"Human Rights in Australia
with particular reference to freedom of religion"

Speaking notes for a presentation to the Mission Australia National Management Team Meeting in Sydney on 22 August 2001
by Dr Sev Ozdowski OAM, Human Rights Commissioner

Acknowledgments of the traditional custodians and Mr Patrick McClure, Mission Australia CEO

Brief biographical overview having been born in Poland in 1949 and arrived in Australia in 1975

Part 1: Human rights as they are protected in Australia

1A. Human rights in the 20th century - an overview

1B. Human rights in Australia - a potted history

1C. The role of the Human Rights and Equal Opportunity Commission

1D. The future - how to protect human rights better

Part 2: Religious freedom and freedom from religious discrimination

2A. Religious freedom in Australia's Constitution

The Federal Constitution does not provide a complete guarantee of protection for the right to freedom of religion and belief. There is however some measure of constitutional protection. Section 116 of the Constitution provides

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. [1]

This section only restricts the legislative power and in one respect only the executive power of the Commonwealth. It does not apply to the States.

The constitutional guarantee in Section 116 is not a source of personal rights in the sense of providing individuals with an avenue for where legal redress where their rights are violated.

2B. Freedom of religious belief is absolute

2B1. International law applicable in Australia

Article 18 of the International Covenant on Civil and Political Rights (ratified by Australia in 1980) guarantees to everyone 'the right to freedom of thought, conscience and religion'. It prohibits coercion which would impair the exercise of this right. It stipulates that freedom to manifest religion may only be subject to those limitations which are prescribed by law and necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. It allows for parents and legal guardians to determine to the religious and moral education of their children.

The United Nations Human Rights Committee in its General Comment on ICCPR article 18 has described the right to freedom of thought, conscience and religion as 'far-reaching' and 'profound'.

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. [2]

The Committee has adopted a broad interpretation of 'freedom of religion or belief' covering freedom of theistic, non-theistic and atheistic beliefs and freedom not to subscribe to any of these beliefs.[3] The Committee has made it clear that minority and non-mainstream religions are no less entitled to the protection of article 18 than traditional religions.

Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. [4]

The Committee has pointed out that the ICCPR 'does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice'. [5] These freedoms, the Committee has emphasised, 'are protected unconditionally'. [6]

2B2. A case in which freedom of belief was violated

Mr Marett was employed by Petroleum Refineries Australia.[7] His religious beliefs forbad him contributing to a union organised fund to support striking workers in another State. The other workers responded to his refusal by refusing to work with him. The company responded to this by instructing him to spend his days in a sealed hut furnished with only a chair and with no work for him to do. After 4 months he was sacked.

The Court agreed with the Equal Opportunity Board that Mr Marett had been treated less favourably because of his religious beliefs and he had therefore been discriminated against unlawfully. The company could not say his treatment was for industrial reasons only.

Talking about the Victorian Equal Opportunity Act Justice Nathan commented:

The Act is ameliorative legislation, stated to entrench an individual's right to freedom of religious expression and making it an offence, in the workplace, to discriminate on the basis of doing so. The Act does not establish an economic regime, where the costs of religious expression are set off against costs of production or ultimate profit. If discrimination occurs because of a person's private life as expressed through their religious belief, then a breach of the Act is made out, regardless of the economic consequences. Religious freedom is not an ingredient of an economic equation, however costly that freedom may be either to an individual or employer.

C. Freedom of religious practice is not unlimited

2C1. International law applicable to Australia

The freedom of a church, other belief society or individual to manifest a religion or belief, however, is not unqualified like the freedom to believe. It may be subject to limitations imposed by the government in the public interest. ICCPR article 18.3 prescribes the scope of the permissible limitations on the freedom to manifest a religion or belief. [8]

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.

The United Nations Human Rights Committee has given some guidance on the interpretation of this limitations clause.

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.

Also important in the context of religious expression is the fact that Australia is a multicultural society which embraces a diversity of religious traditions and beliefs. Successive Australian governments have committed themselves to policies of multiculturalism. In the 1989 National Agenda for a Multicultural Australia the then Commonwealth Government identified as one of the key dimensions of multicultural policy

... the right of all Australians, within carefully defined limits, to express and share their individual cultural heritage, including their language and religion.

The scope of the state's power to restrict or influence religious expression must be interpreted in a manner consistent with both the right to manifest one's religion or belief and the permitted limitations on that right. In interpreting the scope of permissible limitations clauses, States Parties should proceed from the need to protect the rights guaranteed under the ICCPR, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26, notably including religion.

