Mission Australia National Management Team Meeting

"Human Rights in Australia


with particular reference to freedom of religion"

Speaking notes for
a presentation to the Mission Australia National Management Team Meeting
in Sydney on 22 August 2001

by Dr Sev Ozdowski OAM, Human Rights Commissioner

Acknowledgments of
the traditional custodians and Mr Patrick McClure, Mission Australia CEO

Brief biographical
overview having been born in Poland in 1949 and arrived in Australia in
1975

Part 1: Human
rights as they are protected in Australia

1A. Human rights
in the 20th century - an overview

1B. Human rights
in Australia - a potted history

1C. The role of
the Human Rights and Equal Opportunity Commission

1D. The future
- how to protect human rights better

Part 2: Religious
freedom and freedom from religious discrimination

2A. Religious
freedom in Australia's Constitution

The Federal Constitution
does not provide a complete guarantee of protection for the right to freedom
of religion and belief. There is however some measure of constitutional
protection. Section 116 of the Constitution provides

The Commonwealth
shall not make any law for establishing any religion, or for imposing
any religious observance, or for prohibiting the free exercise of any
religion, and no religious test shall be required as a qualification
for any office or public trust under the Commonwealth. [1]

This section only
restricts the legislative power and in one respect only the executive
power of the Commonwealth. It does not apply to the States.

The constitutional
guarantee in Section 116 is not a source of personal rights in the sense
of providing individuals with an avenue for where legal redress where
their rights are violated.

2B. Freedom of
religious belief is absolute

2B1. International
law applicable in Australia

Article 18 of the
International Covenant on Civil and Political Rights (ratified by Australia
in 1980) guarantees to everyone 'the right to freedom of thought, conscience
and religion'. It prohibits coercion which would impair the exercise of
this right. It stipulates that freedom to manifest religion may only be
subject to those limitations which are prescribed by law and necessary
to protect public safety, order, health or morals or the fundamental rights
and freedoms of others. It allows for parents and legal guardians to determine
to the religious and moral education of their children.

The United Nations
Human Rights Committee in its General Comment on ICCPR article 18 has
described the right to freedom of thought, conscience and religion as
'far-reaching' and 'profound'.

The right to
freedom of thought, conscience and religion (which includes the freedom
to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses
freedom of thought on all matters, personal conviction and the commitment
to religion or belief, whether manifested individually or in community
with others. [2]

The Committee has
adopted a broad interpretation of 'freedom of religion or belief' covering
freedom of theistic, non-theistic and atheistic beliefs and freedom not
to subscribe to any of these beliefs.[3] The Committee
has made it clear that minority and non-mainstream religions are no less
entitled to the protection of article 18 than traditional religions.

Article 18 is
not limited in its application to traditional religions or to religions
and beliefs with institutional characteristics or practices analogous
to those of traditional religions. [4]

The Committee has
pointed out that the ICCPR 'does not permit any limitations whatsoever
on the freedom of thought and conscience or on the freedom to have or
adopt a religion or belief of one's choice'. [5] These
freedoms, the Committee has emphasised, 'are protected unconditionally'.
[6]

2B2. A case in
which freedom of belief was violated

Mr Marett was employed
by Petroleum Refineries Australia.[7] His religious beliefs
forbad him contributing to a union organised fund to support striking
workers in another State. The other workers responded to his refusal by
refusing to work with him. The company responded to this by instructing
him to spend his days in a sealed hut furnished with only a chair and
with no work for him to do. After 4 months he was sacked.

The Court agreed
with the Equal Opportunity Board that Mr Marett had been treated less
favourably because of his religious beliefs and he had therefore been
discriminated against unlawfully. The company could not say his treatment
was for industrial reasons only.

Talking about the
Victorian Equal Opportunity Act Justice Nathan commented:

The Act is ameliorative
legislation, stated to entrench an individual's right to freedom of
religious expression and making it an offence, in the workplace, to
discriminate on the basis of doing so. The Act does not establish an
economic regime, where the costs of religious expression are set off
against costs of production or ultimate profit. If discrimination occurs
because of a person's private life as expressed through their religious
belief, then a breach of the Act is made out, regardless of the economic
consequences. Religious freedom is not an ingredient of an economic
equation, however costly that freedom may be either to an individual
or employer.

