In my former posts (here and here), O Friend of Law and Religion, I have dealt with all that the Ruddock Report covered in recommendations 1-12 and 15, along with the official Government Response to those recommendations. In this post I aim to cover recommendations 13-14 and 16-20. These deal with important issues of the law of blasphemy and religious free speech, along with State discrimination laws, collection of data, education on religious freedom, the role of the Australian Human Rights Commission, and the exercise of leadership in the area by the Commonwealth.
Recommendations 13 & 14- Blasphemy
It will no doubt come as a surprise to some that some laws of Australia still contain criminal prohibitions against blasphemy. But this is indeed so, and the recommendations of the Report are to repeal or abolish these offences:
Rec 13: Those jurisdictions that have not abolished statutory or common law offences of blasphemy should do so.
Rec 14: References to blasphemy in the Shipping Registration Regulations 1981, and in State and Territory primary and secondary legislation, should be repealed or replaced with terms applicable not only to religion.
My response: these seem like sound recommendations which should be supported. In a paper I presented in 2016 on “Protection of religious free speech in Australia” I summarised the situation in relation to the crime of blasphemy as follows:
Criminal law is not uniform throughout the country, and is mostly left to the States to determine. It seems fairly clear that the common law criminal offence of blasphemy is still in force in many jurisdictions. The Federal Court in Ogle v Strickland (1987) 71 ALR 41 so assumed. It certainly seems as though the Parliament of NSW believed it was so in 1900, because we have an adjustment, but not an abolition, of the offence in s 574 of the Crimes Act 1900 (NSW):
“No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any manner tending to a breach of the peace.”
As an offence imported from the United Kingdom when Australia was settled, it has been long held that the offence only applies to attacks on Christian doctrine, and not to comments made about non-Christian religions.
As the Ruddock Report notes, there seems to have been no prosecution for blasphemy in Australia since 1871 (see para 1.358). It would of course be possible to “revive” the offence by extending it to other religions. But there are many concerns about a law criminalising speech about religion, especially in light of serious issues with laws about blasphemy as used in, for example, Pakistan in recent years.
While to some extent a law against blasphemy in the West may seem to be simply an archaic “dead letter”, it would be preferable if the offence was explicitly removed as soon as possible to avoid any chance of it being re-activated in inappropriate ways. A number of mainstream Christian churches, including the Anglican church, have called for the abolition of the offence in recent years. I strongly support the recommendations.
The Government response to the Report also supports the recommendation:
Blasphemy is not an offence under Commonwealth law. However, as stated below in response to recommendation 14, the Australian Government will amend the Commonwealth Shipping Registration Regulations 1981 in line with the Panel’s recommendation so that references to blasphemy in those Regulations are removed.
Currently, as noted in the Religious Freedom Review, some blasphemy laws may continue to exist in New South Wales, Victoria, South Australia, the Northern Territory and the Australian Capital Territory.
While there have been no prosecutions under these laws in Australia since Federation, the Government considers that State and Territory laws specifically prohibiting blasphemy place too great a burden on freedom of expression and infringe upon people’s enjoyment of other fundamental rights. Therefore, the Attorney-General will correspond with State and Territory Attorneys-General seeking their agreement to abolish statutory or common law offences of blasphemy.Government Response, p 13.
Recommendation 16- State laws on religious discrimination
Recommendation 16 is as follows:
New South Wales and South Australia should amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’ including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for the appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
This recommendation needs to be seen in the context of Rec. 15 (noted in my first response to the Report), which has recommended a general “Religious Discrimination Act” be passed by the Commonwealth Parliament preventing discrimination on the grounds of religious belief or activity. At the moment most but not all States and Territories have similar laws in place. The exceptions are NSW and South Australia.
In NSW the Anti-Discrimination Act 1977 forbids discrimination on a range of grounds, but “religious belief or activity” is not at the moment one of those grounds. In the past concerns have been expressed by churches, for example, that introduction of such a law would impair the ability of a church to operate, in terms of it not being able to maintain its own doctrines by engaging leaders who share its religious beliefs. However, all laws on religious discrimination contain exemptions and “balancing clauses” to operate where religion is a relevant criterion for decision-making. So long as such provisions are clear and appropriately framed, a religious discrimination law can operate in a sensible and helpful way, in my view. (In a previous post, I noted that a Private Member’s Bill along similar lines had been introduced into the NSW Parliament. The sort of things dealt with in that Bill will probably be the sort of matters dealt with in any legislative response by the NSW Parliament to the Ruddock Report, though of course it won’t be identical.)
