CONSTITUTIONAL EDUCATION FUND AUSTRALIA

GOVERNOR-GENERAL’S ESSAY PRIZE

2006

Introduction

The display of religious symbols and clothing in Australian schools has aroused intense interest in the media and heated community debate about the ‘proper’ extent to which governments should regulate this form of religious expression. After reviewing the different issues of public policy that are brought to bear on the question of how governments should regulate the exhibition of religious dress and symbols, this paper will draw attention to the existing domestic and international instruments in place for regulating such forms of religious expression, before suggesting that with the appropriate constitutional reforms set in place, the High Court of Australia would be best placed to determine the limits of such regulation by virtue of its jurisdiction to give effect to the religious freedom clauses of Australia’s supreme body of law, the Commonwealth Constitution. Finally, this paper will argue that boundary of such regulation should be determined in light of both Australia’s common law tradition and contemporary international human rights obligations before concluding that while the maximization of religious freedom in all schools is the ideal objective of any regulation, a ‘one-size-fits-all’ approach to both government and non-governments schools could actually militate against religious freedom, particularly in circumstances where faith-based schools wish to enact their own, individual uniform policies pursuant to their religious convictions.   

What are the issues of public policy involved in government regulation of religious  symbols or dress within Australian schools?

With religious dress and symbols essentially representing a form of religious expression, one of the principle issues of public policy is that governments enact legislation which accords with the Australian policy of multiculturalism, whereby different religious faiths are guaranteed equal measures of freedom to practice their beliefs and customs. Accordingly, both conservative and labor governments have consciously refrained from passing laws that would impose restrictions on religious dress or symbols within Australian schools. At the Federal level, the Minister for Citizenship and Multicultural Affairs, John Cobb, emphatically rejected calls to ban the wearing of Muslim headscarves in Australian schools, asserting that such comments were ‘offensive to all of us who recognize that acceptance of people from different [religious] backgrounds is a cornerstone of Australian society’.[1] Whilst in 2004, the NSW government ‘enshrined in its uniform policy a student’s right to wear religious attire and ruled that students could not be suspended for doing so.’[2]

Australia’s Human Rights obligations under the UN is an additional factor of public policy explaining why Australian governments do not legislate on religious dress and symbols within Australian schools. Under Article 18 of the ICCPR, of which Australia is a party, stipulates that ‘freedom to manifest a religion or belief 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’.[3] Whilst Australia has not yet incorporated the provisions of the ICCPR, the nation’s ratification of the Covenant in 1991 is a clear affirmation that the Executive government and its agencies will act in accordance with its provisions.[4] Hence any law proscribing certain forms of religious attire in Australian schools would be widely viewed as a violation of an individual’s ‘freedom to manifest a religion or belief’, pursuant to A 18 of the Covenant.  

Who should determine the limits (if any) of such regulation

Before venturing into a discussion about the appropriate legislative, executive and judicial apparatuses for determining the proper extent of government regulation of religious attire and symbols within Australian schools, it would be beneficial to provide a brief overview of the existing legal instruments that have hitherto guided the approach of Australian governments in this area.

In the domestic realm, the Commonwealth Constitution remains the pre-eminent legal authority for the free exercise of religion and thus the freedom for an individual to manifest their religious belief in the form of dress or symbols. Section 116 provides:

‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’[5]

The Constitutional provision, however, is limited in that its prohibitions cannot apply to laws enacted by State and Territory legislatures.[6]

In addition to the Commonwealth Constitution, Australian governments have also been guided by international human rights instruments, namely, the United Nation’s UDHR and ICCPR.  Finally, Australian governments, both Federal and State, have devised their own laws respecting the free exercise and manifestation of one’s religion. The Racial Discrimination Act 1975 (Cth) provides some protection against discrimination on the basis of religion, while the Human Rights and Equal Opportunity Act 1986 (Cth) vests the Commission with powers to investigate violations of human rights, including the right to freedom of religion and belief, where the alleged violator is the Commonwealth or one of its agencies.[7] At the state level, most jurisdictions have passed Acts prohibiting discrimination against persons on the basis of lawful religious beliefs and practices.[8] However, Tasmania is the only state to provide for religious freedom in its State Constitution with a section similarly worded to s 116 of the Commonwealth Constitution.[9]  Thus prima facie, it would appear that Australian jurisdictions already have appropriate legislative safeguards to ensure that persons manifesting their religious beliefs, through either the wearing of distinctive apparel or the display of symbols; would not be subject to discrimination in Australian schools.

