Freedom18—the limits of religious freedom
NSW Parliament House
23 May 2018
[Professor Croucher spoke to this paper]
I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past and present, and to acknowledge emerging community leaders of the Gadigal peoples of the Eora Nation and acknowledge any Indigenous guests attending today.
The theme of the conference is most timely, but it is expressed in a somewhat negative way, in terms of ‘limits’, rather than on the right. I have just concluded my role as part of the ‘Expert Panel’, as we were called, chaired by the Hon Philip Ruddock, which concluded a review into religious freedom last week. The Religious Freedom Review report was delivered to the Prime Minister last Friday, 18 May, and the next steps lie with the PM. The report, as I said at the Senate Estimates hearing in Feb, will ‘speak for itself’. It was the culmination of a nationwide consultation process, including a public submission process and face-to-face meetings in every State and Territory. A total of 15,620 submissions were received; and 90 consultation meetings were held across the country. It was a deeply engaged and enriching process.
I found that the panel worked together extremely well—strongly collegial, forthright, intellectually challenging of each other. The process, though confined to a relatively short timeframe, prompted wide involvement across a range of stakeholders, with interest continuing from the groups that had been actively engaged throughout the debates on the amendments to the Marriage Act in 2017. In addition to faith groups and LGBTI groups, the Panel heard from human rights institutions, education providers, academics and secular and humanist groups. The areas of focus will not be a surprise and were widely publicised: hiring of staff, curriculum, parents’ rights in relation to education of children, charitable status, and so on—the kinds of matters that were central to the Freedom for Faith’s long and detailed submission.
Once the report is made public, there will be much in the domain of the right in relation to religious freedom that the Australian Human Rights Commission to do—or rather, continue to do in relation to this key human right.
In the time I have today I will speak about the Australian Human Rights Commission and its work as the national human rights institution, leading into some reflections about freedom of religion as it came to be expressed in the Universal Declaration of Human Rights and then the International Covenant on Civil and Political Rights (ICCPR).
I began my appointment as President on 30 July last year. I set myself some important tasks, most particularly to understand what it was that had attracted public attention, and indeed public ire, about the Commission. But I also needed to be inside the place and see how much good is being done that the outside world hardly ever sees, or if they do, misunderstands—and sometimes very badly.
My leadership style is an organic one. I am not a ‘crash in and crash through’ manager, imposing new structures, getting rid of people, without question. I get to know the people I am to work with, find out their strengths, aspirations and desires, play to their strengths and help them to address problems. It is slow, and nurturing, with my eyes on a longer horizon.
First, I wanted to learn thoroughly about the Commission—its history, its current role and where it sits both nationally and internationally.
The first Commission was established in 1981, by a conservative Government, led by the Hon Malcolm Fraser as Prime Minister. The prior August Australia had finally ratified the International Covenant on Civil and Political Rights (ICCPR) (which had entered into force fifteen years before, in 1976). The Act establishing this first Commission included a sunset clause under which the first Commission ceased operation in 1986. Perhaps it was assumed that Australia would have it all sorted out within that time.
The passage of the Australian Human Rights Commission Act 1986 (Cth) marked the establishment of the present Commission, symbolically on 10 December 1986—International Human Rights Day. (It was first called the Human Rights and Equal Opportunity Commission, or HREOC, and renamed in 2008).
In his Second Reading Speech for the Human Rights Commission Bill 1981, the then Attorney-General, the Senator Hon Peter Durack QC, said that the Commission ‘will promote the observance of human rights throughout Australia within the limits of Commonwealth power’.
The ratification of the ICCPR provided a crucial catalyst to the establishment of the Commission. Senator Durack said that this added to ‘the need for effective human rights machinery in Australia’ and would ‘help Australia to discharge the obligations it has assumed under the covenant’.
Senator Durack also observed that the purpose of the Human Rights Commission was ‘progressively to develop a better and more comprehensive recognition and observance of the rights of every individual in our community, regardless of financial standing and whatever his or her race, age, sex, religion or status’.
In addition to the Australian Human Rights Commission, there are various human rights bodies in the states and territories, some established before, others after the federal one. The roles of each are constrained by their jurisdictional limits. The Australian Human Rights Commission’s constraints lie in the limitations, and breadth of Commonwealth power, particularly the external affairs power, s 51(xxix) of the Australian Constitution. The relationship between the state commissions and the federal one is one of distinct areas of competence, and some overlapping ones. As in many things federal, it has its strengths, and its untidiness.
