The religious freedom Trojan horse

As for their claim that we are all guests on Aboriginal land, of course, if the same rationale were applied to the countries of Northern Africa (and even most of the countries in the Middle East), then all the Muslims living in these parts of the world should consider themselves to be guests on Christian lands. Of course, Islam only became the dominating religion in Northern Africa after many centuries of violence, slavery and ultimately the genocide of the original Christian inhabitants of these conquered lands. And even to this very day Islamists attack and kill Christians in the Middle East and Northern Africa, and burn down their places of worship.

Above all, we should resist the idea that any legislative reform in this country should be used to protect Muslims from feeling offended by means of strong criticism or rejection of their religion. Instead, we must strive to put Australia in line with its international human rights obligations to effectively protect religious freedom in the context of free speech, freedom of conscience, freedom of association, and the right to peaceful assembly.

The International Covenant on Civil and Political Rights 1966 ("ICCPR") supports these important freedoms of the individual. It was signed by Australia in December 1972 and its protection to freedom of religion is found in Article 18 of the ICCPR, which is concerned with the right to 'freedom of thought, conscience and religion', but also encompasses the right to 'adopt a religion or belief'.

An infringement of one's rights protected by Article 18, such as freedom of religion, may also simultaneously involve the infringement of the right to privacy (Article 17), the right to peaceful assembly (Article 21), the right to freedom of association (Article 22), and the right to the equal protection of the law without discrimination (Article 26).

Having endorsed the ICCPR and other international law instruments, the Australian government is obligated to use its legislative powers to further support Australia's constitutional freedoms. It should protect not only religious freedom but freedom of speech, freedom of conscience, freedom of association, and the right to peaceful assembly.

This can be done because the Australian High Court has generally adopted an expansive approach to the construction of "external affairs". The external affairs power found in the Australian Constitution, wrote Chief Justice Gibbs in Tasmania Dams (1983), subjects the federal government to 'no significant limits', thus offering a potential to invalidate State law in virtually every respect regarding any infringements upon religious freedom.

The Morrison government has under international law the legal (and moral) duty to adhere to Australia's international human rights obligations. Furthermore, the free exercise of religion is a fundamental freedom of the individual that is legally protected by Section 116 of the Australian Constitution. Courts have also found an implied freedom of political communication, which includes as a corollary freedom of association.

These freedoms must be extended, by logical extension, to religious people and religious organisations. Adding religious people as an additional "class" of protected people further compounds the problem of the constitutional invalidity of laws that may already unreasonably impinge the freedom of political communication. On this count, the changes proposed by these Islamic groups are constitutionally invalid.

Because religious freedom is not the only human right, the question of the relationship between different fundamental rights arises. Article 18 of the ICCPR specifies that 'only 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'. Religious freedom can therefore be limited on grounds of national security and broader protection of fundamental human rights for all. That being so, writes CIS Senior Fellow and retired Anglican Bishop Robert Forsyth:

As important as the right to religious liberty is, it is crucial to add that protecting it should not entail any laws that remove others' rights to criticise, deny or even ridicule any particular religious belief or practice … Therefore, it is essential to rule out any notion that blasphemy should be either reintroduced or reinvigorated as an offence. Nor can religious freedom protection guarantee that religious points of view will necessarily be listened to, or religious leaders respected in public debate. These are matters properly outside the reach of law in liberal democracies.

Professor Adrienne Stone of Melbourne Law School notes that religious speech is in its nature quite often intertwined with 'political opinions, perspectives, philosophies and practices'. Similarly, law professor Nicholas Aroney of Queensland University comments that, indeed, 'religion, religious beliefs and religious practices (as well as irreligious beliefs) not infrequently inform, or are tied up with, political perspectives, philosophies and practices'.

That being so, in Evans v State of New South Wales, the Full Court of the Federal Court noted 'Religious beliefs and doctrines frequently attract public debate and sometimes have political consequences reflected in government laws and policies'. In Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth, Latham CJ noted with respect to religious beliefs: