Submission to the

Australian Human Rights Commission

Religious Freedom Roundtable

25 September 2015

Introduction

The Rational Society of Australia (RSA) is the oldest freethought group in Australia, promoting reason since 1906. Members and supporters hold that all significant beliefs and actions should be based on reason and evidence, that the natural world is the only world there is, and that answers to the key questions of human existence are to be found only in that natural world. We seek to stimulate freedom of thought, support a secular and ethical system of education, promote the fullest possible use of science for human welfare, and encourage interest in science, criticism and philosophy as connected factors in a progressive human culture.

This submission responds to the letter of invitation from the Australian Human Rights Commissioner, Tim Wilson, dated 1 September 2015 to provide input in the lead up to the inaugural Religious Freedom Roundtable to be held in November 2015. The RSA congratulates the Human Rights Commission on promoting an inclusive discussion on seeking to locate religious freedom in the spectrum of other human rights.

Preamble: A Secular Perspective

Reflecting on how religious freedom interacts with human rights we remain cognizant that the RSA’s aims are ultimately issues of human rights. The separation of church and state in Australia, a country interwoven with diverse and dynamic cultures, remains an essential principle watching over the human right to freedom of thought, conscience and religion.

We agree with former High Court judge Michael Kirby when he stated:

“The principle of secularism is one of the greatest developments in human rights in the world. We must safeguard and protect it, for it can come under threat in contemporary Australia.”

At the outset, we would like to draw attention to the fact that the word “religion”, when speaking of “freedom of religion” does not refer only to systems of faith-based belief. It also refers to systems of belief that are not based on faith.

This is made clear by the Human Rights Commission on p 20 of its 2015 Consultation Report Rights and Responsibilities:

The right to freedom of thought, conscience and religion encompasses the beliefs of all religions, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. Key elements of the right include the freedom to:

• choose and change religion or belief
• exercise religion or belief publicly or privately, alone or with others
• exercise religion or belief in worship, teaching, practice and observance.

Thus, freedom of religion is an individual right, but can also be exercised collectively. The internal (private) dimension of the right – the freedom to adopt or hold a belief – is absolute. However, the external (public) dimension – the freedom to manifest that belief in worship, observance, practice or teaching – may be limited by law when deemed necessary to protect the public safety, order, health or morals, or the fundamental rights and freedoms of others. [emphasis added]

This definition is based on Article 18 of the Universal Declaration of Human Rights (UNDHR) and the related International Covenant on Civil and Political Rights, and draws on General comment 22, which states that “Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed.”

Freedom of religious or non-religious belief must not extend to the unfettered enacting of these beliefs in ways impinging on the rights of others. The UNDHR Article 30 states that “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”

So, it doesn’t matter what one’s beliefs are: religious, non-religious, spiritual, or other. Religious freedom accords the right to hold and practise these beliefs so long as they don’t infringe on the rights of others. The practice of one’s beliefs is necessarily secondary to the fundamental human right of free volition to hold them.

Free choice is the theme that binds these questions: the right of the individual to choose their beliefs as a free act of mind, not imposed by another. There’s no point in safeguarding the “external” aspects of religious expression if its precursor, free choice, is curbed. Free choice is the essence, the heart of religious freedom; the prerequisite freedom from which all other freedoms are derived.

Religious Freedom vs Religious “Liberty”

We note the advancement of the term “religious liberty” by certain Christian groups, especially in the US, and caution against its muddling with religious freedom. Usually religious liberty is invoked to justify the ranking of particular religious values over secular law or community sentiment. Religious liberty uses “conscience” to discriminate in favour of one set of beliefs to the detriment of another.

Accepting the abovementioned definitions of freedom of thought, conscience and religion, entails accepting equal validity to faith-based religious belief and non-faith-based belief. Religious liberty seeks to justify behaviour purely because of its faith-based religious base. Arguments promoting religious liberty invariably ascribe superior value, and priority, to faith-based religious beliefs over non-faith-based belief systems. The definition of religious freedom adopted above is inconsistent with religious liberty. Indeed, religious liberty is an infringement upon religious freedom.

Freedom of Belief

Since non-faith-based belief should be granted the same protections as faith-based belief, we suggest it would be more accurate to refer not to “freedom of religion” but to “freedom of belief”. The “Religious” in “Religious Freedom” is better understood as “Belief or Non-Belief” and the HRC’s proposed Religious Freedom Roundtable should be understood as the “Beliefs Freedom Roundtable.”

