On Tuesday, 29 November 2016 the Minister for Foreign Affairs, the Hon Julie Bishop MP, asked the House of Representatives Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire into and report on The status of the human right to freedom of religion or belief. That Committee has a Human Rights Sub-Committee which conducted the inquiry.
An interim report of the committee was issued in November, 2017. On Wednesday, 3 April 2019, the Sub-Committee tabled its second interim report for the Inquiry into the status of the human right to freedom of religion or belief. In this article, we select excerpts of the domestic experience of freedom of religion or belief as expressed by various religious communities in the report.
The Sub-Committee heard from a wide range of religious and community groups throughout Australia. This included representatives of major religions, major and minority denominations within major religions, minority religions, and some non-religious belief systems such as humanism. The Sub-Committee also heard from a range of community groups, including Vietnamese and Tibetan groups, the Federation of Ethnic Communities’ Councils of Australia and its Victorian chapter, and some government bodies.
Despite receiving over 400 individual submissions, over 200 submissions by way of a range of form letters, and casting a broad net in public hearings, there remain a number of religions, denominations, or belief systems from which the Sub-Committee has not received evidence, such as Eastern Orthodox churches, Jehovah’s Witnesses, Sikhism, or Scientology.
Additionally, evidence heard from organisations and individuals who did submit or appear at hearings cannot be taken to represent a whole religious community or denomination. For the vast majority of religions and faith based groups, there is no single position on issues relating to religious freedom adopted by all adherents of that particular faith.
Note: The section on Christianity is long, has many citations and many Christian leaders and organisations appeared before the Sub Committee. Readers seeking the domestic experience of Christians are referred to section 3 of the Second Interim Report.
Aboriginal religious practices
Aboriginal and Torres Strait Islanders are diverse in their religious adherence. In the 2016 census, about 650,000 people, or just under three per cent of the population, identified as Aboriginal, Torres Strait Islander, or both. About 8,000 people identified as adhering to “Australian Aboriginal Traditional Religions”.
The inquiry received a submission from Mr Ernst Willheim, a Visiting Fellow in the ANU College of Law. His submission addresses the freedom of religion or belief in relation to indigenous people, and argues that “Australian law and practice does not adequately protect the human right of Australia’s indigenous people to practice their religion”. Mr Willheim’s submission was the only submission received which examined Aboriginal beliefs and their protections.
Mr Willheim argues there is a “collision between core values of Aboriginal religious belief and core values of the Australian legal system”. While Australian law values openness and transparency and gives a “special weight” to protection of private property interests, Aboriginal religious values conflict with this, particularly in relation to the “secret nature of much Aboriginal religious belief”. As a result, he argues:
laws enacted for the purpose of protecting Aboriginal religious beliefs and practices have failed to achieve their purpose.
The Baha’i faith has existed in Australia since 1920 and has an estimated 14,000 followers, according to the 2016 census. The Australian Baha’i Community (ABC) made a submission to the inquiry and was represented by Dr Natalie Mobini-Kesheh at the public hearing in Canberra.
The Australian Baha’i Community notes that the Baha’i Community was a pioneer of the inter-faith movement in Australia, and states that Australia should “continue to embrace a plurality of religious identities and beliefs, gathered together under the canopy of just laws and operating within a human rights framework”. The Australian Baha’i Community believes that freedom of religion should be “fully protected under Australian law”, citing Article 18 of the UDHR as the “appropriate standard of protection”.
The Australian Baha’i Community commented on the importance that educational programmes, inter-faith initiatives, and religious leaders have in building a harmonious Australian society. 3.16 Regarding the religious persecution of Baha’is, the Australian Baha’i Community is primarily concerned about Baha’is in Iran and Yemen, where Baha’is face severe persecution by the state.
Buddhism is practised by over 560,000 Australians, or 2.4 per cent of the population, according to the 2016 census. This inquiry received evidence from Venerable Tenpa Bejanke Duim of the Australian Sangha Association at the public hearing in Canberra. Ven. Duim spoke of facing discrimination while trying to find employment, with many jobs advertising for a Christian or someone with Christian values. She believes the discrimination is because of her appearance as a Buddhist monastic.
