Religious Freedom: We are being careful what we wish for

Tim Costello’s article – Religious Freedom: Be Careful What You Wish For – argues that religious freedom should be protected within the broader context of a Human Rights Act. He also uses a recent article in the Journal of Sociology of Religion to suggest that countries in which religious freedom is protected experience rather less Christian vitality than those in which religion is not privileged.

It is important that theologians, lawyers, and people from other disciplines maintain a dialogue with one another on complex issues, and yes, protection of religious freedom is a complex issue. Understanding the legal framework in Australia is critical.

The right to faith

Tim Costello and Patrick Parkinson offer different takes on the value of trying to protect the freedom to practise faith – through upholding other human rights.

A Human Rights Act in Australia, which Tim argues for, does not provide much of an answer to the protection of any human right.

Here’s why. At the federal level, the decision of the High Court in ‘Momcilovic v The Queen (2011)’ made it clear that it is unconstitutional for the Federal Parliament to enact a Human Rights Act of the kind that many advocates on the left of politics have been wanting for so long.

The best you can hope for at federal level is an Act which operates as an aid to the interpretation of statutes where there is an ambiguity. We already have that. It is a principle of statutory interpretation at common law called the Principle of Legality.

Now states and territories can have Human Rights Acts that do a little more than is possible federally. These laws exist in Victoria, Queensland and the ACT. Each Government, when it introduces a bill, is meant to certify that the legislation is compatible with the Human Rights Act.

The trouble is that the human rights legislation in all three jurisdictions has a significant opt-out clause. Parliaments can legislate to breach human rights for various reasons. At the end of the day, there is nothing much the courts can do about it if the Parliament passes legislation which is in flagrant breach of human rights, except issue a statement to that effect.

An example of the problem is the Victorian Conversion Therapy legislation passed this year which gives government authorities various powers to investigate what I pray for and with whom I pray – even where that prayer is requested by an intelligent adult exercising free will. That got the tick of approval from the bureaucrats and Parliament for being compatible with the Victorian Charter of Rights. The Premier and Government ministers simply refused to engage with church leaders – or even psychiatrists and psychologists – who raised important concerns.

You see, sometimes the strongest advocates for human rights are pretty selective about which human rights they believe in, or how to balance different rights. All rights are equal, but some end up being a lot more equal than others.

So yes, we need to be careful what we wish for, and we are.

The article in the Journal of Sociology of Religion also doesn’t really stand for the proposition that we should welcome restrictions on religious freedom. Of the ten countries where the decline of religious faith has been the most rapid, according to that study, nine out of ten were countries of the old Soviet bloc. The tenth country was Germany – but of course a large proportion of that country was in the Soviet bloc too, when it was known as East Germany. Decades of restriction on religious freedom and compulsory education in atheism have had a very detrimental effect on faith in those countries.

The countries where the State did support religion, as documented in that study, often did so through having a State Church, such as the Church of England or the Lutheran Church in Scandinavia. No, we don’t want that. In any event, our federal Constitution prohibits it. We are not arguing for “official support for Christianity” which, as Tim Costello’s article notes, is often associated with decline in religious vitality. We are arguing for realistic protections for religious freedom for all faiths.

So yes, we need to be careful what we wish for, and we are. Freedom for Faith works together with church leaders across a broad spectrum and with expert lawyers to promote smart ideas on how we can better protect the rights of all people of faith. This is essential if we are to continue to be a successful and harmonious multicultural society.

Fundamental to this is that faith-based organisations retain the right to appoint, or prefer to appoint, staff who adhere to the faith of the organisation and believe in its mission. This is a fundamental freedom, accepted in international declarations and conventions concerning human rights. It is an aspect of freedom of association. We must also advocate for better protection of freedom of speech for all Australians, within internationally accepted limits.

Tim Costello quoted former US president Roosevelt’s famous appeal for a world based on four fundamental freedoms – freedom of worship and speech, and freedom from want and fear. To engage, from a Christian perspective, in campaigns for social justice and freedom from want and fear, Christian organisations need to be able to maintain and protect their religious identity and ethos.

Some freedoms are absolutely fundamental, because they provide the framework within which we can advocate for other human rights. Those freedoms are weakly protected in Australia, and are increasingly under threat. We will lose them if we remain complacent.

Professor Patrick Parkinson is Chair of Freedom for Faith, a Christian legal think tank. This weekend, June 11-13, is Religious Freedom Weekend.

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