Religious Freedom and land-clearing

A religious group has claimed that “religious freedom rights” allow it to ignore Australian laws governing land-clearing and other provisions regulating land development. The claim is clearly wrong. It is important to spell out why, so this false claim does not affect other, justifiable, arguments that can be made about appropriate protection of religious freedom.

The facts

A Muslim group, Diwan Al Dawla, led by one Dr Mustapha Kara-Ali, has started clearing bush-land in Sydney’s north-west, apparently for the purposes of building a religious centre. The ABC reports:

Hawkesbury City Council has launched civil action against Dr Mustapha Kara-Ali and Diaa Kara-Ali in the Land and Environment Court, alleging the men carried out illegal land clearing, earthworks and built gates, fences and driveways without seeking any of the relevant development approvals at a property in Colo, in Sydney’s north west.

(See “Riot squad to escort council workers to Islamic leader’s alleged illegal land clearing site: court” ABC News online, 20 August 2018.) Dr Kara-Ali has made the claim that, as a religious group, his organisation does not need Council approval. In particular, he has alleged that, since his group is a “basic religious charity” within the meaning of that term under the Australian Charities and Not-for-profits Commission Act 2012 (Cth), they can ignore the law. He is quoted as saying:

“The Australian Charities and Not-for-profits Commission (ACNC) Act 2012 stipulates that when it is carrying out religious activities that are related to the practice, study, teaching or propagation of its religious beliefs, or other activities ancillary to them … Diwan Al Dawla, as a basic religious charity is not required to comply with Australian laws,” he wrote.

The Hawkesbury Council is apparently currently engaged in court action to stop the unauthorised works. An ABC News online account from today records that, on the second day of the trial, there was no appearance on behalf of the religious group, and indeed that while the court hearing was proceeding, two men seemed to be on site continuing to build a shed.

Claims for religious freedom

It is worth being clear about what might be meant by a claim that religious freedom authorised some action that would not have been lawful for a non-religious group. In effect there are two main things that might be asserted.

  1. It may be claimed that the law of Australia actually takes account of religious beliefs in determining whether or not someone has breached the law. This would not be a claim to act contrary to the law, it would simply be a claim that religious belief was accepted by the law as a relevant criterion to use to determine whether or not someone was in breach. We might call this a “type 1” claim for religious freedom under law.
  2. Alternatively, it might be claimed that, while the law of Australia does not currently allow religious status to be used in this way, the law ought to be changed to allow this. The source of the justification for change might be reference to international law norms (such as article 18 of the International Covenant on Civil and Political Rights), which while not automatically a part of the domestic law of Australia, may be used as an argument for the law to change. Or the claim for the law to recognise religious status as a reason not to regard behaviour as illegal might come from within a particular religious or philosophical tradition. We might call this a “type 2″ claim, that the law ought to recognise religious freedom, even if it currently doesn’t.

In my view it is very important to distinguish type 1 from type 2 claims, and not to confuse the characteristics of each. So, for example, when the Roman Catholic Church asserts that it is entitled to ordain only male clergy, it is making a simply “type 1” claim- that the law of Australia in fact recognises that the issue of whether someone is being ordained into religious ministry is actually one that affects whether an organisation breaches the law. Under s 37 of the Sex Discrimination Act 1984 (Cth) the church is entitled to continue its long-standing policy of only ordaining men, because Parliament has made a judgment that this should be done, in the interests of protecting the freedom of the church to organise its own ministry. Of course not everyone in the community will agree with the policy, but it is a policy embedded in the law. To rely on such a provision is not to seek to “override law by religion”- it is simply to work within the parameters of rights granted by the law. There are a number of “balancing clauses” in discrimination legislation which operate in this way.

On the other hand, the Ruddock Panel, which has now reported to the Government, was considering the ambit of what we might call “type 2” claims, arguments in favour of extending the protections to religious freedom already provided by the law, through new legislation or amendments to existing laws. Arguments presented to the Panel came from a range of sources. But those arguing for change to the law did not (in general) assert a legally recognised right to disobey the law. (Of course, there is a long tradition of conscientious objection to some laws, where members of the public say that their consciences will not allow them to obey a certain law. But their claim is usually a moral claim, that it would be right in certain cases to disobey the law. It is not a claim that their action would be legal.)

Evaluating these claims for religious freedom

The claims made in the Colo development case were something of a mixture of type 1 and type 2 claims. The type 1 claim, when analysed, proves to be misguided and fallacious. The type 2 claim will need to be evaluated on its merits, but in the way it has been put would not be supported by most Australian citizens.

