Religious Discrimination Bills are not consistent with international human rights law

November 25, 2019

ALHR has provided a submission in relation to the Exposure Drafts of the Religious Discrimination Bill 2019 (RDB), Religious Discrimination (Consequential Amendments) Bill 2019 (RDCAB) and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (HRLAB).

ALHR supports a Religious Discrimination Act which provides protections against religious discrimination in areas of public life including employment, education, membership of sporting clubs and other areas of public life.

However, ALHR does not believe that Australian society should tolerate every behaviour that is religiously motivated, just by reason of that motivation, and strongly believes that our laws should not protect behaviour that is discriminatory and is likely to most heavily impact already vulnerable groups.

The ‘right to believe’ is an absolute personal right exercised internally, but there is no absolute right to manifest or act upon one’s religious belief externally so as to impact upon others.

Religious freedom does not mean freedom to visit harm upon others in the name of one’s own religion.

ALHR submits that the RDB legislative package is not consistent with international human rights law, and indeed creates the anti-human rights situation whereby discrimination will be permitted on the basis of religious faith. It will:

  • privilege religiously-based discrimination over the rights of others to be free from discrimination;
  • build a fundamental imbalance into our existing anti-discrimination legal system by privileging the rights of one group within society at the expense of everyone else;
  • create Commonwealth exemptions in favour of so-called ‘religious’ statements which will override concurrent and more protective State anti-discrimination legislation, setting an undesirable precedent; and
  • undermine, inter alia, Section 18C of the Racial Discrimination Act.

Nor is it clear how the proposed legislation would work in relation to conflicts between, or within, different religions, unlike the situation under a balanced human rights regime. Indeed it may encourage such conflicts by suggesting the existence of absolute rights which formerly would have been seen as needing to be balanced against the rights of others. That necessary restraint has now been removed.

Any legislation which impinges upon human rights must be narrowly framed, proportionate to the relevant harm, and provide an appropriate contextual response which minimises the overall impact upon all human rights, democracy and the rule of law.

ALHR’s primary concern is that Australian legislation and judicial decisions should adhere to international human rights standards. Human rights laws cannot be selectively applied, they are not divisible nor hierarchical. All human rights are of equal importance and human rights laws can only achieve their objectives if they are applied completely to all human rights. That is not what would occur under the RDB legislative package, if passed. The proposed piecemeal legislative framework which singles out only select human rights for protection does not reflect Australia’s international legal obligations to protect all human rights equally and fails to take account of the necessary interrelation between all human rights. The rights contained in Article 18 of ICCPR which establish the right to freedom of thought, conscience and religion, are not superior to other human rights.

Where State anti-discrimination legislation aligns more closely with international human rights law than does the proposed Commonwealth legislation (being the RDB and associated amending legislation) it is particularly objectionable for the Commonwealth legislation to override State human rights protections.

Australia is the only Western liberal democracy without a federal Human Rights Act or Bill of Rights. Australia is bound by the seven core international human rights conventions and has been elected to the UN Human Rights Council, yet our citizens and residents continue to live without the human rights protections enjoyed by others in comparable countries across the Western world.

Australia’s international human rights treaty obligations should be enshrined in Commonwealth legislation.

ALHR submits that the human right to freedom of religion would best be protected by a Federal Human Rights Act or Bill of Rights and that the RDB legislative package should not be passed.

ALHR has made previous substantive submissions in relation to ‘religious freedoms’ issues in 2018 which form Annexures A and B to this submission, as follows:

Read ALHR’s submission in Full here