Indigenous religion not protected, ANU academic tells Ruddock review

by Andrew Brown
Sydney Morning Herald
6 April 2018 

A leading Canberra academic has told the Turnbull government's review into religious freedom that Aboriginals are not adequately protected to practice their religion.

Ernst Willheim, a visiting fellow at the Centre for International and Public Law at the Australian National University, said the current legal system failed to accommodate the difference between Aboriginal and "mainstream religions".

An ANU fellow has said the current legal system fails to accommodate differences between Indigenous religion and "mainstream religions".

The submission was one of more than 16,000 received by the review, headed up by former Attorney General Philip Ruddock, recently made public.

The inquiry was announced last year following concerns surrounding religious freedom after same-sex marriage was legalised.

The religious freedom review is being headed by former Howard government minister Philip Ruddock.

In his submission to the review, the expert on Aboriginal heritage protection said Indigenous Australians were not fully protected by the law to practice their religious beliefs.

"Aboriginal religious or spiritual beliefs commonly require that particular knowledge be restricted to certain individuals or groups and not to be further disclosed," Mr Willheim said.

"Yet the statutory procedures for obtaining protection ... require full disclosure of the details of secret knowledge or beliefs to non-Aboriginal decision makers and to the opponents of protection.

"Disclosure of secret knowledge or beliefs through a public inquiry process destroys the values Aboriginal people seek to protect."

The academic said current laws enacted to protected the religious beliefs of Aboriginals have failed to achieve their purpose.

Mr Willheim said there was a "collision" of the core values of Aboriginal religious practices and the Australian legal system.

"The Australian legal system establishes a non-Aboriginal process for the authentication of Aboriginal religious belief," he said. "That in itself is inherently offensive to Aboriginal people."

A key part of Mr Willheim's submission noted secrecy was an essential part of Aboriginal religious beliefs, with elders guarding knowledge and passing it on selectively to the next generation.

According to the ANU visiting fellow, Indigenous people would have to break these traditions if they were required in a legal setting.

"These beliefs, ceremonies and rituals form part of the religious life of the community. Access to religious knowledge is a basis for power in the community," he said.
"Aboriginal religions are fundamentally different from mainstream religions but the legal system fails to accommodate the difference.

"International law principles and international authorities clearly support the view that the rights of Indigenous people to pursue their religious, spiritual and cultural practices are important legal rights."

While 16,000 submissions were received by the review, almost 2000 were made public before the Easter weekend.

The rest of the submissions are due to be published on May 18, when the review is expected to hand down its report.