Further, we challenge the assertion that a “religion”, whether it be a faith-based belief system or a non-faith-based belief system, has any rights under principles of human rights. Humans have rights: ideas and philosophies don’t. Religions are abstract concepts, collections of ideas, and ways of thinking about the world. Explicitly, by definition, human rights only apply to people – it’s a reification fallacy to apply them to abstract concepts.

We therefore caution against the conflation of religious freedom with the accordance of rights to “religion” itself. Ghosts of our Christian heritage appear by way of appeals to the rights of religion, to a mythical debt owed to our Christian past, used to justify privileging one set of ideas over others in Australian society.

The 2011 Australian census recorded “No Religion” as the second most selected option at 22.5% of the population behind Catholicism at 25%. With the correction of the census question to include the option of “No Religion” first, demographer Bernard Salt predicts the number explicitly identifying as non-religious to increase to around a third of the Australian population. (In New Zealand, the number choosing “No Religion” is now up to 42%.)

Thus non-believers may well become the largest demographic grouping in the 2016 census, an outcome at odds with the increasing incursion of Christianity into public affairs. The revival of religious advocacy by lobby groups and prominent politicians has resulted in policies openly favouring Christianity such as the National Chaplaincy Scheme, increased funding for the establishment of new religious schools, and calls for a focus on the “Judeo-Christian” tradition in the National Curriculum.

The human right to freedom of belief must be distinguished from the privileging of faith-based belief. The right to freedom of thought, conscience and religion should be seen as a clear, unambiguous concept defining the human right of choice and volition, not conscripted as a tool in the culture wars to revive domination by the Christian religion. If the latter, the concept becomes antithetical to its actual meaning, infringing upon the religious freedom of those with non-faith-based beliefs, non-Christians, and Christian secularists.

Recommendations

1. The right to freedom of thought, conscience, and religion should be referred to as Freedom of Beliefs.
2. The HRC should guard against the use of Religious Freedom as a proxy for privileging faith-based beliefs.
3. It should be recognised that the right to manifest one’s beliefs is limited.
4. Freedom of choice should be recognised as the fundamental principle that underlies the right to freedom of thought, conscience and religion; it is the prerequisite from which other freedoms are derived.

Question 1: Government laws and regulations that limit the right to religious freedom

Compared with many other countries, Australia’s laws generally offer good protection for freedom of beliefs. Unsurprisingly, the Freedom of Religion Survey found that only 10% of Australians think that it’s “not at all protected”. In Australia, we enjoy the freedom hold and practice both religious and non-religious beliefs, within the limits set by the law.

Australia has few specific laws relating to freedom of belief. However, the exemptions from anti-discrimination legislation enjoyed by religious groups can retard the freedom of belief for some individuals when they engage with religious organisations.

The lobby groups campaigning for more “religious freedom” often refer to laws which disallow them from privileging their own beliefs over those of others, or in excusing themselves from generally accepted community standards of decency, fairness and non-discrimination.

In our view, Australia largely gets it right in enforcing the rule of law without recourse to exemptions from the community expectations of non-discrimination. Allowing exemptions is a Pandora’s Box, limited only by the human capacity to hold unusual and imaginative beliefs.

We believe the government has a legitimate role in limiting manifestations of religious beliefs, where such manifestations unfairly limit the rights of others to full participation in society and to the reasonable expectation of non-discrimination.

Question 2: Balancing the right to religious freedom and equality before the law – what are the areas of shared agreement?

A fundamental tension exists between “freedom” and “equality”. Freedom is limited to the extent that it affects other human rights. The freedom to manifest one’s beliefs does not imply the freedom to abjure from considering the rights of others, who enjoy the same fundamental rights. Laws exist to protect those freedoms, reflecting the equality of all before the law.

Anti-discrimination laws across Australia provide for exemptions and carve-outs for religious organisations, but not for all belief systems. Religious educational institutions, aged care providers, and other services affect a substantial number of Australians and are allowed to discriminate against employees, students, and users of their services.

Blanket religious exemption from anti-discrimination law means the civil liberties of the individual may receive little consideration. Where religious organisations are exempted from the law, there’s no opportunity to balance the rights of individuals with so-called religious freedom.