She also gave evidence of a Queensland woman facing harassment due to her Buddhist appearance wearing religious robes. Ven. Duim also observed a general lack of understanding about Buddhists in Australian society, with their reputation as pacifists giving an incomplete view of Buddhists as humans.
This inquiry has received no other evidence directly addressing the experience of Buddhists living in Australia, but many Australian Buddhists have come from parts of the world in which Buddhists face religious persecution. Evidence from the Australian Tibet Council and the Tibet Information Office primarily addresses the persecution of Tibetan Buddhists in Tibet, alleging that the Chinese government has been steadily increasing its control over the affairs of Tibet, and commenting in particular the demolition of large parts of Larung Gar, a large Buddhist institute.
The Tibetan organisations are focused on the plight of Buddhists in Tibet, and are not aware of Tibet supporters in Australia facing any discrimination. The Vietnamese Community in Australia (VCA) also made a submission and appeared at the public hearing in Melbourne. They are concerned about several human rights issues, including the plight of religious minorities. These groups made suggestions on how Australia can use its diplomatic influence with China and Vietnam to improve these human rights situations, particularly through human rights dialogues with these countries.
Falun Dafa, also known as Falun Gong, is a Chinese spiritual discipline introduced in 1992. The Falun Dafa Association of Australia (FDA) has given evidence of persecution of Falun Dafa practitioners by the Chinese government. Although primarily concerned with the situation in China, the FDA cited examples of persecution faced by Falun Dafa practitioners in Australia. Dr Lucy Zhao told the Sub-Committee of a letter sent by the Chinese consulate to state and federal parliamentarians “advising them not to join any Falun Gong events”. She also claimed that Falun Dafa followers have “been banned from joining local festivals and … denied access to parks and venues” by local councils.
In Victoria, the Falun Dafa Association of Victoria won a case against the Melbourne City Council in the Victorian Civil and Administrative Tribunal allowing them to join a parade.76They stated the Victorian Charter provided protection of their rights in this case. The FDA has stated that a federal human rights act “would be important to look at”.
Hinduism is practised by over 440,000 Australians, or about 1.9 per cent of the population, according to the 2016 census. This inquiry did not receive submissions from any Hindu organisations or individuals, but did receive evidence from Associate Professor Hemanshu Pota of the Hindu Council of Australia. Prof Pota commented that he supports “full freedom” of speech to criticise Hinduism, stating that “if you can’t criticise me fully then we can never integrate, because I don’t know what you are thinking”.
He also observed that Hindus can take issue with proselytization, noting that “many Hindus go to church” and enjoy participating in different religions but do not like to be converted into a religion. In contrast to some countries such as Pakistan and Bangladesh, Prof Pota said Hindus have “no issues” in Australia:
In Australia, we have never had issues. I was involved with building a temple in Canberra. Twice they came and smashed all our glasses, and twice we replaced them, but I don’t think that’s a societal problem; that’s just a few people who thought they’d paint a devil on our temple and all that. But I really do not consider that a big issue, because, if somebody came to my country and started doing things I don’t understand, I might be much more hostile than Australian society is to us. Once people understand what we are doing, they have no hostility. So, as Hindus, I think it would be wrong for us to complain.
Islam is the world’s second largest religion by number of adherents, with an estimated 1.8 billion followers worldwide. There are over 600,000 Muslims in Australia, according to the 2016 census. This is about 2.8 per cent of the population. This inquiry received submission from two Muslim organisations, the Islamic Council of Victoria (ICV) and the Ahmadiyya Muslim Community (AMC), both of which were represented at public hearings.
The ICV submission said that Muslims are “more problematically positioned in public policy and media representation than other ethno-religious communities”. The Islamic Council of Victoria submission described a rising Islamophobia which defines a Muslim as “less of a person, and more of an idea”.
