The Ethos of Protection for Freedom of Religion or Belief in Australian Law

• Author: Paul T. Babie
• Position: Adelaide Law School Professor of the Theory and Law of Property, The University of Adelaide
• Pages: 64-91

*

IINTRODUCTION

The events surrounding the dismissal of Israel Folau by Rugby Australia for

deeply offensive social media posts predicated on claimed religious beliefs,1

and the Commonwealth government attempts to enact a package of

legislative religious freedom protections2 raise, yet again, an important reality

for Australians: the lack of a constitutionally-entrenched and comprehensive

protection for freedom of religion or belief (‘FoRB’).3 Put another way, the

*Adelaide Law SchoolProfessor of the Theory and Law of Property, The University of Adelaide.

1See Paul Babie and Collette Langos, ‘Social Media, Free Speech, and Religious Freedom’ (2019) 20

Rutgers Journal of Law and Religion

in press.

2

Religious Discrimination Bill 2019

(Cth), the

Religious Discrimination (Consequential Amendments)

Bill 2019

(Cth), and the

Human Rights Legislation Ame ndment (Freedom of Religion) Bill 2019

(Cth)

(collectively, ‘

Religious Freedom Bills

’. See Attorney-General’s Department, Religious Freedom Bills

<https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx>. Following extensive

public comment on the initial exposure drafts of these bills, the Prime Minister’s Office announced on

30 November 2019 that revised discussion drafts of the

Religious Freedom Bills

would be released

before the end of 2019, and introduced in Parliament in 2020: Prime Minister of Australia,

‘Government Will Pr otect Religious Freedoms by Getting t he Law Right’ (30 November 2019)

-will-protect-religious-freedoms-getting-law-right>. The

second exposure drafts of the proposed legislation were released by the Prime Minister on 10 December

2019: Australian Government, Attorney-General’s Department, ‘Religious Freedom Bills – Second

Exposure Drafts’ (10 December 2019) -

freedom-bills-second-exposure-drafts.aspx>.

3SeePaul Babie and Neville Rochow, ‘Feels Like Déjà Vu: An Australian Bill of Rights and Religious

Freedom’ [2010]

BYU Law Review

821.

is article suggests that an ‘ethos’ of protection for freedom of religion or belief

(‘FoRB’) exists in Australian law. e ethos involves three components. First, an

approach to rights protection found in international and Australian domestic

law which both recognises the individual right to FoRB, and the need for it to be

balanced against the community interest. Second, the content of the right itself,

found in constitutional, statutory (Commonwealth, State, and Territory), and

common law protections for FoRB. And, third, remedies for the violation of the

right, which operate within a wider rights ‘dialogue’ or ‘conversation’ between the

three branches of government—legislative, executive, and judicial—in an attempt to

balance individual and community interests implicated by FoRB.

THE ETHOS OF PROTECTION FOR FREEDOM OF

RELIGION OR BELIEF IN AUSTRALIAN LAW

PAUL TBABIE

*

*

2020

Protection for Freedom of Religion or Belief in Australia

65

current protections for FoRB must be constructed from a number of disparate

sources, some constitutional, some legislative—Commonwealth, State, and

Territory—and some common law. Some see this ‘piecemeal’ approach to

protecting FoRB as a troubling deficiency of Australian law.

4

But while we

may lack a comprehensive, constitutionally-entrenched protection for

religious freedom, it is worth remembering that Australian law

does

contain

protection for FoRB. It may lack a unitary source of comprehensiveness, it

may be piecemeal, but it is there in what I call in this article the ‘ethos’ of

protection for FoRB.

The ethos is more akin to the ‘unwritten’

British Constitution

,

5

in the

sense that it is comprised of two disparate sources: laws properly so-called

(constitutional, statute, and common law), and ‘conventions,

understandings, habits, or practices [which]…may…be

termed…constitutional morality.’

6

Indeed, it may even be the case that this

ethos of protection for FoRB may have a wider ambit than any rigidly defined,

written protection, such as a proposed Commonwealth Religious Freedom

Act. In other words, rather than being found in any one single document,

one finds the ethos in a convergence of sources found in many texts the

product of legislative and judicial processes: the

Commonwealth

Constitution

, at least one State constitution, Commonwealth, State, and

Territory legislation, and in the common law.

7

Yet, one might ask: why not rely upon a proposed Commonwealth

Religious Freedom Act for achieving protection of FoRB? The ethos matters,

I suggest, for four reasons, two theoretical, and two pragmatic. The first,

theoretical, reason is that recognising FoRB as part of Australian law makes

what has been called ‘constitutional space’ for other fundamental freedoms: a

4

This deficiency is a reason used t o call for a comprehensive bill or charter of rights, eithe r

constitutional or legislative. See Babie and Rochow (n 3); Arthur Moses, ‘A flawed bill is no way to

protect precious rights’,

Law Council of Australia

(12 December 2019)

-piece--a-flawed-bill-is-no-way-to-protect-

precious-rights>; Gloria Kalache, ‘‘A lot of wrongs to repair’: Justice Michael Kirby calls for national

bill of rights’,

SBS News

(May 29, 2019) -lot-of-wrongs-to-repair-

justice-michael-kirby-calls-for-national-bill-of-rights_2>.

5

See AV Dicey,

The Law of the Constitution

(JWF Allison (ed), Oxford University Press, 2013) 20.

6

Ibid.

7

My approach is not unheard of: s ee Peter Bowal and Dustin Thul, ‘Bills of Rights in Canada’ (January

1, 2013)

Law Now: Relati ng Law to Life in Canada

-of-rights-in-

canada/>; John Hucker, ‘Antidiscrimination Laws in Canada: Human Rights Commissions and the

Search for Equality’ (1997) 19

Human Rights Quarterly

547.