“Traditional Rights and Freedoms—Encroachments by Commonwealth Laws,” Australian Law Reform Commission

A lengthy report looking at the encroachment of Commonwealth laws on traditional rights and freedoms.  Of interest are the sections on freedom of speech and freedom of religion.

iStock_60024840_SMALL.jpgNotably, the report suggests that while ministers of religion should not be forced to solemnise marriages of couples of the same sex, service providers should not be given the right to exercise freedom of religion in this respect.

The report says that “protecting individuals from discrimination in ordinary trade and commerce seems a proportionate limitation on freedom of religion.”

The report quotes Lady Hale, Deputy President of the United Kingdom favourably when she says:


Denying some people a service which you are prepared to offer others is deeply harmful to them.  It is reminiscent of the days when women were not allowed to order their own drinks at the bar in certain establishments and landlords were allowed to say ‘no blacks here.’  It is a denial of their equal dignity as human beings.


In coming to this conclusion, it appears that the ALRC has ignored the Siracusa Principles (which are a key to interpreting the International Covenant on Civil and Political Rights and prioritises the non-derogable rights of freedom of conscience and religion to the right to not be discriminated against.)


The report is incorrect in equating the denial of service to women and people of colour with a refusal to provide services for a same-sex wedding.  If a service provider refused to serve a person because they were homosexual, then that would be unlawful discrimination.  But in this situation, the person is just refusing to participate in a specific event – a same-sex wedding.  The two are not comparable.

Read the report here.

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