Academics denounce Ruddock approach to religious freedom

The Ruddock review’s recommendations on religious freedom have been denounced by legal academics.

Former attorney-general Philip Ruddock.

The Ruddock review’s recommendations on religious freedom have been denounced by legal academics for perpetuating what they see as an illegitimate hierarchy of rights that downgrades religion.

They warned that the government risked being at odds with the balanced approach taken in international human rights law if it persisted in treating religious freedom as an exception to other rights without positive protection of its own.

These warnings, from two deans of law and an associate professor of law, have been triggered by media reports that the review of religious freedom led by former attorney-general Philip Ruddock has rejected calls for a federal religious freedom act.

The review has instead recommended the government treat specified manifestations of religious belief as forms of discrimination that are permissible only because of exceptions to anti-discrimination laws. If this is accepted, Australia’s approach to religious freedom would remain at odds with the equal treatment comparable countries give to all fundamental rights.

This assessment has been made by Patrick Parkinson, dean of law at the University of Queensland, and Michael Quinlan, dean of law in Sydney for Notre Dame University.

Their views are in line with those of associate professor Neil Foster, of the University of Newcastle, who said the right to religious freedom should be a presumption in favour of allowing people to “hold, speak about, practice and live out their religious beliefs”.

From that starting point, parliaments could impose limitations to balance religious freedom with other rights.

“But religious freedom is buried in clauses to discrimination acts and it is not given proper recognition as a fundamental human right” as it is in international treaties, Associate Professor Foster said. Professor Parkinson said he would “only give Philip Ruddock five out of 10 for enhancing support for religious freedom”.

“One of the great problems with the recommendations is they are still focused on religious freedom as a concession by the government, by way of exceptions to discrimination laws,” he said. “There is nothing in the recommendations that really enforces and insists upon religious freedom as a fundamental human right of a positive kind.”

Professor Parkinson’s view was endorsed by Professor Quinlan who said the Ruddock recommendations fell short of the approach in the US, where government interference with religious freedom is required to be the minimum necessary to achieve an objective.

Australia had elevated the importance of other human rights by giving them statutory recognition, but this was not the case with freedom of religion despite the fact it was “a pre-eminent fundamental right”, Professor Quinlan said.

“We are moving into an era where religion is considered to be toxic and some vocal people have quite a negative view about religion,” he said.

It was therefore becoming more important for the government to protect minorities with strong religious views.

The Ruddock review’s third recommendation urges governments to use the objects clauses of anti-discrimination laws to “reflect the equal status in international law of all human rights, including freedom of religion”.

But Professor Quinlan said this would be of little assistance and a proper remedy required federal legislation protecting religious freedom.

Most laws abridging freedom of religion were at a state level and state charters of rights had been shown to be ineffective in protecting religious freedom.