The Right to Freedom of Religion (VCE SSCE Legal Studies): Revision Notes

The right to freedom of religion

The right to freedom of religion is a fundamental human right in Australia. It includes both the right to hold, practise and express religious beliefs, and the right not to hold religious beliefs at all. This right is protected through various laws and legal mechanisms, but its scope and limitations remain subject to ongoing debate and reform.

The nature and development of the right

International foundations

Australia was one of the original countries to support the Universal Declaration of Human Rights (UDHR) in 1948. By doing so, Australia committed to respecting and promoting basic human rights and freedoms, including religious freedom.

Article 18 of the UDHR states:

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."

In simple terms, this means all people have the right to think and believe what they want, and to adopt and practise any lawful religion or belief.

Strengthening through the ICCPR

In 1966, the International Covenant on Civil and Political Rights (ICCPR) further strengthened this right. The ICCPR is one of seven major international human rights treaties that Australia has adopted and reflected in domestic law.

The ICCPR went further than the UDHR by recognising that no person should be forced to adopt or abandon a religion or belief. This means governments cannot compel people to change their religious views.

Australia's commitment

In accordance with its commitment to the ICCPR and other international treaties, the Australian Government aims to:

• Recognise and promote the right to freedom of religion or belief
• Ensure all Australians are free to adopt and practise any lawful religion or belief
• Prevent any religion or belief from being imposed by the government

The laws that apply

In Australia, the right to freedom of religion is protected through three main legal sources:

1. Statute law

Australia does not have a single national charter of human rights (or bill of rights). However, parliaments at Commonwealth, state and territory levels have passed legislation that protects religious freedom.

Anti-discrimination laws make it unlawful to discriminate against a person on the basis of their religion or belief in areas including:

• Employment
• Education
• Accommodation
• Membership
• Sport

Key anti-discrimination legislation includes:

• Australian Human Rights Commission Act 1986 (Cth)
• Racial and Religious Tolerance Act 2001 (Vic)
• Equal Opportunity Act 2010 (Vic)

Victorian Charter of Human Rights

Section 14 of the Victorian Charter protects the right to freedom of thought, conscience, religion and belief by requiring:

• Government authorities (e.g. state and local government departments, Victoria Police)
• The Victorian Parliament
• Victorian courts and tribunals

...to act in ways that do not prevent people from practising their religion or belief.

2. The Australian Constitution

Section 116 of the Australian Constitution provides a limited express right to freedom of religion. It prevents the Commonwealth Parliament from passing a law that:

1. Establishes a state religion – cannot declare a particular religion as the official national religion
2. Imposes any religious observance – cannot require people to recognise a religious ceremony or formality
3. Prohibits the free exercise of any religion – cannot prevent people from practising their religion (though this can be limited where religious practice breaches Australian law or threatens national security)
4. Requires a religious test – cannot require a religious test as a qualification for holding any Commonwealth office (e.g. working as a member of the Australian Federal Police)

Full text of Section 116:

"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."

Limitations of Section 116

Section 116 only protects freedom of religion to a limited extent because:

1. Applies only to Commonwealth Parliament

• It restricts only the Commonwealth Parliament's powers
• It does not apply to state or territory parliaments
• This creates a gap in constitutional protection at state level

2. No remedy mechanism

• Section 116 does not provide a way for people to seek legal remedy (e.g. damages) when their right to freedom of religion has been breached
• People cannot sue for compensation based solely on a Section 116 breach

3. Narrow judicial interpretation

• The High Court has sometimes adopted a narrow interpretation of Section 116, limiting its scope
• For example, in Attorney-General (Vic); Ex Rel Black v Commonwealth (the DOGS case), the High Court ruled that Commonwealth funding to religious schools does not breach Section 116, even though it could indirectly promote or assist religious practice

3. Common law

While primarily protected through statute law and the Constitution, the right to freedom of religion is also protected to some extent through common law.

How common law protects religious freedom:

• Australian courts have stated the importance of freedom of religion when resolving disputes
• The High Court has interpreted the meaning of Section 116 when resolving constitutional cases
• Courts have clarified the meaning and scope of religious freedom

Case study: racial and religious discrimination in schools

Possible reforms and conflicting attitudes

The ongoing debate

There has been significant debate in Australia about the extent to which the right to freedom of religion should be protected by statute law. This debate involves two opposing perspectives:

Perspective 1: Reduce discrimination by religious organisations

• Some individuals, groups and political parties support new laws to prevent religious organisations from discriminating against people based on attributes such as:
  • Sexuality
  • Gender identity
  • Marital status
• They argue this protects individuals from discrimination

