Submission to Expert Panel – Religious Freedom Review
In response to the Religious Freedom Review by the Expert Panel established to examine whether Australian law (Commonwealth, State and Territory) adequately protects the human right to freedom of religion.
I am submitting the following as a representative of the Seventh Day Adventist Reform Movement of Australasia. The Seventh Day Adventist Reform Movement is a worldwide religious organization officially organized in 1925 in Germany, and established in 1939 in Australia. Originally, the Movement consisted of former Seventh-day Adventists who had been disfellowshipped (excommunicated) from the Seventh-day Adventist Church during World War I because of their conscientious objections to war and their protests against the involvement of their own church throughout Europe in the war.
From our inception as a people, we have consistently found ourselves at variance with the wishes of those governments throughout the world that have little or no regard for religious liberty. In particular in times of war, where we take a pacifist stand, and in communist lands, our church members have faced persecution and at times death for their faith. In the decades following our establishment in Australia, many of our members fled persecuted lands and found a haven on Australia’s shores. Today, sadly, many persons of religious faith, including our own members in other lands, still face religious intolerance and persecution. For this reason, we are grateful for the religious freedom Australia represents and which it has enshrined in Section 116 of the Federal Constitution. This is something we hold to be of great value to our society and which we believe Australia should continue to protect as a fundamental human right.
However, it is our concern that current Australian law does not adequately protect the human right to freedom of religion, where that freedom relates to the public manifestation of beliefs held by a person or promoted by an institution.
In his paper, THE RECONCILIATION OF FREEDOM OF RELIGION WITH ANTI-DISCRIMINATION RIGHTS, Professor Anthony Gray, USQ, discussed in part the law's distinction between belief and the manifestation of that belief. Some have argued that the freedom to exercise religious belief is not as inviolate as the freedom to believe. Thus a distinction is made between belief and the manifestation of that belief.
"An absolute protection of freedom of belief is suggested by the anti-establishment provisions in the First Amendment [of the US Constitution] and s 116 of the Australian Constitution. Can distinct treatment of belief and manifestation be justified?"
Gray argues it can. "[L]egal regulation can be justified for actions, but not the belief itself, even if the action is based on the belief."
However, in our view, it is not enough for the legislature to protect the right to religious belief alone. For freedom of belief to be truly free, a person must have the right to manifest that belief in action, whether in public or private. As Gray's paper rightly noted, for many people, religion is not simply a belief; it is a core part of their identity, and regulates all that they do. The freedom to exercise one's conviction of conscience is underpinned by an authority that is higher than state law.
It is our view that legal limitations to religious freedom should only govern actions that bring harm to another person. Harm should not be interpreted as mere inconvenience or loss of opportunity, financial or otherwise. For example, it could be argued that the right to non-discrimination is being infringed upon when a man or a woman is not allowed access to a sacred area under the control of a religious body. Such were the issues in Kartinyeri v Commonwealth where it was said that a certain area upon which secret women’s business was conducted was sacred.
There may be a good case to respect the right to discriminate in favour of those holding to the belief in "sacred women's business". While it may cause inconvenience to those discriminated against, no real harm is done thereby when other places of equal utility, for comparable opportunity cost, and people willing to give access to them without discrimination exist.
This applies to all areas of life in which a person or institution is compelled by moral obligation to manifest the religious aspect of their identity.
It is not uncommon, in our experience, for a person who manifests their religious beliefs to come into conflict with generally accepted practices in secular society, purely out of the society’s ignorance of the religiosity behind what may be a common non-religious practice for others.
The wearing of a style of clothing that reflects the tenets of a person's religion, beyond an ornament or head-wear, is a potential source of conflict and cause for discrimination against the manifestation of religious belief. For example, it is the belief of certain women and certain religious entities that women should only wear dresses or skirts in public, as a sign of distinction between the sexes as God created them.
Women who hold to such a belief find themselves often in conflict with an employer's dress code when it requires all employees to wear pants or trousers, regardless of gender. Some workplaces make no exceptions. Women of faith, who are under moral conviction to wear a dress in the workplace, are compelled by their conscience to seek employment elsewhere. A true respect for freedom of religion should accommodate the manifestation of belief of such women, not just their right to hold to that belief in theory. The law should protect against such religious discrimination by an employer.
Further, a person or institution should not be discriminated against when it exercises its religious identity in employment matters. Exercising that identity may include hiring employees who support the religious tenets of the employing body. It may also include refraining from participation in an activity that would show complicity in what one would consider to be against their religious convictions. For example, the right not to participate in the political process based on a person’s conscientious religious convictions.
On the potential impacts of the redefinition of marriage on religious freedom
While a majority in Australia expressed an opinion in favour of redefinition of marriage, there are still a significant minority who differ in their views on this point.
Individuals and institutions should be free to uphold a point of view on this subject, particularly in view of the fact that for many it forms a part of religious belief.
The freedom to uphold a particular view should not be restricted to private expression or personal observance, but via public expression as well, such as in publicly delivered sermons or comments made at weddings by religious celebrants.
Freedom of religion should also extend to the life and choices of the individual, and society should recognise the right of the individual to believe, practice and express their faith.
In the case of the definition of marriage, people who still view marriage as between a man and a woman should be able to express that view both in private and in public without fear of retribution, loss of position or employment, or legal action taken against them.
Whether or not a majority agrees on a matter, when it comes to matters of conscience, the individual retains their rights. We would echo the words of the German princes at Speyer, in the early days of the Protestant Reformation in 1529, “In matters of conscience the majority has no power.”
We must accept that the law in Australia has changed, however we believe that marriage by its timeless definition is a sacred union between a man and woman, and we will continue to uphold this point of view, on the basis of the teachings of the Bible.
In order for Australia to preserve the freedom of conscience for which it has stood for generations, the right for any individual to retain, practice and express their belief about the nature of marriage, unmolested, should not be compromised.
This right should also include choices a parent makes when acting under the conviction that God has entrusted them to them, as the primary caregiver, the responsibility to educate their own children, physically, intellectually and spiritually. Such choices may include the right of a parent to remove their children from teaching environments that infringe upon the moral tenets of the parent's religion.
Thank you for the opportunity to make this submission.
Seventh Day Adventist Reform Movement | Australasian Union Conference