Australians would be better served through new human rights legislation with proven mechanisms to adjudicate conflicts involving religion rather than the Federal Government's proposed religious freedom bill, a panel of expert lawyers said this week. 

In a 90 minute online event convened by the Law Society of New South Wales on Tuesday, Rosalind Croucher, president of the Australian Human Rights Commission and Anne Robinson, founder and partner with Prolegis Lawyers - whose clients include many well-known Christian agencies, expressed dissatisfaction with the second exposure draft of the Federal Government's proposed religious freedom bill.

Australia Sydney People talking

Religious freedom has been a hot topic of discussion in Australia in recent years. Here, people are silhouetted against the Sydney Opera House at sunset in Australia, on 2nd November, 2016. PICTURE: Reuters/Steven Saphore/File Photo.

“The whole idea of religious freedom was one of the activating momentums or points for the Universal Declaration of Human Rights,” said Professor Croucher.  “It was the holocaust, the assault on the Jewish people that was one of the motivating forces for the need for a universal declaration.”  

The issue of religious freedom has made headlines in Australia in recent years during the country's debate over same-sex marriage legislation and former Australian rugby player Israel Folau's battle with Rugby Australia.

During the panel discussion - which was moderated by Simon Rice, professor of law at the University of Sydney, Croucher and Robinson agreed that a positive statement of religious freedom in the context of the Universal Declaration of Human Rights - to which Australia is signatory - made most sense in addressing issues of religious freedom. 

In her work on the expert panel of the Ruddock Commission - established by Federal Government to advise it on responses to the issue of religious freedom, Croucher noted that there are two approaches that get confused.

“The idea that we should protect against religious discrimination we absolutely need,” she said. “But if we are going to advocate for protections for religious freedom we need to do it with a mind to the indivisibility of human rights and look at a whole package of protection for human rights by embracing a federal human rights act, and that is a proper place for religious freedom protection.”

Robinson added that "the problem in Australian law, really, is we’ve only ever legislated discrimination law".

“It never really discriminated the positive right.  So we are always looking at exemptions or exceptions so I guess from the religious institution point of view it always looks like there’s special pleading going on. It seems like exceptionalism writ large.”  

The current draft of the federal legislation they said continues this approach where religious freedom gets protected by exemptions for religious bodies and individuals in various anti-discrimination laws. In the Age Discrimination Act 2004, the Disability Discrimination Act 1992, and the Sex Discrimination Act 1984, for example, exemptions are made for religious bodies when it comes to people they prefer to employ, that is people who subscribe to the tenets of the religion and act accordingly.   

Croucher, meanwhile, described what she called  “a road to Damascus conversion" while serving on the expert panel of the Ruddock Commission.

“Both sides [of the argument about marriage equality] aligned on the need to protect religious freedoms and both sides aligned on the idea that the way forward was a human rights act and that was even from proponents who had been staunch opponents of the very idea of a federal human rights act in the past,” she said.

Robinson said she had been advocating the need since 1988. The proposed new law continues using what she calls blunt instruments that create uncertainty for all parties in a dispute. 

“We need to have a mechanism to balance rights because the Declaration article 1 has that,” she said.  “We’re actually meant to under international law, we have an obligation to put that into legislation at the Commonwealth level and we’ve never done it.”