Date: 
Thursday 27 July 2017

Author

Mr Edward Santow, Human Rights Commissioner

Lecture Theatre 9, University of Tasmania, Newnham Campus, Newnham Drive, Launceston

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Acknowledgements

  • Traditional owners: Panninher and the Leterrermairrener People.
  • Moderator: Professor Richard Eccleston, Director of the Institute for the Study of Social Change, University of Tasmania.
  • Panellists: Rodney Croome AM, Very Reverend Richard Humphrey (Dean of St David’s Cathedral) and Robin Banks (former anti-discrimination Commissioner).

Introduction

Gathering here at the Tamar Valley Peace Festival, to talk about religion and human rights, I’m struck by a sense of history. After all, the modern human rights movement was born of a desire for peace.

But I want to start with a bit of personal history about my grandfather’s migration to Tasmania from Hungary.

In 1948, the world was reeling from the unimaginable horror of two world wars – the apotheosis of ‘man’s inhumanity to man’.  The international community came together to find a new way to interact: one based on our shared humanity. This meant identifying the rights that needed protection in order recognise each person’s individual dignity. For example, the right to life, liberty, education and equality before the law—as well as the right to freedom of thought, conscience and religion.

The result has come to be known as the international bill of rights, with the Universal Declaration of Human Rights at the centre. It’s the basis of modern human rights laws, and it’s the standard against which governments are held to account—not perfectly, and not always consistently, but certainly persistently, by the human rights community in Australia and around the world.

There was strong support for the Declaration from many religious leaders and religious communities in 1948, in part because it affirmed something that religious traditions had been insisting on for thousands of years: that, in the words of the preamble, ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace.’

But we shouldn’t be pollyanna-ish: since 1948, some have claimed—falsely—that their religious belief justifies actions that violate human rights.

On a rhetorical level, some religious communities, and indeed some human rights activists, claim that religious faith and human rights are in serious tension, if not outright contradiction. I think this is unfortunate.  And so I’d like to talk about the relationship between religion and human rights.

A multicultural and multi-faith Australia

Australia is truly multicultural.

I know this can sound like a cliché, so it’s important to pause and reflect on what that means.  Multiculturalism means more than just lots of people from different ethnic backgrounds living together.  Instead, it involves each group being encouraged to hold on to—and share—what’s valuable about their own distinctive cultures and traditions.  It’s a commitment to the idea that we’re all enriched by diversity; that culture and identity are not a zero-sum game.

But if we’re committed to multiculturalism, we must also be committed to freedom of religion—because a multicultural Australia is also a multi-faith Australia.

Last month, we saw the results of the 2016 census.  The headlines focused on the rise of the ‘no-religions’.  Almost 30 per cent of Australians now say they have ‘no religion’, and another nine per cent choose not to answer the question.

But just as interestingly, more than 60 per cent of Australians still identify with a religion—whether that be one of the Christian traditions, at 52 per cent; Islam at 2.6 per cent; Buddhism at 2.4; Hinduism at 1.9; Sikhism at 0.5; or Judaism at 0.4.

In a sense, from a human rights perspective, the numbers prove nothing.  Freedom of religion is a human right whether there are a million people of faith, or a hundred, or one.  Rights are not a numbers game.

Parenthetically, this is also why the Human Rights Commission is opposed to the idea of a plebiscite on the question of marriage equality—because we’ve never subjected human rights to majoritarian tests. But more on that later.

What the multi-faith make-up of Australia today tells us is that if peace is the desired end, then freedom of religion will be an essential means to that end.

Freedom of religion in Australia

So, how is freedom of religion respected in Australia today?

In 2014, the Commission surveyed the community on this question, and found that religious freedom is generally perceived as well protected in Australia.  However, some threats remain: for example, a level of anti-Semitism is regularly reported by Jewish communities.  In the most recent statistics, the Executive Council of Australian Jewry recorded in one year 210 anti-Semitic incidents, including physical attacks, verbal abuse, harassment, vandalism and property damage.

Australia’s Muslim communities also report rising levels of negative attention.  Calls to ‘Ban the Burqa’; opposition to planning applications for mosques; verbal abuse of visibly Muslim people, particularly women, in public places; and anti-Muslim sentiments expressed at the highest levels of public life, including in the federal parliament. These all add up to a genuine threat to some people’s religious freedom in Australia.

So, what can be done?

