Australian Religious Liberty Threatened by COVID Closure of Churches

When the government can arbitrarily decide that people of faith are not allowed by law, and are subject to fines and imprisonment for exercising their faith, every fundamental human right is in jeopardy.  The current COVID restrictions being placed upon Australian churches are the perfect example of that arbitrary threat to every essential right.  When citizens can freely go into a store and shop without government molestation, but when those same people, later assemble in the church house are threatened with fines and imprisonment, you have the very definition of arbitrariness that must be understood by a reasonable and ordered society as a violation of our most sacred right: freedom of conscience.

James Madison, in his historical essay “Property” (1792), gives us wisdom on the essential nature religious liberty and the limit of government authority over that inherent right:

“Conscience is the most sacred of all property; other property depending in part on positive law, the exercise of that, being a natural and unalienable right. To guard a man’s house as his castle, to pay public and enforce private debts with the most exact faith, can give no title to invade a man’s conscience which is more sacred than his castle…”

Lord Nicholls of Birkenhead gave a truly relevant and powerful explanation of the fundamental nature of religious liberty and the essential right to practice that religion. 

“Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilised society individuals respect each other’s beliefs. This enables them to live in harmony. This is one of the hallmarks of a civilised society… This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practise one’s beliefs. Without this, freedom of religion would be emasculated.”  Regina v. Secretary of State for Education and Employment and others (Respondents) ex parte Williamson (Appellant) and others [2005] UKHL 15

The Supreme Court of Canada held:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious beliefs by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterised by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his volition and he cannot be said to be truly free.” R v Big M Drug Mart Ltd [1985] 1 SCR 295, 336.

It should be of no surprise that Australian courts agree with both Madison, Nicholls, and the Canadian Supreme Court when describing religious liberty. In Church of the New Faith v Commissioner for Pay-Roll Tax (1983) 57 ALJR 785, 78, the court calls religious liberty “the paradigm freedom of conscience” and the “essence of a free society.”  Additionally in Christian Youth Camps Limited v Cobaw Community Health Service Limited the court explains that religious liberty is a fundamental right because Australian “society tolerates pluralism and diversity and because of the value of religion to a person whose faith is a central tenet of their identity.”

The Australian Supreme Court in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth of Australia (1943) 67 CLR 116, explains to the people that the Australian Constitution not only protects religious liberty, but also requires its protection to maintain a fair and ordered society:

“The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government.” 

Section 116 of the Australian Constitution makes it known that the Commonwealth is not allowed to make any law “prohibiting the free exercise of any religion.”  Additionally, the Australian Human Rights Act of 1986 makes it unlawful for any government to discriminate based upon religion, especially when that discrimination “has the effect of nullifying or impairing equality of opportunity or occupation.”  When a law is passed that says that a person can go shopping but not to church, that law discriminates in favor of grocery stores to the unequal nullification or impairing of those employed in the church. 

Article 2 of the 1986 Human Rights Act establishes that each State will “ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (emphasis added)

Even in times of emergency, the 1986 Human Rights Act declares that government power is LIMITED and denied the authority create laws that discriminate against the fundamental rights of religious liberty.  Yet in this declared emergency of COVID discrimination against religious entities is exactly what we see.  When one can lawfully meet in the stores or go exercising but those same individuals are legally molested for meeting in churches, there is no other term that can be used but discrimination.

In a globally aware society, the government of Melbourne must acknowledge a duty and obligation to the protection and preservation of the most basic human rights of its citizen.  Melbourne must also recognize in a global society, the entire world is watching this gross violation of its duty to the people.

As a government, bound by its Constitution, you must respect the human rights of your citizens.  As defenders of Liberty, we are watching, all over the world, and we will not be silent while this atrocious violation of fundamental rights continues under your watch.

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