A Discussion with the Human Rights Commissioner on Religious Freedom in Australia

Edward SantowWe recently sat down with Edward Santow, Human Rights Commissioner to discuss the protections for freedom of religion in Australia ahead of his presentation at the upcoming seminar, Religious Based Institutions: The Legal Issues where it will focus on the challenges in balancing rights and freedoms in a multicultural, multi-faith Australia.

What’s a common mistake or misconception that people may have regarding religious discrimination?

There are a number of protections for freedom of religion in Australian law.

At the federal level, a person may make a complaint to the Fair Work Commission about discrimination on the basis of religion that occurs in the context of employment.

The Australian Human Rights Commission can also inquire into and conciliate certain types of complaint regarding acts or practices that are contrary to freedom of religion or belief.

At the State and Territory level, there are protections against discrimination on the basis of religion in all jurisdictions other than New South Wales and South Australia. Complaints may be made to relevant discrimination bodies in each jurisdiction. Queensland, Victoria and the ACT also have protections for freedom of religion in their respective Human Rights Acts.

Religious bodies and educational institutions also have protections for freedom of religion provided by way of the exemptions to the federal discrimination laws. The Sex Discrimination Act 1984 (Cth) and the Age Discrimination Act 2004 (Cth) allow religious bodies to discriminate against people in certain circumstances on grounds including their sex and age if the activity conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents to that religion. The Sex Discrimination Act allows religious educational institutions to discriminate on grounds including sexual orientation, gender identity, marital or relationship status or pregnancy in employment and the provision of education.

What’s the current biggest challenge for balancing rights and freedoms in Australia?

The Commission has advocated for more than 20 years for reform to improve protections against religious discrimination for all people in Australia.

We should provide the same level of protection against religious discrimination as we do against discrimination on other grounds, such as race, sex, disability and age. It is important that our laws do not give preference to one human right over others.

What is the Commission’s viewpoint on the draft Religious Discrimination Bill?

While supporting much of the draft Religious Discrimination Bill, the Commission urges that the Bill be amended to avoid limiting other human rights and overriding existing anti-discrimination laws.

In our submission on the draft Bill, the Commission raised concerns that the Bill would allow people to make a statement of belief even if the statement would otherwise be discriminatory on the basis of a person’s race, sexual orientation, disability or other protected attribute.

The Commission also drew attention to the fact that the draft Bill would extend protection against religious discrimination to corporations. It would be inconsistent with international law – and incompatible with current Australian human rights law – to allow corporations to sue people for religious discrimination.

Overall, the Commission believes that removing the few highly problematic provisions of the draft Bill would make it consistent with other Commonwealth discrimination law, while giving strong protection against religious discrimination.

Edward Santow has been Human Rights Commissioner at the Australian Human Rights Commission since August 2016. Ed leads the Commission’s work on technology and human rights; refugees and migration; human rights issues affecting LGBTI people; counter-terrorism and national security; freedom of expression; freedom of religion; and implementing the Optional Protocol to the Convention Against Torture (OPCAT). Ed’s areas of expertise include human rights, public law and discrimination law. He is a Visiting Professorial Fellow at the University of New South Wales (UNSW), a member of the World Economic Forum’s Global Future Council on Human Rights and the Fourth Industrial Revolution, and serves on a number of boards and committees. In 2009, Ed was presented with an Australian Leadership Award, and in 2017, he was recognised as a Young Global Leader by the World Economic Forum. From 2010-2016, Ed was chief executive of the Public Interest Advocacy Centre, a leading non-profit organisation that promotes human rights through strategic litigation, policy development and education. Ed was previously a Senior Lecturer at UNSW Law School, a research director at the Gilbert + Tobin Centre of Public Law and a solicitor in private practice. Connect with Ed via LinkedIn LinkedIn logoand Twitter Twitter Logo