Christian Youth Camps v Cobaw was an interesting recent case, where the Christian Brethren attempted (but were unable) to claim an exemption from anti-discrimination law in refusing to allow a same-sex youth group access to its camp site. Christian lobby groups claimed religious freedom was eroded in the judgement, arguing that religious expression was undermined in favour of non-discrimination. But this case simply highlights how the favouring of traditional Christian beliefs has been accepted for far too long. It’s unimaginable that a same-sex group or atheist group would or should be exempted from anti-discrimination legislation if they attempted to deny a Christian organization access to its publicly available facilities, just because they objected to their beliefs or lifestyle. Faith-based religious beliefs are not imbued with any special legitimacy above non-faith-based beliefs.

Two notable examples of legislation which appropriately balance religious freedom and protection from discrimination are the Abortion Law Reform Act 2008 in Victoria and the Reproductive Health (Access to Terminations) Act 2013 in Tasmania. These laws respect the right for doctors not to perform abortions if it is against their conscience, without limiting the rights of patients to access medical services. Both the Victorian and the Tasmanian laws require doctors with religious objections to abortion to refer women seeking abortions to other service providers.

Christian lobby groups such as the Australian Christian Lobby oppose these laws, claiming they make anti-abortion doctors “complicit” in abortion, and “unable to treat women in the way they believe is best.” But this position is one-sided and unbalanced. The relatively minor compulsion on doctors to refer someone to another service provider pales in comparison to denying women a medical service to which they are legally entitled. Religiosity is being used here as a ground to justify unlawful discrimination. Christian lobby groups also complain that their rights to stage protests outside abortion clinics may be threatened by the law. But why should religious beliefs have any more weight than the beliefs of the women who seek lawfully to access medical services?

The legal system may be catching up. In Dixon vs Anti-Discrimination Commissioner of Queensland (2004), a Baptist Community Church issued an employment contract requiring an employee to be an active church member, and a court found this not discriminatory at the time. However, the Anti-Discrimination Act 1991 (Qld) was amended a year later, redefining “religious belief or religious activity” to include non-belief, and the employee successfully appealed.

Religious service providers who want to discriminate against individuals and groups in unlawful ways should be compelled to justify their proposed actions, considering both the context of the situation, and the supposed religious sensitivities. The liberty of the individual is abrogated when religious groups enjoy automatic exemptions to discriminate.

Recommendations

1. Exemptions from Anti-Discrimination laws for religious institutions should be tightened.
2. Religious exemptions should be justifiable, explicit, evidential, consistent with community standards, and balanced with other human rights.

Equality before the Law & Same-sex Marriage

Whilst the freedom to manifest one’s beliefs should not be unnecessarily constrained, neither should such freedom serve as a justification for discrimination. Most of the cases involving anti-discrimination exemptions relate to religious discrimination against the LGBTI community.

In considering same-sex marriage, a number of voices urge us to worry about the people who make cakes or provide other services for weddings. What if their conscience forbade them from selling cakes to same-sex couples who wish to marry?

In the private sector, individuals and companies wishing to withhold services to same-sex couples may run afoul of anti-discrimination laws. Proponents of marriage equality have argued this is a spurious objection as legislation could be amended to exempt those with religious objections. However, this would seem to defeat the purpose of recognising the right of same-sex couples to marry and to achieve genuine social equality.

Here, the solution that applies to medical practitioners in relation to abortion could be applied. Individuals or companies seeking to discriminate against same-sex couples should be required to disclose their faith-based conscientious objection and offer information about alternative service providers. This would balance the freedom of the individuals and companies to choose their customers with the rights of same-sex couples to receive reasonable customer service.

In the public sphere, there should be no argument: government agencies and government-funded organisations must be required to abide by the law and thus not to discriminate against same-sex couples.

Employment

Currently, faith-based religious groups can discriminate by insisting that applicants for jobs adhere to their religion. The RSA notes that an attempt at balancing equal opportunity in employment with faith-based religious freedom is found in a test for the concept of “inherent requirements of the job”, referred to in a 2006 HREOC paper[1]. To discriminate lawfully, a religious institution should be able to meet a two part test:

For an attribute such as a particular religious belief or adherence to a particular religious faith to be an inherent requirement of the job, an organisation should be able to demonstrate:

• why an individual needs to possess that particular belief to be able to perform the duties of that particular position; for example by reference to the duty statement of that position, the expectations in the work culture or environment, the organisation’s Mission Statement, the interplay of the Mission Statement and management style and expectations.
• why the individual was unable to perform the duties of that particular position; for example, why an individual who is sympathetic to the values of the organisation and could demonstrate a capacity to operate in a manner consistent with them would be unable to perform the position. [emphasis added].

