Introduction
Sir Ivor Lloyd Morgan Richardson, an eminent New Zealand and Commonwealth jurist, legal writer and Privy Council Judge, noted with approval in 1959 that New Zealand law favours religion in general and Christianity in particular ‘respecting the religious interests of the people generally.’ He gave two reasons for this.
Firstly, ‘our institutions presuppose a Supreme Being, we are basically a religious people’, and the State is ‘simply recognising the religious nature and needs of the New Zealand people’. Second, he said, ‘it is generally accepted that a sound morality among the people is essential to the preservation of individual liberties and the maintenance of democratic institutions.’1
These words still echo in the constitutional monarchy that is Australia as much as they do in New Zealand. But, I argue, they fail to account for the rise of the UN with its 1948 Universal Declaration of Human Rights (UDHR). It was specifically implemented to create a ‘sound morality’ relevant to the wide diversity of peoples and worldviews. This description of morality based on human rights was seen as essential for the maintenance of individual liberties and democracy after the horrors of World War II.
Concepts of morality apart from religious dogma and based on human rights, have moved into the space once considered to be the exclusive domain of religion, as described by Sir Ivor above.
The UDHR, the foundational document in formulating what was to set the standards for a ‘sound morality’, thus established the ‘public interest’ with parameters that would establish an internationally recognised model of democracy for all peoples, regardless of their ethnicity, or worldview.
The UN
Australia and New Zealand have also signed the International Covenant on Civil and Political Rights (ICCPR). Article 8 states that:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
The term ‘thought, conscience and religion’ refers to any worldview (perception of the meaning and purpose of life and a set of rules to govern it):
‘It is, in its religious dimension, one of the most vital elements that go to make up the identity
of believers and their conception of life, but it is also a precious asset for atheists, agnostics,
sceptics and the unconcerned. The pluralism indissociable from a democratic society, which
has been dearly won over the centuries, depends on it, be it ‘atheist, religious or
unconcerned’2
Conventions, Declarations and Bills of Rights around the world contain similar language. Importantly, there is a caveat to Article 18.
In line with Article 18.2, the right to an independent worldview is:
…limited in the public interest; that is, for example, limitations that are ‘prescribed by law
and are necessary to protect public safety, order, health, or morals or the fundamental rights
and freedoms of others.
Seeking Privilege
However, religious groups in Australia have ignored the UN documents to which Australia is a party and have ignored the Ruddock Committee’s finding that there is no substantial restriction of religion in Australia. They expect government to rise to their expectations, using the mantra ‘religious freedom’ to claim special privileges for their beliefs and practices. For example, ‘[W]e must concern ourselves with that which concerns God when it comes to the business of government’, says Martyn Iles, Managing Director, Australian Christian Lobby (ACL) on their Facebook page.
Although Australia is a signatory to the UN documents, there are very few cases of a secular citizen succeeding in opposing religious privilege awarded by government despite the alleged equal rights to practise both religious and nonreligious beliefs.
This is not surprising, as the principle of separation of religious values and secular government values is hard to untangle in constitutional monarchies like Australia, New Zealand, and Canada. This entanglement is entrenched through the framing of the idea of ‘religious freedom’.
How is religious freedom ‘framed’?
Religious freedom is ‘framed’ in the proposed Religious Discrimination Bill by misleadingly defining ‘religious belief’ as including non-religious belief. This obscurity is bad legislative drafting. Defining something as including its opposite is misleading and deceptive.
George Lakoff points to this tactic of ‘framing’ in his book Don’t Think of an Elephant.3 The framers reference one thing (religion) while claiming they are really talking about something else (belief in general), to promote their cause.
Despite the constant use of the word ‘religious belief’, the framers say, ‘we’re not only speaking of religion, because “religious belief” means its opposite too’, and they confusingly use the notion of religion in senses they define. This is sophistry.
Further, in promoting this form of ‘religious freedom,’ protagonists disguise their religious motivations. An example of this tactic are current expensive campaigns by religious groups to defeat the passage of dying-with-dignity legislation in Tasmania and New Zealand. They fail to disclose their religious motivation and/or connections, and when asked why, say they’re talking about law and social welfare, implying that religion is not the basis of their cause.
Catholic Archbishop of Sydney, Anthony Fisher, when encouraging people to campaign against voluntary assisted dying (VAD) said of disclosing their Catholic background, “we do not have to hide our religious petticoats altogether.” However, while religious groups press their doctrinal interests on government, their religious connections and arguments are often well hidden. Indeed, a religiously inspired anti-VAD campaigning pamphlet expressly advises their followers that when writing to their MPs, “DO NOT use religious arguments”.4
Another example is the strident statement seen as being against the public interest, is that by champion Rugby Australia player, Israel Folau. He said that gays, adulterers, and fornicators would go to hell. This goes to the question of free speech. Folau’s words were on the borderline of restrictions against free speech which advocate hatred and violence. In Folau’s view, LGBTQI people would burn in hell for eternity. That was nasty but hypothetical and caused outrage and boycotts. Rugby Australia terminated his contract, and the ACL raised hundreds of thousands of dollars towards his case framing it as one of free speech.5
More seriously, a Melbourne doctor, Dr. Kok, posting on social media that those involved in abortion deserve to die and touting misinformation about LGBTIQ people.6 This resulted in his losing his practising certificate. The ACL vowed to fund an appeal against this decision, arguing free speech.
This is to ignore the fact that speech is a form of action, with consequences. In her article in Australian Humanist No 129, Humanist of the Year, Fiona Patten MLC, points out the broadening of exemptions proposed in the Federal Religious Discrimination Bill 2019, and potential to increase, rather than prevent, religious discrimination. Similar, but even more discriminatory legislation is currently before NSW Parliament.
The Bills allow legal protection to individuals denigrating other, especially women, for their relationship or marital status, for their reproductive choices and for their sexual agency, and healthcare practitioners to shame and condemn women for requesting contraception or abortion services. Statements claiming disability as a punishment for sin can also constitute protected statements of belief.
Conclusion
Our freedoms should be used responsibly, and at times should be legitimately restricted in the public interest. In statements of rights, the ‘public interest’ is expressed in general terms, (e.g., public order, safety, health, or morals). The UDHR, the foundational document in formulating what was to set the standards for a ‘sound morality’ thus established the ‘public interest’, as noted, with parameters that would establish an internationally recognised model of democracy for all peoples, regardless of their ethnicity, or worldview. This means that arguments for policy or law should be genuinely based on the public good as established by human rights, not misrepresentations concealing true motivation.
We can conclude that the current push by religious advocates for proposed Religious Discrimination Bills is designed to impose theocratic values on secular law.
The UDHR and related UN documents need to be recovered in this debate to set these questions of so-called ‘religious freedom’ in their proper, broader context.
1 Sir Ivor Richardson, ‘Religion and the Law’, New Zealand Law Journal April 7, 1959, p.9
2 European Court of Human Rights in Kokkinakis v. Greece, (1993), §31
3 Lakoff, G. (2004). Don’t Think of an Elephant! Know your values and frame the debate. White River Junction, Chelsea Green Publishing: Vermont, USA.
4 See, Neil Francis dyingforchoice.com/blogs/hiding-their-religious-petticoats.
5 See dailymail.co.uk/news/article-7177789/Israel-Folau-new-fundraiser-surpasses-deleted-GoFundMesupporters-donate-800-000-12-hours.html
6 See ‘Australian Christian Lobby Supports Appeal From Doctor’s Suspension For Statements Of “Violence”’ http://meg-wallace.blogspot.com