We have received the following letter from The Hon Michael Kirby AC CMG:

Dear Editor

Allow me to applaud the issue of a Part of the Australian Law Journal (93 ALJ, Part 9) dealing with religious rights and discrimination law.

I am, however, concerned at the overbalance of the articles in favour of the rights of the proponents of “religious freedom” against the inclusion of other points of view. With the possible exception of the article by Anja Hilkemeijer and Amy Maguire (and parts of the article by Harry Hobbs and George Williams) the strong bias of the Part is to favour the  enactment of new special protections for the declining numbers of the Australian community who are religious.  This will be at the cost of the rights of other groups in the Australian community, including women, LGBTIQ citizens and other minorities.  So much was expressed in the recent report of the Public Interest Advocacy Centre (PIAC) <https://www.piac.asn.au/wp-content/uploads/sites/3/2019/10/19.09.30-PIAC-Submission-Religious-Freedom-Bill-Final.pdf>. There are many legal scholars in Australia who express such opinions, but they have been omitted from the special issue.

The reason why Sir Owen Dixon in 1942 suggested that guarantees of personal liberty in the Australian Constitution contained “the probably unnecessary exception of a guarantee of religious freedom” was because of the (unduly narrow) interpretation earlier given by the High Court (and maintained thereafter) to the language of s 116 of the Constitution.  It was also possibly because of the advance of secularism in Australia and the common conviction that religion in Australia is basically a private matter best kept out of the public zone.  If this was true in 1942, it has certainly progressed in 2019.  The last federal census showed that by far the fastest growing religious group in Australia is “no religion”.  The number adhering to this position is already 31%, still growing rapidly.  This gives contemporary support for the insistence of Lionel Murphy that s 116 of the Constitution extended not only to protect people with religious beliefs and practices but also to protect people of no religion.

Historically, the big push for protection of “religious freedom” reflected in this Part of the ALJ appears to have come about by reason of the developments in the United States of America following the decisions of the US Supreme Court in Lawrence v Texas 539 US 558 (2003) (striking down criminal laws against homosexuals) and Obergefel v Hodges 576 US __; 136 S.Ct 2584 (2015) (upholding the right to same-sex marriage).  Having lost out on those fronts, conservative politicians and religious groups in the United States have gone on the offensive with demands for new “religious freedoms” for members of so-called Faith communities, so that they can continue their nasty and hostile campaigns against LGBTIQ people, women’s rights and others whom they dislike.

Once the Australian Government made it plain they would not permit religious schools to expel or exclude young LGBTIQ citizens on the basis of their sexual orientation or gender identity, it became curious (and clearly inconsistent) to permit the dismissal or exclusion of LGBTIQ people, pregnant, unmarried mothers or unwed partners from school staff.  Now we are seeing an assertion that such beliefs trump the hurt and humiliation towards women, LGBTIQ people and others because of the religious views of the perpetrators.

Children and school pupils are not the only ones in society who deserve and need protection against hostile religious speech and actions targeted at vulnerable people.  I recently attended the funeral of a young gay lawyer in Sydney who took his own life.  Levels of suicide and attempted suicide amongst LGBTIQ Australians, especially males and particularly transgender people, are much higher than the population average.  Hostility, isolation and religious hatred contribute to low self-esteem and clinical depression.  Providing legal protection to some religious adherents, without the counterpoise of protection for competing rights in a comprehensive Bill or Charter of Rights, is quite wrong in principle.  Yet those who now demand legal protections for “religious freedoms” are often the very people who oppose most vehemently the enactment of a more calibrated, comprehensive human rights charter that we have long needed in Australia.

The push for legal protections for “religious freedom” came about in our Commonwealth as a direct consequence of the same-sex marriage survey of late 2017 and enactment of equality of access in respect of marriage by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). The short title of the Act should be noted.  It is a product of hostile religious assertions of a minority of conservative politicians.  If enacted, the new legislation will introduce into Australia an unbalanced law that will sustain nastiness and hostility that we can well do without. I am unconvinced that such newfound protections are really needed. And I see serious dangers in the present form of the proposed laws.

A philosopher once said “the right to swing my arm ends when I hit another’s chin”.  See Z. Cowen, The Right to Swing My Arm; Tagore Lectures, University of Calcutta, 1959.  Intuitively, Australia’s secular community understood this and so enacted anti-discrimination laws, with the support of all major political parties, to uphold this principle.  Now they are being dismantled to give a free go to the religious arm swingers.  If this move goes ahead, I predict that the result will be a rise in religious intolerance and  also anti-religious hostility to replace the more relaxed (live and let live) tradition of modern Australia.  This will also damage the principle of secularism, which is one of the most valuable gifts the British tradition provided to us, which we should be vigilant to preserve.

The new laws will support extreme assertions of religious rights by religious minorities who want to go around condemning others, often based on previously obscure passages in religious texts that Faith communities or their zealots invoke to defend their “religious freedoms”.  Never forget  that apartheid in South Africa was ultimately justified by reference to the supposed religious condemnation of miscegeny and that racial intolerance was based on the alleged inferiority of black people traced to contestable Biblical texts.  Passages of scripture can be found for just about every prejudice known to mankind. They have even been invoked against natural or innocent features of human nature or conduct such as left-handedness and masturbation. There is a need for considerable caution in elevating every religious opinion to an enshrined legal right to hurt and harm others.

I wish that the September 2019 Part of the ALJ had contained more articles putting contrary points of view which I believe are held by most Australian citizens and lawyers.


The Hon Michael Kirby AC CMG