The Commission today comprises myself, as President, and seven other Commissioners as ‘statutory office holders’, appointed as Australia signed up to new international conventions and commitments. Our current complement includes Commissioners in the areas of:
- Human Rights
- Aboriginal and Torres Islander Social Justice
- Race Discrimination
- Age Discrimination
- Sex Discrimination
- Disability Discrimination
The Commission has a number of broad roles. The complaints handling role, for complaints of discrimination on specific grounds under the set of anti-discrimination Acts, is a key one, because it is the ability to bring a claim under the legislation that is the principal way to enforce those laws. What surprises many, however, is that the discrimination commissioners have no role in hearing complaints, since 1999. They initially did have this role, but in 1995 the High Court held that the enforcement mechanism in the Racial Discrimination Act 1975 was found to be unconstitutional, on the basis that the commission, as an administrative body, could not make a final determination as to the rights of the parties to a dispute. This affected, similarly, the Sex Discrimination Act and the Disability Discrimination Act. This then led to the current processes, based on confidential complaint handling through conciliation. The President was given the authority and responsibility for all complaint handling, which is managed by delegation, while the Commissioners were given an amicus curiae function ‘to argue the policy imperatives of their legislation before the Federal Court’.
Complaints are managed through a process of conciliation, initiated by individuals, and, if unresolved at the Commission, may in some cases be taken to the federal courts. There is also a function in relation to complaints concerning human rights matters arising under the covenants referred to in the Act — principally the ICCPR. There is no avenue to the courts here—nor to enforceable remedies. This is where my role takes on a quasi-judicial character.
Resolving complaints of discrimination or breaches of human rights under federal laws is a big part of the work of the AHRC. Each year, on average, the Commission handles 2,000 complaints, and nearly all of those are resolved through a very strong conciliation program, with a high success rate. Of those that are conciliated, about 75% are conciliated successfully. The participants in the conciliation process are evaluated, and the survey feedback from that is very, very strong—not only from those who are complainants but also from those who are respondents.
Complaints usually start with just a phone call or email — some form of contact — by, on average, 15,000 people a year who consider they’ve been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred.
All of this goes on, unnoticed and unobserved, year in, year out. The processes are conducted confidentially, and protected through non-disclosure provisions, essential to the integrity of, and confidence in, the process.
The educational side of the Commission’s work is perhaps one of its most enduring contributions to Australian society. I was gobsmacked by how large the educational outreach program is, developing human rights education programs, guidelines and resources for schools, workplaces and the community.
Such contributions play a role in building respect which I have described as ‘the essence of a civil society’ and ‘the active voice of dignity which is the essential right linking all of the international conventions to which Australia has committed’. From the work on preventing cyber-bullying, a song for pre-schoolers with the repeated line ‘let’s join hands and show we care’, to the teaching resources and video prepared for the 800th anniversary of the sealing of the magna carta of 1215, the contributions have a wide reach. For example, the magna carta video, aimed at high school students, was accessed around 50,000 times in 2016–2017. Indeed, some of our most popular education resources are our school education modules, linked to the learning areas under the National Curriculum and also ‘Face the Facts’, providing factual information about controversial issues to inform debate.
A further aspect of the Commission’s work is international engagement, both in the treaty reporting cycles but also in the field of international technical cooperation, assisting in capacity building particularly in our Asia-Pacific region.
I have been struck by the complexity of the layers of international engagement through the UN and its various ‘mechanisms’—all of which has grown as the UN itself has grown. As the ‘national human rights institution’, or NHRI, the Commission has a distinct place. NHRIs are rated, ‘A’ to ‘C’, according to principles that emerged from a Paris conference in 1991. As an ‘A status’ body, the Commission is entitled to participate directly in the work of the Human Rights Council, including the right to speak during annual plenary sessions. These rights are superior to those enjoyed by international NGOs, or ‘civil society’ as they are collectively known in the UN lexicon—not only in the sessions of the Council itself, but also the subsidiary ‘mechanisms’, including the Treaty Bodies and Special Procedures.
Australia has made a particular commitment to NHRIs over time and is one of the leading supporters internationally of them, as is evident in the documentation supporting Australia’s bid for candidacy of the UN Human Rights Council.
In the tripartite architecture of UN engagement, the Commission therefore has a distinct role. As the national human rights institution, the Commission is in the middle: between government on the one hand, and civil society, on the other. We're neither one nor the other—and are independent of both. We are not the government’s lackey nor the nation’s soapbox, in other words.
It is necessary to the effective functioning of the Commission over the longer term to be a trusted adviser. Good relationships and open doors are absolutely crucial for us to be able to play that role to its fullest. To be the Devil’s Advocate and, as I have said, even at times to be the ‘devil’s blowtorch’, you need to have a respected seat at the table. Having a ‘Devil’s Advocate’ for human rights is a healthy, indeed necessary, thing in the context of the promotion and protection of those rights. Even if it means we should expect criticism—for calling out Government against the commitments made to the international community in signing up to the international treaties that set the benchmark for human rights.
The Commission and freedom of religion
The Commission has undertaken a great deal of work in the area of freedom of religion, reflecting that issues of religious freedom were one of the driving forces of the human rights movements in the international arena post-WWII, in the wake of the holocaust and the cataclysms of the war years. The ICCPR, one of the main framing documents of the Commission’s human rights work, contains a key article on the human right of religious freedom, in article 18.
In 1998, for example, the Commission conducted an inquiry into freedom of religion and belief in Australia and first proposed that Australia expressly incorporate religious freedom into Australian law. And, since 2000, the Commission has undertaken a sizable body of work on the protection of freedom of religion and belief. In the Commission’s submission to the Religious Freedom review a list of such work is set out.
Issues concerning the protection of religious freedom comprise a core area of human rights consideration and of the Commission’s ongoing work. When the Religious Freedom Review report is made public, the Commission will incorporate its findings into our future work.
To conclude my speech today, I thought I would include a final set of reflections on the Universal Declaration of Human Rights, which is where the conversation about religious freedom at an international level formally began.
Reflections on the 70th anniversary of the UDHR
As a legal historian by experience and inclination, in my new role I started exploring the development of the Universal Declaration of Human Rights that was the UN’s first major ‘benchmark’ document for human rights.
While it was the maintenance of collective security that was uppermost in the minds of the nations gathered as the ‘General Assembly’ of the United Nations, the human rights project gathered momentum, so that they would:
live up to their war rhetoric by providing assurances that the community of nations would never again countenance such massive violations of human dignity.
The Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948, that resulted, would become not only an instrument, but
the most prominent symbol, of changes that would amplify the voices of the weak in the corridors of power. ... It is the parent document, the primary inspiration, for most rights instruments in the world today.
In my historical meanderings I was particularly taken by the role of Eleanor Roosevelt in relation to the Universal Declaration of Human Rights, especially in this 70th anniversary year of the adoption of this seminal document. The recently widowed Mrs Roosevelt, wife of Franklin D Roosevelt, President of the US from 1933 to 1945, was asked to chair the ‘Third Committee’ that led its drafting.
Her biographer, Professor Mary Ann Glendon (a wonderful family law professor), wrote of Mrs Roosevelt’s trepidation at undertaking her role. To her daughter, Anna, she wrote privately that ‘tho the responsibility seems great I’ll just do my best and trust in God’.
Mrs Roosevelt managed to steer the Third Committee through its work, adopting also a strategy of entertaining. Although a terrible cook, she recognised the value of the communications and relationships that build around the simple fact of engaging informally. She was a natural and ‘organic’ leader in the way I described earlier, drawing together the strengths of the key people: Peng-chun Chang, a Chinese philosopher, diplomat and playwright; René Cassin, a French law professor, and a Jew, who had lost 29 relatives in concentration camps; and Charles Malik, a Lebanese academic, philosopher and diplomat and chief spokesman for the Arab league. These personalities framed the story of the drafting of the University Declaration.
In 1838, in an essay ‘On History’, the Scottish philosopher, Thomas Carlyle, described history as ‘the essence of innumerable biographies’. In my legal historical excursions in the past I have been singly affected by how much the stories of individuals sit behind the story of law—innumerable biographies, in Carlyle’s words.
