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Religious discrimination and equality before the law

  • 22 February 2022
After the Australian Marriage Law Postal Survey in 2017, Prime Minister Malcolm Turnbull appointed me to an expert panel chaired by long time Liberal member of Parliament Philip Ruddock. Our task was to ‘examine and report on whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion’.

The Ruddock Committee reported to government in May 2018. Parts of our report were leaked selectively during the Wentworth by-election in October 2018. There was a passionate and divisive debate in the Parliament in December 2018 when the Labor Party unsuccessfully introduced a Bill seeking protection for LGBTQI students in religious schools. Both sides of politics pledged their commitment to resolving the issue before the 2019 election. They did not. Last week, three years on, our politicians reactivated the debate and once again failed to resolve the matter. Once again we will go to the polls with the matter unresolved.

Back in 2009, I had the privilege of chairing the National Human Rights Consultation for the Rudd Government. I was chosen as the chair because I had written an academic article declaring myself to be a fence-sitter on the issue of a national human rights act. Previously I had published a book expressing opposition to a US style constitutional bill of rights. During that consultation, I came down off the fence, and supported a recommendation for a statutory human rights act. My main reason was a little esoteric in the eyes of non-lawyers. I was aware that in the past the Australian High Court often looked to the decisions of other ultimate courts of appeal, especially in countries such as the UK, New Zealand and Canada. But all those other countries now have some form of national human rights act. Whenever the courts are needing to consider novel legislation dealing with emerging problems such as border security and terrorism, the courts of those other countries scrutinise the new laws in light of their human rights act.

I thought that the Australian High Court risked becoming jurisprudentially isolated from other ultimate courts of appeal. Ironically, by not legislating for a national human rights act, our politicians are leaving it up to the judges to invent for themselves the criteria for assessing these contested new laws. I say ‘ironically’, because the politicians most opposed to a human rights act say they want to ensure that the judges are not given too much power.