Human Rights Brief No. 3

Human Rights Brief No. 3

Freedom of Religion and Belief

By ratifying the International Covenant on Civil and Political Rights (ICCPR) in 1980 Australia has undertaken to respect and protect freedom of religion and belief.

This number covers

Sources of the right to freedom of religion and belief

ICCPR article 18

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or 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 shall impair his freedom to have or adopt a religion of his belief or 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.

In addition

  • advocacy of religious hatred which amounts to incitement to discrimination, hostility or violence must be prohibited by law (ICCPR article 20)

  • everyone is entitled to equality before the law and equal protection of the law without discrimination on the ground of religion among other grounds (ICCPR article 26) and

  • minority groups are entitled to profess and practise their own religion (ICCPR article 27).

Also relevant are

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Scope of 'religion and belief'

The principles relating to freedom of religion or belief are to be given a wide application. Article 18 of the ICCPR and article 1.1 of the Religion Declaration both use the expression 'freedom of thought, conscience and religion'. The phrase 'or belief' is also used in these instruments. The UN Human Rights Committee has elaborated on the meaning of these terms.

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 (General Comment No. 22 (1993)).

The Committee stated that 'religion or belief' includes minority and non-mainstream religions and theistic, non-theistic and atheistic beliefs. Article 18 also protects the freedom not to believe.

At the same time there are limits on the scope of 'religion or belief'. The Committee stated that a situation does not automatically fall within 'religion or belief' simply by assertion such as through the use of language like 'church', 'sacrament' and so on.

Divergent opinions on the meaning of 'religion' in Section 116 of Australia's Constitution were delivered in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120. The narrowest test was proposed by Acting Chief Justice Mason and Justice Brennan and required two elements

  • belief in a supernatural Being, Thing or Principle

  • the acceptance of canons of conduct 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) (page 136).

Justices Wilson and Deane held that no single characteristic could yield a formalised legal criterion to define 'religion'. They referred instead to the following indicia or guiding principles

  • a particular collection of ideas and/or practices involving belief in the supernatural

  • ideas that relate to the nature and place of humanity in the universe and the relation of humanity to things supernatural

  • ideas accepted by adherents requiring or encouraging the observation of particular standards or codes of conduct or participation in specific practices having supernatural significance

  • adherents constituting an identifiable group or identifiable groups, regardless how loosely knit and varying in beliefs and practices these adherents may be adherents themselves seeing the collection of ideas and/or practices as constituting a religion (page 174).

Justice Murphy also did not propound a definitive 'test' since, because so many different belief systems have been accepted as religions, any attempt to define religion exhaustively will encounter difficulty. '[There is] no single acceptable criterion, no essence of religion' (page 150). Justice Murphy stated that belief in a supernatural Being, Thing or Principle is no longer essential to religion and any organisation which claims to be a religious organisation and which offers a way to find meaning and purpose in life is a religious organisation (page 151).

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Religious freedom for children

Children and young people, as well as adults, are entitled to enjoy freedom of religion and belief.

States parties shall respect the right of the child to freedom of thought, conscience and religion (CROC article 14.1).

Parents are responsible for guiding their children in the exercise of this right.

The State shall respect the rights and duties of the parents and, when applicable, legal 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 (CROC article 14.2).

In exercising this duty parents must make the best interests of their child their 'basic concern' (CROC article 18.1). See Human Rights Brief No. 1 - The Best Interests of the Child.

Indigenous and minority children are given specific recognition in CROC. Article 30 provides that they have the right to enjoy their own culture and to practise their own religion and language. Implicit in article 30 is the State Party's obligation to take action to promote the survival of Indigenous and minority religions.

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Religious expression

ICCPR article 18 protects not only the freedom to believe but also the freedom to manifest that belief in practice and expression. The right to freedom of thought, conscience and religion includes 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 manifestation of religion or belief may take many forms. Article 6 of the Religion Declaration lists protected manifestations including, but not limited to,

  • worshipping and assembling, and maintaining places for this purpose
  • establishing and maintaining charitable or humanitarian institutions
  • practising religious rites and customs
  • writing and dissemination of religious publications
  • teaching of religion and belief
  • soliciting voluntary financial support
  • training and appointment of religions leaders in accordance with the requirements and standards of the religion or belief
  • observing religious holidays and ceremonies
  • communicating with individuals and communities on matters of religion and belief.

The freedom of a church, other belief society or individual to manifest a religion or belief is not as wide as the freedom to believe. It may be subject to limitations imposed by the state in the public interest. ICCPR article 18.3 permits

... 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.

This limitations clause is to be given a restrictive interpretation.

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 (United Nations Human Rights Committee, General Comment No. 22, (1993)).

ICCPR article 27 specifically addresses minority religions.

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Governments must take positive action to ensure that members of minority religions can exercise their rights, including by protecting the existence of the minority itself.

Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group (United Nations Human Rights Committee, General Comment No. 23 (1994)).

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Discrimination on the ground of religion or belief

Discrimination on the basis of religion or belief is proscribed by the ICCPR. Article 2.1 guarantees the enjoyment of human rights

... 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.

ICCPR article 26 provides that everyone is equal before the law. It requires that everyone be guaranteed equal and effective protection against discrimination.

Article 3 of the Religion Declaration defines discrimination as

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.

The Religion Declaration prohibits unintentional as well as intentional acts of discrimination. It also prohibits actions which have a discriminatory effect even if in fact they are applied equally to all.