Consideration of the right to express religion and belief and of the circumstances in which that right should be limited or restricted raises some very complex and sensitive issues. In Australia limitations on the expression of religion and belief may be identified in a wide range of laws and community norms.

2D. Freedom from discrimination on the ground of religion or belief

2D1. International law applicable in Australia

Discrimination on the basis of religion or belief is prohibited under the International Covenant on Civil and Political Rights (ICCPR). Article 2.1 imposes on States and obligations to uphold all of the rights in the ICCPR

... 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.

Article 26 of the ICCPR provides that all persons are equal before the law. It requires that all persons be guaranteed equal and effective protection under the law 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.

Article 3 of the Religion Declaration proclaims discrimination on the ground of religion or belief 'an affront to human dignity' which is to be condemned as a violation of fundamental rights and freedoms. Article 2.1 proclaims that 'no one shall be subject to discrimination by any State, institution, group of persons, or person on grounds of religion or other beliefs'. For the purposes of the Declaration discrimination means

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.

There are a number of parallels between article 2 and the provisions relating to racial discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Like ICERD, the Declaration prohibits unintentional as well as intentional acts of discrimination and actions which have a discriminatory effect in fact although they are applied equally to all.

The basic right of all Australians to realise their full potential and participate fully in society can only be achieved when all Australians, whatever their backgrounds, receive equality of opportunity and treatment in all areas of life.

2D2. Federal laws

Human Rights and Equal Opportunity Commission Act 1986
The Commission can investigate complaints of discrimination in employment or occupation based on religion at all levels of government and in the private sector. There is an exception for any distinction, exclusion or preference made in connection with employment as a member of 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 or preference made in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed. [9]

However, the HREOC Act does not provide enforceable remedies against discrimination on the ground of religion or belief. Where the Commission finds discrimination within the terms of the Act and the parties are unable to achieve a conciliated settlement, the only course open to the Commission is to submit a report to the federal Attorney-General for tabling in Parliament. [10]

Workplace Relations Act 1996
The Workplace Relations Act 1996 includes a range of provisions intended to prevent and eliminate discrimination in employment. Religion is among the specified grounds of employment discrimination prohibited by this Act.

2D3. State and Territory laws

Equal opportunity legislation in Victoria, Queensland, Western Australia, Tasmania, the Australian Capital Territory and the Northern Territory prohibits direct and indirect discrimination on the grounds of religious belief and religious activity.

The ACT legislation, for example, makes it unlawful to discriminate by refusing an employee permission to observe religious practices during working hours where

  • it is of a kind recognised as necessary or desirable by persons of the same religious conviction as the employee
  • it is reasonable having regard to the circumstance of employment
  • it does not subject the employer to unreasonable detriment. [11]

The Western Australian Act has a similar provision [12] while others deal with special needs in a negative way, by providing that it is not discriminatory to fail to provide for a special need if it would be an unreasonable imposition to do so.

2D4. A case of employment discrimination

A job ad read: "We have a vacancy for a keen Christian person 16-18, who is not afraid of hard work, to assist on our forecourt …". The employer argued the advertisement was intended to indicate the company was seeking a committed and practising Christian because the whole business was devoted to the living of the Christian faith." The tribunal found that the advertisement indicated an intention to breach the NZ prohibition on religious discrimination in employment and that the company could not argue that it was a qualification for the work to be performed (car detailing) that the person should hold a Christian belief. [13]

2E. Religious institutions may be exempt

2E1. International law applicable in Australia

Religious organisations do not have automatic exemptions from the application of the HREOC Act. However, if a complaint is made against a religious institution that it made a distinction on the basis of the religious belief of a job applicant or employee, that religious institution may be able to argue that the distinction, although based on a prescribed ground, does not breach the requirements of the Act if it is a distinction:

(a) in respect of a particular job based on the inherent requirements of the job (the inherent requirement exception) or

(b) in connection with employment as a member of 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 or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed (the susceptibilities of adherents exception).

These exceptions in the anti-discrimination provisions of the HREOC Act reflect a recognition of the right to freedom of religion and belief and an understanding of the fact that the welfare arms of these organisations are often a practical expression of faith.

