Australia must weigh up competing rights and look at the gaps in its laws, Santow says

This article is more than 2 years old

This article is more than 2 years old

It’s been a good end to the year for Ed Santow.

Before I can ask about the upcoming religious freedom inquiry under Philip Ruddock, Santow rattles off three big wins in his area of responsibility at the Australian Human Rights Commission.

First, Australia became the 25th country to legalise marriage equality after the unprecedented national postal survey.

Second, the family court ruled, after the AHRC intervened in the case, that Australia’s transgender teenagers will no longer have to apply to the court to get access to hormone treatment.

And third, Australia ratified the optional protocol to the convention against torture.



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But Santow will now have to pull together AHRC submissions by the 31 January deadline for the panel led by Ruddock, a former attorney general, which will review religious freedom in Australia.

During the marriage debate, the meaning of “religious freedom” was hotly contested. The Liberal senator Dean Smith, at first supported by Malcolm Turnbull, maintained that his bill did not restrict religious freedom; senators James Paterson and David Fawcett argued that a raft of legal changes were needed to allow service providers to refuse to cater to weddings.

Santow explains that international human rights law protects religious freedom in two main ways: the right to hold a religious belief, which he says is “absolute and there can be no restriction on that”; and to manifest it, which he says is “very important but can be subject to some restrictions under human rights law”.

“The way one person manifests their right can impact another’s rights and interests – it’s about trying to create an accommodation between potential conflicts.”

Santow says protection of freedom in religion in Australia is “piecemeal”. There is a “strong but narrow” protection in section 116 of the constitution, which says the government cannot prohibit the free exercise of religion, but there are gaps in other laws.

“There is no freestanding protection in our anti-discrimination law, at the federal level, against discrimination on the basis of religion,” he says. “That’s an anomaly in many ways.”

Santow says closing that gap would be “the most obvious” way for Australia to implement its obligations under article 18 of the international covenant on civil and political rights.

He says Australia “hasn’t fully implemented” provisions that ban hate speech against people on the basis of their religion.

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That may entail something like applying section 18C of the Racial Discrimination Act – which bans speech that insults, offends or humiliates people based on their race – to discriminatory speech against religious people.

In a textbook case of the difficulty of balancing rights, in March the Senate blocked the government’s push to weaken section 18C by nudging the balance in favour of freedom of speech and away from non-discrimination.

The international covenant says freedom to manifest religious belief “may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”.

Santow says this calls for a “commonsense approach” – that impositions on freedom to manifest religious belief must be proportionate, clear and “absolutely necessary to protect other legitimate interests”.

“How we achieve that accommodation is a mark of how embracing we are of diversity of our community,” he says. “If one right is permitted to completely swamp all other rights, that will really diminish the level of freedom that ordinary people will be able to enjoy.”

A new appointee to the Ruddock review panel, Nicholas Aroney, has warned in his academic writing that religious freedom risks becoming a second-class right to anti-discrimination.

Just Equal’s spokesman, Rodney Croome, seized on the remarks as indicating a view that “religious freedom trumps other rights, including equality”.

Santow declines to comment on the implications for marriage service providers, except to say that there are gaps that need to be filled for both rights. Asked how to balance the two in the context of marriage, Santow says: “It’s a difficult debate. The balance in the law that just passed is a pragmatic one,” he says, although he accepts that reasonable minds can differ on that point.

Santow notes that it provides “very significant” protection to religious ministers to refuse to solemnise weddings.

We are the only liberal democracy that doesn’t have a national human rights act or constitutional bill of rights Ed Santow

“By saying civil celebrants may not have that same choice open to them – I guess what parliament is saying is there is a difference between religious marriage and civil marriage.”

Religious institutions get strong protection because society considers organised religion “unique and special ... as opposed to someone individually who may be motivated by a particular religious belief”.

Despite all the focus on religious freedom, Santow says, Australia has not incorporated all its international human rights law obligations into domestic law.

“We are the only liberal democracy that doesn’t have a national human rights act or constitutional bill of rights.

“That leaves gaps in freedom of expression, association, the right to life and many others. Whether we reconsider those is a question for the community.”

Santow says he has “no concern” at the focus on religious freedom, explaining it is normal to deal with human rights questions as and when they arise in public debate. He says it’s perfectly possible to deal with religious freedom while also considering other human rights law questions.

Santow is on record as supporting a human rights act, an idea rejected as recently as 2009 after a review by another Ruddock panel appointee, Frank Brennan. But he notes that reform processes “have to have strong popular and political support”.

Another thorny question for the AHRC will be its position on sharia and other religious laws.

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Aroney has argued that recognising religious freedom should include acceptance of sharia within “strictly justifiable limits imposed by the general law”. But the home affairs minister, Peter Dutton, has warned that “there’s no way I’ll be supporting a process that gives rise to a push for sharia law”.

“We don’t have a position, it’s something we will consider carefully in drafting our submission,” Santow says. “Any religious organisation has significant freedom to run its own affairs … [but] there are limits and … the state will carefully intervene where any religious organisation commits harmful practices.”

Asked if private disputes, such as wills or divorces, could be handled differently because participants are adherents of a particular religion, Santow says it “happens anyway”.

He gives the example of an Orthodox Jewish couple who divorce under Australian civil law. A parallel “second religious set of requirements” can exist to deal with the religious marriage according to Orthodox Jewish principles “provided that second set of requirements isn’t going to harm each other or anyone else”, Santow says.

Marriage equality advocates expect Santow to have the careful, rational approach to legal problems that will guarantee a judicious and influential contribution from the AHRC to the debate on religious freedom.

But – as he observes with respect to calls for a human rights act – it is the government that controls the reform process and it’s up to the people to decide how the law finds its balance.