Justifications for limits on freedom of religion

Legitimate objectives

5.50     The threshold question in a proportionality test is whether the objective of the law is legitimate. Freedom of religion is ‘subject to powers and restrictions of government essential to the preservation of the community’.[58] For example, in the Jehovah’s Witnesses case, Williams J stated that the scope of s 116 of the Australian Constitution may be limited in the interests of national security.[59]

5.51     Outside constitutional contexts, some guidance on what should be considered legitimate objectives of a law that interferes with freedom of religion may be derived from international human rights law. International law distinguishes the freedom to manifest religion or belief from freedom of thought and conscience itself. Article 18 of the ICCPR does not permit any limitations on the ‘freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice’.[60]

5.52     However, under art 18.3, restrictions on the freedom to manifest religion or belief are permitted if limitations are ‘prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others’.[61]

5.53     The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts.[62] The Australian Human Rights Commission has observed that ‘practice’ appears to be the broadest category, but that art 18 does not provide any further guidance about the level of connection required between an act and a belief for it to constitute a manifestation through ‘practice’. [63]

5.54     Clearly, the right to manifest religion or belief ‘does not always guarantee the right to behave in public in a manner governed by that belief’. That is, once a belief is ‘manifested (that is, implemented) in action, it leaves the sphere of absolute protection, because the manifestation of a religious belief may have an impact on others’.[64]

5.55     The UN Human Rights Committee has stated that art 18.3 should be strictly interpreted, and that limitations based on other grounds, such as national security, are not permitted.[65]

5.56     The Siracusa Principles provide some guidance on permissible limitations on human rights.[66] While the scope of the ‘rights and freedoms of others’ that may act as a limitation extend beyond those recognised in the ICCPR, the principles state that when a conflict exists between a right protected in the ICCPR and one which is not, recognition and consideration should be given to the fact that the ICCPR ‘seeks to protect the most fundamental rights and freedoms’.[67]

5.57     There is a wide range of justifications advanced for laws that interfere with freedom of religion, including, but not limited to, protecting people from discrimination in public life, preventing a greater harm, and limitations where laws directly interfere with other legal rights and freedoms. By way of example, there are cases where courts have allowed blood transfusions for a minor where their parents or guardians have refused on religious grounds.[68] In contrast, courts have not insisted on life-saving treatment where an adult has made the same decision to refuse life-saving treatment.

Balancing rights and interests

5.58     In practice, legislatures and the courts often have to strike a balance between ‘equality’ rights like anti-discrimination, and freedom to manifest religious belief. Campbell and Whitmore stated:

As a practical matter, it is impossible for the legal order to guarantee religious liberty absolutely and without qualification … Governments have a perfectly legitimate claim to restrict the exercise of religion, both to ensure that the exercise of one religion will not interfere unduly with the exercise of other religions, and to ensure that practice of religion does not inhibit unduly the exercise of other civil liberties.[69]

5.59     An example of the need for such balancing was given in an amicus brief to the US Supreme Court case of Obergefell v Hodges,[70] in which a majority of the Court upheld the constitutional validity of state-based same-sex marriage legislation:

The Court must protect the right of same-sex couples to marry, and it must protect the right of churches, synagogues, and other religious organizations not to recognize those marriages. This brief is an appeal to protect the liberty of both sides in the dispute over same-sex marriage … No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own … The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides.[71]

5.60     A number of stakeholders submitted that freedom of religion, as a fundamental right, should be given priority in balancing with other rights or interests. For instance, Freedom 4 Faith argued that no limitations can be justified on the right to freedom of religion, warning that ‘religious freedom and associated rights are at risk of being undermined in Australian society due to a disproportionate focus on other, sometimes competing rights’.[72] The Australian Christian Lobby (ACL) wrote:

Courts and legislatures need to acknowledge the supremacy of the fundamental rights of freedom of religion, conscience, speech and association … [it is] a freedom which must be placed among the top levels of human rights hierarchy.[73]

5.61     In particular, the ACL stated that ‘it is not immediately clear that the right to non-discrimination is a permissible burden on freedom of religion’. Rights and interests should be ‘carefully balanced without swiftly subjecting fundamental freedoms to non-discrimination’.[74]