The RSA supports this “inherency” test (noting that it should apply to all beliefs systems) as long as the first part of the test refers only to the duty statement. The latter parts, mentioning “work culture”, “management style” and “expectations,” are so broad as to operate effectively as an exemption from the inherency requirement. The test should read “why an individual needs to possess that particular belief to be able to perform the duties of that particular position by reference to the duty statement of that position.”

Another consideration is the right to faith-based religious freedom in the workplace. The RSA considers that faith-based religious freedom must be limited to practical and reasonable community standards, which allow for universal principles governing employment, and which respect the overarching principle of a secular state. For example, state governments determine which holidays are observed based on tradition and community values. If employees wish to observe particular religious holidays, employers should make all reasonable attempts to accommodate them but not be obliged to grant special dispensations; firms should not be required to undertake costly and invasive measures such as building prayer rooms, or supplying religious books or clothing.

Question 3: Preserving religious freedom when an organisation receives taxpayers money to provide a public service

In a pluralist representative democratic like Australia, organisations in receipt of public funds have an obligation to abide by the law and should abide by community standards. For religious groups entrusted and privileged by taxpayer funds, the right to manifest their faith-based religious beliefs must be secondary to the public interest. When services are offered to the general public, those services should be offered in line with community expectations and the law.

At the Federal level, the most glaring exception to this principle is the National School Chaplaincy Program (NSCP), twice ruled unconstitutional by the High Court of Australia. The RSA contends that the NSCP violates religious freedom in that it subjects children to services which are compulsorily faith-based. Not only is this prejudicial in favour of faith-based belief over non-faith-based belief, but it promotes and privileges Christian beliefs, because the vast majority of chaplains are supplied by Christian organisations. This not only discriminates against other faiths, but against the rising number of citizens who identify as non-religious.

At a State level, government funded Special Religious Instruction (SRI) or Special Religious Education programs allow faith-based religious groups to instruct children as young as six years old in the doctrine of their faith. These programs have become controversial due to the evangelical nature of some service providers. In Victoria, 85% of the SRI providers were provided by Access Ministries, which openly aimed to proselytize. The former CEO of ACCESS Ministries, Evonne Paddison said:

“In Australia we have a God-given open door to children and young people with the Gospel, our federal and state governments allow us to take the Christian faith into our schools and share it. We need to go and make disciples.”

In response to increasing community outrage, the Victorian Government recently decided SRI would no longer be conducted during class time, but only before or after school or during lunchtimes. This move came after the previous Coalition Government had changed the enrolment system for SRI from “opt out” to “opt in”. The resulting 42% reduction in enrolments demonstrated convincingly the lack of community support for the program. In other States parents must still opt out of the program.

Due to Australia’s cultural heritage, faith-based schools, aged care facilities and other service providers enjoy a prominent place in society and are favoured by substantial public funding. The RSA contends that these institutions must not use their privileged position to discriminate or impinge on the belief freedoms of other groups. A condition of public funding must be the public interest.

Government funding of religious schools is itself in contravention of belief freedom. In a nation with an increasing proportion of people who identify as non-religious, funding schools on the basis of religiosity reflects an assertion without proof that religion is to be valued over neutrality.

Recommendations

1. The discriminatory National Chaplaincy Scheme should be discontinued.
2. Special Religious Instruction programs should be discontinued.
3. Government-funded faith-based service providers must act in the public interest, and abide by the law and community sentiment.

Question 4: Developing mechanisms to support religious inclusion and social cohesion.

Let there be no compulsion in religion.

Qur’an Sura 2.256 (Yusufali trans)

The RSA contends the best way to support social cohesion is through education and that in particular, schooling received by all Australian children should include education about the world’s major religious and non-religious belief systems. The aim here would be to reduce the sense of alienation sometimes felt by those of minority religious faiths, and to deliberately reduce the tendency of those following majority faiths to see minorities as “the Other”[2].

