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Religious Freedom Act should be opposed as a back-door Bill of Rights

By Lorraine Finlay - posted Monday, 6 August 2018

Agreement across the political divide should generally be a good thing, particularly when it is agreement about an important human rights issue. So surely the fact that Amnesty International are in 'furious agreement' with conservative politicians like the Minister for Social Services, Dan Tehan about the need for a Religious Freedom Act in Australia is something to be welcomed?

Except that we should always be cautious about hidden agendas and unintended consequences. The problem in this case is that a Religious Freedom Act could ultimately be used, paradoxically, to undermine the very freedoms it is meant to protect. The first hint comes in the recommendation made by Amnesty International to the Ruddock Review that current religious exemptions should be removed from anti-discrimination law. This would – to give just one example – potentially stop religious schools from being able to hire teachers that share their particular faith and values. If your professed aim is to strengthen religious freedom, isn't it is a little strange to start by arguing for the removal of existing protections?

More significantly, the key recommendation made in the Amnesty International submission is a call for the Federal Government to legislate a Human Rights Act for Australia. This is the almost inevitable consequence of introducing a Religious Freedom Act. For it is really just the first step towards the adoption of an all-encompassing Bill of Rights in Australia. Which would be a terrible idea. Not because we don't want to see human rights protected in Australia. Of course we do. The disagreement here isn't over whether human rights should be protected, but rather the best way of protecting them.


The problem with a Bill of Rights is that it shifts the key decision-making about human rights from the Parliament to the courts. We live in an age where human rights are constantly expanding, and where conflicts between different rights are becoming more and more common. Where we choose to draw the line involves decisions being made about core social and moral issues, is inevitably contentious, and is something that people can reasonably disagree about. For all of its faults, a Parliament consisting of democratically elected representatives who engage in public debate and are answerable to the Australian people is in a better position to make these types of decisions than an unelected and unaccountable judiciary.

Australia is the only Western liberal democracy that doesn't have either a statutory or constitutional Bill of Rights. This was not a mistake, nor is it something that we should be embarrassed about today. Our founding fathers consciously decided not to include a Bill of Rights in the Australian Constitution because of their strong belief that establishing a robust parliamentary democracy was a better way to ensure the protection of our fundamental rights and freedoms. They were right then, and we are right now to resist efforts to sneak one through the back-door.

This becomes especially obvious when we look at other countries that do have a Bill of Rights. The experience in countries like Canada and the USA is that religious freedom tends to come off second best when it is weighed against equality rights by judges interpreting a Bill of Rights. Religious freedom is facing growing pressure in all modern Western liberal democracies, even in countries that have already expressly protected this freedom in a Bill of Rights. Australia is no worse off in this regard.

There is no doubt that religious freedoms face a growing threat in Australia and need to be protected. But the best way to do this isn't through the introduction of a Religious Freedom Act. Many of those proposing this are motivated by nothing more than their desire to strengthen religious freedom. But the longer-term consequence is to open the door to the introduction of a general Bill of Rights, which would radically change the Australian political and legal landscape for the worse.

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About the Author

Lorraine Finlay is a Law Lecturer at Murdoch University, lecturing in constitutional law and international human rights. She is also a former President of the Liberal Women’s Council (WA).

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