Submission to the Australian Human Rights Commission Freedom of Religion and Belief in the 21st Century – January 2009 As the Commission’s template allows

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Submission to the Australian Human Rights Commission

Freedom of Religion and Belief in the 21st Century – January 2009

As the Commission’s template allows, this group does not feel committed to answer all the questions set. It does consider that the template does not have to be followed and so we will present our own concerns.
We do want to make it clear that we fully support Freedom of Religion and hence we support both the Universal Declaration of Human Rights (December 10, 1948 General Assembly of the United Nations adopted and proclaimed) particularly article 18; the 1993 Covenant on Civil and Political Rights, article 18 and the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981 General Assembly of the United Nations adopted and proclaimed) which reads, at paragraphs 1 and 2 of Article 1:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever 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, practices and teaching.

2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.

At the same time we note that Paragraph 3 of Article 1 makes it clear that it is not envisaged that freedom of religion shall be unfettered when it comes to putting religious belief into practice:

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.


This is a helpful limitation on all forms of freedom. We would agree with the Public Policy Assessment Society Inc. statement in June 1997, that “freedom to practise religion is a freedom which should be protected on pragmatic grounds … We recognise the following components of freedom of religion and belief, in increasing order of the effect on other people:

1 A private freedom to believe what one wants to believe, without taking any action in accordance with the belief (a person doesn’t have to be employed just because of the person’s belief about having a particular capability).

2 Freedom to discuss one's beliefs with others of like mind.

3 Freedom to inform other people of one's beliefs, without encouraging any particular action or belief.

4 Freedom to try to promote one's beliefs among other people, without encouraging any particular action.

5 Freedom to encourage others to take action in accordance with one's beliefs.

6 Freedom to take action in accordance with one's beliefs…. We think this component should not be protected except as part of a general prohibition of discrimination, with appropriately broad exemptions.”

Defining Religion

We have noted that the Parliament and the courts [e.g. Justice Murphy expressed his opinion in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic), heard in the High Court of Australia -154 CLR 120 - whilst Chief Justice Mason and Justice Brennan adopted narrower views.] have had some difficulty defining what is “religion”1 and what is “belief/non-belief”2. An eminently reasonable definition of religious belief originates in the writings of the renowned French sociologist of religion, Emile Durkheim. Durkheim saw men experiencing two facets of life, the "sacred" and the "profane." The profane referred to the experience in everyday life, of which work and the workaday world was its most central and significant type case. The sacred was residual to, and other than, this workaday sphere. It lay somehow outside the profane sphere and evoked an attitude of awe and reverence. Religion was the attitude characteristic of this kind of experience.

The Pope has also expressed his opinion in Dignitatis Humanae

(His Holiness, Pope Paul VI, December 7, 1965) in which he states that this “freedom means that all men (sic) are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others within due limits. The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself. This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.”

The Pope also states in his Nostra Aetate (October 28th 1965), that

“In this age of ours, when men (sic) are drawing more closely together and the bonds of friendship between different peoples are being strengthened the Church examines with greater care the relation which she has to non-Christian religions. Ever aware of her duty to foster unity and charity among individuals, and even among nations, she reflects at the outset on what men (sic) have in common and what tends to promote fellowship among them.”

Given that we already have the Commonwealth Constitution Section 116, the Commonwealth Freedom of Religion and Belief Act (1986), the UN Declaration on Religious Tolerance and Non-Discrimination (1981) (which the Australian Parliament signed in the same year), and the International Covenant on Civil and Political Rights (adopted by the UN 13 August 1966) and ratified in Australia in 1980, we consider that we already enjoy freedom of religion in this nation.
We have two types of concerns (A) issues which should not be part of any future Commonwealth Charter of Rights or other Act; and

(B) Issues about the process involving parliaments and courts.
Whilst we recognise the need for some adjustments to the Commonwealth and State laws to deal with some specific cases3, we also have a deep concern that the following concepts not be included in any Charter of Rights - Issue (A) above:
(1) Any new law such as the proposed Charter of Rights needs to allow people to critique other ideologies, world views and religions (in every form of communication) without being brought before a court on the grounds of vilification. There must also be freedom to undertake such critiques. Individuals are entitled to hold their opinions, to share their opinions and to use public places to declare their opinions as indicated above in reference to “Elimination of All Forms of Intolerance” – UN Declaration. However, such declarations per se should not be the basis for changing the legal system as outlined in the next paragraph.

