'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada

This paper analyzes Australian and Canadian approaches to rights conflict focusing on challenges between freedom of religion and equality in public life. The first section involves an historical and doctrinal analysis of rights frameworks in Australia and Canada and a comparative analysis of cases that test public boundaries of freedom of religion and equality. This section concludes that the Australian framework is an imperfect mechanism for resolving disputes about freedom of religion. A comparison to the Canadian framework demonstrates that principles of reconciliation and limitation of rights provide a more satisfying answer to challenges between religious freedom and equality rights. The argument put in the second section is that both states assert freedom of religion and equality as fundamental rights but in fact their competing scope remains unresolved. The second section applies political theory to the question of freedom of religion, building on the presumption that neither Australia nor Canada (as modern liberal states) has an agreed public ‘place’ for religion. This thesis proposes a theoretical solution of adopting a more inclusive definition of religion within an egalitarian liberalism framework and prefers the test of ‘ethical independence’ proposed by Ronald Dworkin for responding to claims of religious expression rather than a ‘special rule’ or exemption approach.