C. Freedom of
religious practice is not unlimited

2C1. International
law applicable to Australia

The freedom of a
church, other belief society or individual to manifest a religion or belief,
however, is not unqualified like the freedom to believe. It may be subject
to limitations imposed by the government in the public interest. ICCPR
article 18.3 prescribes the scope of the permissible limitations on the
freedom to manifest a religion or belief. [8]

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.

The United Nations
Human Rights Committee has given some guidance on the interpretation of
this limitations clause.

Limitations
may be applied only for those purposes for which they are prescribed
and must be directly related and proportionate to the specific need
on which they are predicated. Restrictions may not be imposed for discriminatory
purposes or applied in a discriminatory manner. The Committee observes
that the concept of morals derives from many social, philosophical and
religious traditions; consequently limitations on the freedom to manifest
a religion or belief for the purpose of protecting morals must be based
on principles not deriving exclusively from a single tradition.

Also important in
the context of religious expression is the fact that Australia is a multicultural
society which embraces a diversity of religious traditions and beliefs.
Successive Australian governments have committed themselves to policies
of multiculturalism. In the 1989 National Agenda for a Multicultural
Australia the then Commonwealth Government identified as one of the
key dimensions of multicultural policy

... the right
of all Australians, within carefully defined limits, to express and
share their individual cultural heritage, including their language and
religion.

The scope of the
state's power to restrict or influence religious expression must be interpreted
in a manner consistent with both the right to manifest one's religion
or belief and the permitted limitations on that right. In interpreting
the scope of permissible limitations clauses, States Parties should proceed
from the need to protect the rights guaranteed under the ICCPR, including
the right to equality and non-discrimination on all grounds specified
in articles 2, 3 and 26, notably including religion.

Consideration of
the right to express religion and belief and of the circumstances in which
that right should be limited or restricted raises some very complex and
sensitive issues. In Australia limitations on the expression of religion
and belief may be identified in a wide range of laws and community norms.

2D. Freedom from
discrimination on the ground of religion or belief

2D1. International
law applicable in Australia

Discrimination on
the basis of religion or belief is prohibited under the International
Covenant on Civil and Political Rights (ICCPR). Article 2.1 imposes on
States and obligations to uphold all of the rights in the ICCPR

... 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.

Article 26 of the
ICCPR provides that all persons are equal before the law. It requires
that all persons be guaranteed equal and effective protection under the
law against discrimination

... on any ground
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

Article 3 of the
Religion Declaration proclaims discrimination on the ground of religion
or belief 'an affront to human dignity' which is to be condemned as a
violation of fundamental rights and freedoms. Article 2.1 proclaims that
'no one shall be subject to discrimination by any State, institution,
group of persons, or person on grounds of religion or other beliefs'.
For the purposes of the Declaration discrimination means

any distinction,
exclusion, restriction or preference based on religion or belief and
having as its purpose or as its effect nullification or impairment of
the recognition, enjoyment or exercise of human rights and fundamental
freedoms on an equal basis.

There are a number
of parallels between article 2 and the provisions relating to racial discrimination
in the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD). Like ICERD, the Declaration prohibits
unintentional as well as intentional acts of discrimination and actions
which have a discriminatory effect in fact although they are applied equally
to all.

The basic right of
all Australians to realise their full potential and participate fully
in society can only be achieved when all Australians, whatever their backgrounds,
receive equality of opportunity and treatment in all areas of life.

2D2. Federal laws

Human Rights and
Equal Opportunity Commission Act 1986

The Commission can investigate complaints of discrimination in employment
or occupation based on religion at all levels of government and in the
private sector. There is an exception for any distinction, exclusion or
preference made in connection with employment as a member of the staff
of an institution that is conducted in accordance with the doctrines,
tenets, beliefs or teachings of a particular religion or creed, being
a distinction, exclusion or preference made in good faith to avoid injury
to the religious susceptibilities of adherents of that religion or creed.
[9]

However, the HREOC
Act does not provide enforceable remedies against discrimination on the
ground of religion or belief. Where the Commission finds discrimination
within the terms of the Act and the parties are unable to achieve a conciliated
settlement, the only course open to the Commission is to submit a report
to the federal Attorney-General for tabling in Parliament. [10]

Workplace Relations
Act 1996

The Workplace Relations Act 1996 includes a range of provisions intended
to prevent and eliminate discrimination in employment. Religion is among
the specified grounds of employment discrimination prohibited by this
Act.