(2) Minority groups within our society should not be allowed to bring to bear their particular views as a basis for social reflection for the whole of society otherwise we will end up with having a nation run by minorities. The Christian Heritage embodied in our laws should be noted. The Christian presence is best measured by the Church Life Surveys which indicate that 86% of the Australian population believe that Christ was fully God (a high level of commitment to the Christian faith)4. Articles in Newspapers do not indicate the attitude of the majority. We have noted how often a minority position is offensive to other minority groups (such as the desire by Islamic women not to have permission for polygamy or Sharia law in this country e.g. in Ontario, Canada5).

(3) Migrant people should be expected to come to Australia because they want to escape the torturing or the political and religious restrictions of their home country. Thus their coming to Australia must mean that they want to adopt the social and political attitudes and practices of this nation. They should not seek to change our nation to be like the nation they left.
(4) Discrimination against blasphemy beyond the present law is unhelpful, even though each religious group may like to have this protection6. But experience to date from Pakistan (law 295-C) (e.g. Catholic Bishop John Joseph who committed suicide over this law in 1998) indicates that a blasphemy law against doctrine, ideas or doctrinal books becomes a rule of law which is misused by opponents. Also there is very little basis for finally determining what is blasphemy or the “insult of a religion”. Ideas, political and religious views can be criticised in any context. It is people who are named who need protection against blasphemy (which law we already have). Such a law should not be, as it is in Pakistan, against a past religious leader or a religious book or the religion. Blasphemy should be only against a named living person.

(5) A Vilification clause should not be introduced as it would cause immense harm in this country just as we have seen in the early attempts with the Victorian Act and which has been rejected in most other States. The whole idea of making it a criminal offence when someone reads a doctrinal book and interprets it in a particular way, is a form of reductionism whereby no one can object to ideas as understood by a reader or hearer. The concept of defaming another group of people or individuals came under some scrutiny at the UN's first World Conference on Racism, Racial Discrimination, Xenophobia and Related Intolerance -- which was held in Durban, South Africa, in early September 2001. The request was made solely by the Muslim delegates present who stated that those who "defame" Islam by associating it with violence, human rights abuses or terrorism should be punished. One can understand that a particular group of people defined by religion or race would like to be protected, but when that protection is against a nation or an ideology, such protection means the loss of freedom of expression, and freedom by authorities to counter terrorism or take action for national security.

The other problem with vilification is that it divides the nation - one group against another group. It can also divide a person from that person’s own organisational heritage. It is not a civil act. Freedom of speech must be the foremost national value and therefore anyone can say anything about another worldview or religion. Obviously race and named individuals need protection, but ideas do not. Our society has grown because of the freedom to interact in every form of communication with ideas, dialogues and debates.

(5) Race and religion should not be conjoined, but need to be distinguished For instance Sikh people can be distinguished on the basis of their race regardless of their religious affiliation, but those who follow Christianity, Buddhism or Islam are from many races and cannot be identified on the basis of race.
(6) The publication: ”Religion, Cultural Diversity and Safeguarding Australia” requests government bodies to replace most religious expressions with an interfaith religious stance and this is something which has no meaning and is objected to by all religions. No religion will accept a “religion of harmony”. All public expressions of religion need to follow our traditional way which is to follow the religion of the deceased person or follow the national heritage if it is celebrating a public event. Migrant groups come here to enjoy the freedom we offer and they should not seek to change our national heritage. Their role is to add to our culture not take away any of our heritage. As a nation we are not looking to be ruled by a utopian ideology.
(7) There should not be an homogenised view of what alone is correct. If there is a law to prevent anyone speaking against another faith, how would such a law be understood or how would intervention take place (by the police, other citizens or the judge) both for individuals and for any group of individuals (classed as a community). For instance, will the individual’s personal conscience and the common good be taken into account? We need to remember that in the realm of religious doctrine there are a wide range of views on very fine points even within any one religious group. Who will define these fine distinctions?

