The two most important international human rights instruments relevant to religious freedom are the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).
Universal Declaration of Human Rights
The UDHR was adopted by the United Nations (UN) General Assembly in 1948, with Australia voting in favour. It affirms fundamental human rights, but is not a binding treaty. Article 18 states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Also relevant is Article 2, which entitles everyone to the rights and freedoms within the UDHR “without distinction of any kind”, including on the basis of religion.
International Covenant on Civil and Political Rights
The rights and freedoms set out in the UDHR have been elaborated in a range of binding international instruments, including, most importantly for this Inquiry, the ICCPR. Religious freedom is again located in Article 18, which states in full:
1. Everyone shall have the right to freedom of thought, conscience and religion. 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.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his 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.
As in the UDHR, the ICCPR contains non-discrimination provisions, including on grounds of religion, in Article 2, as well as in Article 26, which states in full:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection 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.
Adoption of ICCPR into Australian law
Despite signing the ICCPR in 1972 and ratifying it in 1980, Australia has never adopted it into domestic law. This fact was a major topic of discussion at public hearings and in the submissions, and it is worth highlighting this as a key feature of the legal situation in Australia. A number of approaches to implementing the ICCPR in domestic legislation were suggested. This will be addressed in greater detail in Chapter Six.
Reservation to Article 20
In ratifying the ICCPR, Australia made several reservations. One of these reservations is to Article 20, which is relevant to religious freedom.
Article 20 states in full:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Australia’s reservation states:
Australia interprets the rights provided for by articles 19 [freedom of expression], 21 [freedom of assembly] and 22 [freedom of association] as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.
The Australian Human Rights Commission (AHRC) noted this reservation in its submission, reiterating the view it put forward in its 1998 report that the Commonwealth should expand “the circumstances in which anti-discrimination law protects against discrimination and vilification on the basis of religion”. The AHRC’s 1998 recommendations included Australia withdrawing its reservation and proscribing the advocacy of religious hatred in accordance with Article 20.
Human rights lawyer Dr Paul Taylor noted that Australia’s reservation was based on a concern about restricting freedom of speech. Dr Taylor argued that there is no free speech reason to maintain this reservation, and that it is an:
important component in the scheme of Covenant protection, which achieves a careful ordering of interests across the Covenant’s constituent rights, limitations, obligations and prohibitions.
Other relevant human rights instruments
Although having a more minor role in the discussion of religious freedom in Australia, several other international human rights instruments were raised in evidence.
The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the Religion Declaration) was proclaimed by the UN General Assembly in 1981. The Religion Declaration is a non-binding declaration, but it elaborates on Article 18 of the ICCPR by creating a positive obligation on States Parties to “take effective measures to prevent and eliminate” religious discrimination. It also enumerates a list of freedoms to be included within the right to freedom of religion.
The relevance of the Religion Declaration was raised by several submissions, with the Human Rights Law Centre noting that the Religion Declaration has “normative value” in interpreting Article 18(1) of the ICCPR.
International Convention on the Elimination of All Forms of Racial Discrimination
Religious freedom is one of the rights listed in the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This Convention was highlighted in some submissions as a source of religious freedom rights.
The United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted its Declaration of Principles on Tolerance in 1995. This document was discussed briefly at the Sydney hearing and commended by Dr Taylor as a useful means of addressing intolerance and hurtful speech.
The UNESCO Principles define tolerance as “respect, acceptance and appreciation of the rich diversity of our world’s cultures, our forms of expression and ways of being human”. It is not “concession, condescension or indulgence” and it does not mean “toleration of social injustice or the abandonment or weakening of one’s convictions”. Associate Professor Neil Foster described this as the “classic principles of tolerance”, while warning against the notion that being tolerant means never criticising someone else’s opinion. Professor Michael Quinlan likewise noted this classic approach, warning against the “new tolerance” approach of demanding that everybody’s viewpoint must be accepted as equally correct. Professor Iain Benson commented that the concept of tolerance, if not “firmly hooked to the reality of difference”, could “effect authoritarian outcomes”.
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles) were issued by the American Association for the International Commission of Jurists in 1985. The Siracusa Principles provide guidance for interpreting the “limitations clauses” in the ICCPR, such as those found in Article 18(3) which allow limitations to the freedom to manifest one’s religion only if they are “prescribed by law and… necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”.
