Born (Again) This Way: Why the Inherent Nature of Religiosity Requires a New Approach to Australia's Discrimination Laws

Abstract

Australia has committed to a number of international instruments which recognise the importance of freedom of religion. Whilst Commonwealth legislation seeks to prevent discrimination and vilification on the basis of race, sex, age, disability and sexual orientation, gender identity and intersex status, no such legislation provides protection from discrimination on the basis of religion. Some may argue that this difference in approach is warranted on the basis that Federal anti-discrimination legislation to date has protected inherent characteristics which are immutable. This chapter does not address the legitimacy of protecting persons from harassment or discrimination because they exhibit characteristics considered to inherent and immutability. Rather it argues that as a belief in inherency and immutability appears to have been a motivating factor for protecting characteristics to date, equivalent protection of freedom of religion and belief ought to be afforded on the basis of consistency. The chapter questions the assumption that presently protected characteristics are all necessarily immutable and inherent human characteristics whilst religious belief is neither. It argues that religiosity is a natural and inherent characteristic of individuals which has a genetic component and that, for some people, religious faith is at least as immutable as some other presently protected characteristics. The chapter argues that religious freedom ir presently treated as a lesser human right in Australia. It concludes that there is a pressing need to revise Australia’s approach to anti-discrimination legislation in order to provide more adequate and nationwide protection for persons of faith.

Keywords: religion, religious freedom, inherent, immutable, discrimination, characteristics

JEL Classification: Z12, Z18