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Religious freedom proposal is a dud

By Augusto Zimmermann - posted Wednesday, 17 July 2019


The Morrison government has a legal and moral responsibility to adhere to Australia's international human rights obligations. Having endorsed the ICCPR and other international law instruments, this government is obligated to use its legislative powers to support Australia's constitutional freedoms.

It should protect not only religious freedom but freedom of speech, freedom of conscience, freedom of association and the right to peaceful assembly.

This can be done because the High Court has generally adopted an expansive approach to the external affairs power found in the Australian Constitution.

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This power, wrote chief justice Harry Gibbs in Tasmania Dams (1983), subjects the federal government to "no significant limits", thus offering a potential to invalidate state law in virtually every respect regarding any infringements of religious freedom.

Unfortunately, the proposed religious discrimination act appears to be a missed opportunity.

If the government does not reform the existing laws to remove constitutionally invalid restrictions on religious freedom and its correlating freedom of speech and freedom of association (for religious people or not), we can only hope that an Australian state will know it should and can take the initiative to restore our fundamental rights and freedoms, and pay proper respect to the Constitution.

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This article was first published in The Australian.



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About the Author

Augusto Zimmermann, LLB, LLM, PhD is a Lecturer in Law at Murdoch University, Western Australia.

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