As a lawyer, my instinct is to ask whether our law needs to change.  In our federal anti-discrimination law, race is a protected attribute but religion is not.  This means, for example, that if a Muslim Indian woman is refused a rental property because she is Indian, this will be unlawful discrimination; if she’s refused because she’s a woman, this is also likely to count as unlawful discrimination; but if she’s refused because she’s a Muslim, it is not.

Some state and territory laws do protect against religious discrimination, and so we should at least acknowledge the incongruity in our federal law, and ask whether religious discrimination should be unlawful.

But no human right is adequately protected by the law alone.  When it comes to freedom of religion, it matters how people of faith are spoken of in politics and the media.

We should respect freedom of religion by rejecting the kinds of false and damaging claims that are sometimes made about religion, especially Islam.  All too often we hear that there’s an intrinsic link between a particular religion and violence, or that a religion is nothing more than a mask for a violent political ideology.

These claims are not only false; they’re dangerous.  The genocidal history of the twentieth century should make us wary of blanket slurs against entire groups of people.

Freedom of religion and anti-discrimination

Of course, freedom of religion must not only be protected; it must also be balanced against other rights.  This doesn’t mean that freedom of religion is a ‘second order right’.  In fact, in international law the right to freedom of religion is ‘non-derogable’, which means it can never be suspended, even in a time of public emergency. 

But—and here’s where it gets tricky—international human rights law does distinguish between the freedom to hold a particular religion or belief, which is absolute, and the freedom to manifest that religion or belief in conduct, which is not.

This is a difficult distinction.  Many people of faith report that it’s hard to see the point of holding a belief if they can’t also act on it.  Religion, after all, is supposed to shape one’s daily life.

But that’s not in fact what the law is saying.

The International Covenant on Civil and Political Rights provides that freedom to manifest one’s religion or beliefs 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.

Of course, determining when this is the case can be difficult.  Any effort to do so will be fiercely contested.  Our consultations show that some people in Australia today think freedom of religion is too often protected at the expense of other rights; while others believe it’s too often compromised in the name of those rights.

These tensions are particularly evident when it comes to balancing the right to freedom of religion with the right not to be discriminated against on the grounds of gender, race or sexual orientation.  And the problem comes into sharp relief in the current debate about marriage equality.

Marriage equality

Some Australians see marriage as an outdated concept.  But for many others, it goes right to the heart of what they believe about love, human value, family and commitment.  That’s true for both sides of the current debate on marriage.

The first thing to say is that the Commission is not a neutral observer.  We have a position: civil marriage should be available, without discrimination, to all couples, regardless of sex, sexual orientation, gender identity or intersex status.

There’s a growing consensus on this question overseas.  The right to equality has become increasingly influential in parliaments and courts in countries like the US, UK, New Zealand, Canada and, recently, Germany. Now, all of these countries allow two adults to marry regardless of their sex or gender.

In short, the Human Rights Commission supports marriage equality. We think this is necessary to promote the fundamental human rights of equality and non-discrimination.

We know some disagree.  Some argue in favour of the current legal definition of ‘marriage’; they say that not all discrimination or differential treatment is inherently unjust. And that any amendment of our Marriage Act would violate their freedom of religion.

I want to make a few points in response.

First, I accept that many people who oppose changing our marriage law do not do so out of homophobia or bigotry, but out of strongly-held, conscientious belief or faith.

Secondly, this points to a tension between two human rights – equality and freedom of religion. We need to resolve this tension in a way that is principled and tries to accommodate competing rights.

Thirdly, in debating how the law defines marriage, we have to take account of how our society sees these issues now. Sometimes we hear the definition of ‘marriage’ has been the same for thousands of years and any change must counter the entire weight of human history. That notion is, simply, wrong.

My fellow panellist, Rodney Croome, has written powerfully about the multi-layered racial injustices that Australian law has tolerated, and in some cases actively perpetrated. Well into the 20th century, Indigenous people were subjected to humiliating restrictions on whom they could marry. In the aftermath of World War 2, a number of Australian servicemen stationed in Asia met and wanted to marry Japanese women. They were denied permission to do so. Those who ignored this requirement couldn’t return to Australia with their wives.

If my own parents had been born a little earlier in the wrong part of Europe, marriage would’ve been one of many things denied them.

I’m not saying that the history of racist restrictions on marriage mirrors precisely our current debate. Instead, my point is that our conception of ‘marriage’ has never been rigid, and neither has the legal definition. It’s entirely appropriate to take stock and ask whether our law meets contemporary standards of justice and human rights. Just as previous generations bravely did when it comes to racial restrictions on marriage.

