Guarantees of Religious Freedom in Australia

by Graham Nicholson

published in 75 Years of the Bahá'í Faith in Australasia
Rosebery: Association for Bahá'í Studies Australia, 1996

It is common assumption that in large measure, religious freedom exists in this country, both in law and in practice, particularly when compared with many other countries. The purpose of this Paper is to examine the accuracy of that belief, primarily from a legal and constitutional perspective, looking both backwards in history up to the present day, and also a little into the future. The topic will be examined in the light of the Bahá'í injunction to:

"Consort with the followers of all religions in a spirit of friendliness and fellowship" (Bahá'u'lláh).

The Bahá'í writings add that dissensions and divisions among religions are to be avoided at all costs, and that no religionist should shun the followers of other religions. People should not blindly follow a particular religion but should be free to search out the truth for themselves with an open mind. In doing so they may well discover the underlying spiritual unity behind all the great religions. Inherent in these Bahá'í teachings is a particular view of religious freedom, a matter beyond the scope of this Paper.

The starting point for this Paper must be pre-European settlement of this Continent. At that time, most of Australia was occupied by the indigenous peoples of Australia, practising their traditional beliefs and customs. Although those beliefs and customs exhibited commonalities, there was also considerable diversity between the various groups. Inter-personal and inter-group conflict certainly existed, but there was also a considerable degree of mutual tolerance and acceptance in the area of Aboriginal religion. Such religion was inextricably intertwined with customary law and was therefore in a sense "legally guaranteed". The concept of religious freedom, however, at least in so far as it means free choice in religion, may have been a foreign concept to a people for whom their traditional religion was a way of life, into which they were born and raised, and where it was not normal for that religion to be challenged by radically different beliefs and concepts.

The beauty and deep spirituality of Aboriginal religion is something that non-Aboriginal society in this country has only recently begun to come to terms with. Historically, white Australians have by and large decried Aboriginal religion and dismissed it as an invalid form of belief, a form of primitive mythology relevant only to a backward and simple race. We have all suffered from this fallacy and are the poorer as a result. A reversal of such attitudes poses one of the greatest challenges to our sense of tolerance. It is the most serious blot on our record of religious freedom.

The first European settlers of Australia were overwhelmingly Christian in the Western tradition. They were made up of Anglicans, other Protestants and Roman Catholics. The initial status as a convict colony also undoubtedly introduced a strong element of scepticism, a theme the strong traces of which can still be identified today. This factor, plus the incredible contrast between Western Christianity and Aboriginal religion, marked the beginnings of the great plurality of belief in Australia. It is a situation in which we have lived ever since. Diversity of belief has in fact increased considerably since European settlement, particularly with successive migrant intakes, making us now one of the most diverse countries on earth in this respect. There is now a question whether it is even correct to describe this country as a "Christian country". It is said that this is a polemic question, rather than a neutrally descriptive one, whereas the one thing that can be said with certainty is that Australian religious beliefs are diverse (see "Discrimination and Religious Conviction", Report of the Anti-Discrimination Board of NSW, 1984 p.67). We exist in a state of multi-faith and multi-belief. Even the concept of us having an "inherently Christian legal system" has been exposed as being false (see "Constancy and Change" by NSW Solicitor General Keith Mason, 1990, Federation Press).

The early European settlers brought with them the laws and traditions of England. This included the dominance of the episcopalian Protestantism in the institution of the Church of England, of which the Crown was the head. Behind this lay a long English tradition of religious intolerance, a tradition that was only slowly breaking down. There were no inherited English legal rights to freedom of religion. Colonial society only admitted non-conformists and Jews with some reluctance, and religions not of the "Book" were seen as heathen and dismissed. There was, however, some doubt as to whether the Church of England was an "established" church in the same sense as in England, although initially it certainly had a favoured position in the law. Speaking of this matter, the former Justice Stephens of the High Court in Attorney-General (Vict); Ex rel Black v the Commonwealth (1981) 146 CLR 559 pp.607-8 said:

"Australia's colonial history does indeed disclose, first, something at least approaching official recognition of the Church of England; followed, however, by a general recognition of a wide variety of denominations, accompanied by impartial financial assistance to all churches and schools; then, in the latter part of the nineteenth century, there occurred a move towards complete separation of church and state, with the abolition of all financial aid to churches and to church schools."

It is fair to say that gradually the concept of religious freedom began to make firm roots in colonial Australia. But this was not for any legal reasons. In fact, it has been held that the colonies never inherited, nor did they ever create, an inalienable right to religious freedom. There was no such right at common law (Grace Bible Church Inc v Reedman (1984) 54 ALR 571). But gradually the special legal position of the Church of England was lost and equality of treatment (at least for Christian denominations) was established. The rise of secularism, the increasing diversity of its peoples resulting from immigration and the development of state schools then saw a drift towards a form of separation of church and state in practice, although with a largely unquestioned assumption that society was basically Christian. Specifically Christian-derived aspects of the law, such as the criminal offence of blasphemy, largely fell into disuse.