1. Type 1 claim- “ACNC category exempts us from obeying the law”- false

First, it is clear that the claim that the status of “basis religious charity” exempts the Diwan Al Dawla group from obeying Australia law, is wrong.

Some brief background is needed to explain why the claim might at first sound plausible. The ACNC Act sets up a system to regulate those groups in Australia who claims to be “charities”, many of whom collect donations for their causes. But in setting up the system, the Parliament decided that small purely religious groups who were not invoked in collecting money on a large scale should be exempted from many of the detailed reporting and governance requirements imposed on the larger groups. See here for more details on the ACNC website about “basic religious charities”.

It seems that Diwan Al Dawla has a letter of some sort from the ACNC confirming that it falls into this category. I have not of course seen the letter, but going by the advice on the ACNC website it probably confirms that, because the group falls into this special category, it does not have to “comply with the ACNC governance standards”. But it is crystal clear that this exemption is a very limited and narrow one, simply applying to reporting and other administrative requirements that are imposed on a charity. It does not operate as a “disobey the law for free” card, allowing the relevant group to operate outside Australia law generally.

The ACNC has confirmed this in a reported statement:

An ACNC spokesperson said basic religious charities did not have to comply with the ACNC Governance Standards.

“However, the exemption of basic religious charities from complying with the Governance Standards does not mean that they do not have to comply with Australian laws,” the spokesperson said.

Type 2 claim: our group ought to be free from Australian law because of our religious beliefs

The further claim has been made that the group does not have to obey Australian law, because of its religious beliefs. Another quote argues that in some sense the NSW Government has its own “religious” status, and this group can simply ignore it:

Dr Kara-Ali said the NSW Government was “not a secular government” but “another religion that uses other religious symbols that is coercing another religion”.

“We came about as a un-incorporated association that never signed a social contract with any secular state let alone a religious [sic] symbolised state that claims to be secular, so until such symbolisms are absent from a form of governance then we have our form of governance and they have theirs.”

“I am not accountable to any other religion other than our religion. For us it’s a matter of basic religious freedom.”

In this sense this is not a claim to freedom under the law, but a claim to be free from the law. No legal system can accept that a group is free to operate free from its constraints. Nor is such a claim made by mainstream religious groups, whether Christian, Muslim or any other. Indeed, it is orthodox Christian theology, for example, that believers should obey the secular authorities, who have been given their responsibilities to run the State by God (see Romans 13:1, 1 Timothy 2:1-2). So it is a religious duty for Christians to be subject to the secular State, up to the extreme point where the State deliberately demands some action that God has forbidden, or forbids something God has commanded (see Acts 4:18-20).

Not that religious freedom is totally irrelevant to issues concerning town planning and development approval. International rights to religious freedom ought to support local planners being prepared to accommodate, as far as possible within the usual guidelines about traffic and other issues, requests to construct religious buildings. In the State of Victoria, where “type 1” religious freedom laws exist in the form of the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14, the Court of Appeal has referred to religious freedom principles in supporting the decision of a local council to allow construction of a mosque: see Hoskin v Greater Bendigo City Council [2015] VSCA 350 at [22]-[31]. (See also N Villaroman, Treading on Sacred Grounds: Places of Worship, Local Planning and Religious Freedom in Australia (Leiden: Brill, 2015) dealing with these issues, and my review of that book.)

But to say that religious freedom rights require careful consideration of building applications, is not to say that such applications can be made ignoring the careful land use planning laws in place all over Australia. Sensible religious communities are usually more than happy to comply with the ordinary principles of land planning. There is no legal reason for a group to claim that it can simply charge ahead and ignore town planning processes because it claims to have a religious right to do so. Nor does a sensible intepretation of religious freedom rights in a wider sense require support for such an approach.

Religious Freedom does not give a license to ignore the law

The bottom line is that a sensible claim for religious freedom is not a claim to simply ignore the law. A “type 1” claim, which relies on a right given by the existing law, is simply to be dealt with under the law. A “type 2” claim, that for one reason or another the law ought to be changed to allow further protection, should always be evaluated on its merits. That some foolish claims can be made in the name of religious freedom, does not mean that all such claims must be rejected. Hopefully the report of the Ruddock Panel, when it is released, will provide further guidance on where the law might need to be changed to better reflect the important interests of religious freedom, balanced appropriately with other important social values.

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