UN human rights declaration turns 70
Fr Frank Brennan SJ AO, CEO Catholic Social Services Australia
Today we celebrate the 70th anniversary of the UN Declaration of Human Rights (UNDHR) which was proclaimed by the UN General Assembly as 'a common standard of achievement for all peoples and all nations'. Australians like Dr H. V. Evatt and Jessie Street played a significant role in the drafting of the declaration.
Evatt, Australian Minister of External Affairs at the time and then President of the UN General Assembly, welcomed the declaration as a 'step forward in a great evolutionary process'. The drafters consulted a broad range of thinkers including religious and philosophical greats such as Pierre Teilhard de Chardin SJ, Mahatma Gandhi and Aldous Huxley. Teilhard counselled the drafters to focus on 'man in society' rather than the human being as an individual.
A decade ago when marking the 60th anniversary of the declaration, Irish poet Seamus Heaney said: 'Since it was framed, the declaration has succeeded in creating an international moral consensus. It is always there as a means of highlighting abuse if not always as a remedy: it exists instead in the moral imagination as an equivalent of the gold standard in the monetary system. The articulation of its tenets has made them into world currency of a negotiable sort. Even if its articles are ignored or flouted — in many cases by governments who have signed up to them — it provides a worldwide amplification system for the "still, small voice".'
Ten years ago, the newly elected Rudd government set up a national human rights consultation. I was privileged to chair the consultation which recommended a national human rights act. Neither side of politics was much interested in this suggestion. The more conservative religious leaders were strongly opposed, thinking that religious freedom might be better protected by parliament without legislation being subjected to judicial oversight for compliance with human rights generally.
Ten years on, they might have cause to think differently. The Queensland government has announced plans to legislate a human rights charter similar to that adopted by the parliaments in Victoria and the ACT. But other jurisdictions, including the Commonwealth, are out of kilter with other equivalent jurisdictions such as the UK and New Zealand which have their own human rights acts.
In the absence of a human rights act, religious freedom tends to be treated by means of exemptions for religious bodies or exceptions for religious behaviour set down in anti-discrimination acts such as the Sex Discrimination Act. During last year's plebiscite campaign on same sex marriage, many politicians and advocacy groups agitated or conceded the need for legislation to make up for the lack of legal protection of religious freedom at a national level.
The right to freedom of thought, conscience, and religion or belief is recognised in the UNDHR which provides: 'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.'
"Let's hope the matter can be promptly resolved when Parliament returns in February. It would be a tragedy for everyone if the issue was left unresolved during the next federal election campaign."
Australia is a party to the International Covenant on Civil and Political Rights (ICCPR), which further specifies the right to freedom of thought, conscience and religion. Article 18 of the ICCPR is the main international legal provision protecting freedom of religion or belief. It provides:
'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. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
'Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. The States Parties to the present covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.'
There have been numerous Australian inquiries by parliamentary committees, the Australian Law Reform Commission and the Australian Human Rights Commission which have highlighted the need for some further legislative protection of this right at a Commonwealth level.
Like all competing or conflicting rights, the right to religious freedom is limited in its scope. There is often a need to balance conflicting rights. For example, Article 26 of the ICCPR recognises the right of all persons to equality and to non-discrimination on certain grounds — including religion. Article 26 provides:
'All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'
The most recent report of the Special Rapporteur on freedom of religion and belief to the UN Human Rights Council notes: 'The jurisprudence of the Human Rights Committee and the regional human rights courts uphold that it is not permissible for individuals or groups to invoke 'religious liberty' to perpetuate discrimination against groups in vulnerable situations, including lesbian, gay, bisexual, transgender and intersex persons, when it comes to the provision of goods or services in the public sphere.'
In the wake of the same sex marriage plebiscite, the Australian challenge has been to strike the right balance between the right to freedom of religion or belief for religious educators and the rights to equality and non-discrimination for teachers and students. If we had an Equality Act, we might consider the need for a Religious Freedom Act. As we have a Sex Discrimination Act which deals with discrimination on the basis of various criteria including sexual orientation, it is desirable that we at least have a Religious Discrimination Act.
I served on the Ruddock Committee set up after the same sex marriage plebiscite. We provided our expert panel report to government six months ago. During the recent Wentworth by-election, both sides of politics committed to legislative reform ensuring that at a Commonwealth level there would be no possibility of religious schools being able to expel students on the grounds of gender or sexual orientation. The matter came up for debate in the Parliament last week. But in the shambolic carry-on with a minority government, there was no prospect of any resolution. Let's hope the matter can be promptly resolved when Parliament returns in February. It would be a tragedy for everyone if the issue was left unresolved during the next federal election campaign.
"Let's hope all members of parliament can agree to the insertion of such a clause providing assurance to religious educators that they can continue to teach their doctrine in good faith while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators."
Both sides of politics are agreed that it is time to repeal section 38(3) of the Sex Discrimination Act which allows a religious educational institution to discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy provided they discriminate 'in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed'.
Both sides of politics are also agreed that the repeal of this provision should not be permitted to work any interference with the right of religious institutions to teach their doctrine in good faith. The Labor Party has agreed to specify that 'nothing in the Sex Discrimination Act 1984 renders it unlawful to engage in teaching activity if that activity: (a) is in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed; and (b) is done by, or with the authority of, an educational institution that is conducted in accordance with those doctrines, tenets, beliefs or teachings.' The government is prepared to put such a statement in the legislation. Let's hope all members of parliament after Christmas can agree to the insertion of such a clause in the legislation providing assurance to religious educators that they can continue to teach their doctrine in good faith while assuring all students and their families that they will not suffer any detriment while sitting at the feet of religious educators.
There are other matters of religious freedom which require attention by our Parliament. Hopefully our elected representatives on both sides of the aisle will soon be provided with the findings of the Ruddock panel to assist them in their deliberations. With the UN Declaration achieving the scriptural age of three score and ten, it is appropriate to appreciate and affirm the worldwide amplification system for the 'still, small voice' of conscience speaking to power, even when that voice of conscience maintains a religious tone, while the power of the state is increasingly secular and the tone of society more stridently secularist.
Frank Brennan SJ is the CEO of the Catholic Social Services Australia. He chaired the Rudd government's 2009 National Human Rights Consultation and was a member of the Turnbull government's 2018 Religious Freedom Review. He is speaking today at the National Library of Australia celebrating the 70th anniversary of the UNDHR together with the Honourable Michael Kirby and Professor Gillian Triggs.