5.62     The ACL submitted that rights to non-discrimination reach their limits where ‘differentiations of treatment occur in the reasonable and objective pursuit of other fundamental rights, including freedom of thought, conscience and religion or belief’. This fact, the ACL said, is not currently reflected in Australian law. Rather, ‘anti-discrimination law has become the dominant lens through which rights are viewed’.[75]

5.63     The Church and Nation Committee, Presbyterian Church of Victoria submitted that balancing freedom of religion with principles such as non-discrimination is ‘misguided’, because while religious freedom ‘is a fundamental underpinning of our society, freedom from discrimination is not’.[76]

5.64     Other stakeholders also argued that freedom from discrimination should not be considered an equivalent right to religious freedom. For instance, the Church and Nation Committee argued that the ‘desire for equality’ is incompatible with religious freedom.[77] The Wilberforce Foundation submitted that the ‘focus of human rights discourse on anti-discrimination’ has caused

both a misunderstanding of the effect of the ICCPR and a skewing and imbalance of legislation in favour of anti-discrimination, to the devaluation of the other fundamental rights and (as in the case of the right of freedom of religion) higher order rights than the right to non-discrimination.

5.65     Other stakeholders argued that considerations of religious freedom should always involve a balance with other, competing rights and interests and, in particular, the right to be free from unlawful discrimination.[78] In particular, some stakeholders highlighted the way in which legislative provisions that protect religious freedom may undermine the rights or freedoms of lesbian, gay, bisexual, transgender and intersex Australians—primarily the right to be free from discrimination.[79]

[58]           Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 149 (Rich J).

[59]           Ibid 161.

[60]           United Nations Human Rights Committee, General Comment 22 on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 (30 July 1993) [3].

[61]           International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 18.3.

[62]           The practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications: United Nations Human Rights Committee, General Comment 22 on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 (30 July 1993) [4].

[63]           Australian Human Rights Commission, Freedom to Believe and the Freedom to Manifest That Belief <www.humanrights.gov.au>.

[64]           Ibid. Referring to decisions of the European Court of Human Rights.

[65]           United Nations Human Rights Committee, General Comment 22 on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 (30 July 1993) [8].

[66]           United Nations Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, UN Doc E/CN.4/1985/4, Annex (28 September 1984). See Ch 2.

[67]           Ibid [35]–[36]. The only ICCPR rights recognised as absolute rights, which cannot be limited, are freedom from torture (art 7); freedom from slavery (art 8); freedom from imprisonment for inability to fulfil a contractual obligation (art 11); the prohibition against the retrospective operation of criminal laws (art 15); and the right to recognition as a person before the law (art 16).

[68]           See, eg, X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294. In this case, the New South Wales Supreme Court held that a 17 year old, and his parents, could not refuse life-saving therapeutic treatment on the basis of religious belief, despite the minor having ‘Gillick’ competency.

[69]           Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) 204.

[70]           Obergefell v Hodges 576 US (June 26, 2015).

[71]           Douglas Laycock, ‘Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger and Edward Gaffney as Amicus Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v Hodges Etc)’ (Public Law and Legal Research Paper Series 1–2, 2015) 1–2.

[72]           Freedom 4 Faith, Submission 23. Also Australia/Israel & Jewish Affairs Council, Submission 100.

[73]           Australian Christian Lobby, Submission 33. The ACL submitted that, instead, an ‘overly expansive understanding of unjust discrimination has had the related effect of locating fundamental rights below the right to non-discrimination’: Australian Christian Lobby, Submission 135.

[74]           Australian Christian Lobby, Submission 135.

[75]           Ibid.

[76]           Church and Nation Committee, Presbyterian Church of Victoria, Submission 26.

[77]           Ibid.

[78]           Law Society of NSW Young Lawyers, Submission 69; Maronite Catholic Society Youth Submission 51; NSW Gay and Lesbian Rights Lobby, Submission 47; Kingsford Legal Centre, Submission 21. For example, in arguing that existing exemptions for religious organisations undermine the Australian Government’s commitment to international law protecting vulnerable groups, such as women, from discrimination: Public Interest Advocacy Centre, Submission 55; Kingsford Legal Centre, Submission 21.

[79]           National Association of Community Legal Centres, Submission 66; NSW Gay and Lesbian Rights Lobby, Submission 47.