Returning to the question of religion and marriage, the divide in this debate is sometimes presented in simplistic terms.  But not everyone who opposes marriage reform is religious, and not everyone who is religious opposes this reform. 

In 2011, Australians for Marriage Equality commissioned Galaxy Research to determine support for civil marriage equality.  53 per cent of people who identified as Christian supported same-sex couples being allowed to marry. Earlier this month, Galaxy Research conducted a further poll on behalf of Parents and Friends of Lesbians and Gays, and the results were almost identical, with 54% of people who identified as Christians supporting marriage equality.

The voices of people of faith who also happen to identify as LGBTI have largely been missing from the national debate.  This is beginning to change, and it’s vital that these voices and concerns continue to be heard, not least because LGBTI people of faith fall into some of the higher risk categories of poorer mental health outcomes.

Having said that, the leaders of most organised religions in Australia have expressed concern about changing our marriage law. In my view, those voices have been heard. The most recent parliamentary inquiry that considered this issue produced a unanimous, multi-party report. The report made clear that any bill to amend our marriage law would also protect freedom of religion. In particular, the report made crystal clear that no religious minister – that is, no priest, imam, rabbi or other religious leader – would be required to solemnise a same-sex marriage if it contravened the religious minister’s faith.

This is an important compromise. It means that a religious minister will be guided by their faith alone in determining whether to solemnise a marriage between two women or two men.

I also realise that some religious leaders and people of faith feel impelled by their faith to urge that we keep the law’s blanket prohibition on same-sex marriage. While we respect those who hold that view, the Commission believes there’s an important distinction between religious and civil marriage, and that stopping same-sex couples from engaging in civil marriage is a disproportionate restriction on equality.

Common causes

It pains me that in recent times the religious community is often presented as being at odds with the human rights community – on other issues as well.  It pains me because this is such a recent phenomenon and it’s so unnecessary. For so much of history, there has been no real antagonism between people of faith and advocates of human rights.

In fact, there’s an over-representation of people of faith among movements that aim to promote human rights.  Take, for instance:

  • The Quaker Eric Baker, who was one of the founders of Amnesty International;
  • Abdol Hossein Sardari, known as the Oscar Schindler of Iran;
  • Archbishop Desmond Tutu and Canon John Collins in the struggle against Apartheid.

The Commission and contemporary Australian religious communities share many of the same goals.  And as Human Rights Commissioner with responsibility for freedom of religion, I’m particularly eager to find ways we can work with religious communities on areas of common concern.

These may include matters related to poverty, indigenous rights, prisons, refugees and global religious persecution—all areas where religious individuals and communities are actively working to protect human dignity and promote human rights, even if they don’t use that language. 

To take just one example:  Recently, 18 Australian religious leaders wrote to the Prime Minister, Malcolm Turnbull, urging him to enact a Modern Slavery Act in Australia.

These included very senior Muslim, Buddhist, Christian, Jewish and Hindu leaders.

These faith leaders pointed out that 45 million people still live under conditions including slavery, human trafficking, forced labour, debt bondage, organ trafficking, forced or servile marriage, and the sale of and exploitation of girls, boys, women and men.

This is of deep concern to anyone whose faith tradition tells them that every human being is sacred and inviolable. And it directly contradicts Article 4 of the Universal Declaration of Human Rights, which states that ‘no-one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ 

A Modern Slavery Act would help to ensure that the goods and services we consume in Australia are not produced on the back of slave labour.  And this is just one example of an area of potential collaboration between the religious and human rights communities.

Conclusion

To return to my beginning: freedom of religion is not only a human right.  It’s an essential ingredient in a successfully multicultural Australia.  Promoting this freedom is a task for people of all faiths and none.

At the same time, we must acknowledge that rights sometimes sit in tension with one another.  This is true of all rights, not just freedom of religion.  As Human Rights Commissioner, I’m very concerned that the occasional moments of tension between competing human rights don’t overshadow opportunities for cooperation between religious communities, the Commission and the broader human rights community.

When tensions arise, the way we talk about our differences is as important as how we eventually resolve them.  The Tamar Valley Peace Festival is a great example of how to talk about difference, how to value diversity, and how to work together towards a common goal: that of a peaceful and harmonious society.  Thank you for giving me the opportunity to be part of the conversation.

 

Tamar Valley Peace Festival

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