Human Rights Brief No. 3
Human Rights Brief No.
Freedom of Religion and Belief
By ratifying the
Covenant on Civil and Political Rights (ICCPR) in 1980 Australia
has undertaken to respect and protect freedom of religion and belief.
This number covers
of the right to freedom of religion and belief
of 'religion and belief'
freedom for children
on the ground of religion or belief
of religion and belief in Australia
18: Freedom of Religion and Belief
Sources of the
right to freedom of religion and belief
ICCPR article 18
- 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.
- No one shall
be subject to coercion which shall impair his freedom to have or adopt
a religion of his belief or choice.
- 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 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.
- 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
Also relevant are
- the Convention
on the Rights of the Child(CROC)
- the Declaration
on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief(Religion Declaration)
- the International
Labour Organisation Discrimination
(Employment and Occupation) Convention 1958 (ILO 111).
Scope of 'religion
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.
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.
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)
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).
Children and young
people, as well as adults, are entitled to enjoy freedom of religion and
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.
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.
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
individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
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
- soliciting voluntary
- training and appointment
of religions leaders in accordance with the requirements and standards
of the religion or belief
- observing religious
holidays and ceremonies
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
limitations as are prescribed by law and are necessary to protect public
safety, order, health or morals or the fundamental rights and freedoms
clause is to be given a restrictive interpretation.
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.
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.
take positive action to ensure that members of minority religions can
exercise their rights, including by protecting the existence of the minority
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)).
on the ground of religion or belief
the basis of religion or belief is proscribed by the ICCPR. Article 2.1
guarantees the enjoyment of human rights
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
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
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.
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'.
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.
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.
Freedom of religion
and belief in Australia
role of international instruments in Australia
Rights and Equal Opportunity Commission Act
and Territory anti-discrimination laws
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
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.
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).
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.
Rights and Equal Opportunity Commission Act 1986
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.
Discrimination Act 1975
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.
and Territory anti-discrimination laws
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.
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)
- provision of goods
- club membership.
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
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).
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.
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:
updated 08 March 2006.