The Terms of Reference direct the Sub-Committee to inquire into “the freedom of religion or belief”. This wording “freedom of religion or belief” has attracted some comment in submissions. Additionally, providing a definition for religion or belief is challenging due to the intangible nature of religion or belief. This chapter will briefly discuss what is included in the freedom, noting some key phrases and distinctions.
Definition of Religion
Australian case law has recognised the difficulty in attempting to exhaustively define “religion”. In the Jehovah’s Witnesses case, discussed further in Chapter Four, Latham CJ said in this regard:
It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed in the world.
The members of the Court in the Scientology case, also discussed in Chapter Four, concurred with this view. They nevertheless went on to point out certain indicia of religion. Mason ACJ and Brennan J held that:
… for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order 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.
We would hold the test of religious belief to be satisfied by belief in supernatural Things or Principles and not to be limited to belief in God or in a supernatural Being otherwise described.
Noting that the indicia of “religion” could be no more than aids in determining the meaning of the word and would vary in different contexts, Wilson and Deane JJ said:
One of the most important indicia of “a religion” is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has a “religion”. Another is that the ideas relate to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium … is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.
Referring to the High Court decisions, Dr Alex Deagon has noted that the Court has been generous and inclusive in defining religion.
The Sub-Committee does not intend to add or subtract anything from the High Court’s comments on how religion is to be defined.
The ICCPR uses the expression “right to freedom of thought, conscience and religion”. The Wilberforce Foundation called this a “composite right”, while the Australian Lawyers for Human Rights (ALHR) argued that this phrasing:
encompasses agnosticism, atheism, secularism and other systems of belief which hold to a set of values and principles but would not traditionally be thought of as religions. … [The] interpretation also follows on from the logical argument that to have freedom of something you must also be able to be free from that thing or not have that thing.
The ALHR further noted that the European Court of Human Rights has given a wide interpretation to the meaning of “religious beliefs” to include “pacifism, veganism and atheism”. The Secular Party of Australia also emphasised the right to be “free from any or all religion” as part of the right to freedom of religion.
The broad scope of the right is highlighted by the UN Human Rights Committee, which states in General Comment 22 that the “freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief”. The terms “belief” and “religion” are to be broadly construed, with the UN Human Rights Committee stating that “Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief”.
In Australian case law, this broad scope was confirmed by Latham CJ in the Jehovah’s Witnesses Case, when his Honour said:
The prohibition in s. 116 [of the Constitution] operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion… Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.
While, for brevity’s sake, this Interim Report will continue to use the phrase “religion or belief”, this can be taken to cover the broad conception of this right and includes conscience and thought, including non-religious systems of belief and the absence of any belief system. The phrase “religious freedom” is also used with the same meaning throughout this Interim Report.
“Hold” and “manifest”
Several submissions emphasised the important distinction between having or holding and manifesting a belief. Religious freedom includes both the right to hold (or to change) a belief and the right to manifest that belief. The freedom to hold a religion or belief is absolute and cannot be limited for any reason. In contrast, the freedom to manifest a religion or belief may be subject to necessary legitimate limitations, as the manifestation of a religion can potentially conflict with other human rights in certain circumstances.
The ICCPR reflects this distinction. Article 18(1) states (emphasis added):
This right shall include freedom to have or to 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.
The UN Human Rights Committee confirms that to “have or to adopt” a religion or belief “necessarily entails the freedom to choose a religion or belief”, as well as the “right to replace one’s current religion or belief” with another, including atheistic views.
The freedom to have or adopt a religion or belief of one’s choice is protected “unconditionally”. In contrast, Article 18(3) does permit limitations on the freedom to manifest in certain circumstances.
The Human Rights Law Centre observed that the “active exercise” of the right to manifest one’s belief is “usually performed externally, to the outside world”. Similarly, ALHR noted that holding or changing a belief has “no impact on others” whereas manifesting one’s belief has “potential impact upon others”.
The Religion Declaration elaborates to some extent on activities constituting “manifestations” of religion. A range of freedoms are listed under nine heads of Article 6, covering activities including worship, the establishment of charitable institutions, writing and disseminating publications, teaching, observing days of rest, and appointing leaders.
