- The Israel Folau case is a telling illustration of the nature of human rights debates over the last decade or so in Australia.
- Australia is, broadly speaking, a free country, but this is assured through an absence of legal restrictions in most instances. Where there is legislative intervention it is largely framed in the negative – in terms of what you can’t do.
- A Human Rights Act is one way we can make such freedoms more visible.
- It is time to seize the opportunity to look beyond the immediate issue to provide enduring protection for these fundamental values for the benefit of all Australians.
The lively discussion prompted by Israel Folau’s tweets based on biblical texts and the consequent termination of his contract by Rugby Australia has created a tangled web of issues. Is there real freedom of expression in Australia? How do we protect freedom of thought, religion and belief? How far can contracts of employment override or control such matters? How do we address the situation where conflicts arise between different human rights?
This is a telling illustration of the nature of human rights debates over the last decade or so in Australia. It is not exceptional. Debates have been confrontational, pitting different groups against each other with an absence of legal guidance on human rights to resolve the issue.
And this is the unusual feature of the Australian legal landscape. Australia is, broadly speaking, a free country. But this is not assured through having a series of legislative protections in place for fundamental rights and freedoms. It is assured through an absence of legal restrictions in most instances. Where there is legislative intervention it is largely framed in the negative – in terms of what you can’t do, spelled out in the anti-discrimination legislation (Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth)). This has played into some of the contemporary discourse and criticism about human rights being driven by ‘identity politics’.
Freedom of speech
Let me explain by considering the protection of freedom of speech. I was privileged to lead an inquiry at the Australian Law Reform Commission (‘ALRC’) that considered encroachments on ‘traditional rights and freedoms’ in Commonwealth laws. One area of interest was, not surprisingly, freedom of speech, to which a chapter of the report, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (ALRC Report 129, December 2015), was dedicated. The ALRC quoted Lord Steyn regarding the broad objectives served by freedom of speech, including that ‘freedom of speech is the lifeblood of democracy’ and ‘a brake on the abuse of power by public officials’ (R v Secretary of State for the Home Department; ex parte Simms  2 AC 115, 126; ALRC Report, [4.3]).
But freedom of speech is not absolute. This is clearly understood in the international conventions Australia has committed to and is reflected in domestic laws. We have legislation that prohibits, or renders unlawful, speech or expression in many different contexts. Some of these laws are of long standing, such as laws regarding obscenity, sedition and defamation. There are many other Commonwealth laws that limit freedom of expression – such as in relation to national security and the rights of journalists. Some of these limitations go too far. One of the AHRC’s key roles is to draw attention to such matters, particularly through submissions to parliamentary inquiries in relation to proposed Bills.
The [Folau case] is a telling illustration of the nature of human rights debates over the last decade or so in Australia… Debates have been confrontational, pitting different groups against each other with an absence of legal guidance on human rights to resolve the issue.
Freedom of religion
When it comes to freedom of thought, conscience, religion and belief, protection is limited.
State and Teritory level
At the State and Territory level there are protections against discrimination on the basis of religion in all jurisdictions other than NSW and South Australia. Queensland, Victoria and the ACT also have protections for freedom of thought, conscience, religion and belief in their respective Human Rights Acts, positively framed (Human Rights Act 2004 (ACT) s 14; Charter of Right and Responsibilities Act 2006 (Vic) ss 14, 19; Human Rights Act 2019 (Qld) ss 20, 27, 28). They also provide positive protections for freedom of speech.
There is one State constitutional provision, in Tasmania, which guarantees every Tasmanian citizen ‘freedom of conscience and the free profession and practice of religion’, subject to ‘public order and morality’ (Constitution Act 1934 (Tas) s 46(1)).
In NSW, it is prohibited to discriminate against a person on the basis of their ‘ethno-religious origin’, which has been interpreted as applying to Jews and Sikhs (Anti-Discrimination Act 1977 (NSW) s 4, definition of ‘race’). In South Australia, there are protections from discrimination in employment and education on the grounds of religious dress (Equal Opportunity Act 1984 (SA) s 85T(1)(f)).
Where those laws prohibit discrimination or vilification on the basis of a person’s religion, an individual complainant may make a complaint to a specialist anti-discrimination or human rights body.
There is one provision in the Australian Constitution that refers to religion. Section 116 prohibits the Commonwealth government from ‘establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion …’. It is not a positive protection of ‘freedom of religion’, but rather a constraint on Commonwealth power.