(8) All religious groups should be allowed to make statements against any other religious view, world view or philosophy and to produce publications promoting their views. Whilst some may want political and court support against any such negative views, nevertheless there is no basis for action against such people or their actions. Members of the group attending can make their own decision to continue to attend or to leave, readers can choose not to read and viewers can choose not to view the film/TV. Every Australian has a right of choice, so leave this choice to attendees, readers or viewers. It is right to legislate against statements which specifically promote hatred of or violence towards a racial or national group. But to then turn this into a statement against religious ideas or doctrines is going far beyond the original intentions in the UN Declaration. What actually is “hatred” itself requires definition. A society (in its various forms) must be free to state if one nation or one ethnic group is promoting hatred of another. Yet such a statement could be deemed to be hatred of the first group. Yet all that is being said is indeed fact. If the members of one group are acting against society in an obvious way such as through acts of terrorism, then society must be free to say so and members of such a group are likewise free to reply. The threat of a court case over an open statement about a group acting against our society is a threat to ensure silence.

(9) Every religious group (school, aged home, church, religious organisation) should be free to employ any person who is in agreement with the religion so expressed. There is no place in our free society to force a person of one religion onto an organisation which follows a different religion (this includes an atheist group wanting only atheists in their organisation or a church group against same sex marriage not wanting a same sex married person in the organisation.) Surely every organisation is allowed to follow its own ideological views and still be responsible to not be anti racist.
(10) It is understood that the concept of freedom of religion must not be an unbridled liberalism, but must be based on reason as a basis for the freedom.
(11) Interaction with those of other religions with a view to a level of harmony will not be achieved on the basis of religious thought or ideology. It will be gained only on a value base which itself can be somewhat independent and open to scrutiny and some variation.
(12) There is the desire by some to limit the voice of parliamentarians, journals or newspapers when one of them espouses a view which appears to have a religious base. In our free society such voices have a right to speak. We do not all have to be humanists or religious pluralists. Variety helps the development of thoughtful action.

(13) If a Charter of Rights allows minority groups to follow their own laws over and above the State’s laws, then we have a situation of two or more different law systems in the country and such a country will have ceased to be acting civilly. One nation must not have more than one legal system in place. At the same time companies, institutions and minority ethnic groups will choose to enact their own ordinances in respect to their own internal governance and personal behaviour. Such laws are always subject to the State legal system.

(B) Issues about the process involving parliaments and courts

(1) Augusto Zimmermann (a law professor at Monash has stated 7) “A Bill of Rights has never prevented human rights’ violations. In contrast to what the Victorian Government says, history shows that protection of human rights has never required any charter of rights. The governments of China, Cuba, Rwanda, Sudan – all of them notorious violators of human rights – have produced extensive bills of rights, although such documents have offered no real protection for the people of these unhappy countries. Actually, even the former Soviet Union had a quite elaborate bill of rights. This happened because the effective protection of human rights does not require any charter of rights so much as a ‘good’ constitutional framework (separation of powers) underpinned by certain essential extra-legal (cultural) factors. It is thereby far more depending on a certain culture of legality which demands both citizens and governmental authorities to subject themselves to basic standards of truth and justice. A Bill of Rights can serve as tool for undemocratic social engineering. The first bills of rights in modern history were conceived to avoid the problem of political tyranny, dealing with Lord Acton’s aphorism that power corrupts, and absolute power corrupts absolutely. A constant in these bills of rights is a preoccupation with the preservation of personal freedoms, ensuring the possibility of civil resistance against abuses of governmental power. “

Hence our statement that a Charter of Rights may not provide protection, what is needed is the commitment of our Constitution and of our law-enforcing personnel as well as the attitude of our citizens.8

(2) We know that HEROC has defended the right of courts to adjudicate, but all the evidence to date demonstrates that whatever Charter is set will result in many court cases such that the court will end up being the decision makers as happened with the Vilification Act in Victoria and in that situation the capacity of the initial Magistrate to even understand the case and to know what to do with it had to be over-ruled by the Supreme Court and the cost of this for the defendants was enormous.9 If there is to be a Charter of Rights then it must protect the defendant against the Victorian situation otherwise we end up asking our citizens to pay enormous amounts to protect themselves over an ill defined Charter/Act and possibly poorly trained magistrates.

(3) I listened to Bob Carr speak at a conference in Canberra and then Charles Francis QC, wrote up what he said part of which is here: “Where laws are created by parliament, there is at least the opportunity to vote out the government at the next election; but where the laws are created by activist judges, there is no ready solution. We are unable to rid ourselves of these judges until death or retirement. Former New South Wales premier Bob Carr has noted, among other things, that the Canadian Charter of Rights and Freedoms has led to greatly increased litigation. New Zealand has had similar problems.
"In the first seven years after the [NZ] Bill of Rights Act was enacted, it was invoked by the accused in literally thousands of criminal law cases, a large number of which were appealed to the Court of Appeal (the highest court in New Zealand). ...
"The Bill of Rights continues to be routinely used as a ground for attempting to overturn the admissibility of evidence, including confessions, evidence obtained under search warrants and breath-testing of drunk drivers. It gives lawyers a new source of technicalities to allow the guilty ... to go free. Bills of Rights are notorious for being the last ground of the desperate in litigation."10

(4) A Bill of Rights usually leads to a lower sense of individual responsibility.