As noted above, General Comment 22 also gives broad scope to the activities encompassed by “manifest”.
Appropriate limitations on the manifestation of religion are discussed later in this Chapter.
“Individually or in community with others”
The right to manifest religion or belief is held both “individually” and “in community with others”. In addition to the ICCPR, Article 18 of the UDHR, Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article1 (1) of the Religion Declaration make it clear that the freedom to manifest religion or belief is held “either alone [or individually] or in community with others”.
Professor Nicholas Aroney and Mr Mark Fowler argued in their joint submission in relation to the right to manifest religion or belief “individually”:
Religious freedom is the ultimate test of a society’s willingness to recognise the liberty of the individual. The very idea of individual freedom and its protection in modern liberal democracies owes its origin to the defence of religion against encroachments by the state. The right of individuals to formulate and articulate their beliefs, to act upon their consciences and to associate with fellow believers is fundamental to a free society.
This argument was supported by the Presbyterian Church of Queensland:
The right to religious freedom (including as recognised under Article 18 of the ICCPR) is not limited in its application, it applies to ‘everyone’, not just religious ministers.
Freedom to act in accordance with one’s conscience (including as informed, or burdened, by religious conviction) is at the root of the post-Enlightenment vision of the modern liberal State.
In an Australian context, Dr Alex Deagon noted that s 116 of the Constitution does not distinguish between individuals and religious communities or organisations in protecting freedom of religion and argued that the protections afforded to religious organisations should therefore also be extended to religious individuals.
Mr Joshua Forrester, Dr Augusto Zimmerman and Ms Lorraine Finlay referred to Latham CJ’s comment in the Jehovah’s Witnesses case:
[Section 116 of the Constitution] refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of a religion.
They argued that Latham CJ’s formulation means that the exercise of religion is not only limited to gathering to worship but also extends to individuals living by a particular religion’s principles.
The right to manifest religion or belief “in community with others” is highlighted by the Australian Human Rights Commission, which noted the UN Human Rights Committee statement that this “includes acts integral to the conduct by religious groups of their basic affairs”. This includes the freedom to:
choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.
Professor Aroney and Mr Fowler emphasised this right in their submission, arguing:
If religious freedom is restricted to an individual’s right to believe, with no right to practice one’s belief, then it does not amount to very much at all. If religious freedom includes an individual’s right to believe and practice their religion, but does not include the right to associate with other religious believers in accordance with their shared convictions, then something that lies at the heart of religious faith and practice will be severely jeaopardised.
The Human Rights Law Alliance noted the connection between the language of Article 18(1) of the ICCPR and various associated freedoms, including the freedom of association, which is:
the freedom to gather around shared beliefs in community with others, including the formation of groups and institutions which protect and promote those shared beliefs.
Mr Fowler argued that:
part of a democratic society is we want individuals to be able to aggregate around issues of common concern and then, through these associated functions, present those concerns to the wider society.
The Presbyterian Church of Queensland emphasised the communal character of religion, arguing that religious freedom does not operate solely at the individual level but is also “expressed and nourished” by religious communities:
…the right of religious communities to define their character is foundational to the preservation of the religious freedoms of the individual.
The European Court of Human Rights has articulated the importance of this “community” aspect in Hasan v Bulgaria, commenting that the autonomy of religious communities is “indispensable for pluralism” and is thus “at the very heart of the protection” of religious freedom:
It directly concerns not only the organisation of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms], all other aspects of the individual’s freedom of religion would become vulnerable.
The rights of parents
Subparagraph 4 of Article 18 of the ICCPR requires States Parties 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.
This extends the breadth of Article 18’s scope. Its importance was argued by a number of submissions. The Presbyterian Church of Queensland argued that the right may be breached if religious exemptions from anti-discrimination laws were removed, having the effect of preventing religious schools from requiring adherence to religious principles in the hiring of their staff. This is discussed further below when non-discrimination laws are considered in Chapter 7.
