Freedom of Association and Religion
My enduring interest in politics is the development of the policies necessary to meet our challenges as a nation, both domestically and globally.
It is this theme which I wish to pursue tonight in relation to freedom of association and freedom of religion. My remarks relate to the political philosophy of the issue. I will leave to the discussion questions about specific proposals or issues.
There is no substitute for detailed policies. Menzies once observed, ‘opposition must be regarded as a great constructive period in the life of the party, not a period in the wilderness, but a period of preparation for the high responsibilities in which you hope will come.’
Missing from the narrative of recent Liberal leaders has been a vision for Australia. Yet it is critical if they hope people will support them. Visitors to the Howard Library at Old Parliament House will read on the wall at the entrance the former prime minister’s aphorism that ‘politics is not a public relations exercise. It is fundamentally a contest of ideas about what best serves the national interest. It is the ability to evaluate competing visions of the common good that mark a truly great people.’ John Howard’s statement reflects Menzies’ observation that if you get the policies correct, the politics will follow. His words should be displayed in the office of every Liberal parliamentarian, along with the values of the party. Where was the Liberal vision for Australia, or for a particular state, at recent elections?
I believe the party must return to a discussion about the values, principles and policies that underpin its programs and proposals.
Which brings me to the subject of freedoms.
Freedoms
In 1941, President Roosevelt, in discussing the things at stake in the Second World War, referred to ‘the four freedoms,’ namely freedom of speech and expression, freedom of worship, freedom from want and freedom from fear. It was a theme that Robert Menzies developed in his ‘Forgotten People’ broadcasts in 1942.
In October 1944, the inaugural conference of the Liberal Party, held in Canberra, adopted a set of principles. Amongst them is the statement:
'“We will strive to have a country –
. . .
3. In which an intelligent, free and liberal Australian democracy shall be maintained by
a) Parliament controlling the Executive and the Law controlling all;
b) Freedom of speech, religion and association;
c) Freedom of citizens to choose their own way of living and life, subject to the rights of others;
d) protecting people against exploitation;
e) Looking primarily to the encouragement of individual initiative and enterprise as the dynamic force of reconstruction and progress.
. . .”
The subsequent November 1954 platform went a little further, containing two objectives pertaining to religious freedom. The thirteenth affirmed that “We believe in the great human freedoms: to worship, to think; to speak; to choose, to be ambitious; to be I dependent; to be industrious; to acquire skills; to seek and earn reward.” The fifteenth stated: “We believe in religious and racial tolerance among our citizens.”
It is notable that from the very beginnings of the Liberal Party, freedom of speech, religion and association have been fundamental values. They are manifestations of freedom more generally which has been diminished in the past decades, I would contend.
The suggestion that freedom has been diminished in recent times may seem unusual to some; surely we have more freedoms here in Australia than almost anywhere in the world.
Let me make a distinction at the outset: when I speak of freedom, I am not speaking of a libertine notion that separates freedom from a concern for moral truth. Nor am I supporting those anxious to curtail freedom in the name of authority or an ever-leveling equality. Rather, in the words of Lord Acton, I view freedom and liberty not as the power of doing what we like, but the right to do what we ought.
The assertion of basic freedoms by the Liberal Party from its inception reflected an international movement.
In December 1948, the international community gathered at the United Nations adopted the Universal Declaration of Human Rights. Confronted by the horrors of the Second World War and egregious breaches of human rights in many places, world leaders sought to enshrine standards of conduct that respected the inherent dignity and liberty of each human being.
Led by the redoubtable Eleanor Roosevelt, the Human Rights Committee of the new organisation had worked for nearly two years to draft the Declaration. Australia was a significant supporter of the creation of the United Nations, and also the Universal Declaration.
Central to the Declaration is the bold assertion that "human beings shall enjoy freedom of speech and belief and freedom from fear and want. . . (which) should be protected by the rule of law."
Article 18 of the Declaration states that "Everybody 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 a community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."