2D3. State and
Territory laws

Equal opportunity
legislation in Victoria, Queensland, Western Australia, Tasmania, the
Australian Capital Territory and the Northern Territory prohibits direct
and indirect discrimination on the grounds of religious belief and religious
activity.

The ACT legislation,
for example, makes it unlawful to discriminate by refusing an employee
permission to observe religious practices during working hours where

• it is of a kind
  recognised as necessary or desirable by persons of the same religious
  conviction as the employee
  
• it is reasonable
  having regard to the circumstance of employment
  
• it does not subject
  the employer to unreasonable detriment. [11]

The Western Australian
Act has a similar provision [12] while others deal with
special needs in a negative way, by providing that it is not discriminatory
to fail to provide for a special need if it would be an unreasonable imposition
to do so.

2D4. A case of
employment discrimination

A job ad read: "We
have a vacancy for a keen Christian person 16-18, who is not afraid of
hard work, to assist on our forecourt …". The employer argued
the advertisement was intended to indicate the company was seeking a committed
and practising Christian because the whole business was devoted to the
living of the Christian faith." The tribunal found that the advertisement
indicated an intention to breach the NZ prohibition on religious discrimination
in employment and that the company could not argue that it was a qualification
for the work to be performed (car detailing) that the person should hold
a Christian belief. [13]

2E. Religious
institutions may be exempt

2E1. International
law applicable in Australia

Religious organisations
do not have automatic exemptions from the application of the HREOC Act.
However, if a complaint is made against a religious institution that it
made a distinction on the basis of the religious belief of a job applicant
or employee, that religious institution may be able to argue that the
distinction, although based on a prescribed ground, does not breach the
requirements of the Act if it is a distinction:

(a) in respect of
a particular job based on the inherent requirements of the job (the inherent
requirement exception) or

(b) in connection
with employment as a member of the staff of an institution that is conducted
in accordance with the doctrines, tenets, beliefs or teachings of a particular
religion or creed, being a distinction, exclusion or preference made in
good faith in order to avoid injury to the religious susceptibilities
of adherents of that religion or that creed (the susceptibilities of adherents
exception).

These exceptions
in the anti-discrimination provisions of the HREOC Act reflect a recognition
of the right to freedom of religion and belief and an understanding of
the fact that the welfare arms of these organisations are often a practical
expression of faith.

2E2. State and
Territory laws

There are a number
of exemptions in each State and Territory ct which permit discrimination
on the ground of religious belief or activities. Most of these are for
the benefit of religious organisations. For example, it is not unlawful
for a religious school to discriminate between applicants for employment
on the basis of their religious convictions or absence of religious convictions
in order to avoid injury to the religious susceptibilities of the adherents
of that religion. [14]

Religious organisations
also have broader exemptions from other provisions of State and Territory
anti-discrimination legislation if the discrimination is on the basis
of religion and is to avoid injury to the susceptibilities of adherents
of that religion. For example, the NSW Act includes a provision allowing
for

any other act
or practice of a body established to propagate religion that conforms
to the doctrines of that religion or is necessary to avoid injury to
the religious susceptibilities of the adherents of that religion. [15]

A particularly wide
exemption is contained in the Victorian Act. In addition to exemptions
relating to religious bodies and religious schools there is a provision
which allows discrimination where

the discrimination
is necessary for the [discriminator] to comply with the person's genuine
religious beliefs or principles. [16]

A comparison between
the NSW and Victorian provisions illustrates the lack of uniformity between
different jurisdictions with regard to exemptions. Some of these exemptions
are very broad and effectively amount to an exemption for conscience.

2E3. A successful
exemption application

The exemption application
was in respect of the Chief Executive Officer of the Homes.[17]
It was necessary, from the company's point of view, that the CEO be a
Freemason or willing to become one, which requires a belief in God, and
that he be male (females cannot become Freemasons). The company made the
point that the CEO would be a member of the Board and all members were
Freemasons.

