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Human Rights Brief No. 3

Human Rights Brief No.

3

Freedom of Religion and Belief

By ratifying the

International

Covenant on Civil and Political Rights (ICCPR) in 1980 Australia

has undertaken to respect and protect freedom of religion and belief.

This number covers

Sources of the

right to freedom of religion and belief

ICCPR article 18

  1. Everyone shall

    have the right to freedom of thought, conscience and religion. This

    right shall include freedom to have or adopt a religion or belief of

    his choice, and freedom, either individually or in community with others

    and in public or private, to manifest his religion or belief in worship,

    observance, practice and teaching.

  2. No one shall

    be subject to coercion which shall impair his freedom to have or adopt

    a religion of his belief or choice.

  3. 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.

  4. The States

    Parties to the present Covenant undertake to have respect for the liberty

    of parents and, when applicable, legal guardians to ensure the religious

    and moral education of their children in conformity with their own convictions.

In addition

  • advocacy of religious

    hatred which amounts to incitement to discrimination, hostility or violence

    must be prohibited by law (ICCPR article 20)

  • everyone is entitled

    to equality before the law and equal protection of the law without discrimination

    on the ground of religion among other grounds (ICCPR article 26) and

  • minority groups

    are entitled to profess and practise their own religion (ICCPR article

    27).

Also relevant are

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Scope of 'religion

and belief'

The principles relating

to freedom of religion or belief are to be given a wide application. Article

18 of the ICCPR and article 1.1 of the Religion Declaration both use the

expression 'freedom of thought, conscience and religion'. The phrase 'or

belief' is also used in these instruments. The UN Human Rights Committee

has elaborated on the meaning of these terms.

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 (General

Comment No. 22 (1993)).

The Committee stated

that 'religion or belief' includes minority and non-mainstream religions

and theistic, non-theistic and atheistic beliefs. Article 18 also protects

the freedom not to believe.

At the same time

there are limits on the scope of 'religion or belief'. The Committee stated

that a situation does not automatically fall within 'religion or belief'

simply by assertion such as through the use of language like 'church',

'sacrament' and so on.

Divergent opinions

on the meaning of 'religion' in Section 116 of Australia's Constitution

were delivered in Church

of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983)

154 CLR 120. The narrowest test was proposed by Acting Chief Justice Mason

and Justice Brennan and required two elements

  • belief in a supernatural

    Being, Thing or Principle

  • the acceptance

    of canons of conduct to give effect to that belief (though canons of

    conduct which offend against the ordinary laws are outside the area

    of any immunity, privilege or right conferred on the grounds of religion)

    (page 136).

Justices Wilson and

Deane held that no single characteristic could yield a formalised legal

criterion to define 'religion'. They referred instead to the following

indicia or guiding principles

  • a particular collection

    of ideas and/or practices involving belief in the supernatural

  • ideas that relate

    to the nature and place of humanity in the universe and the relation

    of humanity to things supernatural

  • ideas accepted

    by adherents requiring or encouraging the observation of particular

    standards or codes of conduct or participation in specific practices

    having supernatural significance

  • adherents constituting

    an identifiable group or identifiable groups, regardless how loosely

    knit and varying in beliefs and practices these adherents may be adherents

    themselves seeing the collection of ideas and/or practices as constituting

    a religion (page 174).

Justice Murphy also

did not propound a definitive 'test' since, because so many different

belief systems have been accepted as religions, any attempt to define

religion exhaustively will encounter difficulty. '[There is] no single

acceptable criterion, no essence of religion' (page 150). Justice Murphy

stated that belief in a supernatural Being, Thing or Principle is no longer

essential to religion and any organisation which claims to be a religious

organisation and which offers a way to find meaning and purpose in life

is a religious organisation (page 151).

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Religious freedom

for children

Children and young

people, as well as adults, are entitled to enjoy freedom of religion and

belief.

States

parties shall respect the right of the child to freedom of thought, conscience

and religion (CROC article 14.1).

Parents are responsible

for guiding their children in the exercise of this right.

The State

shall respect the rights and duties of the parents and, when applicable,

legal guardians, to provide direction to the child in the exercise of

his or her right in a manner consistent with the evolving capacities of

the child (CROC article 14.2).

In exercising this

duty parents must make the best interests of their child their 'basic

concern' (CROC article 18.1). See Human

Rights Brief No. 1 - The Best Interests of the Child.

Indigenous and minority

children are given specific recognition in CROC. Article 30 provides that

they have the right to enjoy their own culture and to practise their own

religion and language. Implicit in article 30 is the State Party's obligation

to take action to promote the survival of Indigenous and minority religions.

