Article 18
A R T I C L E 18Freedom of religion and beliefHuman Rights and Equal Opportunity Commission
ã Commonwealth of Australia 1998.This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no partmay be reproduced by any process without prior written permission from the Human Rightsand Equal Opportunity Commission. Requests and inquiries concerning reproduction and rightsshould be addressed to the Executive Director, Human Rights and Equal OpportunityCommission, GPO Box 5218, Sydney NSW 1042.National Library of Australia Cataloguing-in-Publication entry.Article 18 Freedom of religion and belief.BibliographyISBN 0 642 26959 91. Freedom of religion - Australia. 2. Religion and law - Australia.3. Religious tolerance - Australia. 4. Civil rights - Australia - Religious aspects.I. Australia. Human Rights and Equal Opportunity Commission.291.17720994Design and layout by Jodey Wills.Printed by J.S. McMillan Pty Ltd.
Human Rights andEqual Opportunity CommissionJuly 1998The Hon Daryl Williams AM QC MPAttorney-GeneralParliament HouseCanberra ACT2600Dear AttorneyI present Article 18, the report of the inquiry into freedom of religion and belief inAustralia.Yours sincerelyChris SidotiHuman Rights CommissionerHuman Rights and Equal Opportunity CommissionLevel 8 Piccadilly Tower 133 Castlereagh Street Sydney NSW 2000 GPO Box 5218 Sydney NSW 1042
AbbreviationsCEDAWConvention on the Elimination of Discrimination Against Women1979CERDInternational Convention on the Elimination of All Forms of RacialDiscrimination 1969CommissionHuman Rights and Equal Opportunity CommissionCROCConvention on the Rights of the Child 1989ICCPRInternational Covenant on Civil and Political Rights 1966ILO 111International Labour Organisation Discrimination (Employmentand Occupation) Convention 1958Religion DeclarationDeclaration on the Elimination of All Forms of Intolerance and ofDiscrimination Based on Religion or Belief 1981
Table of ContentsExecutive Summary . iiiList of Recommendations . v1The inquiry into religious freedom in Australia . 11.11.21.31.421246Freedom of religion and belief . 72.12.22.32.42.53Introduction .The role of the Commission .The review process .This report .Introduction . 7Freedom of religion and belief in Australian law . 8Comparative law . 14International human rights law . 19Submissions to the Inquiry . 22Findings and recommendations . 23Religious expression . 293.13.2Introduction . 29Indigenous heritage protection . 30Findings and recommendations on Indigenous heritage protection . 383.3 Marriage laws . 39Findings on marriage laws . 413.4 Polygamy . 41Findings on polygamy . 433.5 Burials . 43Finding and recommendations on burials and Indigenous beliefs . 443.6 Autopsies . 45Findings and recommendations on autopsies . 503.7 Medical interventions . 51Findings and recommendations on childhood medical interventions . 553.8 Female genital mutilation . 56Findings and recommendation on female genital mutilation . 583.9 Male circumcision . 593.10 Paganism . 60Findings and recommendations on Paganism . 643.11 New religious movements . 65Findings and recommendation on new religious movements . 79ni
4Discrimination on the ground of religion or belief . 874.14.24.34.44.55Introduction . 87Discrimination under Australian law . 88Experiences of discrimination in public life . 92Federal anti-discrimination legislation . 103Exemptions for religious discrimination . 105Findings and recommendation . 111Incitement to religious hatred . 1155.15.25.35.45.55.65.7Introduction . 115Experiences of vilification and incitement to hatred . 116Current legal protection in Australia . 123Proposed federal anti-vilification law . 128International human rights law . 130Finding the balance in Australian law . 132Federal anti-vilification legislation . 135Findings and recommendations . 139Appendix 1Religion Declaration . 145Appendix 2Questions posed in the discussion paper . 149Appendix 3List of Submissions . 151Appendix 4Workshop Groups and Participants . 162Appendix 5Inquiry Participants . 164Select Bibliography . 165iin
Executive SummaryIntroductionThis report addresses the human right to freedom of religion and belief in Australia.The right is contained in article 18, International Covenant on Civil and Political Rights.It includes the freedom to have or adopt a religion or belief of one s choice includingtheistic, non-theistic and atheistic beliefs. Discrimination and vilification on the basisof religion and belief discourages participation in the community and may infringe theright to freedom of religion and belief.1A federal Religious Freedom ActThe Commission received submissions detailing experiences of discrimination andvilification on the basis of religion and belief which infringe the rights of individualsand groups. On the basis of those submissions the Commission recommends theenactment of a federal Religious Freedom Act (Recommendations 2.1-2.6).Discrimination on the basis of religion and beliefTo ensure the enjoyment of religion and belief the individual must be free fromdiscrimination on the ground of religion and belief in all areas of public life includingemployment, education, the provision of goods and services and accommodation.The proposed Religious Freedom Act would contain provisions making discriminationon the ground