The Protection of Religious Rights under Australian Law
Meyerson, Denise, Brigham Young University Law Review
In 1998, Australia's Human Rights and Equal Opportunity Commission ("HREOC") issued a report in which it stated that the level of protection afforded to the right to freedom of religion and belief in Australia was relatively weak compared to a number of comparable countries.1 Although there have been a few changes in the intervening ten years, this Article demonstrates diat HREOCs statement remains accurate. In this Article, I analyze and evaluate the Australian legal framework governing the right to religious freedom, the right not to be discriminated against on the ground of religion, and the right not to be subjected to religious vilification. I call these "religious rights." Part II deals with federal legislation protective of these rights, Part III with constitutional protections, Part IV with the right to religious freedom at common law, and Part V with State and Territory legislation.
II. FEDERAL LEGISLATIVE PROTECTION
Since the case of R. v. Burgess; Ex parte Henry,2 it has been accepted that section 51 (xxix) of the Australian Constitution3 - the so-called "external affairs" power - authorizes the Australian Parliament to pass legislation giving effect to international obligations incurred by Australia under international treaties and conventions.4 Most relevant for the purposes of this Article is Australia's ratification of the International Covenant on Civil and Political Rights ("ICCPR"),5 as a result of which Parliament can validly legislate, supported by the external affairs power, to protect the right to freedom of religion and belief;6 to prohibit discrimination on the ground of religion and belief;7 to prohibit the advocacy of religious hatred that constitutes incitement to discrimination, hostility, or violence;8 and to protect the right of minorities, in community with the other members of their group, to profess and practice their own religion.9
Australia also supported the adoption of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief ("Religion Declaration").10 Although, as a General Assembly Resolution, the Religion Declaration does not impose treaty-like obligations,11 it was declared to be a relevant international instrument for which the Australian Human Rights and Equal Opportunity Commission has responsibility.12 The effect of this will be explained below.
Australia has also ratified the International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958 ("ILO 111").13 This Convention prohibits discrimination on the ground of religion in employment and occupation except where religion is an inherent requirement of a particular job.14
Federal domestic legislation has given only limited effect, however, to the obligations imposed on Australia as a party to these instruments. The main sources of protection for religious rights are contained in the Racial Discrimination Act 1975 (Cth) ("RDA");15 the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act");16 and the Workplace Relations Act 1996 (Cth) ("WRA").17
The RDA makes it unlawful to discriminate on the ground of race, color, descent, or national or ethnic origin in various aspects of public life, including access to places and facilities, housing and accommodation, the provision of goods and services, and employment.18 The phrase "ethnic origin" is generally understood to open the door to protecting at least some religious groups against discrimination. Courts have consistently held, for instance, that Jews are a group of people with an "ethnic origin" for the purposes of the RDA. 19 Sikhs would also likely be regarded as an ethnic group, but it is less certain whether Muslims would be covered.20
The RDA was subsequently amended by the Racial Hatred Act 1995 (Cth), which inserted a new part into the RDA (codified as Part IIA) dealing with vilification.21 Section 18C(I), which is contained in Part IIA, reads:
It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. …