In South Australia the Equal Opportunity Act 1984 contains only slim protection related to religious belief or practice: in s 85T, in a part dealing with “discrimination on other grounds”, s 85T(1)(f) provides that the other grounds include “the ground of religious appearance or dress”. This is elaborated on in s 85T(7) as follows:
(7) For the purposes of this Act, a person discriminates on the ground of religious appearance or dress—
(a) if he or she treats another unfavourably because of the other’s appearance or dress and that appearance or dress is required by, or symbolic of, the other’s religious beliefs; or
(b) if he or she requires a person to alter the person’s appearance or dress and that appearance or dress is required by, or symbolic of, the other’s religious beliefs; or
(c) if he or she treats another unfavourably because of the appearance or dress of a relative or associate of the other and that appearance or dress is required by, or symbolic of, the relative or associate’s religious beliefs
Ruddock Rec 16 urges the NSW and SA Parliaments to expand their discrimination law to include “religious belief or activity” as a prohibited ground, along with inclusion of “appropriate exceptions and exemptions” (“balancing clauses” recognising other rights.) In my post on Rec 15 I outlined what I thought should be the type of limits placed on laws forbidding religious discrimination.
Perhaps it is worth commenting on one issue here. The Report has recommended that there be religious discrimination laws at both Commonwealth and State/Territory levels. Some careful thought will need to be given to the interaction between the new Commonwealth Act and the other legislation. Under s 109 of the Constitution a Commonwealth law will prevail over a State law if there is a relevant clash (and similar principles apply in relation to Territory laws). It may be thought desirable to allow both levels of government to provide protections in this area, but since each law will involve the need to carefully calibrate the interests of relevant parties the question may be raised as to whether it might not be better to simply provide all these matters in the one national law, rather than leaving it to different jurisdictions.
My response: if State laws are to be maintained in this area, then it is sensible for NSW and SA to amend their laws as recommended.
The Government response:
The Government accepts in principle this recommendation as it pertains to two States.
The Attorney-General will correspond with the New South Wales and South Australian Attorneys-General seeking their consideration to amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s religious belief or activity, including on the basis that a person does not hold any religious belief, in line with the Panel’s recommendations.
Further to the above, the Australian Government will propose the establishment of a Council of Attorneys-General Working Group to consider all relevant recommendations of the Review.
Recommendation 17- better data collection
Recommendation 17 is:
The Commonwealth should commission the collection and analysis of quantitative and qualitative information on the experience of freedom of religion in Australia at the community level, including:
Incidents of physical violence, including threats of violence, linked to a person’s faith;
Harassment, intimidation or verbal abuse directed at those of faith;
Forms of discrimination based on religion and suffered by those of faith;
Unreasonable restrictions on the ability of people to express, manifest or change their faith;
Restrictions on the ability of people to educate their children in a manner consistent with their faith;
The experience of freedom of religion impacting on other human rights;
The extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society.
My response: in short, I support this, as more information in this area is a good idea.
The Government response:
The Attorney-General will refer an inquiry into freedom of religion to the Australian Human Rights Commission, to be conducted by the new Freedom of Religion Commissioner (once established pursuant to recommendation 19 below), to collect and analyse information on the experience of freedom of religion in Australia at the community level, the experience of freedom of religion impacting on other human rights and the extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society.
Recommendation 18- education on religious freedom
Recommendation 18 is:
The Commonwealth should support the development of a religious engagement and public education program about human rights and religion in Australia, the importance of the right to freedom of religion and belief, and the current protections for religious freedom in Australian and international law. As a first step, the panel recommends that the Attorney-General should ask the Parliamentary Joint Committee on Human Rights to inquire into and report on how best to enhance engagement, education and awareness about these issues.
My response: This recommendation is supported. It will be important to ensure, however, that educational material is informed by a range of views and is respectful and not dismissive of religious views, as is sometimes the case in the “human rights” community at the moment. This will need consultation to be genuine and broadly based in religious communities as well as those sectors currently engaged in human rights activities.