The exemption was
granted. The Board took into account the Regulations under which the Homes
were operated and which required the CEO to be a Freemason. Refusing the
exemption would force the Regulations to be amended. Further the Regulations
indicated the strong link (since the 1860s) and close relationship between
the Homes and the Masonic organisation: that closeness made it appropriate
for the overall manager of the Homes to be a Freemason. Finally, as a
charity the Homes warranted different treatment under the Act.

2E4. A case in
which the religious institution could not rely on an exemption

Issues pertaining
to the scope and operation of exemptions for religious organisations were
highlighted in a recent inquiry by the Human Rights and Equal Opportunity
Commission, which has since become the subject of a report to the federal
Attorney-General. [18]

This inquiry arose
out of a complaint against the Catholic Education Office of the Archdiocese
of Sydney for its refusal of an application for classification as a teacher
in Catholic schools in the Archdiocese. The complainant was a lesbian
who had been involved in campaigning against homophobia and violence against
young gay and lesbian school students. The Office cited among its reasons
for refusing to employ the complainant her high public profile as a convenor
of the Gay and Lesbian Teachers and Students Association and her public
statements on these issues. The Commission found the refusal of her application
was not protected by the religious institutions exception in the HREOC
Act.

The Commission found
that the complainant did not, by virtue of her sexual preference and her
public campaigning against homophobia, refute or denigrate the teachings
of the Catholic Church. The respondent was not able to substantiate its
claim that she advocated a lifestyle and values contrary to the teachings
of the Catholic Church. The fact that the complainant was openly lesbian,
and the speculation which such openness might attract regarding her private
activities, could not be construed as injurious to the religious susceptibilities
of adherents of the Catholic faith.

Indeed it would
not be an injury to their religious susceptibilities but an injury to
their prejudices. These injuries do not come within the terms of [the]
exception and are not a permissible reason for discriminating on the
ground of sexual preference. In applying for classification with the
[Catholic Education Office] Ms Griffin asserts that she will act in
accordance with its Principles for Employment. If she fails to adhere
to those Principles then the [Office] can take action in relation to
her classification. [19]

These findings and
recommendations illustrate the importance of limiting the scope of exemptions
for religious organisations under anti-discrimination law and in particular
not allowing absolute exemptions which have the potential to encourage
prejudice and unfair treatment based on matters such as personal lifestyle.
This is a central and long established tenet of anti-discrimination law.
To allow religious organisations a broad exemption for conscience, along
the lines sought by the respondent in the matter described above, could
encourage prejudice and unfair treatment of certain individuals. Indeed,
during the hearing of that inquiry, the respondent acknowledged that the
test for determining whether the employment of a person in a religious
organisation would cause 'injury to the religious susceptibilities of
adherents to that religion or creed' was not a completely subjective one
and that the exception could not be applied 'capriciously or randomly'.

2E5. Recent recommendations
regarding exemptions

The importance of
limiting the scope of exemptions for religious organisations was recently
recognised by the Senate Legal and Constitutional References Committee
in the report of its Inquiry into Sexuality Discrimination. [20]
The Committee expressed concern about religious organisations using exemptions
to exclude non-heterosexual people from access to various community services
and recommended

That a body
established for religious purposes may not exclude a person from the
receipt of services which are funded, directly or indirectly, in whole
or in part, from Commonwealth funding, on the grounds of the person's
sexuality or gender status. [21]

The Commission supported
that recommendation in its 1998 report Article 18: Freedom of religion
and belief. However, the Commission did not support a general exemption
for conscience. International human rights law provides no clear basis
for a broad exemption for conscience. Such an exemption would, in the
Commission's opinion, be dangerously open to misuse and would seriously
undermine the effectiveness of associated anti-discrimination provisions.

In the Article
18 report, the Commission took the view that any exemption for religious
organisations in Commonwealth legislation dealing with discrimination
on the basis of religion or belief should be a limited exemption only.
It should apply only to employment of people by religious institutions
and should be limited to discrimination in respect of those issues which
clearly impact upon the person's ability to comply with the teachings
of the religion in the course of that employment. While this may include
consideration of the employee's religious affiliations and beliefs it
should not include matters which fall within the province of an individual's
private life and which do not affect their public life and public activities
in any material way.

