The unfinished experiment: a report on religious freedom in Australia

Abstract

[Introduction]: The organization of government in the Commonwealth of Australia has been described as the 'Washminster Mutation'. Australia was formed as a Federation of six British colonies in 1901, which were recognized as states from that point, perpetuating Westminster systems of responsible government. However, in general, Australia's Founding Fathers were also enamored with the United States' political institutions, and so the Federation brought a U.S. federal structure to the country, including a written and rigid Constitution, a federal-or 'Commonwealth'-Parliament with an U.S.-inspired Senate, and judicial review of legis1ation. The Federal Constitution also reproduced provisions of the U.S. Constitution that were thought relevant to federal arrangements, even though the founding fathers were unsure how those provisions might be important to the regular working of the federation. These Washminster mutations are evident in the constitutional position of religious freedom, which embodies a mixture of U.S.-style religion clauses, older British traditions of parliamentary self-restraint, and statutory bills of rights, which are more commonly used in the British Commonwealth today. In the development of Australian statutory bills of rights, the International Covenant on Civil and Political Rights (ICCPR) has determined the shape of the rights adopted. The ICCPR and, to a lesser extent, the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (1981 U.N. Declaration), have been influential in law reform proposals and legislative developments on religious equality in most States and Territories. Part I of this Article explains the syncretic constitutional framework for religious freedom, including the recent effect of the ICCPR on the constitutional order. Part II deals with refonn proposals and other legislative developments for assuring religious freedom and equality that draw directly on the 1981 U.N. Declaration and the ICCPR. Parts I and II also address the emerging problems of the 'fit' within Australian law encountered by the growing population of Muslim Australians. This question, as is the case elsewhere in the Western World, is the most pressing for religious freedom and equality now facing Australia. Part III therefore focuses on a prominent method used to enforce tolerance of Muslims and other religious minorities anti- vilification or 'group libel' laws-and the public and political controversy they have generated. Lastly, the Article draws conclusions as to whether the particular balance that Australian laws have struck between the freedoms and equalities of the 1981 U.N. Declaration and the ICCPR has constructively addressed the problem of Muslim integration, and whether it is an acceptable balance for Australia's 'unfinished experiment' in religious freedom.