In the context of government education, some submissions argued that any “doctrinal religious instruction” in a state school by “outside religious people” should be seen as a “form of coercion in religion and as a limitation of freedom of religion”. The Attorney-General’s Department drew attention to the UN Human Rights Committee’s General Comment 22, which states that religious instruction in public education is permissible under Article 18(4), provided that “provision is made for non-discrimination exemptions or alternatives that would accommodate the wishes of parents and guardians”.
It was noted that the Article 18(4) right is mirrored in the Convention on the Rights of the Child, which protects a child’s right to freedom of thought, conscience and religion, while also protecting the right of parents and 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”.
Dr Paul Taylor said there is “no discernible protection” in Australian domestic law giving effect to the rights of parents in this regard.
Legitimate limitations on the freedom of religion or belief
As already noted, the freedom to have or adopt a religion or belief of one’s choice is absolute and cannot be limited or restricted in any way. However, Article 18(3) of the ICCPR permits limitations on the freedom to manifest one’s religion or beliefs in certain circumstances. Indeed, several submissions acknowledged that the right to manifest one’s religion or beliefs may be subject to limitations because of its potential impact on other rights.
Any limitations on the freedom to manifest beliefs under Article 18(3) must meet the criteria set out in that article:
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.
Firstly, the limitations must be prescribed by law, which means that there must be a sufficiently clear law regulating the area. According to Professor W Cole Durham Jnr, the requirement also has a qualitative element in the sense that the law must observe fundamental rule of law constraints such as non-retroactivity and the absence of arbitrary enforcement.
Secondly, the limitations must be necessary. The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) provide that for a limitation under Article 18(3) to be “necessary”, it must be based on one of the relevant grounds in Article 18(3), respond to a pressing public or social need, pursue a legitimate aim and be proportionate to the aim. The UN Human Rights Committee has also stated in regards to Article 18(3):
Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. … Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated.
The international jurisprudence which has developed in relation to the “necessity” requirement under Article 18(3) reflects the interpretative guidance of the Siracusa Principles and the Human Rights Committee. As noted in several submissions, the international jurisprudence indicates that a limitation will be “necessary” where the limitation:
has a legitimate aim, that is, the limitation “reflects a concern that is pressing and substantial in a free and democratic society” and has a “specific purpose, rather than being based on a general concern.” The concept of legitimate aim is further discussed below in connection with the third limitation criterion under Article 18(3);
is reasonable, that is, the limitation is neutral and impartial, does not impose an excessive burden on the right to freedom of religion or belief, and is not arbitrary, irrational or ineffective; and
is proportionate, that is, there is a “reasonable relationship of proportionality between the means employed and the aim sought to be realised.” The limitation must be appropriate to achieve its aim; must be the least intrusive means of achieving the desired aim; and must be proportionate to the interest to be protected. Further, the principle of proportionality has to be respected “not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law.”
The Human Rights Law Alliance and Australian Christian Lobby argued in their joint submission that overall the term “necessary” imposes a very high threshold when compared to other terms such as “reasonable” or “reasonably necessary”. This was echoed by the Presbyterian Church of Queensland which argued that the “reasonable” standard “offers a much shorter path to majoritarian rule than the test of ‘necessity’”. The Presbyterian Church of Queensland’s legal representative, Mr Fowler, stated at the Melbourne hearing that this standard “draws the boundary much into the heartland of an individual’s rights”. The view that the term “necessary” imposes a high threshold is also borne out in the jurisprudence of the European Court of Human Rights which has found that:
[‘Necessary’] is not synonymous with ‘indispensable’ … neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’. … [I]t is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context.
The last criterion under Article 18(3) is that limitations can only be imposed on the legitimate grounds set out in the article, namely, to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The UN Human Rights Committee has indicated that the grounds set out in Article 18(3) are the only grounds on which a State is permitted to limit the right to manifest one’s religion or beliefs. Limitations on other grounds that are not specified in the article are not permitted, even grounds such as national security that would be permitted as limitations on other rights in the ICCPR, further underlying the fundamental position of religious freedom.
