Today the Australian Law Reform Commission released its final report on Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129). I am planning on providing some comments myself, but in the meantime I am grateful to my friend Mark Fowler, from Brisbane law firm Neumann & Turnour, who has agreed to provide a very speedy overview of chapter 5 (on “Freedom of Religion”) by way of a “guest post” on the blog. Over to Mark:

General Summary

This update focusses on the findings at Chapter 5 – Freedom of Religion, which concern the extent to which Commonwealth law encroaches upon religious freedom within Australia.

Whilst various submissions to the Inquiry argued for the limiting or total removal of existing exemptions from the operation of anti-discrimination law granted to religious institutions, at paragraph 5.123 of the Final Report, the Inquiry impliedly refuted such submissions. It did this by linking a finding of no significant encroachment upon religious freedom to the ongoing presence of exemptions:

[T]here is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, especially given the existing exemptions for religious organisations.

The conclusion that there is no significant encroachment upon religious freedoms had been contested by various of the submissions made. However, the Report did note that there was a degree of community concern as to that encroachment and recommend that religious freedom protections be considered in any future reform efforts aimed at anti-discrimination laws (at paragraph 5.154):

[C]oncerns about freedom of religion should be considered in future initiatives directed towards the consolidation of Commonwealth anti-discrimination laws, or harmonisation of Commonwealth, state and territory anti-discrimination laws. In particular, further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions.

General Limitations Clause

The ‘general limitations clause’ approach is summarised by the Commission in the following statement:

A broader concern of stakeholders is that freedom of religion may be vulnerable to erosion by anti-discrimination law if religious practice or observance is respected only through exemptions to general prohibitions on discrimination. An alternative approach would involve the enactment of general limitations clauses, under which legislative definitions of discrimination would recognise religious practice or observance as lawful discrimination, where the conduct is a proportionate means of achieving legitimate religious objectives.

Whether such a clause would operate as an effective protection of religious freedom (including as a means to effect the applicable international instruments to which Australia is a signatory, including Article 18 of the International Covenant on Civil and Political Rights) will of course turn on its precise terms. The Inquiry’s Final Report provides at paragraph 5.111 an example of a general limitations clause, as proposed by Professors Nicholas Aroney and Patrick Parkinson:

1. A distinction, exclusion, restriction or condition does not constitute discrimination if:
   • it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or
   • it is made because of the inherent requirements of the particular position concerned; or
   • it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or
   • it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.

2. The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a).

Harmonisation of Commonwealth, State and Territory Laws to Protect Religious Freedom

Making reference to the potential for harmonisation across Commonwealth, State and Territory anti-discrimination laws, the Report notes that at ‘present all states, except New South Wales and South Australia, and both territories, have legislation making it unlawful to discriminate on the grounds of religious belief. The definitions of religious discrimination and the scope of exemptions differ. Commonwealth law does not make discrimination on the basis of religion unlawful’. We agree that this is an area warranting further consideration in reform efforts into the future.

Further Information and Next Steps

We continue to analyse the report, but thought this brief summary would be helpful. Further details of the Inquiry’s Final Report can be found online and general links are provided below:

• Media release;
• Final Report;
• Summary Report; and
• Podcast(audio with transcript).

The Inquiry’s Final Report does not represent a Government commitment to reform the law, however, many of the Commission’s past reports have been influential in driving law reform. The Australian Government has not a set a time frame in which to respond to the Inquiry’s Final Report or implement the recommendations.

Mark Fowler | Director, Neumann & Turnour Lawyers