of religion and belief unlawful subject to exemptions for discriminationbased on the inherent requirements of the job and for discrimination in certaincircumstances in connection with employment at an institution which is conducted inaccordance with the doctrines, tenets or teachings of a particular religion or creed(Recommendation 4.1).Incitement to hatred on the basis of religion and beliefVilification, insults, threats or abuse against a person on the basis of religion or beliefimpair that person s right to freedom of religion and belief. Submissions detailedexperiences of this type of vilification in Australia. The proposed Religious FreedomAct would also include provisions making vilification on the basis of religion andbelief unlawful. The proposed provisions would be based on the racial vilificationprovisions contained in the Racial Discrimination Act 1975 (Cth). This behaviour willbe made unlawful subject to exemptions for acts done reasonably and in good faith inareas including the performance of an artistic work, scientific or academic debate ormaking a fair and accurate report of a matter in the public interest (Recommendations5.1 - 5.4).niii
2The right to manifest a religion or beliefThe freedom of religion and belief extends to the right to manifest one s religion orbelief in worship, observance, practice and teaching. The right to manifest a belief issubject only to limitations provided by law which are necessary to protect the publicsafety, order, health, or morals or the fundamental rights and freedoms of others.Major concerns were raised regarding the need for legislation to protect the right tomanifest religion and belief. The Commission has concluded that the current law isinadequate to protect the right to manifest Indigenous beliefs and religious beliefsconcerning autopsies and medical procedures such as blood transfusions. Itrecommends the development of appropriate laws and guidelines which properlyaccommodate the right to manifest these beliefs and practices (Recommendations 3.1- 3.11).Submissions on paganism argued that some State and Territory laws prohibitingwitchcraft and fortune-telling infringe the right to practise or manifest a religion orbelief of choice. The Commission has concluded that those laws should be repealed asthey infringe the right to manifest the beliefs of some pagans (Recommendations 3.13- 3.14).A few submissions argued that Australian law unnecessarily infringes the rights of peopleto manifest beliefs relating to polygamy and marriageable age. The Commission hasconcluded however that human rights law does not provide a clear direction for dealingwith these alleged infringements and it makes no recommendation for any change toexisting law.ivn
List of RecommendationsRecommendations on a federal Religious Freedom ActR2.1The Commonwealth Parliament should enact a Religious Freedom Act which,among other things, recognises and gives effect to the right to freedom ofreligion and belief.R2.2The Religious Freedom Act should affirm the right of all religions and organisedbeliefs as defined to exist and to organise and determine their own affairswithin the law and according to their tenets.R2.3The Religious Freedom Act should cover the full range of rights and freedomsrecognised in ICCPR article 18 and Religion Declaration articles 1, 5 and 6including but not limited tonfreedom to hold a particular religion or beliefnfreedom not to hold a particular religion or beliefnnnnfreedom to manifest religion or belief in worship, observance, practiceand teachingfreedom from coercion which would impair religion or beliefthe right of parents and guardians to organise family life in accordancewith their religion or beliefsfreedom from discrimination on the ground of religion or belief (detailedin chapter 4).R2.4In accordance with ICCPR article 18.3 the Religious Freedom Act shouldpermit only those limitations on the right to manifest a religion or belief whichare prescribed by law and necessary to protect public safety, health or moralsor the fundamental rights and freedoms of others (detailed in chapter 3).R2.5For the purposes of the Religious Freedom Act, religion and belief should begiven a wide meaning, covering the broad spectrum of personal convictionsand matters of conscience. It should include theistic, non-theistic and atheisticbeliefs. It should include minority and non-mainstream religions and beliefsystems as well as those of a more traditional or institutionalised nature.Religion or belief should be defined as a particular collection of ideas and/orpracticesnnthat relate to the nature and place of humanity in the universe and, whereapplicable, the relation of humanity to things supernaturalthat encourage or require adherents to observe particular standards or codesof conduct or, where applicable, to participate in specific practices havingsupernatural significancenv