It was against this general background that the Australian Constitution was debated and drafted by our constitutional founders. The Constitution contains two brief references to religion - in the Preamble and in section 116. The Preamble was inserted in response to many petitions and requests from Christians as well as the views of certain delegates seeking to rely on the blessing of Almighty God in the establishment of the new federal polity and thereby making a connection between God and the state. But there were other forces at work which sort to distance churches from the state, either to protect the followers of particular churches from the state or to protect individuals from the churches through the coercive powers of the state. In the draft presented to the 1891 Convention, two clauses were proposed - one to prevent the new federal Parliament from establishing any religion or giving any religion any preferential recognition or support, or from prohibiting the free exercise of religion, and another clause preventing any State of the federation from prohibiting the free exercise of religion. By a quirk of history, the first clause was not recommended at that Convention but the second was. However at the 1898 Convention, the State clause was struck out and replaced by the present section 116 provision, which in its terms is not that dissimilar to the clause originally proposed but not recommended. Behind these changes lay a debate between mainstream Christians on the one hand who wanted to put their God into the Constitution, and non-conformists who did not want Sunday observance laws thrust upon them and secularists who also wanted to see church and state kept apart, on the other. The result was that for the first time, Australia acquired a constitutional guarantee as to religious freedom (see "Unto God and Caesar" by Richard Ely, 1976 MUP).

Section 116 states:

"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".

This provision, impressive as it may seem, is somewhat anomalous. It may be compared with the equivalent provision in the USA Constitution, which apart from one limited provision as to no religious tests for federal public offices (Art VI sec 3), is contained in the Bill of Rights (Amendment 1). The Australian Constitution, on the other hand, has no such Bill of Rights. Section 116, although directed at the Commonwealth alone and not the States, is contained within Chapter V of the Constitution, entitled "The States". The reason for this is usually associated with the proposer of the clause, Andrew Inglis Clark, a Tasmanian Unitarian (and therefore not within the Christian mainstream), and a delegate at the 1891 Convention. As stated, the recommended clause was directed at the States. It was under the influence of Henry Bourne Higgins at the 1898 Convention that the clause became directed at the Commonwealth, without a change in its constitutional location. It seems that Higgins' intention was to keep the Commonwealth out of the field of religion and leave it to the States. The section may have wider ramifications than that and remains as an isolated guarantee of individual rights in a Chapter devoted to States rights.

Section 116 has a number of limitations, particularly when contrasted with the international standard (discussed below). As stated, it is directed at the Commonwealth only and does not serve as a general guarantee of religious freedom. A recent attempt to extend it to States and territories by way of a national referendum failed to secure the required majorities (Constitution Alteration (Rights and Freedoms) 1988, clause 4). Further, it is not unfair to say that so far, the High Court of Australia has given the section a fairly narrow interpretation. Legislation for compulsory military service has been upheld notwithstanding conscientious objections (Krygger v Williams (1912) 15 CLR 366). Legislation to declare the Jehovah's Witnesses prejudicial to the War effort and to take control of their property was also upheld (Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116). At a Federal Court level, the deportation of a Muslim Imam brought to Australia specifically for the purpose of officiating at the Lakemba Mosque was held not to be in breach of section 116 (Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578). The High Court has also taken a very narrow view of what constitutes "a law for establishing any religion" in section 116. In what is known as the DOGS case, state aid to non-government religious schools in Australia was upheld (Attorney General (Vict); Ex rel Black) v Commonwealth (1981) 146 CLR 559). Similarly, a law authorising Ministers of Religion to officiate at marriages was held not to infringe section 116 (Nelson v Fish (1990) 92 ALR 187).

It might be concluded that the prospects of successfully invoking section 116 are not good except in an extreme case. Litigation was considered a few years ago to challenge the validity of Northern Territory legislation for the protection of Aboriginal sacred sites, but the litigation did not eventuate. There remains some legal doubt as to whether that section is even capable of applying in Commonwealth territories, although the better view is that it is. There was also litigation in the New South Wales Court of Appeal not so long ago over the ordination of women, that litigation raising section 116, but I am not aware of any decision in that case. Whether the High Court may move to a more liberal interpretation of section 116 in the future, in the light of its recent decisions indicating a more liberal approach in respect of certain other "rights" type sections of the Constitution, remains to be seen.