Article 18 of the International Covenant on Civil and Political Rights underscores the importance of choice as a fundamental element of freedom of belief:

1. … This right shall include freedom to have or to adopt a religion or belief of his choice,
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.

Choice implies a range of options. If we are to have freedom of religious belief, people must be presented with a range of religious choices, especially during childhood and adolescence when forming their worldviews. Freedom of thought requires adequate knowledge, resulting in a free choice between viable options. If we are committed to freedom of belief and freedom of religion, we must make such knowledge available.

This can be accomplished by introducing courses that teach about the world’s major religious and non-religious belief systems in schools, with curriculum appropriate to the age of the children. Only schools committed to thus promoting freedom of belief should be eligible for taxpayer support. Such curriculum should teach students to differentiate between knowledge and beliefs.

Recommendations

1. Curriculum in the world’s major religious and non-religious belief systems should be developed and introduced into all schools in Australia.
2. The introduction of such courses should be a condition of government funding to non-government schools.

Guiding Principles

The RSA generally supports the guiding principles of the Religious Freedom roundtable, while noting the following objections:

Guideline 1

Religious freedom is fundamental to the Australian way of life, and should be treated equally to all other human rights and freedoms.

Firstly, as noted above, “religious freedom” must be understood as freedom not only of faith-based beliefs but also of non-faith-based beliefs. If understood in this way, the RSA agrees that “religious freedom is fundamental to the Australian way of life”. However, we query whether religious freedom should be treated equally with other human rights and freedoms. Certainly the freedom to form and hold a set of beliefs is fundamental, but the freedom to manifest those beliefs is, as acknowledged in Guiding Principle 2, necessarily limited. Perhaps part of the Religious Freedom Roundtable discussion can focus on where religious freedom sits within the hierarchy of human rights and freedoms.

Guideline 3

Religious freedom has an essential and important role in public affairs or civic life to contribute to the moral and spiritual guidance of our nation; and faith is as legitimate basis for participation in the public and civic affairs of our nation as any other.

Although it refers to “religious freedom”, this guideline seems to promote the positive benefits of faith-based belief over non-faith-based belief, praising its “moral and spiritual guidance.”

The unqualified assertion that faith has positive benefits and the inference that the voices of religious groups should be privileged in public affairs and moral pronouncements is antithetical to the idea of belief freedom.

Many of the non-religious would assert that adhering to the surviving canons of religious texts written thousands of years ago, allegedly the will of beings whose existence remains unproven, fails to form a coherent, let alone beneficial, basis for moral guidance in 21^st societies. Rather than a guideline, perhaps this statement could be a topic of discussion.

Guideline 10

Individuals and communities of faith will continue to constructively work with government and public agencies to uphold the law and improve Australia’s moral and spiritual guidance.

This guideline repeats the same assertion as Guideline 3, establishing the legitimacy of a public role of “moral and spiritual guidance” for faith-based groups, without equally establishing one for non-faith-based groups. Such statements can be wielded by lobbyists to privilege the value of faith over non-belief in public discourse.

Conclusion

We have argued that the right to freedom of thought, conscience, and religion is better described as Freedom of Belief, than Religious Freedom.

The essence of the right to freedom of thought, conscience and religion is freedom of choice; the prerequisite from which other freedoms are derived.

Attempts to promote and privilege the perceived benefits of faith-based beliefs under the guise of “Religious Freedom” are antithetical to its ideals. The freedom to non-religious belief is explicitly and equally protected.

Religious Freedom is often its own worst enemy. The dimension of religious freedom most under threat in Australia is freedom from religion, reflected in the privileging of Christianity in public policy, affecting the right of choice, and the freedom of non-believers and other religions.

We hope the Religious Freedom Roundtable will be a productive and effective means of protecting freedom of thought, conscience and religion. We hope to assist in providing a non-faith-based perspective on issues, highlighting the fundamental importance of free choice as an absolute human right, and as the precursor to other human freedoms.

[1] The Human Rights and Equal Opportunity Commission Act 1986 (Cth): its application to religious freedom and the right to non-discrimination in employment, https://www.humanrights.gov.au/publications/hreoca-religious-freedom. Accessed 24 Sept 2015.

[2] It is recognised that those following minority faiths and non-believers can also be guilty of seeing those outside their demographic group as “the Other”.

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