1. Background

On 29 November 2016 the Minister for Foreign Affairs and Trade, the Hon. Ms Julie Bishop MP, wrote to the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT) to refer an inquiry into the “status of the freedom of religion or belief (as recognised in Article 18 of the International Covenant on Civil and Political Rights) around the world, including in Australia”. The Committee was requested to have particular regard to:
The enjoyment of freedom of religion or belief globally, the nature and extent of violations and abuses of this right and the causes of those violations or abuses;
Action taken by governments, international organisations, national human rights institutions, and non-government organisations to protect the freedom of religion or belief, promote religious tolerance, and prevent violations or abuses of this right;
The relationship between the freedom of religion or belief and other human rights, and the implications of constraints on the freedom of religion or belief for the enjoyment of other universal human rights;
Australian efforts, including those of Federal, State and Territory governments and non-government organisations, to protect and promote the freedom of religion or belief in Australia and around the world, including in the Indo-Pacific region.
The inquiry should have regard to developments since the Committee last reported on Australia’s efforts to promote and protect freedom of religion or belief in November 2000.
The Inquiry was referred by the JSCFADT to the Human Rights Sub-Committee (the Sub-Committee) on 30 November 2016.
As at 2 November 2017, the Inquiry has received nearly 700 submissions and held three public hearings. The public hearings focused on the legal foundation of religious freedom protections in Australia, with leading legal and constitutional academics, human rights groups, and government agencies appearing. Many of these witnesses also contributed submissions.

Scope of Interim Report

This Interim Report focuses on the legal framework in Australia and its effectiveness in protecting religious freedom, drawing on the evidence received in the public hearings and in relevant submissions. The Sub-Committee takes the view that it would be most appropriate to review and report on religious freedom in our own country before turning to the wider world.
Primarily, the submissions used for this Interim Report are from legal scholars and organisations and from governments and government bodies. There is much further evidence from religious and secular groups, community organisations and members of the public which is relevant to the questions raised in this Interim Report, but for the purposes of the report only a smaller number of submissions that directly address the specific legal issues will primarily be used.

Previous work of the Committee

In 1999-2000 the JSCFADT conducted an inquiry into Australia’s efforts to promote and protect freedom of religion or belief. The JSCFADT’s report, entitled “Conviction with Compassion: A Report into Freedom of Religion and Belief”,1 was tabled in November 2000. The report made nine recommendations with a subsequent Government Response, tabled in November 2002, accepting or accepting in principle four of those recommendations.
The Conviction with Compassion report noted the frequency with which the issue of freedom of religion or belief was addressed indirectly in previous reports on human rights, including, for example, in the report entitled, “Improving But…: Australia’s Dialogue on Human Rights”,2 tabled in June 1998.

Structure of Interim Report

This Interim Report seeks to review Australian law on the freedom of religion or belief as it is, identify strengths and shortcomings, and canvass the range of opinions on how to strengthen religious protection. It does not seek to make recommendations at this early stage of the Inquiry.
Chapter Two sets the broader context of the right to freedom of religion or belief, discussing the major international human rights instruments and commentary. The primary focus is the International Covenant on Civil and Political Rights (ICCPR)3, as well as the United Nations Human Rights Committee’s commentary on this document.
Chapter Three addresses some important definitional and phrasing issues, defining the scope of the right and some key details of the right as it is found within the ICCPR and within Australian jurisprudence. It also discusses the legitimate limitations to the right.
Chapter Four canvasses the laws protecting freedom of religion or belief at the Australian Commonwealth level. This includes an examination of some key High Court cases dealing with the Constitution, existing Commonwealth anti-discrimination legislation, and the extent of religious protection in the common law. The roles of Parliament and the Australian Human Rights Commission in protecting this right are also discussed.
Chapter Five canvasses the law in the States and Territories, highlighting some key legislation, including the human rights instruments found in Victoria and the ACT. Anti-discrimination law has an important part in the structure of rights protection at the State level. State level case law is also examined.
Chapter Six considers some of the various suggestions and possibilities for strengthening legal religious protection, including ways to formally implement the ICCPR rights into Australian law and fulfil Australia’s obligations under the ICCPR.
Finally, Chapter Seven discusses the balance between the right to freedom of religion or belief and other rights, especially the right to non-discrimination. The balance within both Commonwealth and State level legislation is examined, and the effect that some legal trends may have on the right is discussed. Different approaches to how best to balance rights, and the possible avenues for resolving conflicts, are examined.

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