As the Harvard professor of law, Mary Ann Glendon, points out in her masterful account of the creation of the Declaration, A World Made New, Article 18 was a major achievement of the Human Rights Committee. Along with Eleanor Roosevelt, it was the work of other remarkable contributors, including Rene Cassin and Charles Malik.
Article 20 of the Universal Declaration of Human Rights asserts that:
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Two decades later, the international community concluded a long process to transform the Declaration into an international legal instrument. Hence, the International Covenant on Civil and Political Rights was drafted and adopted. Amongst the supporters again was Australia.
The Covenant expands Article 18 of the Declaration with three additional provisions.
First, "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."
Secondly, "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."
Thirdly the nations that are signatories to the 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."
Australia is a signatory to the Covenant, but it has not been incorporated into our domestic law.
Freedom of Association
Taken together, the freedoms of speech and religion are a manifestation of the freedom of association.
Our tendency to form groups is innate in human activities. The great Greek philosopher, Aristotle, saw this as man (which I use in the generic sense) as a political animal. But in the other great Jewish foundation of our civilisation, man is seen as a social animal. As the late Jonathan Sacks wrote:
“Man as political animal creates the institutions of political society; states governments and political systems. Man as social animal creates the institutions of civil society: families, friendships, voluntary associations, charities, congregations and moral traditions. There is a significant contrast between the two and the forms of life to which they give rise. Much of the history of our attempts to live together can be written in terms of their relationship, sometimes close, with one another, with now one, now the other, in the ascendency.”
Civil society
It is the habits, dispositions and culture of people that undergird democracy. Consequently, a state without public discussion and civil association lacks a democratic life-force. As Alexis de Tocqueville observed almost 200 years ago, it is the association of people in a myriad of groups and organisations that underpins the modern democratic experiment.
This web of associations, what Edmund Burke referred to as “the little platoons” to which we belong, has become known as civil society.[i] They are the relationships and institutions that are neither created nor controlled by the state. “The essential task of civil society – families, neighbourhood life, and the web of religious, economic, educational, and civic associations – is to foster competence and character in individuals, build social trust, and help children become good people and good citizens.”[ii] Hence democracy is built upon the virtues of personal and civic responsibility.
The notion is not new. Adam Smith in The Theory of Moral Sentiments posited the centrality of ethical values, including care for others, as a necessary basis of the market system.[iii] In his observations of the new American republic, Tocqueville noted:
“Among the laws that rule human societies, there is one which seems to me more precise and clear than all others. If men are to remain civilised or to become so, the art of associating together must grow and improve in the same ratio in which equality of conditions is increased.”[iv]
It is this sense of mutual association that Tocqueville observed in America that stands at the heart of a well-functioning democratic nation. It is not a new notion.
Note that this understanding is contrary to the Hobbesian idea that we are driven to form associations because of our fear of violence and death. Only by handing over our powers do we avoid a life, to use his famous words, that would be “solitary, poor, nasty, brutish and short.” A political state as a central repository of power is required. It is easy to understand why this conception easily leads to the totalitarian state in practice. More and more power and control is required to maintain peace and security.
To the contrary, civil society is critical to liberal democracy. Because individuals gain meaning and identity from their relationships with others, a liberal democracy dedicated to full and free human development cannot afford to ignore the conditions that are most conducive to the fulfillment of that ideal. If we do, then liberal democracy neglects the very basis of its own maintenance. It is in the institutions of civil society - in families, and in voluntary associations - that democracy is sustained, by balancing the power of both market and state, and by helping to counter both consumerist and totalitarian tendencies. The Harvard scholar, Mary Ann Glendon writes:
“The myriad of associations that generate social norms are the invisible supports of, and the sine qua non for, a regime in which individuals have rights. Neither the older political and civil rights, nor the newer economic and social rights, can be secure in the absence of the social arrangements that induce those who are disadvantaged by the rights of others to accept the restrictions and interferences that such rights entail.”[v]
In other words, if we cannot preserve and support the institutions of community in which relationships are developed and nurtured, then we are not merely placing at risk the welfare of many people, particularly the young and the elderly, we are weakening the very foundations of democracy itself. As many have observed, of all political systems, democracy most depends upon the competence and character of its citizens. A liberal democracy presupposes civic virtue to a higher degree than any other form of government.