The anomaly is that the High Court has at the same time adopted a fairly wide definition of the term "religion". It is certainly not limited to Christianity, nor to those religions normally identified as mono-theistic. Such a wide view is evident in the judgment of Chief Justice Latham in the Jehovah's Witnesses case. It is also evident in the High Court decision in Church of the New Faith v Commissioner of Payroll Tax (Vic) (1983) 154 CLR 120 (the Scientology Case)(see "An Australian Definition of Religion - Case Note and Commentary" by Bruce Kaye (1991) 14(2) UNSW Law Journal 332, also "On Legal Definitions of "Religion"" by Wojciech Sadurski (1989) 63 ALJ 834). Interestingly, in the Scientology case a specific reference was made to the Bahá'í Faith in the judgment of Justice Murphy p.160 where he said:

"Scientology may be unusual in not claiming to be the one true faith. However, there have been many religions or quasi-religious groups which proclaim that their adherents may also adhere to other religions such as the Quakers, the Latitudinarians, the Theosophists, the Bahá'ís and the Zen Buddhists. Classical Hinduism in theory adopts the proposition "Truth is one; sages call it by different names" and embraces religious groups of widely different belief and structure."

I leave you to consider the accuracy of His Honour's statement. He was strongly supportive of a wide freedom of religion and a freedom to have no religion. He also advocated a strict separation of religion and the state. He said in the same case:

"Religious freedom is a fundamental theme of our society." and "Religious discrimination by officials or by courts is unacceptable in a free society."

He would have supported the statement by Chief Justice Latham:

"Section 116 proclaims not only the principle of toleration of all religions but also the principle of toleration of absence of religion."

There have been no firm proposals to extend freedom of religion guarantees in the national Constitution since the failure of the 1988 referendum, although various groups have advocated an entrenched Bill of Rights for Australia. The only other Australian constitution that contains a relevant provision is Tasmania (Constitution Act 1934, section 46), but that provision is not constitutionally entrenched. Suggestions have been made that there should be such a guarantee in a new Northern Territory constitution, including in a submission by the National Spiritual Assembly of the Bahá'ís of Australia to the relevant Parliamentary Committee, advocating a provision along the lines of Article 18 of the International Covenant on Civil and Political Rights (see "A Northern Territory Bill of Rights?", Discussion Paper No. 8, Sessional Committee on Constitutional Development, March 1995, Appendix 1).

The Report of the Queensland Electoral and Administrative Review Commission on Individuals' Rights and Freedoms recommended a Queensland Bill of Rights, including a provision for a right to freedom of religion and a right to freely express religious beliefs, whether individually or in community with others, and also a right to freedom of thought, conscience and belief (Serial No. 93/R5, August 1993). Nothing has so far eventuated as a result by way of changing Queensland law. The self-governing Australian Capital Territory, through its Attorney General's Department, released an Issues Paper entitled "A Bill of Rights for the ACT?" in December 1993 and subsequently an "Exposure Draft" of a Bill for an ACT Bill of Rights in 1994, which included a right of freedom of thought, conscience, religion and belief (clause 8). It has not yet been implemented.

This is not to say that there are no legal protections of religion in Australia. At the national level, the Human Rights and Equal Opportunity Commission Act 1986 contains in Schedule 2 the International Covenant on Civil and Political Rights ("ICCPR"), to which Australia is a party. Article 18 of that Covenant contains a fairly comprehensive guarantee of religious freedom. That Article follows to some extent the provisions of Article 18 of the Universal Declaration of Human Rights, except that the latter includes the right to change a person's religion. The text of both Articles are set out at the end of this Paper. The Human Rights and Equal Opportunity Commission has wide powers under the Act to investigate and conciliate complaints of a breach of ICCPR, although as a result of a recent High Court decision in Brandy's case (1995) 127 ALR 1, its coercive powers are much reduced. As a result of Australia's recent accession to the Protocol to ICCPR, complainants also now have a remedy of last resort to the Human Rights Committee in Geneva. However the Human Rights and Equal Opportunity Commission Act remains an ordinary Act of the Commonwealth Parliament, with no special constitutional status.

There is capacity under the last-mentioned Act for the relevant Commonwealth Minister to declare other international instruments as being operative under that Act. In 1981, the General Assembly of the United Nations took the momentous step of declaring a universal standard of freedom of religion and belief for all peoples in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Since that time in particular, the United Nations has been active in documenting cases of religious intolerance and abuse of basic human rights with respect to freedom of religion around the world. This has included reports on the treatment of Bahá'ís in Iran. A special Rapporteur was appointed to report on the implementation of the Declaration. This mandate was extended for another 3 years in 1992. Steps have also been taken in an effort to convert the Declaration into a binding international agreement, like the ICCPR, but so far this has not been successful. I was privileged to attend the Third UN International Conference on the Declaration in New Delhi in January, 1991 on behalf of the Bahá'í Community. Counsellor Sorabjee and other Bahá'ís, as well as followers of other religions, also attended. Unfortunately the Conference was disrupted by the Gulf War, but in my view it was still a worthwhile event.