This exemption should
complement a more general rule that the prohibition of discrimination
based on religion or belief does not make distinctions based on the inherent
requirements of the job unlawful. This is a widely accepted principle
in anti-discrimination law and would apply to both religious and other
organisations.

Thus the Commission
recommended:

The proposed
Religious Freedom Act should make unlawful direct and indirect discrimination
on the ground of religion and belief in all areas of public life, in
accordance with ICCPR articles 2 and 18 and Religion Declaration article
4, subject to two exemptions.

1. A distinction,
exclusion or preference in respect of a particular job based on the
inherent requirements of the job should not be unlawful. Preference
in employment for a person holding a particular religious or other
belief will not amount to discrimination if established to be a genuine
occupational qualification.

2. A distinction,
exclusion or preference in connection with employment as a member
of the staff of an institution that is conducted in accordance with
the doctrines, tenets, beliefs or teachings of a particular religion
or creed, being a distinction, exclusion or preference made in good
faith and in order to avoid injury to the religious susceptibilities
of adherents of that particular religion or that creed should not
be unlawful.

2F. Freedom from
coercion in respect of religion

2F1. International
law applicable to Australia

Coercion is contrary
to international human rights law and cannot be condoned under the umbrella
of religious freedom (ICCPR article 18.2, Religion Declaration article
1.2).

Coercion includes
detention or mistreatment for the purposes of involuntary counselling.
Coercion includes the use of covert or brainwashing techniques to recruit
new members, involuntary incarceration of members, deprivation of contact
with family and friends and other forms of abuse and mistreatment.

2F2. A case of
unlawful coercion

Complainant was a
sales assistant. She complained that her employers frequently made efforts
to change her religious beliefs and personal habits, such as drinking
coffee, and persistently requested her to attend their church. She found
this pressure unwelcome and resigned. The Tribunal found that this pressure
amounted to less favourable treatment of the complainant and therefore
unlawful discrimination. [22]

2F3. HREOC recommendation

In its Article
18 report the Commission recommended:

An inter-faith
dialogue should be resourced by the Attorney-General's Department, and
convened by the National Council of Churches. The focus of the dialogue
should be

1. to examine the question of methods of coercion and how they should
be dealt with

2. to consider whether legal limitations should be imposed on religious
groups regarding coercive tactics

3. to formulate an agreed list of minimum standards for the practice
of religious groups.

1. Section
116 is modelled on section 3 of Article VI and the First Amendment to
the United States Constitution.

2. General Comment No. 22 (1993) paragraph 1.

3. General Comment No. 22 (1993) paragraph 2.

4. Ibid.

5. Id, paragraph 3.

6. Ibid.

7. Petroleum Refineries Australia v Marett (1988)
EOC 92-237 (Supreme Court of Victoria).

8. See also Religion Declaration article 1.3.

9. Section 3(1). See also Human Rights and Equal Opportunity
Commission Report of Inquiry into Complaints of Discrimination in Employment
and Occupation: Discrimination on the ground of sexual preference,
HRC Report No. 6, 1998.

10. Section 31(b).

11. Discrimination Act 1991 (ACT) section 11.

12. Equal Opportunity Act 1994 (WA) section 54(3).

13. Human Rights Commission v Eric Sides Motors, NZ
Newspapers, Christchurch Press Company (1984) EOC 92-006 (NZ Equal
Opportunities Tribunal).

14. Equal Opportunity Act 1995 (Vic.) section
38; Anti-Discrimination Act 1991 (Qld) section 109; Equal Opportunity
Act 1984 (WA) section 66(1).

15. Anti-Discrimination Act 1977 (NSW) section
56.

16. Equal Opportunity Act 1995 (Vic) section 77.

17. Application for an Exemption by the Trustees of
Royal Freemason's Homes of Victoria (1996) EOC 92-805 (Equal Opportunity
Board Victoria).

18. Human Rights and Equal Opportunity Commission, Report
of Inquiry into Complaints of Discrimination in Employment and Occupation,
Discrimination on the ground of sexual preference, HRC Report No.
6, 1998.

19. Id, page 22.

20. Senate Legal and Constitutional References Committee
Inquiry into Sexuality Discrimination December 1997.

21. Id, recommendation 8.

22. Ciciulla v Curwen-Walker (1998) EOC 92-934
(Victorian Anti-Discrimination Tribunal).