Accordingly, freedom of association is critical to our form of government.
Let me say a few things about freedom of religion specifically.
Freedom of religion in Australia
A number of observations can be made about the protection of religion and belief in Australia.
First, there is an international definition and standard of freedom of religion and belief that Australia has long supported.
Accordingly, there is an objective measure by which the adequacy or otherwise of protections in Australia can be measured.
The standard in Article 18 of the Covenant has also been interpreted by the United Nations from time to time.
It is also clear that there is very little legal protection for freedom of religion and belief in Australia. This is the consistent evidence from experts to the Parliamentary Human Rights inquiry that I currently chaired.
As I wrote in the Foreword to the Parliamentary Report Legal Foundations of Religious Freedom in Australia:
“Legal protection of religious freedom in Australia is limited. Australia is unusual among modern Western democracies in that it lacks a codified bill or charter of rights. While a culture of religious freedom has thrived, and the common law has respected religious freedom to a large extent, the legislative framework to ensure this continues is vulnerable.
“Section 116 of the Australian Constitution is limited in its scope, according to these same experts, and does not provide the range of protections covered by the Covenant. To quote again from the Foreword:
“The Constitution does place ‘fetters’ on the Commonwealth government, preventing it from restricting religious practice to some extent. But this is a fairly narrow protection, and does not provide positive protection of the right, nor does it prevent the States and Territories from restricting religion.”
The modern context
A survey of history reveals that threats to religious freedom have arisen mostly from the dominance of one religion over others, or from the State sanctioning an official religion. While this is still the case, formally or informally, in some parts of the world, the threats in western nations like Australia, are more subtle and often arise in the context of protecting other, conflicting rights. An imbalance between competing rights and the lack of an appropriate way to resolve the ensuing conflicts is the greatest challenge to freedom of religion in Australia.
To again quote from the Foreword to the Parliamentary Report:
“This is most apparent with the advent of non-discrimination laws which do not allow for differentiation of treatment by religious individuals and organisations. It is also manifested in a decreasing threshold for when religious freedom may be limited. For example, the Victorian Charter of Rights and Responsibilities allows ‘reasonably necessary’ limitations while the ACT Human Rights Act has the even lower threshold of ‘reasonable’ limitations, compared to the International Covenant’s requirement that limitations be ‘necessary’.”
While religious exemptions within non-discrimination laws provide some protection, these place religious freedom in a vulnerable position with respect to the right to non-discrimination, and do not acknowledge the fundamental position that freedom of religion has in international human rights law.
These reflections highlight the inadequacy of the current situation. First, Australia domestic law contains very little protection for freedom of religion. Secondly this is compounded by the incorporation through a series of Commonwealth, State and Territory statutes of one universally recognised freedom – against discrimination – into domestic law, but the exclusion of others, including freedom of religion. And thirdly, where exemptions are provided, they create a tenuous and negative protection, rather than the positive protection provided in the International Covenant. Even these exemptions are now being diminished or removed. Moreover, there is a failure to recognise that under international jurisprudence, there is no hierarchy of rights, that each and every right should be given full expression to the extent possible.
A presentation to the Southern Cross and Latrobe Valley L:iberals, Mitcham Bowling Club, Mitcham, 15 March 2023
[i] Edmund Burke (1790) Reflections on the Revolution in France [London, JM Dent,1960], 44
[ii] The Council on Civil Society (1998) A Call to Civil Society [New York, Institute for American Values]
[iii] Adam Smith (1759) The Theory of Moral Sentiments. Michael Novak refers to democratic virtues in a similar way: Michael Novak (1999) On cultivating liberty (Brian C Anderson ed.) [New York, Rowman and Littleford]
[iv] Alexis de Tocqueville (1835) Democracy in America, 408
[v] Mary Ann Glendon (1991) Rights Talk: The Impoverishment of Political Discourse [New York: Free Press]