What protection there is at the federal level is found in the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) and the Fair Work Act 2009 (Cth).
Under the AHRC Act there are two possible avenues for making a complaint relating to religion.
First, a person who suffers ‘discrimination in employment’ on the basis of religion can make a complaint to the AHRC. If a matter cannot be successfully conciliated, an inquiry is conducted into whether or not the alleged conduct amounted to ‘discrimination in employment’.
Such discrimination must be a distinction, exclusion or preference made on the basis of religion. However, conduct will not amount to discrimination if it is based on the ‘inherent requirements of the job’, or is at an institution ‘conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and the distinction, exclusion or preference was made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’ (Australian Human Rights Commission Act 1986 (Cth) s 3(1), definition of ‘discrimination’).
If the AHRC finds there was ‘discrimination in employment’ on the basis of religion, it can make recommendations to the parties. However, these are not binding nor enforceable, but may form part of a public report to the Attorney-General.
This is a very different approach from that applying to complaints brought under the four federal Discrimination Acts.
If those matters cannot be resolved at the AHRC, there is a pathway to the court for judicial consideration and, potentially, remedies such as damages.
The jurisdiction in relation to discrimination in employment is one of the ‘relic’ aspects of the AHRC’s complaints jurisdiction, going back to the Discrimination (Employment and Occupation) Convention 1958 (‘ILO 111’) that formed part of the 1986 legislation establishing the Human Rights and Equal Opportunity Commission on a permanent footing (Rosalind Croucher, ‘Righting the Relic – Towards Effective Protections for Criminal Record Discrimination’ (2018) 48 LSJ 73. The name was changed to AHRC in 2008).
Many of the grounds in ILO 111 have since been taken into the set of Discrimination Acts, but not discrimination in employment on the basis of religion. A complaint can be made but such discrimination is not ‘unlawful discrimination’, as is the case of discrimination covered in the four Discrimination Acts. It is a distinction that is somewhat confusing.
In the last five years, the AHRC has received 67 complaints that relate to discrimination in employment on this basis, including because of religious dress or facial hair, refusal to allow religious observance (including time off for prayer and being rostered on sabbath days). The second possible AHRC avenue concerns the function of inquiring into acts of the Commonwealth that may be inconsistent with or contrary to provisions like articles 18 and 26 of the International Covenant on Civil and Political Rights (‘ICCPR’) (Australian Human Rights Commission Act 1986 (Cth) Div 3; s 3(1), definition of ‘human rights’.)
The ICCPR provides for an absolute right to have or adopt a religion and to hold religious beliefs. But the right to ‘manifest’ one’s religion may be qualified. This is not surprising, as few rights and freedoms are absolute.
‘Manifesting’ religion includes things like the freedom to worship, to write and disseminate religious publications, and to observe days of rest and religious holidays (‘holy days’). It can also include things like religious dress (e.g. nuns’ habits, clerical collars) and diet codes (e.g. no meat, no alcohol).
In relation to religion, laws may limit what may be asserted as religious practices to protect other goals, like the protection of public safety, order, health or morals, or the fundamental rights and freedoms of others.
Examples include the prohibition of female genital mutilation (e.g. Crimes Act 1900 (NSW) s 45), and requirements for children to be vaccinated – the ‘no jab, no play’ policy at the Federal level and various ‘no jab, no play’ policies at the state level in NSW, VIC, SA, QLD and WA. The parens patriae jurisdiction of the state courts may also be called into play to override parental authority, for example to allow for blood transfusions to children against the beliefs of the parents and the older child (e.g. Mercy Hospitals Victoria v D1  VSC 519 (Jehovah’s Witnesses)).
In the last five years, the AHRC has received nine complaints alleging a breach of article 18 of the ICCPR. Issues include complainants not being provided the means to practise their faith or access places of worship, inability to cook appropriate food, and removal of religious dress or jewellery. Here, too, the function is to attempt to resolve these complaints by conciliation, but the limitations and end result are the same as ILO complaints: unenforceable recommendations and a public report to the Attorney-General. Again, there is no pathway to court.
The existing protections under the AHRC Act are therefore very limited, which may help to explain the relatively small numbers of complaints. Like the Discrimination Acts, this protection is still framed in the negative.
