Freedom of Religion in Australia: a focus on serious harms (2020)

Background

The AHRC and VEOHRC are each independent statutory bodies, dedicated to the promotion and protection of human rights.

The AHRC is Australia’s national human rights institution, established by the Australian Human Rights Commission Act 1986 (Cth). The AHRC has a number of functions relating to the protection and promotion of human rights, including the right to freedom of thought, conscience and religion.[i] These functions include reviewing current and proposed legislation, conducting research and education, and inquiring into acts and practices that may be inconsistent with human rights. The Commission can inquire into, and attempt to settle by conciliation, complaints alleging that acts or practices of the Commonwealth were inconsistent with or contrary to human rights and complaints alleging discrimination in employment.[ii] The Commission can also receive and conciliate complaints alleging unlawful discrimination under the federal anti-discrimination statutes.[iii]

VEOHRC is responsible for protecting and promoting human rights in Victoria.[iv] It has responsibilities under three laws that together protect an individual’s right to hold a religious belief or no religious belief, and practise that belief free from discrimination and vilification:

• The Equal Opportunity Act 2010 (Vic) makes it unlawful to discriminate against a person in certain areas of public life based on ‘religious belief or activity’.[v]
• The Racial and Religious Tolerance Act 2001 (Vic) prohibits religious vilification.[vi]
• The Charter of Human Rights and Responsibilities Act 2006 (Vic) protects the freedom of thought, conscience, religion and belief.[vii]

VEOHRC can receive and conciliate complaints of religious discrimination or vilification that arise under the Equal Opportunity Act or Racial and Religious Tolerance Act. VEOHRC also educates people about the rights and responsibilities contained in Victoria’s Charter of Human Rights and Responsibilities and raises awareness across the community about the importance of equality and human rights.

This Position Paper is based on the AHRC’s and VEOHRC’s collective experience and research in this area. In addition, the two Commissions convened joint roundtables in Sydney (11 June 2019) and Melbourne (27 June 2019) on the topic of serious harms on the basis of religion. Leaders representing a wide variety of religious organisations, as well as academic researchers with relevant expertise, participated in these events.

The roundtables provided an opportunity:

• to discuss the available research on serious harms on the basis of religion
• for the religious organisations represented to share their experience of serious harms
• to discuss ways in which these problems should be addressed.

While this work was not prompted by any particular event, much of it has taken place in the aftermath of the killing of 51 people at the Al Noor mosque and Linwood Islamic Centre in Christchurch in March 2019. Also in recent memory was the killing of 11 people in an antisemitic attack at a synagogue in Pittsburgh, United States, on 27 October 2018. One school-aged roundtable participant lost a relative in the Christchurch attacks. Her deeply moving personal testimony reminded participants of the need to counter the rise of white supremacist extremism, which is often targeted at religious or racial minorities.

[i] Australian Human Rights Commission Act 1986 (Cth), ss 3(1), 11, Schedule 2; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) article 18(3).

[ii] Australian Human Rights Commission Act 1986 (Cth), s 11.

[iii] Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth). See Australian Human Rights Commission Act 1986 (Cth), ss 3(1), 11(1)(aa).

[iv] The Victorian Equal Opportunity and Human Rights Commission is an independent statutory agency with responsibilities under the Equal Opportunity Act 2010 (Vic), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic).

[v] Equal Opportunity Act 2010 (Vic) ss 6, 8-9. The Commission also notes that there are several exceptions for religious bodies, for example in s 82 of the Equal Opportunity Act 2010 (Vic).

[vi] Racial and Religious Tolerance Act 2001 (Vic) s 8. The Act provides civil and criminal mechanisms to resolve allegations of vilification: Racial and Religious Tolerance Act 2001 (Vic) ss 19, 25.

[vii] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14. However, the Commission does not handle complaints about the Charter. In many cases these complaints can be made to the Victorian Ombudsman.