Perspective 2: Protect religious organisations' rights

• Others seek to protect the right of religious organisations to hold religious beliefs and promote these beliefs within their organisations
• They support allowing religious organisations (schools, hospitals, aged-care facilities) to refuse prospective customers or employees if their beliefs are inconsistent with the organisation's religious ethos
• Example: A religious conference centre refusing to hire facilities to LGBTQIA+ groups if their discussions would be against the organisation's religious beliefs

Catalyst for debate: marriage equality

The debate intensified after the Commonwealth Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which:

• Allowed for marriage equality (same-sex marriage) in Australia
• Did not force religious organisations (e.g. churches) to marry same-sex couples
• Led some religious organisations to claim their right to hold certain religious views was being eroded

The Religious Discrimination Bill 2019 (Cth)

In response to pressure from individuals and religious organisations, the Commonwealth Government introduced legislation to provide greater religious protection.

Purpose of the Bill:

• Ban discrimination in specified areas on the grounds of religious belief or activity
• Make it unlawful for individuals or organisations (employers, service providers like schools or hospitals) to discriminate against a person for holding or not holding a religious belief

Example: Under the Bill, an employer could not dismiss an employee based on their religious beliefs.

Opposition to the Bill:

Critics argued the Bill would:

• Increase discrimination against minority groups (LGBTQIA+ people, people with disability, people from diverse cultural backgrounds)
• Allow religious organisations to refuse to accept or employ people who did not uphold the organisation's religious views
• Be difficult to implement due to challenges in defining 'religious beliefs'

Support for the Bill:

Supporters claimed:

• Religious organisations need more protection to uphold and instil their religious beliefs within their organisations
• The Bill would prevent genuine religious discrimination

Victorian response

In response to the Religious Discrimination Bill, Victoria took a different approach:

Equal Opportunity (Religious Exceptions) Amendment Act 2021 (Vic):

• Passed by Victorian Parliament in 2021
• Specifically prevents religious organisations and schools from refusing to hire people or terminating employment based on protected attributes such as:
  • Sexuality
  • Gender identity
  • Marital status

Summary Offences Amendment (Nazi Symbol Prohibition) Act 2022 (Vic):

• Passed in June 2022
• Makes it a criminal offence to display symbols of Nazi ideology, such as the Nazi Hakenkreuz
• Relevant to the Kaplan v State of Victoria case

Current developments

In November 2022, the newly elected Federal Labor Government asked the Australian Law Reform Commission to undertake an inquiry.

Australian Law Reform Commission: An Australian Government agency that reviews, researches and makes recommendations to Parliament about possible changes to Commonwealth law.

Purpose of the inquiry:

• Review religious exemptions for schools in Commonwealth anti-discrimination laws
• Ensure schools do not discriminate against students or staff based on:
  • Sexual orientation
  • Gender identity
  • Marital status
  • Relationship status
  • Pregnancy
• While still allowing religious schools to build a community of faith by giving preference to persons of the same religion when selecting staff

Points to consider when discussing reforms

When analysing or evaluating possible reforms to religious freedom protection, consider these key points:

Explanation points:

1. Opposing reforms create controversy

   • Reforms can either decrease religious organisations' ability to discriminate OR increase their ability to hold and promote religious beliefs
   • These opposing goals create significant tension

2. Reform requires statutory change

   • Any reform needs Parliament to pass an amending Act
   • At federal level, this requires majority support in both houses of Parliament
   • Reform must reflect community values, as politicians fear losing voter support if they back unpopular laws

3. Parliamentary challenges

   • The government rarely holds a majority in the Senate (upper house)
   • Any proposal needs support from opposition, minor parties or independent members
   • This makes controversial reform difficult to pass

4. Constitutional limitations

   • Section 116 prevents Commonwealth Parliament from passing laws that impose or restrict religious practice
   • If Parliament passes such laws, their validity may be challenged in the High Court

Discussion points:

1. Risk of increased discrimination

   • Strengthening religious organisations' ability to promote their beliefs could lead to greater discrimination against minority groups (LGBTQIA+ people, people from diverse cultural backgrounds)
   • Such discrimination may breach international anti-discrimination laws

2. Political reluctance

   • Politicians may be reluctant to support controversial reform through fear of losing voter support
   • However, they may also be influenced by vocal minorities, including powerful religious organisations

3. Constitutional challenges

   • If Commonwealth Parliament passes a law potentially breaching Section 116, individuals or groups may challenge its validity in the High Court

Case studies: High Court interpretation of religious freedom

The High Court has been called upon to resolve disputes where individuals or organisations allege that Commonwealth law breaches the express right to freedom of religion in the Constitution. Through these cases, the High Court has interpreted and clarified the meaning of 'freedom of religion' and established legal precedents.

Remember!