The common law

5.8        Arguably, ‘the struggle for most of the principal civil liberties we have today originated in the struggle for various aspects of religious liberty’.[1] However, the common law itself has provided little protection for freedom of religion.[2]

5.9        Australian courts have stated that religious belief is a ‘fundamental right because our society tolerates pluralism and diversity and because of the value of religion to a person whose faith is a central tenet of their identity’;[3] and that freedom of religion is the ‘paradigm freedom of conscience’ and ‘of the essence of a free society’.[4] In Evans v New South Wales, religious belief and expression was described as an ‘important freedom generally accepted in society’.[5]

5.10     Freedom of religion has been characterised as a ‘composite’ freedom—as it derives from freedom of thought and conscience, and its exercise directly involves other freedoms such as freedom of speech and association.[6] Therefore, the common law may provide indirect protection to the limited extent that it protects against encroachments of other freedoms, without which freedom of religion is not possible.


5.11     The High Court has propounded various definitions of ‘religion’. In the Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (the Jehovah’s Witnesses case) Latham CJ explained that ‘it would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world’.[7]

5.12     In The Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (the Scientology case)—which concerned whether the Church of the New Faith qualified as a religion for the purposes of charitable tax exemptions—judges of the High Court expressed a range of views about how religion may be defined. Mason ACJ and Brennan J proposed the following criteria for the existence of a religion:

[T]he criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion. Those criteria may vary in comparative importance, and there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion.[8]

5.13     Wilson and Deane JJ set out five indicia:

One of the most important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has ‘a religion’. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium … is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.[9]

5.14     These definitions are wide enough to apply to most religions, but may raise questions about their application to, for example, Buddhism or indigenous religion or spirituality.[10]

Characterising freedom of religion

5.15     Religious freedom involves positive and negative religious liberty. Positive religious liberty involves the ‘freedom to actively manifest one’s religion or beliefs in various spheres (public or private) and in myriad ways (worship, teaching and so on)’.[11]

5.16     Negative religious freedom, on the other hand, is freedom from coercion or discrimination on the grounds of religious or non-religious belief.[12] In the Scientology case, Mason ACJ and Brennan J commented that the ‘chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint’.[13]

5.17     The positive exercise of religion—according to certain ‘canons’, ‘standards’ or ‘codes’ of conduct—is a source of potential conflict between freedom in the exercise of religious beliefs and the exercise by others of other rights and freedoms.


5.18     Any legal protection of religious freedom is a relatively modern phenomenon. British history is punctuated by acts of Parliament that discriminated against some groups on the basis of religion.[14] For instance, the Act of Toleration of 1689—a reform Act of its day—allowed freedom of worship to Protestants who dissented from the Church of England (known as Nonconformists) but not to Catholics, atheists or believers of other faiths such as Judaism.[15]

5.19     Another example is the Royal Marriages Act of 1772 which provided the conditions of a valid royal marriage including that to succeed to the throne, an heir must marry from within the Church of England.[16]

5.20     The 17th century philosopher, John Locke, wrote about the importance of tolerating other religious beliefs:

The Toleration of those that differ from others in Matters of Religion, is so agreeable to the Gospel of Jesus Christ, and to the genuine Reason of Mankind, that it seems monstrous for Men to be so blind, as not to perceive the Necessity and Advantage of it, in so clear a light.[17]

5.21     The concept of religious freedom recognises the existence of multiple identity groups in a pluralist democratic society. Respect for another person’s religious beliefs has been described as ‘one of the hallmarks of a civilised society’.[18]

5.22     Thomas Jefferson, in his Notes on the State of Virginia, advocated for religious freedom on the basis of natural rights:

Our rulers have no authority over such natural rights, only as we have submitted to them. The rights of conscience we never submitted, we could not submit, we are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.[19]

5.23     Indirect recognition of freedom of religion in the common law developed towards the end of the 19th century in England in the context of wills, for instance where a testator attempted to influence the religious tendencies of their beneficiaries by attaching conditions to a legacy, such as that the person convert to a particular religion.[20] Generally speaking, the law will make void any condition which is in restraint of religion.[21]

5.24     The equitable doctrine of undue influence also developed to extend to religious influence. In the English case of Allcard v Skinner, the Court of Appeal of England and Wales avoided a gift on the basis of undue religious influence. In that case, Lindley LJ stated that:

[T]he influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it the Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the Courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render it impossible.[22]