Inquiry into The status of the Human Right to Freedom of Religion or Belief

Liberty Victoria

Time did not permit Liberty Victoria to address in full all aspects of the Terms of Reference for this Inquiry. Our concerns therefore centred on “3 — The relationship between the freedom of religion or belief and other human rights, and the implications of constraints on the freedom of religion or belief for the enjoyment of other universal human rights” (ToR 3). In particular we considered the balancing of freedom of religion or belief with the human right to equality. We also make some related comments on ToR 2 and ToR 4.

There are well over a hundred principal religious groupings in Australia, and many more subdivisions. In many ways they overlap with ethnic, cultural and national identities. Religious beliefs and membership of religious groupings have a long history of being the focus for discrimination and conflict. Many religious bodies also have a long history of prejudice against people of other, or of no, religion. Many cruelties have been and continue to be inflicted on these grounds.

It is natural, therefore, that the establishment of religious freedom, against the imposition of religious orthodoxy and the persecution of the heterodox formerly widespread, and now perhaps less so, is a vital principle of the modern human rights framework. It is a principle that Liberty Victoria strongly supports, as part of our support for the human rights framework itself.

Individuals should not be persecuted or discriminated against because they hold, or do not hold, particular religious beliefs, or engage in or do not engage in particular religious practices. This is clear.

Unfortunately religious bodies have a long history of discriminating against and persecuting others. This is not surprising, given that many religions are based on a firm, even unshakeable, belief that they alone are in possession of the Truth. It is inevitable, however, that this cannot be true, given the incompatible competing claims.

Unfortunately the importance of religious freedom in the history of our politics has led to undue deference to the claims of religious bodies and individuals to be allowed to persecute or discriminate against holders of other beliefs or those with no religion. As a result, the freedom of religion as against the state, which is important, sometimes gives way to a licence to discriminate, and which the state (wary of infringing the freedom of religion or belief, but yielding to one religion over others or none) fails adequately to rein in.

A troubling feature of recent history is the new tactic of some Christian religious bodies to seek not only to mutate their freedom of religion into a licence to vilify or oppress people who hold other or no religious beliefs, but to claim that resistance to this overweening encroachment is bullying and persecution. The spectre of Islamic “sharia law” is often invoked by such groups, which apparently remain oblivious to their own attempts to undermine Australian democratic institutions in favour of their American-inspired dominionist ideology, which has a similar theocratic tendency.

This submission points out several instances where this pernicious licence leaves individuals vulnerable to unrestrained discrimination by religious bodies, and where the state needs to protect such individuals’ human rights, and for that matter their religious freedom not to accept the beliefs, nor act according to the dictates of a religious ideology to which they do not subscribe.

In spite of the historic features and abuses mentioned, religious freedom must take its place as just one among many human rights elaborated in the modern human rights framework. As with most human rights the freedom of religion and belief is subject to the limitations inherent in that framework, and summarised at the end of this submission in the words of s.7(2) of the Victorian Charter of Human Rights and Responsibilities. Except in relation to their own internal practices, and involving their own members who are adult and competent, religious bodies and individuals must be subject to the general law, and must not infringe the human rights of those who do not share their beliefs or follow their rituals and practices.

The Terms of Reference also invite comment on “Australian efforts… to protect and promote the freedom of religion or belief” in this country and beyond.

Liberty Victoria is a strong supporter of and advocate for human rights and the international human rights instruments under which Australia has expressly undertaken to protect, respect and fulfil the human rights they cover, the protection of freedom of religion or belief among them. We reject, however, the notion that freedom of religion or belief should be elevated to special protection in isolation from other human rights.

Liberty Victoria supports the human rights framework, which includes freedom of religion or belief. That freedom is not absolute. As with most rights it must be balanced with the rights of others to believe—or not—as they consider appropriate. Religious beliefs—or rather religious practices and behaviour—cannot be above the law, and the state must instead ensure that all its citizens are treated with true equality, dignity and respect.

The best way to ensure the rights of all is in a comprehensive Human Rights Charter where no right is privileged above other rights, but all rights are subject to limitations in a principled framework. The principle is eloquently put in Victoria’s Charter of Human Rights and Responsibilities, section 7(2):

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including —

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and 

(c) the nature and extent of the limitation; and 

(d) the relationship between the limitation and its purpose; and 

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

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