@2015 Scanlon Foundation Survey (2016) Scanlon Foundation, Australian Multicultural Foundation and Monash University, 78. At http://scanlonfoundation.org.au/wp-content/uploads/2016/08/Australians-Today.pdf (viewed 8 February 2017).
  5. This covered the period from 1 October 2015 to 30 September 2016: Executive Council of Australian Jewry, Report on Anti-Semitism in Australia 2016 (2016) 20. At http://www.ecaj.org.au/wp-content/uploads/2012/08/ECAJ-Antisemitism-Report-2016d-WEB.pdf (viewed 8 February 2017).