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Religious expression

ICCPR article 18

protects not only the freedom to believe but also the freedom to manifest

that belief in practice and expression. The right to freedom of thought,

conscience and religion includes freedom

. either

individually or in community with others and in public or private, to

manifest his religion or belief in worship, observance, practice and teaching.

The manifestation

of religion or belief may take many forms. Article 6 of the Religion Declaration

lists protected manifestations including, but not limited to,

  • worshipping and

    assembling, and maintaining places for this purpose

  • establishing and

    maintaining charitable or humanitarian institutions

  • practising religious

    rites and customs

  • writing and dissemination

    of religious publications

  • teaching of religion

    and belief

  • soliciting voluntary

    financial support

  • training and appointment

    of religions leaders in accordance with the requirements and standards

    of the religion or belief

  • observing religious

    holidays and ceremonies

  • communicating

    with individuals and communities on matters of religion and belief.

The freedom of a

church, other belief society or individual to manifest a religion or belief

is not as wide as the freedom to believe. It may be subject to limitations

imposed by the state in the public interest. ICCPR article 18.3 permits

... 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 limitations

clause is to be given a restrictive interpretation.

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 (United

Nations Human Rights Committee, General Comment No. 22, (1993)).

ICCPR article 27

specifically addresses minority religions.

In those

States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community

with the other members of their group, to enjoy their own culture, to

profess and practise their own religion, or to use their own language.

Governments must

take positive action to ensure that members of minority religions can

exercise their rights, including by protecting the existence of the minority

itself.

Although

the rights protected under Article 27 are individual rights, they depend

in turn on the ability of the minority group to maintain its culture,

language or religion. Accordingly, positive measures by States may also

be necessary to protect the identity of a minority and the rights of its

members to enjoy and develop their culture and language and to practise

their religion, in community with the other members of the group (United

Nations Human Rights Committee, General

Comment No. 23 (1994)).

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Discrimination

on the ground of religion or belief

Discrimination on

the basis of religion or belief is proscribed by the ICCPR. Article 2.1

guarantees the enjoyment of human rights

... 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.

ICCPR article 26

provides that everyone is equal before the law. It requires that everyone

be guaranteed equal and effective protection against discrimination.

Article 3 of the

Religion Declaration defines discrimination as

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.

The Religion Declaration

prohibits unintentional as well as intentional acts of discrimination.

It also prohibits actions which have a discriminatory effect even if in

fact they are applied equally to all.

Discrimination on

the ground of religion may be justified in limited circumstances. But

there is no justification for a general exemption on the basis of conscience.

Exemptions should only apply to employment of people by religious institutions

and should be limited to discrimination that is required by the tenets

and doctrines of the religion, is not arbitrary and is consistently applied.

Article 6 of the Religion Declaration provides that religious freedom

includes freedom '(g) To train, appoint, elect or designate by succession

appropriate leaders called for by the requirements and standards of any

religion or belief'.

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Religious hatred

Freedom from religious

hatred and violence is an essential element of religious freedom. ICCPR

article 20 provides that advocacy of religious hatred that constitutes

incitement to discrimination, hostility or violence shall be prohibited

by law. Not all behaviour that offends religious feelings or beliefs necessarily

constitutes advocacy of religious hatred.

There is an inherent

complexity in reconciling the right to freedom of expression (ICCPR article

19) with the right to freedom of religion and belief. However, freedom

of expression is not an absolute right. It carries with it special duties

and responsibilities and may be subject to restrictions necessary to ensure

respect for the rights and reputations of others and to protect national

security, public order, public health and/or public morals. More generally,

ICCPR article 5 limits the exercise of all Covenant rights and freedoms

by reference to the rights and freedoms of others. Article 20 makes clear

that freedom of expression cannot justify incitement to religious hatred.

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Religious coercion

ICCPR article 18.2

prohibits coercion that impairs a person's freedom to have or adopt a

religion or belief of his or her own choice. There is no clear understanding,

however, of what constitutes coercion. It obviously includes violence,

blackmail and fraud and threats of those. It could also include excessive

pressure and psychological manipulation.

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Freedom of religion

and belief in Australia

The role

of international instruments in Australia

The ICCPR, the Religion

Declaration, CROC, and ILO 111 are not directly implemented in Australia.

They do not form part of Australian law. However, with the exception of

the Religion Declaration they are all treaties that have been ratified

by Australia and so are legally binding on Australian in international

law.