nnthat are held by an identifiable group regardless of how loosely knit andvarying in belief and practicethat are seen by adherents as constituting a religion or system of belief.The definition should not apply to all beliefs but only to those that clearlyinvolve issues of personal conviction, conscience or faith. This definition wouldnot cover beliefs which are caused by mental illness or which are motivatedby criminal intent.R2.6The obligations in the Religious Freedom Act should apply to individuals,corporations, public and private bodies and all other legal persons who maybe subject to Commonwealth legislation.Recommendations on Indigenous heritageR3.1The current legislative regime protecting Indigenous cultural heritage shouldbe enhanced in line with the recommendations made by the Hon. ElizabethEvatt in Review of the Aboriginal and Torres Strait Islander Heritage ProtectionAct 1984.R3.2Adequate minimum standards should be established by the Commonwealthand the States and Territories to ensure consistent treatment and protectionfor Indigenous heritage throughout Australia.R3.3Proposed changes to the Aboriginal and Torres Strait Islander HeritageProtection Act 1984 (Cth) should ensure that the Heritage Act is enhanced asan effective federal avenue of last resort to protect Indigenous religious andspiritual heritage.R3.4Australia should continue to support the completion and adoption of the DraftUnited Nations Declaration on the Rights of Indigenous Peoples to providebetter protection for the right of Indigenous Australians to religious freedom.Recommendations on Indigenous burialsR3.5A Working Group should be established to develop national standards on thepreservation of traditional burials and associated rituals.R3.6The Working Group should be convened by the Aboriginal and Torres StraitIslander Commission and include representatives of relevant State and Territoryagencies, Indigenous organisations and traditional Indigenous communities.R3.7In developing the national standards, consideration should be given whereappropriate to the proposed national standards on protection of Aboriginalheritage in Australia (See R3.2).vin
R3.8When the national standards are finalised, they should be referred to theStanding Committee of Attorneys-General with a view to their beingincorporated into relevant State and Territory legislation.Recommendations on autopsiesR3.9The Standing Committee of Attorneys-General should establish a WorkingGroup to develop and encourage the adoption in State and Territory legislationof best practice standards on the rights of family members and other personsin relation to decisions concerning autopsies. The standards should includeprovision fornnnnR3.10due consideration to be given to the cultural and spiritual beliefs of familymembers regarding autopsy decisionsprocedures for the deceased person s next of kin to have his or her wishestaken into account in matters including whether an autopsy occurs andthe manner in which it is undertakenrights of review for family members in relation to autopsy decisions withflexibility in time limitsinvolvement where appropriate of religious and cultural organisationsincluding Indigenous organisations.The Department of Health or equivalent agency in each State and Territoryshould review training programs for health workers and other professionalsinvolved in autopsies and other procedures relating to human bodies to ensureissues of cultural and religious sensitivity are adequately addressed in thoseprograms.Recommendation on medical proceduresR3.11The Standing Committee of Attorneys-General should establish a WorkingGroup to give further consideration to changes proposed by the Jehovah sWitnesses to the laws governing parental consent to medical treatment ofchildren. The Working Groups should include legal, medical and ethicalexperts and a representative of the Commission. It should develop andencourage the adoption in State and Territory legislation of best practicestandards on the medical treatment of children.Recommendation on female genital mutilationR3.12The federal Attorney-General through the Standing Committee of AttorneysGeneral should encourage the development of legislation in Queensland andWestern Australia specifically prohibiting female genital mutilation.nvii
Recommendations on anti-witchcraft and fortune telling lawsR3.13The federal Attorney-General through the Standing Committee of AttorneysGeneral should encourage Queensland and Victoria to repeal legislationcriminalising the practice of witchcraft, fortune-telling, sorcery andenchantment.R3.14The federal Attorney-General through the Standing Committee of AttorneysGeneral should encourage Queensland, Western Australia, South Australia,the Northern Territory and Tasmania to repeal legislation criminalising thepractice of fortune-telling.Recommendation on coercion in religious belief and practiceR3.15The federal Attorney-General s department should convene an inter-faithdialogue1. to examine the question of methods of coercion in religious belief andpractice and how they should be dealt with2. to consider whether legal limitations should be imposed on religious groupsregarding coercive tactics3. to formulate an agreed list of minimum standards for the practice of religiousgroups.Recommendation on discrimination on the ground of religion and beliefR4.1The proposed Religious Freedom Act should make unlawful direct and indirectdiscrimination on the ground of religion and belief in all areas of public life,in accordance with ICCPR articles 2 and 18 and Religion Declaration article4, subject to two exemptions.1. A distinction, exclusion or preference in respect of a particular job