Can Australian Law Better Protect Freedom of Religion?
Australian Law Journal, Vol. 19 (2019)
17 Pages Posted: 10 Jun 2019
Date Written: May 23, 2019
The Religious Freedom Review Expert Panel was appointed by the Australian Government to examine whether the internationally recognised human right to freedom of religion is adequately protected in Australian law. This article expounds the relevant principles of international human rights law and identifies several ways in which Australian law is in risk of failing to give religious freedom adequate protection. The article shows how divergent approaches to the enactment and interpretation of religious freedom exemption clauses in antidiscrimination statutes have arisen in different jurisdictions and explains why this places the protection of religious freedom into doubt. The Expert Panel made two important recommendations to address this problem. The first is that Australian governments should have regard to the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights when drafting laws that would limit the right to freedom of religion. The second is that they should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion. The article concludes by pointing out that while the re-drafting of objects clauses in antidiscrimination laws will provide important guidance to the courts in their interpretation of religious freedom clauses, narrow interpretations of such clauses have been a consequence of protecting religious freedom merely by way of exemption or exception. It is argued that in order for Australian law to implement the Siracusa Principles adequately, antidiscrimination laws should be amended to positively enshrine the right of religious bodies to select staff who share their religious convictions so as to maintain their religious ethos.
Keywords: freedom of religion, discrimination
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