Let me share with you a small aside about the Conference. It was held in Hotel Sofitel Surya in the Friends Colony. When the curtains to the conference room in the Hotel were drawn, there in full view in the middle of the large window was the Bahá'í Lotus Temple of Bahapur. You can imagine how I felt.

In 1993, the Australian Attorney General declared the 1981 Declaration to be operative under the Human Rights and Equal Opportunity Commission Act. However this did not occur without some controversy. The view of some groups, mainly Christian, was that the Declaration was undesirable and should not be implemented in domestic law simply by Ministerial declaration. This view was not accepted by Government. To some extent, the objections reflect wider concerns about the constitutional manner in which Australia can enter into international obligations simply by an act of the national Executive Government. But they also reflect a view in Australia on the part of some religionists who are suspicious of wide guarantees of religious freedom. No doubt recent incidents involving extreme actions taken by some religious sects have fueled this concern, although statements of rights and freedoms are not absolute, and where the courts are genuinely impartial and independent, such statements will never be interpreted by them in a way that protects such offensive conduct.

All States and territories of Australia have statutory provisions of relevance to freedom of religion. In my own jurisdiction, the Northern Territory, we have the Anti-Discrimination Act of 1993. This Act prohibits discrimination in a variety of areas on the grounds of religious belief or activity unless exempted under the Act (section 19). This prohibition does not include access to religious places (section 43). Religious bodies may discriminate in relation to priests, ministers and religious orders or otherwise in accordance with the doctrine of the religion where necessary to avoid offence (section 51). The Commissioner appointed under that Act has wide powers to receive complaints, investigate, conciliate and to make orders. He or she is not restricted by the decision in Brandy's case. Again, such legislation is not constitutionally entrenched.

Most States no longer have legislation favouring any one religion, although they do have facilitative legislation for particular religious bodies. Thus in the Northern Territory, there is no offence of blasphemy (see also Report No 74 of the New South Wales Law Reform Commission on Blasphemy, November 1994, recommending that the offence be abolished in that State, and note the submission of the National Spiritual Assembly of the Bahá'ís of Australia to that Commission, referred to in Appendix B).

The Northern Territory also has the distinction of being the only Australian jurisdiction with legislation specifically protecting Aboriginal sacred sites (Northern Territory Aboriginal Sacred Sites Act of 1989, enacted pursuant to sections 69 and 73 of the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth, see also the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 of the Commonwealth). The Northern Territory is presently considering whether such protection of sacred sites should be included in a new NT constitution (see Exposure Draft Plans 1-7: A new Constitution for the Northern Territory and Tabling Statement, Sessional Committee on Constitutional Development, June 1995, Part 7). Apart from such legislation, the recent decision of the High Court in Mabo (No. 2) (1992) 175 CLR 1, recognising subsisting indigenous customary title to land in this country, has ramifications for the protection of Aboriginal sacred sites. However all of these provisions fall far short of a general guarantee protecting those Australians who still practice their traditional Aboriginal religion, and there are many who still do practice that religion.

As to the future, the big question is whether Australia will constitutionalise human rights, including as to freedom of religion. At the moment, Australia has a patchwork of legal provisions of relevance, but very limited constitutional guarantees. The value of constitutional entrenchment is that it creates a minimum standard of human rights, which cannot be derogated from by any body, Parliament or otherwise, without a further constitutional change. At the national level, this must be by a national referendum with a double majority (Constitution, section 128). Australia is definitely out of step with most countries of the world in this respect. New Zealand now has a statutory Bill of Rights which includes a right to freedom of thought, conscience, religion and belief(Bill of Rights Act 1990). South Africa has an entrenched statement of rights, as does Canada. The United Kingdom is subject to the European Convention on Human Rights. The question is whether Australia will follow suit, or will continue to rely on its comparatively reasonable record in human rights in the past (with some exceptions), on the common sense of its leaders operating within its democratic traditions and the generally easy going egalitarian nature of its citizens.

Looking at the matter in a global perspective, it is now hard to envisage an international community without a comprehensive legal statement of minimum universal standards of human rights. The present challenge to the international community has largely moved beyond the definition of those standards and is now to achieve effective and fair implementation of those standards in practice in all countries. As the world order develops and matures, the failure by any one country to domestically adopt and apply such minimum standards is increasingly likely to be remedied by international action. The defence of national sovereignty is becoming less and less credible in an interdependent world. The overall trend is clear. Australia is of course not isolated from these developments and will inevitably be influenced by them. In my view, freedom of religion is a fundamental right of all peoples on this planet, and must be protected on a global basis if we are to have a just and peaceful world.