Aroney is an expert on legal pluralism, law and religion who has warned that religious freedom has become a second-class right to anti-discrimination and argued that religious freedom should include a right to practise sharia law within “strictly justifiable limits imposed by the general law”.
In public debate before marriage equality was legalised, Coalition conservatives including the immigration minister, Peter Dutton, and the defence personnel minister, Dan Tehan, warned against amendments with unintended consequences, such as creating religious enclaves shielded by law or opening a back door to sharia.
In a 2012 essay titled The Accommodation of the Sharia within Western Legal Systems Aroney and co-author Rex Ahdar argued that: “From a western point of view, the practice of sharia is in part a religious liberty issue and, to that extent, its conscientious practice ought to be a right enjoyed by all committed Muslims, qualified only by strictly justifiable limitations imposed by the general law.”
Aroney and Ahdar said that enforcement of sharia law by state authorities “needs to be approached very cautiously, noting the nature of Sharia as [an] ‘entire way of life’, its constitutional implications for the basic structures of the state, and the possibility of its use as a tool by extremist elements”.
The authors explain that although sharia has dark connotations in the west of “floggings, stonings and amputations for crimes” the term simply denotes a body of legal rules and principles extracted from the Qur’an and the Sunna.
The article gives examples including a proposal by an Islamic organisation in the Canadian province of Ontario to establish faith-based arbitration tribunal that would apply religious norms to resolve family and business disputes.
In 2016 Aroney warned that religious freedom is becoming “at best a second-class right” as “anti-discrimination law is increasingly prioritised”.
He said lip service was given to the concept of the balance of rights but religious organisations did not have faith in courts and tribunals “to strike such balances in a way that treats religious freedom as a fundamental and non-derogable right”.
Just Equal spokesman Rodney Croome said: “I am concerned by Nicholas Aroney’s appointment because his writing makes it clear he believes religious freedom trumps other rights, including equality.
“The Ruddock review should be a balanced assessment of religious freedom, but instead the government is stacking the review to appease the religious right after the passage of marriage equality.”
Some Coalition conservatives including Liberal senator, David Fawcett, have argued that Australia has not fully implemented article 18 of the international covenant on civil and political rights, which guarantees freedom of “thought, conscience and religion”.
ICCPR article 18.3 states that “freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others”.
This limitation on the manifestation of religious belief is the basis for laws to override religious liberty and protect people against discrimination.
The expert panel has been asked to consider the intersections between the enjoyment of the freedom of religion and other human rights.
The panel consists of Ruddock, Aroney, the president of the Australian Human Rights Commission, Rosalind Croucher, Annabelle Bennett and Father Frank Brennan.
It will first meet in 2018, with preliminary submissions due by 31 January and a final report by 31 March.
While announcing the terms of reference the prime minister, Malcolm Turnbull, said Australia “is the most successful multicultural society in the world”.
“Right at the heart of our success as a free society is freedom of religion,” he said. “It is a fundamental national value, recognised in the constitution.”
In comments to the Australian during the marriage debate, Dutton called for religious and parental protections in the cross-party same-sex marriage bill but warned against wholesale recognition of religious freedom.
“But cooler heads do need to prevail about an additional process to provide a protection of a person’s fundamental belief and practice of religious belief,” he reportedly said. “There’s no way I’ll be supporting a process that gives rise to a push for sharia law.
“That’s why we need a process to look at the consequences, because that goes to the important principle of protecting religious beliefs and practices.”