This week has seen the Australian Prime Minister announce that the government will be cancelling some social security benefits for parents of young children who cannot show that the children have been vaccinated. From that report:

Parents who refuse to vaccinate their children will miss out on government benefits of up to $15,000 per child under a new measure announced by Prime Minister Tony Abbott.

Under current laws, families with children who are not immunised can still receive annual childcare rebates and other benefits if they have a personal, philosophical or religious objection.

Mr Abbott said the rules would now be tightened to only allow a small number of religious and medical exceptions.

This post will not be about the debates over vaccination; I have made my own views clear in a previous post dealing with claims for religious exemption in the US, that the science as far as I can tell is sound and that children ought to be vaccinated. But it has been interesting to see the responses to the “religious exemption” which the Government has made clear that it will retain. Some have complained that it is present at all. Others have lightly suggested that objectors will just “sign up” to some pretend religion to get the exemption.

In my view the Government has it about right here. On the one hand, there should be provision for a religious exemption. Arguably this would be consistent with s 116 of the Constitution, which supports “free exercise” of religion, and the case-law on that provision which says that it requires the Commonwealth not to impose an “undue” burden on religion. It would of course be possible to remove that exemption altogether if there were overwhelming public health reasons to do so, but my impression is that so long as the only people who are exempted are those with genuine religious reasons, then this will be a fairly small group, and the fact that their children are not immunised should not dramatically impact the desired “herd immunity” which is necessary for effective vaccination protection.

But on the other hand, to implement this policy and for that reason, the exemption should be one which is tested and shown to be genuine. In my view those who can take advantage of the exemption ought to be able to satisfy the following criteria:

1. They are genuine adherents of
2. a specific religion
3. which provides plausible reasons from within its tenets as to why vaccination should not be allowed.

The requirement for “genuine” belief will be needed to exclude those who would simply “tick a box” and not have any real connection with the religion concerned. The “specific religion” requirement is simply to say that it is not good enough to claim a “generic” religious objection. And the “plausible” requirement means that someone who accepts the fundamental beliefs of that faith must be able to explain why its tenets lead to a demand for no vaccination, rather than just baldly assert that fact.

An example of a religious claim for exemption which justifiably failed can be found in the previous post I mentioned. There, as I noted,

the plaintiff who was denied a religious exemption, while she claimed she did so as a Roman Catholic, testified that she did not know of any tenets of Catholicism that prohibited vaccinations.

Interestingly, following the Prime Minister’s announcement, the Social Services Minister was asked which groups might be able to claim the exemption, and (sensibly I think) declined to be specific, on the basis that he didn’t want to generate a flood of false claims. Of course there will some who will still think that they can “beat the system”, either by making a false claim to belong to a genuine religion, or even by signing up to a “sham” one set up for evasion purposes. But the government should be able to weed most of these claims out by requiring relevant evidence of the existence of the religious group, and the fact that a claimant has been a genuine adherent.

Notice that I do not suggest that the government needs to be satisfied of the truth of the particular religion’s claims. That of course would be to go well beyond what a sensible policy of religious freedom requires. But testing the genuineness of a religious claim is by no means impossible. There is an excellent academic piece on this topic, “Questioning Sincerity: The Role of the Courts After Hobby Lobby” (2014), which debunks many of the popular myths that a “religious freedom claim” will open the door to any old fabrication that comes along. That is also why governments, in my view, need to be a lot clearer in rejecting the claim of the so-called “Church of the Flying Spaghetti Monster” to privileges such as wearing headgear on driving license photos. To state the obvious, this is a group that has clearly been set up, not as a genuine religion, but as an act of “political satire” to undermine freedoms given to genuine religions. But it shouldn’t be too hard to expose their recent and satirical origins, and to reject any spurious claims to exercise religious freedom.

Of course there is always the danger that where the government has to test the genuineness of a religious belief, decision-makers will sometimes stray over the line into assessing the desirability of such a belief, or set themselves up as the arbiter of what a correct reading of the religion’s doctrines should be. (I have previously suggested that this is sadly what happened, in part, in the decision in CYC v Cobaw.) However, the dangers of simply accepting all claims to “religion”, however spurious and invented, are such that this is a price we may have to pay. So long as government departments and courts remind themselves that their task in the first place is not to assess the truth of a claim, but rather its status as a genuine religious claim, the balance between religious freedom rights and the public health interests of the community should be able to be kept.