The Siracusa Principles provide guidance on how the specified grounds in Article 18(3) should be interpreted:
public safety means protection against danger to the safety of persons, to their life or physical integrity, or serious damage to their property;
public order means the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order;
public health means measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured;
public morals vary over time and from culture to culture and therefore any limitation on this ground should be demonstratively essential to the maintenance of respect for fundamental values of the community. Further in this regard, the Human Rights Committee has also stated:
… 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,
fundamental rights and freedoms of others extend beyond the scope of the rights and freedoms recognised in the ICCPR. Limitations are permitted if they are the result of balancing claims of other human rights, including the fundamental human rights provided for under the ICCPR.
Submissions suggested several examples of situations where freedom of religion or belief may be limited for legitimate aims or grounds. These include legal prohibitions on child marriage, polygamy or female genital mutilation (to protect fundamental sex equality rights), limitations on certain customary forms of physical punishment (to protect the rule of law), limitations on religious teaching that involves violence or brainwashing, and limitations on religious protests in the vicinity of abortion clinics (to protect patients and staff and to avoid public disorder). With regard to religious protests, the Hon. Mr Shane Rattenbury MLA, the ACT Minister for Justice and Consumer Affairs, noted that the amendments to the Health Act 1993 (ACT) “clearly limited the protestors’ right to freedom of expression (including expression of their religious beliefs)”, but stated that they were “reasonable and proportionate to achieve a justifiable policy aim”. This example is discussed further in Chapter Five.
In addition to the right to freedom or belief under Article 18, Article 26 of the ICCPR prohibits discrimination and provides for equal protection from discrimination on religious grounds. The UN Human Rights Committee said about Article 26:
[T]he Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.
As noted by the Presbyterian Church of Queensland, the Committee’s statement does not indicate that differentiation must be necessary or appropriate (as is the case with Article 18(3) limitations); rather the test is whether the differentiation achieves a legitimate purpose which is determined by reasonable and objective criteria.
The preceding discussion has focussed on legitimate limitations to the freedom of religion or belief under the ICCPR. In relation to Australia, Dr Taylor argues that Australia’s failure to implement the ICCPR in domestic legislation means that there is nothing in Australian law which safeguards against limitations on the right to manifest freedom of religion or belief which extend beyond the legitimate limitations in Article 18(3).
On the other hand, Equal Opportunity Tasmania noted that the guidance produced by the Commonwealth Parliamentary Joint Committee on Human Rights on the circumstances under which a human right may be limited is “based on well-established legal principles”. The guidance states that a right may be limited when the limitation is prescribed by law, has a legitimate objective, has a rational connection to the objective to be achieved, is proportional and is not retrospective.
The ACT Government also submitted that any limitations to freedom of religion or belief in the ACT would be subject to the international jurisprudence discussed above. In this regard, Mr Sean Costello, Director of Civil Law, Legislation, Policy and Programs, ACT Justice and Community Affairs Directorate, indicated that although the limitation section in the Human Rights Act 2004 (ACT) only referred to “reasonable” limits, the matters that must be considered under the provision and the requirement under the Act to consider international jurisprudence implies that consideration will also be given to the “necessity” of a limitation to the freedom of religion or belief. The limitation section of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is in similar terms.
The evidence has highlighted the importance of phrasing when discussing this right. Significantly, the right to freedom of “religion or belief” includes the right to non-theistic belief systems and the right not to profess any beliefs at all.
The right as expressed in Article 18 is carefully worded. It draws important distinctions between “holding” and “manifesting” a religion or belief, and emphasises that the right is held both “individually” and “in community with others”. The rights of parents and guardians with respect to the religious and moral education of their children are also protected. The importance of these terms and their implications were explored throughout the submissions and hearings.
The right to hold a religion or belief is absolute. The right to manifest a religion or belief is not absolute, as the manifestation of one’s beliefs may impact the enjoyment of the rights of other people. The appropriate limitations on the right to manifest a religion or belief are carefully considered in international human rights jurisprudence, including within the ICCPR itself. Among other requirements, any limitations on the right to manifest one’s religion or belief must be specifically prescribed in law, must be reasonable and proportionate, and, significantly, must be necessary to achieve a legitimate aim or respond to a pressing public or social need.