Notwithstanding the existing legal instruments in place for guaranteeing the freedom to exhibit religious symbols and dress in Australian schools, there is much debate about who should be responsible for determining the proper limits of regulating such religious practices. Given that the wearing of religious attire is generally regarded as a matter of personal conscience and individual liberty, the Commonwealth Constitution as the specific and fundamental manifestation of the rule of law in our society would be the essential reference-point for determining any government regulation of religious attire and symbols in Australian schools. As the interpreter of the Constitution, therefore, the High Court of Australia would be the appropriate organ for determining the proper extent of regulation, pursuant to clause 3 of s 116 of the Constitution that disallows the Commonwealth from making laws prohibiting the free exercise of religion. In his far-sighted judgment in the Jehovah’s Witness Case [10], Latham CJ stressed that ‘if the [free exercise of religion] guarantee is to have any real significance it must left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them.’[11]

The existing constitutional handicap for the High Court, however, is that s 116 only affords protection to the ‘the free exercise of any religion’, from Commonwealth laws; thus, with the possible exception of Tasmania, the States and Territories would be free to enact laws prohibiting the free exercise of any religion without necessarily breaching the Constitution.[12] For the High Court to acquire the necessary jurisdiction to overrule State and Territory laws, as well as Commonwealth ones, therefore, the ambit of s 116 would need to be extended to apply to the States and Territories, and this could only be accomplished after the successful carriage of a referendum.[13]

Notwithstanding the existing constitutional impediments, however, the High Court would also be the most appropriate body for determining the limits of government regulation since its historically liberal construction of the ‘free exercise of any religion’ clause accords well with contemporary Australia’s commitment, on the most part, to fostering religious tolerance. The High Court’s progressive, far-sighted approach to the free exercise of any religion was evident as early as 1943, when the general religious temperament of Australia was still overwhelmingly Protestant. Displaying a sensitivity to religious diversity decidedly uncharacteristic of the early 1940s, Latham CJ pointed out that s 116 ‘is not required to protect the religion of a majority, but on the contrary, ‘to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities’.[14] Of particular relevance to the issue of regulating religious dress and symbols, the Latham High Court stressed not only protection for the freedom of religious belief, but the freedom of religious practice. ‘Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.’[15] It is hardly contentious that the display of religious symbols or the wearing of religious attire would constitute ‘acts done in pursuance of religious belief’, thereby attracting the protection of s 116.     

The courts, as opposed to the legislatures, would eminently be the most appropriate body for determining the limits of regulation, because under the separation of powers doctrine, the judiciary is vested with responsibility for ensuring that the individual liberties of citizens are safeguarded from the encroachment of either the legislature or executive. Accordingly, Latham CJ warned that ‘the interpretation and application of the guarantee, cannot under our Constitution, be left to the parliament.’[16] In accordance with the rule of law, the judiciary acts as a an independent arbiter ‘not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power’.[17] In contrast to the legislators, whose attitude towards the regulation of religious dress and symbols is likely to be influenced by the ebb and flow of public opinion, the judges of the High Court would be principally guided by ‘the enduring values recognised by the common law such as personal liberty, freedom of expression and the inviolability of the person’.[18] Thus if a situation ever arose in Australia where the parliaments, with a sufficient mandate from the public, made laws to prohibit the public display of religious dress and symbols in Australia schools, the High Court would be in a position to intervene and protect the individual liberty for citizens to express their religious beliefs.

As mentioned earlier, however, the High Court can only to realize its above potential as the supreme guarantor of religious liberty if and when the Australian people, through a referendum, assent to extending the ambit of s 116 to the States and Territories.

Where should the boundary of such regulation lie?

In accordance with both traditional Australian jurisprudence and contemporary human rights obligations, the government should inhibit freedom of religious expression only to the extent that it is deleterious to public order, morality, safety and security. In  Jehovah’s Witness, the High Court held that while the ‘free exercise of any religion’ should be construed broadly, it is not absolute and the government ‘may suppress religious practices dangerous to morals, and presumably those also which are inimical to public safety, health and good order.’[19] While at the international level, Article 18 of the UN ICCPR by and large reiterates the same qualifications to the free exercise of religion.[20]  

With the exception of some fears expressed about particular forms of Muslim head-dress perhaps being used to conceal the identity of terror suspects, and therefore posing a threat to national security , broad consensus would exist amongst the vast majority of the Australian public and its elected representatives that far from being deleterious to public safety, health, order or morals; the wearing of Islamic hijabs, Jewish skull caps or Christian crucifixes by Australian school children are innocuous expressions of religious identity and the healthy sign of a pluralist and tolerant society. Accordingly, the existing policies of State and Territory governments allowing public school pupils to freely wear religious symbols and attire should be maintained, and any legislation aimed at restricting such freedoms, i.e. banning the Islamic headscarf, should be rejected as been inconsistent with both Australia’s common law tradition and international obligations.

Should the position differ as between government and non-government schools?’