A Charter of Rights removes from the individual the responsibility to act for the sake of the whole society. We need to offer a proper balance between rights and responsibilities. This requires education not another Charter/Act of Parliament. However, there can also be a problem here between group rights and individual rights as these can be in conflict with one another. Rights themselves can be in conflict and hence the need for education and the sense of personal responsibility to speak one’s mind but not to generate hatred towards others. Both freedom of thought and the freedom to express one’s thoughts may require education, but it is the ground in which future freedoms grow. Rights should be matched by personal duties so that citizens look to help those in need rather than depending on the government to act paternalistically. Such duties need to be taught along with one’s rights. The HEROC Discussion Paper No1 admits to the problem of some rights being in contention with duties to the State (p13) and thus it can be seen that there are conflicts and that education is a better way forward as against litigation. We already have legislation against personal defamation11. The major agony is that a Charter of Rights in the USA12 and the Vilification Act in Victoria have been used for the purpose of abuse and have not enabled the society to move forward in harmony.

(5) In our view the Australian Constitutional clause noted as Section 116 provides the protection for the State to allow freedom of religion. Partnerships which have developed between religious groups and the Government have proven to be helpful in the development of our nation and we support these partnerships which have emerged in the light of section 116. There may be other areas of human rights protection needed, but our concern has been to focus on freedom of religion in this country. We are very much aware that this freedom is not reciprocated in many of the countries from which our migrants come.


David Claydon

Chair of Dealing with Diversity



1 See website International Coalition for Religious Freedom May 15, 1999, for comments on USA Court system which also has trouble. The USA Supreme Court made its first effort to define religion in 1890, ignoring Jefferson's universalistic approach in favor of the traditional theistic approach. In Davis v. Beason, the Court stated: "The term ‘religion’ has reference to one's views of one’s relation to the Creator and to the obligations imposed out of reverence for the Creator’s being and character, and of obedience to his will." This theistic notion of religion was dominant until the 1940's, when the Supreme Court, in a series of decisions, changed direction in regard to both the belief/action distinction and the theistic definition of religion. In United States v. Ballard, Justice Douglas, writing for the majority, embraced a much broader definition of religion. The HEROC Discussion Paper No.1 admits to this problem, p11.

2 The question arises as to whether organisations which have a non-religious belief would be given the same support as a religious organisation. In this country such groups do receive the same consideration.


3 There are non-religious concerns about some people who appear to have been wrongly treated such as placing a mentally ill person in prison instead of a home. See Sun-Herald, 8 Jan 09 p.42.

4 Peter Kaldor & Ruth Powell, Views from the Pews, The National Church Life Survey, (Adelaide: Open Book, 1995), 35.

5 See Elizabeth Kendal, ‘Canada: Applying Sharia through Islamic Arbitration’, World Evangelical Alliance, Religious Liberty News & Analysis, 15 December 2003, viewed 4 December 2008, http://old.worldevangelicalalliance.com/persecute/persec_canada_15dec03.html. And

‘Protesters March Against Sharia Law in Canada’, CTV.ca News Staff, 9 September 2005, viewed 27 November 2008, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1126181967010_31/?hub=CTVNewsAt11



6 s.574 Crimes Act (NSW) 1900 and which is repeated in all other States against personal blasphemy.

7 The Original Law Review, Vol 2 (1) 2006.

8 In this same article Dr Zimmermann has stated that the Canadian Supreme Court found the provision of the Act abstract and so the Court used the Charter to protect tobacco advertising, extend the franchise on prisoners and rewrote the marriage laws. See his paper at page 5.

9 See “the Age” Wed 29 May, 2008

10 Professor A Zimmermann has commented also that the Canadian litigious floodgates have been opened since the Canadian Charter of Rights was enacted with the development of both speculative and frivolous litigation. Taken from www.saltshakers.org.au/pdf/321311_campaigns-Vic-Charte.doc


11 See footnote 6 above.

12 Rule of Lawyers by Alan Anderson,




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