A common law right

3.1          Freedom of religion protects not only the freedom to observe or practise religious beliefs, but also the freedom not to observe or practise any religion or belief.[1] This chapter discusses the source and rationale for protecting freedom of religion; how this freedom is protected from statutory encroachment; and when laws that encroach on this freedom may be justified.

3.2          The ALRC calls for submissions on two questions about this freedom.

Question 3–1              What general principles or criteria should be applied to help determine whether a law that interferes with freedom of religion is justified?

Question 3–2              Which Commonwealth laws unjustifiably interfere with freedom of religion, and why are these laws unjustified?

3.3          Freedom of religion is recognised in the common law. In The Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983), in the context of defining the meaning of ‘religion’ for  taxation purposes,  Mason ACJ and Brennan J commented:

Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society … [A] definition of religion … mark[s] 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.[2]

3.4          Broadly speaking, 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)’.[3] Negative religious freedom, on the other hand, is freedom from coercion or discrimination on the grounds of religious or non-religious belief.[4]

3.5          The freedom to observe and practise religious faith protects the inherent dignity of individuals, acknowledging the autonomy of individuals to make decisions about the way they live their lives.[5]

3.6          The protection of religious freedom recognises the existence of multiple identity groups in a pluralist democratic society.[6] Respect for another person’s religious beliefs has been described as ‘one of the hallmarks of a civilised society’.[7]

3.7          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.[8]

3.8          Thomas Jefferson, writing in his Notes on the State of Virginia (1781—2), advocated for religious freedom on the basis of natural law:

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.[9]

3.9          Common law protection for freedom of religion developed significantly towards the end of the nineteenth century in England, predominantly in deceased estate cases where testators had attempted to influence the religious tendencies of their beneficiaries by attaching conditions to a legacy.[10]