These Principles are important to the discussion of when freedom of religion may be subject to legitimate limitations, and were raised a number of times in evidence. They will be considered further in the discussion of legitimate limitations to religious freedom in Chapter Three.
UN Human Rights Committee
The UN Human Rights Committee consists of international human rights experts with certain responsibilities with respect to the ICCPR. Among other roles, the Committee will occasionally issue General Comments on its understanding of certain issues of interpretation of the ICCPR. Several of these are relevant to religious freedom, in particular General Comment 22.
General Comment 22 – freedom of religion
This Comment gives a broad scope to the freedom, noting that it “cannot be derogated from, even in time of public emergency”. It provides important guidance to what is included within the freedom, emphasising “theistic, non-theistic and atheistic beliefs” as well as the right not to profess any religion or belief. The Comment addresses the distinction between having or adopting a religion or belief and manifesting a religion or belief, and provides a broad range of practices which may be included as “manifestations” of religion or belief. It also discusses permissible restrictions on manifestations of religion or belief. Many of these aspects will be discussed in following chapters.
A number of submissions highlighted the relevance of General Comment 22. Attention was drawn to the UN Human Rights Committee’s language, which reflects the “fundamental” nature of the right to religious freedom.
Professor Carolyn Evans has described this Comment as an elaboration of the obligations in the ICCPR, calling it:
…the most comprehensive and detailed international law instrument giving substance to the protection of freedom of religion or belief under art 18 of the ICCPR. It should be understood as an authoritative and expert overview of the obligations under the ICCPR.
General Comment 18 – non-discrimination and equality
In General Comment 18, the UN Human Rights Committee stated that non-discrimination and equality before the law “constitute a basic and general principle relating to the protection of human rights”. The principle is expressly mentioned in several ICCPR Articles, and its application is not limited to ICCPR rights but extends to “any field regulated and protected by public authorities”.
The UN Human Rights Committee noted that “discrimination” is not defined, but drew attention to the CERD, which:
provides that the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
A similar explanation of discrimination is found in the Convention on the Elimination of All Forms of Discrimination against Women.
The UN Human Rights Committee concludes with this comment:
Finally, the 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.
Although not addressing religious freedom directly, Comment 18 is generally accepted as an important statement on the nature of discrimination, both in terms of discrimination based on religion and of the tension between religious freedom and non-discrimination when religious bodies wish to discriminate on the basis of some other attribute. This tension was a significant topic throughout evidence, and a number of submissions and witnesses refer to General Comment 18 in this context. This will be discussed in Chapter Seven.
General Comment 34 – freedom of expression
General Comment 34 addresses Article 19, which protects the right to freedom of expression and the right to “hold opinions without interference”. The UN Human Rights Committee commented that:
Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.
It is noteworthy that some Australian jurisdictions maintain laws against blasphemy. This is discussed in Chapter Five.
Australia’s reservation to Article 20 was noted above. Article 20 is the subject of General Comment 11, which states that the prohibitions required are “fully compatible with the right of freedom of expression”. This has been noted by the AHRC.
Human Rights discourse is well developed internationally, and the further development of Australian human rights law should look to the ICCPR and other instruments for guidance.
The Sub-Committee notes that the ICCPR has not been adopted into Australian legislation. Some rights have been adopted in some jurisdictions, but the Commonwealth has failed to implement the range of ICCPR rights despite committing to do so. Although there is legislative protection for some ICCPR rights, notably the Article 26 right to non-discrimination, religious freedom has very little legislative protection and there is a risk of an imbalanced approach to resolving any conflict between the right to freedom of religion or belief and other rights.
In addition to enumerating fundamental human rights, the various international instruments also provide guidance for applying these rights and balancing competing rights. The Siracusa Principles provide guidance on appropriate limitations on human rights. The UNESCO Principles on Tolerance could be helpful in guiding discussions about tolerance, including what tolerance does not require.
The UN Human Rights Committee has established a broad scope of the right to freedom of religion or belief, which includes freedom of thought and conscience, non-theistic beliefs and no religious beliefs. It has also given helpful comments on the role of non-discrimination within a human rights framework, particularly in General Comment 18, which draws the distinction between unlawful discrimination and mere differentiation of treatment which is for a legitimate aim.
Evidence suggests that these instruments and UN Human Rights Committee comments should provide guidance to how best to implement protection for freedom of religion or belief in Australian law.