basedon the inherent requirements of the job should not be unlawful. Preferencein employment for a person holding a particular religious or other beliefwill not amount to discrimination if established to be a genuine occupationalqualification.2. A distinction, exclusion or preference in connection with employment asa member of the staff of an institution that is conducted in accordancewith the doctrines, tenets, beliefs or teachings of a particular religion orcreed, being a distinction, exclusion or preference required by thosedoctrines, tenets, beliefs or teachings made in good faith and necessary toavoid injury to the religious susceptibilities of adherents of that particularreligion or that creed should not be unlawful provided that it is not arbitraryand is consistently applied.viiin
Recommendations on incitement to hatred on the basis of religion andbeliefR5.1The federal Attorney-General through the Standing Committee of AttorneysGeneral should encourage the States and Territories to repeal laws creatingthe offence of blasphemy or to abolish the common law offence of blasphemy,as appropriate.R5.2The Commonwealth should withdraw Australia s statement of interpretationrelating to ICCPR article 20.R5.3The proposed Religious Freedom Act should proscribe the advocacy ofreligious hatred that constitutes incitement to discrimination, hostility orviolence as required by ICCPR article 20. The Act should exempt from theproscription of religious vilification, acts done reasonably and in good faithnnnR5.4in the performance, exhibition or distribution of an artistic workin the course of any statement, publication, discussion or debate made orheld for any genuine academic, artistic or scientific purpose or any othergenuine purpose in the public interest orin making or publishing a fair and accurate report of any event or matter ofpublic interest.The process and remedies available for contravention of the religiousvilification provision should be civil remedies similar to those provided for inthe racial hatred provisions of the Racial Discrimination Act 1975 (Cth).nix
1The inquiry into religious freedom in AustraliaBoth at the international level and national level, diversity of cultures and ofreligions can be a source of knowledge and understanding, an impetus andchallenge to development and improvement, a broadening of human horizonsand an enrichment of human life. On the other hand, cultural and religiousdiversity can, as history abundantly demonstrates, be a source of nationaldisharmony and disunity and international distrust, ill-will and dispute and thecause of, or excuse for, national or international conflict and even war.Clearly enough, both at the international and on the domestic scene, the key to realsuccess . lies in mutual and genuine understanding, tolerance and respect of andfor different cultural and religious traditions, practices and beliefs.11.1 IntroductionAustralia is a diverse multicultural society. People from many different cultural andreligious backgrounds live together in relative harmony and peace. As a nation, weAustralians pride ourselves on our tolerance and easy-going acceptance of other culturesand beliefs.Australia is home to people who hold and practise a variety of beliefs and religions.However many of us fail to understand, appreciate and accept the diversity and valuesof the beliefs and religions of others. As Sir William Deane pointed out in relation toIndigenous beliefsThe cultures and traditions of the original inhabitants of our continent stretch backinto the Dreamtime of 60,000 years ago. When the first Europeans arrived in 1788to establish a militarily run penal settlement, they made little sustained effort tounderstand the nature or the content of those cultures and traditions, or the strengthof the bonds between the Indigenous peoples and their land or territory. Nor wasthere any real understanding of the extent to which the Indigenous belief in thesupernatural enriched the lives of the Aborigines, provided continuity with the pastwhile explaining the present, identified and regulated relationships, provided thecontext and content of aspirations and regulated almost all aspects of life andconduct.2More than two centuries years later we are still grappling with the same issues oftolerance, respect and understanding. Archbishop Keith Rayner, Primate of the AnglicanChurch of Australia, acknowledged this when he statedThe trouble with many of us religious people is that we wrongly equate our limitedand finite understanding of truth with the truth itself. I believe that there is anabsolute truth; but none of us has fully grasped it. Yet we absolutise our perceptionof truth, so that we begin to think of anyone who differs from us as being opposedto the truth itself.3n1
