Human dignity and constitutional spatial theory: towards an Australian framework for the resolution of conflicts in equality rights and religious liberties claims

Abstract

This thesis seeks to resolve a particular problem in the Australian human rights regime—the conflict between the legal right to equal treatment and the conscientious claim to a right to refuse equal treatment. A right may be claimed to discriminate in respect of protected attributes in exception to the legal right to equality. The problem arises when vendors of goods or services claim that as a manifestation of their religious liberty, they have the right to refuse to deal with customers who possess a protected attribute because to do so would offend their conscientiously-held objections in relation to that attribute. Whether and how such a right should be granted in diminution of the right to equal treatment thus creates a problem. Despite legislation and litigation seeking some form of balance between liberty and equality, the problem remains unresolved and appears incapable of resolution. The only solution suggested to date has been the creation of further exceptions and ad hoc exemptions to equality laws permitting discrimination in cases where the conscience is impinged. An ideal solution to the problem should be guided by sufficiently clear principles that avoids the need to call upon the legislature for amendments to cater for new categories of conscientious objection or for the courts to resolve ongoing interpretational disputes. Solutions that require either ongoing legislative amendment or judicial intervention are unlikely to provide an efficient, durable, workable solution to the problem. Can religious freedom be protected in Australia without the need for the continual creation of conscientious exceptions to equality laws? And, if so, under what theoretical framework? The answer to the first question is ‘yes’. In answer to the second, a theoretical framework is to be found in ‘constitutional spatial theory’, the elements of which are outlined in the thesis. The principal element, human dignity, is all but completely absent in the Australian regime. This thesis argues that the need to provide for ongoing exceptions and exemptions can be overcome. Introducing a concept of ‘constitutional space’ would provide the missing principled rationale by limitation of rights and freedoms to their allocated spaces, avoiding encroachment upon other rights. It would also break the current mendicant cycle of advocacy, begging for a place for religious freedom in the current paradigm of exemptions. The resolution is presented in four stages to produce a novel system for dealing with human rights in Australia and resolving the conflict identified in respect of religious freedom: 1. The first stage is the formulation of a hypothesis that there can be a theoretical framework, not previously applied to the problem in Australia, involving the constitutional spatial theory and the principle of human dignity, which can be tested in three ways. 2. The second stage is the first test of the hypothesis—namely, whether such a theory can be formulated. 3. The third stage is the second test of the hypothesis—namely, whether the theory can embrace human dignity as a part of its resolution of the problem. 4. The fourth stage is the third test of the hypothesis—namely, whether the theory, embracing human dignity, can provide, first, a constitutional space for religious freedom and, secondly, a durable solution to the problem without creating exceptions and ad hoc exemptions to equality laws for conscience. The thesis presents a novel framework. That framework, first, enshrines human dignity as the dominant and guiding principle; secondly, it guarantees rights by a constitutionally entrenched bill of rights, creating a new constitutional space for religious freedom; and thirdly, it finally resolves the clash of discrimination and equality by the invocation of the Hohfeldian rights theory.