Fair Work Act
Under the Fair Work Act 2009 (Cth), employers are prohibited from a range of actions, including taking ‘adverse action’ against an employee or prospective employee on the basis of a number of specified protected attributes, including religion and terminating an employee’s employment for reasons including their religion.
The Fair Work Commission (‘FWC’) has more powers in this area than the AHRC, and may make a wide range of orders. While it does not have the power to enforce its orders, non-compliance is a criminal offence. If an order is not complied with, the relevant affected party can seek enforcement through civil court proceedings and this may result in further penalties being applied.
In unfair dismissal cases, the FWC may decide to hold a hearing in relation to the claim. If a person is not satisfied with the outcome of a hearing conducted by a single Commissioner, they may then seek permission from the FWC to appeal the decision to its Full Bench. In matters involving unfair dismissal there are specific requirements to be satisfied before permission to appeal may be granted.
Mr Folau invoked the FWC’s ‘adverse action’ pathway, which required a conciliation meeting that was reportedly unsuccessful. This opened the door for the matter going to the Federal Court, if all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful (Fair Work Act 2009 (Cth) s 369).
There is so little jurisprudence in relation to these issues that having a court rule on the meaning of these provisions will be very useful (beyond the immediate issue of providing legal resolution to Mr Folau’s matter).
But it is unlikely to address the concerns of many commentators crying for freedom of speech and freedom of religion.
But where there is no law, it does not mean there is no freedom. As stated in the Ruddock report: ‘Where the law is silent, people are free to act in accordance with their faith so long as doing so does not interfere with other laws’. But ‘silence’ may also be invisibility; and what recent events seem to show is that there is a clamour for freedoms and rights that are visible and tangible.
The way forward
As Australia’s national human rights institution, we have advocated for many years for freedom of religion and belief to be brought under federal discrimination law.
In our submission to the Religious Freedom Review, chaired by the Hon Philip Ruddock, we again recommended that the Government develop new legislation to make discrimination based on religion or belief unlawful.
This would at least complement the existing set of four Discrimination Acts. It would also put on a firmer foundation another aspect of the ‘relic’ jurisdiction of ILO 111. The Fair Work Act, like the relic jurisdiction of the AHRC, does some of this work, but only in the context of employment.
But it is not only about religion. It is also about freedom of speech and the right to be free from discrimination – and the other rights and freedoms we have but which are, for many, invisible.
If we start with the idea that freedom of expression, including press freedom and freedom of religion, are under challenge, then one way of addressing this is to ask how we could frame the idea of freedoms and rights in the positive.
They may be there in the powerful interstices of our rule of law, but what power do they have in today’s world if we can’t ‘see’ them?
An Australian Human Rights Act is one way we can make such freedoms more visible. It is one of the actions the AHRC has supported for many years to ensure an effective system to promote and protect human rights in Australia. It is not the only way, but let’s at least open up the discussion of the possibilities.
The beauty of a positive framing of freedoms and rights through such a vehicle is to require law makers always to consider the impacts on freedoms and rights in all laws and decisions, and to provide transparency and accountability through a clearly articulated and public process by which to undertake such consideration.
But where there is no law, it does not mean there is no freedom. As was stated in the Ruddock report, ‘Where the law is silent, people are free to act in accordance with their faith so long as doing so does not interfere with other laws’. But ‘silence’ may also be invisibility; and recent events seem to show there is a clamour for freedoms and rights that are visible and tangible.
We have an opportunity, at this moment in history, to embrace the positive framing of rights and freedoms. The Folau matter has touched a raw nerve in public sensibilities that demands consideration. We should seize the opportunity to look beyond the immediate issue to provide enduring protection for these fundamental values for the benefit of all Australians.
A July decision of the Court of Appeal of England and Wales in Ngole v University of Sheffield  EWCA Civ 1127 provides a timely and important parallel to the current controversy stirred up by the Israel Folau case in Australia. The Ngole case concerns the expression of religious views on a public social media platform, disapproving of same-sex marriage and homosexual acts and the dismissal of the person in consequence. What is interesting is the way the UK’s robust legislative framework for human rights helped facilitate a clearer pathway to the resolution of the dispute.
For an in-depth analysis of this case, see: ‘If only we had a Human Rights Act … What we can learn from the UK’s religious freedom ruling’ by Rosalind Croucher.