1.2The role of the CommissionTrue tolerance requires effort, commitment and the acknowledgement that those ofother faiths also have real insights into truth.Allowing people the freedom to believe in religions or beliefs of their choice lies at theheart of a tolerant and just society. Belief systems are fundamental to the expression ofpersonal values. Religious, non-religious or atheistic beliefs are tenaciously andconsciously held. These beliefs are central to the individual s conception of the meaningof human existence. The importance and fundamental significance of religion andbelief is evidenced by the fact that some of the most terrible massacres and battles inhistory have resulted from a clash of religious ideologies. the disregard and infringement of human rights and fundamental freedoms, inparticular of the right to freedom, thought, conscience, religion or whatever belief,have brought, directly or indirectly, wars and great suffering to mankind,especially where they serve as a means of foreign interference in the internal affairsof other States and amount to kindling hatred between peoples and nations.4This report documents the personal experiences of Australians who have suffereddiscrimination or intolerance because of their religion or beliefs. These experiencesreveal that Australians face the continuing challenge of creating a society in whicheveryone is truly free to hold a religion or belief of his or her choice and in whichcultural and religious diversity is a source of advantage, benefit and good rather than acause of disharmony and conflict.1.2 The role of the CommissionThe Human Rights and Equal Opportunity Commission (the Commission) is anindependent statutory authority of the Commonwealth established by the Human Rightsand Equal Opportunity Commission Act 1986 (Cth) (HREOC Act).The Commission has specific legislative functions and responsibilities for the protectionand promotion of human rights and the elimination of discrimination. In particular theCommission is required topromote the understanding, acceptance and public discussion of human rights andequal opportunity in employment and occupation5ninquire into acts or practices of the Commonwealth that may be inconsistent withor contrary to any human right and all acts and practices that constitute discriminationin employment and occupation6nadvise on laws that should be made by the Parliament or action that should betaken by the Commonwealth on matters relating to human rights and equality ofopportunity and treatment in employment and occupation7nadvise on what action, in the opinion of the Commission, Australia needs to take tocomply with the provisions of the ICCPR, the Declarations annexed to the Act orany relevant international instrument declared under the Act.8n2n
1.2The role of the CommissionThree international instruments are of particular relevance to the freedom of religionand belief.The ICCPRThe International Covenant on Civil and Political Rights (ICCPR) was adopted by theUnited Nations General Assembly in 1966. Australia ratified the ICCPR on 13 August1980. The ICCPR provides for the right to freedom of religion or belief (article 18), theright to equality before the law and to human rights and fundamental freedoms withoutdiscrimination on the basis of religion or belief (articles 2 and 26) and the right tofreedom from religious hatred (article 20).The Religion DeclarationThe Declaration on the Elimination of All Forms of Intolerance and of DiscriminationBased on Religion or Belief (Religion Declaration) is the most comprehensiveinternational statement of the right to freedom of religion and belief. It was adoptedunanimously by the 37th Session of the United Nations General Assembly in November1981. Australia supported the adoption of the Declaration. On 8 February 1993,following consultations with State and Territory governments, the Declaration wasdeclared to be a relevant international instrument for the purposes of the HREOC Act.The Attorney-General s declaration became effective on 24 February 1993. TheDeclaration elaborates the right to freedom of thought, conscience, religion and beliefas defined in ICCPR articles 18 and 20. The full text of the Declaration is set out inAppendix 1.Discrimination (Employment and Occupation) ConventionThe International Labour Organisation Discrimination (Employment and Occupation)Convention 1958 (ILO 111) prohibits discrimination on the ground of religion inemployment and occupation. Discrimination means any distinction, exclusion orpreference made on the basis of religion that has the effect of nullifying or impairingequality of opportunity or treatment in employment or occupation. The Conventionrecognises that distinctions made on the basis of the inherent requirements of the jobare not considered discriminatory. The HREOC Act also contains an exception for anydistinction, exclusion or preference made in connection with employment as a memberof 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 orpreference made in good faith to avoid injury to the religious susceptibilities of adherentsof that religion or that creed.9n3
1.3The review processImpetus for this InquiryOn 24 February 1993 the Attorney-General declared the Religion Declaration to be arelevant international instrument for which the Commission had responsibility. Thisserved as an impetus to the Commission to review the statu
recognised in ICCPR article 18 and Religion Declaration articles 1, 5 and 6 including but not limited to n freedom to hold a particular religion or belief n freedom not to hold a particular religion or belief n freedom to manifest religion or belief in worship, observance, practice and teaching n freedom from coercion which would impair .
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