However, they also

affect domestic law even if not fully incorporated. In Ah

Hin Teoh (1995) 128 ALR 353 the High Court held that ratification

by Australia of an international treaty gave rise to a legitimate expectation

that decision-makers would not violate its provisions. A Bill before the

Parliament at the date of publication seeks to override the effect of

the High Court's decision.

Where legislation

permits a discretion, that discretion should be exercised in conformity

with Australia's international treaty obligations. It is also now accepted

'that a statute is to be interpreted and applied, as far as its language

permits, so that it is in conformity and not in conflict with the established

rules of international law' and that 'an international convention may

play a part in the development by the courts of the common law' (Chief

Justice Mason and Justice Deane in Ah Hin Teoh).

These considerations

do not apply to the Religion Declaration as it is not a treaty, although

it has considerable persuasive value and is a valuable tool for interpreting

the scope of ICCPR article 18.

Human

Rights and Equal Opportunity Commission Act 1986

(Cth) (HREOC

Act)

The ICCPR, the Religion

Declaration, CROC and ILO 111 are all either scheduled or declared instruments

under the Human Rights and Equal Opportunity Commission Act. This gives

the Commission power to investigate complaints that these instruments have been

violated by or on behalf of the Commonwealth or a Commonwealth agency

but only in the exercise of a discretion or an abuse of power. Where legislation

requires rights protected by these instruments to be set aside, the Commission

can only advise the Parliament that the legislation should be amended.

The Commission can also advise Parliament on action that should be taken to promote

compliance with these instruments. Human rights complaints which cannot

be resolved by conciliation do not proceed to a hearing and determination

but may, after appropriate inquiry, be made the subject of a report to

the Attorney-General for tabling in Parliament. The Commission has no authority

over the courts.

The definition of

'discrimination' in the HREOC Act excludes distinctions made in connection

with the beliefs of that religion where the distinction is made in good

faith to avoid injury to the religious susceptibilities of its adherents.

Racial

Discrimination Act 1975

(Cth) (RDA)

The RDA provides

some limited protection against discrimination on the basis of religion.

If a religious group can also be classified as an 'ethnic' group, the

RDA may cover direct and indirect discrimination and vilification under

the racial hatred provisions of the Act. Even if a religious group cannot

be classified in that way, the RDA arguably covers discrimination on the

basis of religion in certain circumstances such as indirect race discrimination.

State

and Territory anti-discrimination laws

Victoria, Queensland,

Western

Australia, the Northern

Territory and the ACT

have made discrimination on the ground of religion unlawful. In New South

Wales the Anti-Discrimination

Act 1977 (NSW) prohibits discrimination on many grounds but not

on the ground of religion. However, the definition of 'race' in the New

South Wales Act includes ethno-religious background.

The anti-discrimination

laws of the States and Territories that cover religious belief prohibit

both direct and indirect discrimination in

  • employment and

    work (including partnerships, professional trade or business organisations,

    qualifying bodies and employment agencies)

  • education
  • provision of goods

    and services

  • accommodation
  • club membership.

The Victorian

Act prohibits members of local government councils from discriminating

against other members on the basis of, among other things, their religious

beliefs or practices. The Queensland

Act has very wide coverage and applies to superannuation, insurance

and the administration of State laws and programs in addition to other

areas.

There are a number

of exemptions in each Act that allow discrimination on the grounds of

religious beliefs and activities in certain circumstances. Most of them

are for the benefit of religious organisations in areas like employment

(as described in the section of this brief dealing with discrimination).

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Article 18:

Freedom of Religion and Belief

As part of its responsibility

for the ICCPR and the Religion Declaration and in response to a number

of complaints received the Human Rights and Equal Opportunity Commission

undertook a review of freedom of religion and belief in Australia. The

report of the inquiry, Article 18:

Freedom of Religion and Belief, was tabled in federal Parliament

in November 1998. The report makes a number of recommendations to improve

Australia's compliance with its international obligations relating to

freedom of religion and belief, including the enactment of a federal Religious

Freedom Act. The recommendations of Article 18 have yet to be implemented

by the federal Government.

Disclaimer:

This document provides general information only on the subject matter

covered. The Human Rights and Equal Opportunity Commission does not assume

a duty of care with respect to this information. It is not intended, nor

should it be relied on, as a substitute for legal or other professional

advice. If required, it is recommended that the reader obtain independent

legal advice. The information contained in this document may be amended

from time to time. Copyright: Copyright in this document is owned

by the Human Rights and Equal Opportunity Commission, 1999. The contents

may be reproduced freely with acknowledgement. Date of last amendment:

October 1999. Contributing author: David Robinson. ISSN Number:

1442-0813

Last

updated 08 March 2006.