2E2. State and Territory laws

There are a number of exemptions in each State and Territory ct which permit discrimination on the ground of religious belief or activities. Most of these are for the benefit of religious organisations. For example, it is not unlawful for a religious school to discriminate between applicants for employment on the basis of their religious convictions or absence of religious convictions in order to avoid injury to the religious susceptibilities of the adherents of that religion. [14]

Religious organisations also have broader exemptions from other provisions of State and Territory anti-discrimination legislation if the discrimination is on the basis of religion and is to avoid injury to the susceptibilities of adherents of that religion. For example, the NSW Act includes a provision allowing for

any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion. [15]

A particularly wide exemption is contained in the Victorian Act. In addition to exemptions relating to religious bodies and religious schools there is a provision which allows discrimination where

the discrimination is necessary for the [discriminator] to comply with the person's genuine religious beliefs or principles. [16]

A comparison between the NSW and Victorian provisions illustrates the lack of uniformity between different jurisdictions with regard to exemptions. Some of these exemptions are very broad and effectively amount to an exemption for conscience.

2E3. A successful exemption application

The exemption application was in respect of the Chief Executive Officer of the Homes.[17] It was necessary, from the company's point of view, that the CEO be a Freemason or willing to become one, which requires a belief in God, and that he be male (females cannot become Freemasons). The company made the point that the CEO would be a member of the Board and all members were Freemasons.

The exemption was granted. The Board took into account the Regulations under which the Homes were operated and which required the CEO to be a Freemason. Refusing the exemption would force the Regulations to be amended. Further the Regulations indicated the strong link (since the 1860s) and close relationship between the Homes and the Masonic organisation: that closeness made it appropriate for the overall manager of the Homes to be a Freemason. Finally, as a charity the Homes warranted different treatment under the Act.

2E4. A case in which the religious institution could not rely on an exemption

Issues pertaining to the scope and operation of exemptions for religious organisations were highlighted in a recent inquiry by the Human Rights and Equal Opportunity Commission, which has since become the subject of a report to the federal Attorney-General. [18]

This inquiry arose out of a complaint against the Catholic Education Office of the Archdiocese of Sydney for its refusal of an application for classification as a teacher in Catholic schools in the Archdiocese. The complainant was a lesbian who had been involved in campaigning against homophobia and violence against young gay and lesbian school students. The Office cited among its reasons for refusing to employ the complainant her high public profile as a convenor of the Gay and Lesbian Teachers and Students Association and her public statements on these issues. The Commission found the refusal of her application was not protected by the religious institutions exception in the HREOC Act.

The Commission found that the complainant did not, by virtue of her sexual preference and her public campaigning against homophobia, refute or denigrate the teachings of the Catholic Church. The respondent was not able to substantiate its claim that she advocated a lifestyle and values contrary to the teachings of the Catholic Church. The fact that the complainant was openly lesbian, and the speculation which such openness might attract regarding her private activities, could not be construed as injurious to the religious susceptibilities of adherents of the Catholic faith.

Indeed it would not be an injury to their religious susceptibilities but an injury to their prejudices. These injuries do not come within the terms of [the] exception and are not a permissible reason for discriminating on the ground of sexual preference. In applying for classification with the [Catholic Education Office] Ms Griffin asserts that she will act in accordance with its Principles for Employment. If she fails to adhere to those Principles then the [Office] can take action in relation to her classification. [19]

These findings and recommendations illustrate the importance of limiting the scope of exemptions for religious organisations under anti-discrimination law and in particular not allowing absolute exemptions which have the potential to encourage prejudice and unfair treatment based on matters such as personal lifestyle. This is a central and long established tenet of anti-discrimination law. To allow religious organisations a broad exemption for conscience, along the lines sought by the respondent in the matter described above, could encourage prejudice and unfair treatment of certain individuals. Indeed, during the hearing of that inquiry, the respondent acknowledged that the test for determining whether the employment of a person in a religious organisation would cause 'injury to the religious susceptibilities of adherents to that religion or creed' was not a completely subjective one and that the exception could not be applied 'capriciously or randomly'.

2E5. Recent recommendations regarding exemptions

The importance of limiting the scope of exemptions for religious organisations was recently recognised by the Senate Legal and Constitutional References Committee in the report of its Inquiry into Sexuality Discrimination. [20] The Committee expressed concern about religious organisations using exemptions to exclude non-heterosexual people from access to various community services and recommended

That a body established for religious purposes may not exclude a person from the receipt of services which are funded, directly or indirectly, in whole or in part, from Commonwealth funding, on the grounds of the person's sexuality or gender status. [21]

The Commission supported that recommendation in its 1998 report Article 18: Freedom of religion and belief. However, the Commission did not support a general exemption for conscience. International human rights law provides no clear basis for a broad exemption for conscience. Such an exemption would, in the Commission's opinion, be dangerously open to misuse and would seriously undermine the effectiveness of associated anti-discrimination provisions.