The Government response:
The Australian Government will ask the Freedom of Religion Commissioner (once established pursuant to recommendation 19 below) at the Australian Human Rights Commission to develop a religious engagement and public education program, informed by the outcomes of the Commissioner’s inquiry outlined in response to Recommendation 17, about human rights and religion in Australia, the importance of the right to freedom of religion, and the current protections for freedom of religion under Australian and international law
Recommendation 19: the role of the AHRC
Recommendation 19 is:
The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.
My response: this is one area where I was always a bit concerned about the Report’s approach. It has to be frankly said that the AHRC as a whole does not have a good track record in defending religious freedom rights in recent years. I note that the proposal does not recommend coercive or investigative powers and that is appropriate. In the end, however, I think it would really be better to have a dedicated “champion” for these issues within the AHRC, rather than bundling it into the role of someone else.
I was then naturally pleased to see the Government response:
The Australian Government will support the Australian Human Rights Commission’s leading role in the protection of freedom of religion, in particular through the response to Recommendations 17 and 18 above.
To strengthen the protection of freedom of religion in Australia, the Australian Government will also establish the separate statutory position of Freedom of Religion Commissioner at the Australian Human Rights Commission through the proposed Religious Discrimination Bill.
I think this is a sensible move. While in theory all human rights are equal, I don’t think any observer could deny that in recent decades “discrimination rights” have been “more equal than others”, and religious freedom has not been given a high priority.
The Freedom for Faith submission to the Ruddock Inquiry, chapter VI, makes an excellent case for a full-time Commissioner concerned with religious freedom, either attached to the AHRC or as a stand-alone appointment. The submission notes:
If the National Commissioner is given a role within the structure of the AHRC, it will be important that the Churches and other faith communities have confidence that he or she will be given a lead role when the Commission is making submissions on religious freedom issues. Where other issues have religious freedom implications, the Churches and other faith communities will need to have confidence that the Commissioner’s voice will be heard and his or her perspectives appropriately reflected in whatever submission is made on behalf of the Commission as a whole.Freedom for Faith submission to the Ruddock Inquiry, p 98
I would echo these sentiments, and support the other suggestions made in that Chapter of the submission as to the role and responsibilities of a Freedom of Religion Commissioner within the AHRC.
Recommendation 20: support for religious freedom
Recommendation 20 is:
The Prime Minister and the Commonwealth Attorney-General should take leadership of the issues identified in this report with respect to the Commonwealth, and work with the States and Territories to ensure its implementation. While the panel hopes it would not be necessary, consideration should be given to further Commonwealth legislative solutions if required.
My response: very sensible idea.
The Government response:
The Australian Government has accepted either directly or in principle 15 of the 20 Religious Freedom Review recommendations and will consult with the States and Territories on the terms of a potential reference to the ALRC to consider the remaining five recommendations with a view to considering what drafting options may be available that would achieve the twin purposes of limiting or removing altogether (if practicable) legislative exemptions to discrimination based on a person’s identity while also protecting the right of religious institutions to reasonably conduct their affairs in a way consistent with their religious ethos.
The Australian Government will also work with all of the States and Territories with respect to the recommendations for which they are responsible or which require further consideration. In this regard, the Australian Government will propose the establishment of a Council of Attorneys-General Working Group to consider all relevant recommendations of the Review.
In particular, while it sounds like a classic piece of “bureaucracy”, a working group of Commonwealth, State and Territory Attorneys-General is a good initiative to keep the implementation of complex recommendations on the agenda of governments and their senior advisers.
As will have been seen over this and the previous two summary posts, there is a lot in the Ruddock Report, and no doubt a careful reading will review many more insights than I have been able to cover here. While there are always areas of “fine-tuning” that one would like to see, my general response is that the Report is a sensible document which takes religious freedom seriously, and hopefully the actions promised by the Government will be implemented with due speed. As the High Court of Australia has said,
[F]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society.Mason ACJ and Brennan J in The Church of the New Faith v The Commissioner of Pay-roll Tax (Victoria) (1983) 154 CLR 120 at 130
This Report in general goes a good way to provide continuing protection for Australia as such a “free society”.