Discrimination on the ground of religion may be justified in limited circumstances. But there is no justification for a general exemption on the basis of conscience. Exemptions should only apply to employment of people by religious institutions and should be limited to discrimination that is required by the tenets and doctrines of the religion, is not arbitrary and is consistently applied. Article 6 of the Religion Declaration provides that religious freedom includes freedom '(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief'.

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Religious hatred

Freedom from religious hatred and violence is an essential element of religious freedom. ICCPR article 20 provides that advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Not all behaviour that offends religious feelings or beliefs necessarily constitutes advocacy of religious hatred.

There is an inherent complexity in reconciling the right to freedom of expression (ICCPR article 19) with the right to freedom of religion and belief. However, freedom of expression is not an absolute right. It carries with it special duties and responsibilities and may be subject to restrictions necessary to ensure respect for the rights and reputations of others and to protect national security, public order, public health and/or public morals. More generally, ICCPR article 5 limits the exercise of all Covenant rights and freedoms by reference to the rights and freedoms of others. Article 20 makes clear that freedom of expression cannot justify incitement to religious hatred.

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Religious coercion

ICCPR article 18.2 prohibits coercion that impairs a person's freedom to have or adopt a religion or belief of his or her own choice. There is no clear understanding, however, of what constitutes coercion. It obviously includes violence, blackmail and fraud and threats of those. It could also include excessive pressure and psychological manipulation.

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Freedom of religion and belief in Australia

The role of international instruments in Australia

The ICCPR, the Religion Declaration, CROC, and ILO 111 are not directly implemented in Australia. They do not form part of Australian law. However, with the exception of the Religion Declaration they are all treaties that have been ratified by Australia and so are legally binding on Australian in international law.

However, they also affect domestic law even if not fully incorporated. In Ah Hin Teoh (1995) 128 ALR 353 the High Court held that ratification by Australia of an international treaty gave rise to a legitimate expectation that decision-makers would not violate its provisions. A Bill before the Parliament at the date of publication seeks to override the effect of the High Court's decision.

Where legislation permits a discretion, that discretion should be exercised in conformity with Australia's international treaty obligations. It is also now accepted 'that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law' and that 'an international convention may play a part in the development by the courts of the common law' (Chief Justice Mason and Justice Deane in Ah Hin Teoh).

These considerations do not apply to the Religion Declaration as it is not a treaty, although it has considerable persuasive value and is a valuable tool for interpreting the scope of ICCPR article 18.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act)

The ICCPR, the Religion Declaration, CROC and ILO 111 are all either scheduled or declared instruments under the Human Rights and Equal Opportunity Commission Act. This gives the Commission power to investigate complaints that these instruments have been violated by or on behalf of the Commonwealth or a Commonwealth agency but only in the exercise of a discretion or an abuse of power. Where legislation requires rights protected by these instruments to be set aside, the Commission can only advise the Parliament that the legislation should be amended. The Commission can also advise Parliament on action that should be taken to promote compliance with these instruments. Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament. The Commission has no authority over the courts.

The definition of 'discrimination' in the HREOC Act excludes distinctions made in connection with the beliefs of that religion where the distinction is made in good faith to avoid injury to the religious susceptibilities of its adherents.

Racial Discrimination Act 1975 (Cth) (RDA)

The RDA provides some limited protection against discrimination on the basis of religion. If a religious group can also be classified as an 'ethnic' group, the RDA may cover direct and indirect discrimination and vilification under the racial hatred provisions of the Act. Even if a religious group cannot be classified in that way, the RDA arguably covers discrimination on the basis of religion in certain circumstances such as indirect race discrimination.

State and Territory anti-discrimination laws

Victoria, Queensland, Western Australia, the Northern Territory and the ACT have made discrimination on the ground of religion unlawful. In New South Wales the Anti-Discrimination Act 1977 (NSW) prohibits discrimination on many grounds but not on the ground of religion. However, the definition of 'race' in the New South Wales Act includes ethno-religious background.

The anti-discrimination laws of the States and Territories that cover religious belief prohibit both direct and indirect discrimination in

  • employment and work (including partnerships, professional trade or business organisations, qualifying bodies and employment agencies)
  • education
  • provision of goods and services
  • accommodation
  • club membership.

The Victorian Act prohibits members of local government councils from discriminating against other members on the basis of, among other things, their religious beliefs or practices. The Queensland Act has very wide coverage and applies to superannuation, insurance and the administration of State laws and programs in addition to other areas.

There are a number of exemptions in each Act that allow discrimination on the grounds of religious beliefs and activities in certain circumstances. Most of them are for the benefit of religious organisations in areas like employment (as described in the section of this brief dealing with discrimination).

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Article 18: Freedom of Religion and Belief

As part of its responsibility for the ICCPR and the Religion Declaration and in response to a number of complaints received the Human Rights and Equal Opportunity Commission undertook a review of freedom of religion and belief in Australia. The report of the inquiry, Article 18: Freedom of Religion and Belief, was tabled in federal Parliament in November 1998. The report makes a number of recommendations to improve Australia's compliance with its international obligations relating to freedom of religion and belief, including the enactment of a federal Religious Freedom Act. The recommendations of Article 18 have yet to be implemented by the federal Government.

Disclaimer: This document provides general information only on the subject matter covered. The Human Rights and Equal Opportunity Commission does not assume a duty of care with respect to this information. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in this document may be amended from time to time. Copyright: Copyright in this document is owned by the Human Rights and Equal Opportunity Commission, 1999. The contents may be reproduced freely with acknowledgement. Date of last amendment: October 1999. Contributing author: David Robinson. ISSN Number: 1442-0813

Last updated 08 March 2006.