The foregoing discussion on the regulation on religious dress and symbols in Australian schools has been in respect of government schools, which are subject to the jurisdiction of the States and Territories. With the state and its educational institutions ideally adopting a neutral posture on matters of religious practice, the approach of allowing students to freely exhibit any religious clothing or symbols according to their individual consciences is right and proper in a multi-faith society.

The position with respect to private schools, however, is a little more complex as many such institutions are founded on various religious traditions. Under existing State law, in the case of NSW, faith-based schools have the freedom to enact dress-codes and other regulations in accordance with their respective religious beliefs. Thus it is generally the individual school board or authority, rather than the State, which prescribes what sort of religious dress/symbols are appropriate or inappropriate in the school context. Given that it is accepted that religious groups need to be able to choose their leaders, workers and members on explicitly ‘moral’ or religious grounds that may not otherwise be acceptable or even lawful; religious-based private schools should to be afforded with a similar measure of freedom to decide which forms of religious dress/symbols are acceptable or unacceptable.[21] Thus while a policy of disallowing government schools to prohibit various forms of religious dress is more than justified in the religiously neutral realm of the State, the extension of such a policy to non-government schools would impair the freedom of particular faith-based schools to either permit or prohibit religious symbols/dress in accordance with their consciences.      

Conclusion

Notwithstanding isolated cases of school pupils asked to remove clothing/accessories of religious significance[22], the existing government regulation of religious symbols/dress in Australian schools, across all State and Territory jurisdictions, is largely satisfactory with no undue encroachment on civil liberties. The current guarantees of individual freedom in this area, however, are by no means absolute whereby State and Territory legislatures have the power to enact restrictions on religious dress. The two means by which this free exercise of religious expression could be guaranteed are by extending the ambit of s 116 of the Constitution to the States and Territories or inserting a Bill of Rights into the Australian Constitution that would protect such a freedom. While the latter proposal is highly contentious, the former would considerably enhance the guarantee of free religious expression in Australian schools. With Australian schools subject to the control of the States and Territories, the section’s existing limitation to Commonwealth laws is clearly unsatisfactory. The successful carriage of a national referendum extending the operation of s 116 to the states would incidentally expand the jurisdiction of the High Court to invalidate any state or territory Act impinging on the free exercise of any religion in primary and secondary schools. Given the High Court’s longstanding fidelity to buttressing the ‘free exercise of religion’, this would represent a significant step forward for civil liberties in Australia. Whilst the carriage of a similar referendum failed in 1988, a prudently targeted public education campaign commending the merits of such a constitutional reform would go some way to securing its success in the future.

BIBLIOGRAPHY

ARTICLES/BOOKS/REPORTS

Bailey, P. H. Human Rights: Australia in an International Context, Butterworths, Sydney, 1990.

Cobb, J. (Former Australian Government Minister for Citizenship and Multicultural Affairs), ‘Headscarves to Stay’, Media Centre, 28 August, 2005.

Forsyth, R. ‘Dangerous Protections: How Some Ways of Protecting Religious Freedom May Actually Diminish the Freedom of Religion’, Acton Lecture 2001, The Centre for Independent Studies, Melbourne, November 21, 2001.

Heydon J. D., ‘Judicial Activism and The Death of the Rule of Law’, Quadrant, January- 

           February 2003,  p. 10.

             Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief, Commonwealth of Australia, Canberra, 1998.

Joint Standing Committee on Foreign Affairs, Defence and Trade, Conviction with Compassion: A Report on Freedom of Religion and Belief, Parliament of the Commonwealth of Australia, Canberra, November 200.

McLeish, S. ‘Making Sense of Religion and the Constitution: A Fresh Start to 116’, Monash University Law Review, Vol. 18, No. 2, 1992, pp. 207-236.

Norrie, J. ‘Schoolgirl Punished for Muslim Dress’, The Sydney Morning Herald, May 14, 2005.

Pringle, H. and Shakira, H. ‘Respecting Hijab’, On Line Opinion, Australia’s e-journal of social and political debate, 26 October, 2005.

           <www.onlineopinion.com.au/print.asp?article=3831>

Puls, J. ‘The Wall of Separation: Section 116, The First Amendment and Constitutional Religious Guarantees, Federal Law Review, Vol. 26, 1998, pp. 139-164.

Sackville R., ‘Why Do Judges Make Law? Some Aspects of Judicial Law Making’,

          University of Western Sydney Law Review, Volume 5, 2001, pp. 59-74.

Saul, B. ‘A Stealthy Erosion of Individual Autonomy’, The Canberra Times, 10 March, 2006, p. 15.

Williams, G. Human Rights under the Australian Constitution, Oxford University Press, Melbourne, 1999.

 CASE LAW

Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray & Ors v The Commonwealth of Australia [1997] HCA 27

Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116

Krygger v Williams (1912) 15 CLR 366