In the Article 18 report, the Commission took the view that any exemption for religious organisations in Commonwealth legislation dealing with discrimination on the basis of religion or belief should be a limited exemption only. It should apply only to employment of people by religious institutions and should be limited to discrimination in respect of those issues which clearly impact upon the person's ability to comply with the teachings of the religion in the course of that employment. While this may include consideration of the employee's religious affiliations and beliefs it should not include matters which fall within the province of an individual's private life and which do not affect their public life and public activities in any material way.

This exemption should complement a more general rule that the prohibition of discrimination based on religion or belief does not make distinctions based on the inherent requirements of the job unlawful. This is a widely accepted principle in anti-discrimination law and would apply to both religious and other organisations.

Thus the Commission recommended:

The proposed Religious Freedom Act should make unlawful direct and indirect discrimination on the ground of religion and belief in all areas of public life, in accordance with ICCPR articles 2 and 18 and Religion Declaration article 4, subject to two exemptions.

1. A distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job should not be unlawful. Preference in employment for a person holding a particular religious or other belief will not amount to discrimination if established to be a genuine occupational qualification.

2. A distinction, exclusion or preference in connection with employment as a member of 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 or preference made in good faith and in order to avoid injury to the religious susceptibilities of adherents of that particular religion or that creed should not be unlawful.

2F. Freedom from coercion in respect of religion

2F1. International law applicable to Australia

Coercion is contrary to international human rights law and cannot be condoned under the umbrella of religious freedom (ICCPR article 18.2, Religion Declaration article 1.2).

Coercion includes detention or mistreatment for the purposes of involuntary counselling. Coercion includes the use of covert or brainwashing techniques to recruit new members, involuntary incarceration of members, deprivation of contact with family and friends and other forms of abuse and mistreatment.

2F2. A case of unlawful coercion

Complainant was a sales assistant. She complained that her employers frequently made efforts to change her religious beliefs and personal habits, such as drinking coffee, and persistently requested her to attend their church. She found this pressure unwelcome and resigned. The Tribunal found that this pressure amounted to less favourable treatment of the complainant and therefore unlawful discrimination. [22]

2F3. HREOC recommendation

In its Article 18 report the Commission recommended:

An inter-faith dialogue should be resourced by the Attorney-General's Department, and convened by the National Council of Churches. The focus of the dialogue should be
1. to examine the question of methods of coercion and how they should be dealt with
2. to consider whether legal limitations should be imposed on religious groups regarding coercive tactics
3. to formulate an agreed list of minimum standards for the practice of religious groups.

1. Section 116 is modelled on section 3 of Article VI and the First Amendment to the United States Constitution.
2. General Comment No. 22 (1993) paragraph 1.
3. General Comment No. 22 (1993) paragraph 2.
4. Ibid.
5. Id, paragraph 3.
6. Ibid.
7. Petroleum Refineries Australia v Marett (1988) EOC 92-237 (Supreme Court of Victoria).
8. See also Religion Declaration article 1.3.
9. Section 3(1). See also Human Rights and Equal Opportunity Commission Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Discrimination on the ground of sexual preference, HRC Report No. 6, 1998.
10. Section 31(b).
11. Discrimination Act 1991 (ACT) section 11.
12. Equal Opportunity Act 1994 (WA) section 54(3).
13. Human Rights Commission v Eric Sides Motors, NZ Newspapers, Christchurch Press Company (1984) EOC 92-006 (NZ Equal Opportunities Tribunal).
14. Equal Opportunity Act 1995 (Vic.) section 38; Anti-Discrimination Act 1991 (Qld) section 109; Equal Opportunity Act 1984 (WA) section 66(1).
15. Anti-Discrimination Act 1977 (NSW) section 56.
16. Equal Opportunity Act 1995 (Vic) section 77.
17. Application for an Exemption by the Trustees of Royal Freemason's Homes of Victoria (1996) EOC 92-805 (Equal Opportunity Board Victoria).
18. Human Rights and Equal Opportunity Commission, Report of Inquiry into Complaints of Discrimination in Employment and Occupation, Discrimination on the ground of sexual preference, HRC Report No. 6, 1998.
19. Id, page 22.
20. Senate Legal and Constitutional References Committee Inquiry into Sexuality Discrimination December 1997.
21. Id, recommendation 8.
22. Ciciulla v Curwen-Walker (1998) EOC 92-934 (Victorian Anti-Discrimination Tribunal).

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