The history of the Universal Declaration of Human Rights, is not only ‘the essence of the lives’ of the men of the Third Committee, but also the essence of the indomitable woman in its Chair. There will be much to be written this year about the UDHR and its influence on the covenants that followed.
With respect to religious freedom, the tensions focused upon questions like the right to change one’s religion and also the extent to which the right could be limited.
Malik advocated including a right to change one’s beliefs in the religious freedom article. Glendon writes that Malik was moved to suggest this, because his native Lebanon had become a haven for people fleeing religious persecution, some because they had changed their religious affiliation. Malik’s amendment, she wrote,
touched a raw nerve in other states with large Muslim populations, because of the Koranic injunction against apostasy (murtad) ... The language was a major factor in Saudi Arabia’s decision to abstain from the final vote on the Declaration.
A further issue of tension was the issue of ‘balancing’ rights that were ‘equal’—a pressing issue from the outset. How do you ‘limit’ one indivisible right as against another?
The matter of ‘limitations’ was taken up in article 20 of the June 1947 draft, which separated the ‘absolute’ right to freedom of thought and conscience, from the ‘limitable’ aspects of it.
Individual freedom of thought and conscience, to hold or change beliefs, is an absolute and sacred right.
The practice of a private or public worship, religious observances, and manifestations of differing convictions can be subject only to such limitations as are necessary to protect public order, morals and the rights and freedoms of others.
The UK proposed further text which included a clause about religious instruction:
... every person of full age and sound mind shall be free to give and receive any form of religious teaching and to endeavour to persuade other persons of full age and sound mind of the truth of his beliefs, and in the case of a minor the parent or guardian shall be free to determine what religious teaching he shall receive.
Here we see the clear bones of the right as it became crystallised in the ICCPR in 1976, in article 18:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. 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.
4. The States Parties to the present Covenant undertake to have respect for 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.
The way that such international commitments are expressed in Australian law—both Commonwealth and State and Territory laws—and how they are considered in the context of the rights to non-discrimination were central to the deliberation of the Religious Freedom Review.
As a final note I thought I would share with you Mrs Roosevelt’s daily prayer, as it was her faith that guided her in undertaking the great task of the Committee she chaired and to guide her in life.
Our Father, who has set a restlessness in our hearts and made us all seekers after that which we can never fully find, forbid us to be satisfied with what we make of life.
Draw us from base content and set our eyes on far off goals. Keep us at tasks too hard for us that we may be driven to Thee for strength.
Deliver us from fretfulness and self-pitying; make us sure of the good we cannot see and of the hidden good in the world.
Open our eyes to simple beauty all around us and our hearts to the loveliness men hide from us because we do not try to understand them.
Save us from ourselves and show us a vision of the world made new.
The Australian Human Rights Commission plays a key role in ensuring that Australia and Australians adhere to the ‘world made new’ as expressed in the body of international treaties to which Australia has committed. The human right of freedom of religion, as embodied in article 18 of the ICCPR, is core business in this context.
 Note Senator the Hon Lionel Murphy as AG of the Labor government had moved a Human Rights Bill in 1973, including the establishment of a Human Rights Commissioner and a Human Rights Council, with a statutory Bill of Rights. There were also Bills of the conservative government in 1977 and 1979.
 Brandy v HREOC (1995) 183 CLR 245.
 The Hon Daryl Williams MP, Attorney-General, Second Reading Speech, 3 December 1998.
 The Australian, Friday 6 October, 2017.
 As summarised in Andrew Byrnes, Andrea Durbach and Catherine Renshaw, ‘Joining the club: the Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the advancement of human rights protection in the region’ (2008) 14(1) Australian Journal of Human Rights 63, 66. ‘Principles relating to the Status of National Institutions (The Paris Principles)’, adopted by General Assembly resolution 48/134 of 20 December 1993
 Rocco Fazzari wittily picked this up in his cartoon of me in the March 2018 NSW Law Society Journal.
 Mary Ann Glendon, A World Made New—Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, 2002, xv-xvi.
 A World Made New, xvi.
 A World Made New, 25.
 T Carlyle, ‘On History’, Critical and Miscellaneous Essays (1838).
 A World Made New, 69-70.
 A World Made New, 285.
 A World Made New, 285.