The Islamic Council of Victoria stated that religion can be used “as a surrogate for race or ethnicity”, and highlighted the high visibility of many Muslims. This visibility can be a result of Islamic dress such as the hijab, but may also include “the description “Middle-Eastern appearance” in news reports and police profiling”, or practices such as “praying, fasting and attendance of religious worship at work”.
This observation was also made in a number of other submissions. For example, the Victorian Multicultural Commission (VMC) reported that Muslim communities “regularly report instances of ‘Islamophobia’ to the VMC, especially involving women and young girls facing abuse in public places and on public transport due to religious visibility”. This visibility “also has negative impacts when endeavouring to gain and maintain employment”.
The Islamic Council of Victoria notes that the federal Racial Discrimination Act 1975 (RDA) does not protect against ethno-religious discrimination. The ICV believes that the New South Wales Anti-Discrimination Act protects Jewish and Sikh communities from ethno-religious discrimination in New South Wales, but Muslims are not similarly protected as an “ethno-religious” group. The ICV has supported including religious freedom in any amendments to the Racial Discrimination Act.
The Islamic Council of Victoria also specifically recommends maintaining section 18C in its current form. 91 This recommendation was discussed in greater detail at the Melbourne public hearing, with Mr Salman clarifying that religious people “absolutely should be allowed to state our faith position” even though members of other faith groups might find such positions “highly contentious and problematic”. Mr Salman argued that freedom of speech is adequately protected by the section 18D “carve outs” which allow for “the serious pursuit of knowledge, the serious pursuit of public debate or artistic expression”. Mr Salman called section 18D, which achieves less attention than the more controversial 18C, a “really good clause in the legislation”.
In combination, the two sections ensure the right balance is found between protecting freedom of speech and providing the “legislative recourse to hold to hold others to account who are vilifying a group, community or religion”.
Ahmadi Muslims follow the teaching of Mirza Ghulam Ahmad, who lived in the 19th and early 20th Centuries in the Punjab region of India. The Ahmadiyya Muslim Community in Australia is estimated at around 5,000.
The Ahmadiyya Muslim Community’s submission addressed the persecution of Ahmaddiya Muslims, primarily in Pakistan, but with persecution spreading to Algeria, Indonesia, and Malaysia. The AMC representatives spoke about the strong level of community engagement by Ahmadi Muslims in Australia, and Mr Ahmed stated:
I was 13 when we migrated to this great nation… I have never in my 20 years – I’m 33 now – from the age of 13 experienced any discrimination as such.
Mr Sharif further stated that “Australia is a safe haven for us”.
There are over 90,000 adherents of Judaism in Australia, according to the 2016 census. The Sub-Committee received a submission from the Executive Council of Australian Jewry (ECAJ), the elected national body representing the Australian Jewish Community. The ECAJ Executive Director, Mr Peter Wertheim, gave evidence at a public hearing in Sydney. Mr Wertheim noted that in practice “Jewish Australians are fortunate to enjoy a high level of freedom of religion and belief”, with “very few impediments” to Jews living openly, expressing their beliefs, moving freely, congregating peaceably, and partaking in religious services, customs, and traditions.
Nevertheless, Jewish Australians face some unique challenges in Australian society, both culturally and legally. The ECAJ states that anti-Semitism is a “persistent, albeit limited, problem in Australia”. Anti-Semitism is a much greater problem in other parts of the world, and the ECAJ submission discusses examples of serious anti-Semitism at some length. Highlighted are several examples of terrorist attacks targeting Jews in Europe, including France, Belgium, and Denmark. Jews also face anti-Semitic sentiment at a community level throughout other parts of Europe, and many countries have laws banning the kosher slaughter of animals. Jews face even heavier persecution in other countries, and the ECAJ submission emphasises the plight of Jews in Iran, Egypt, Turkey, and Ukraine as countries of particular danger for Jewish communities.
Despite the comparatively “limited” anti-Semitism at community or state level in Australia, the absence of anti-Semitism is “a necessary condition for the exercise of freedom of religion or belief”. The ECAJ’s annual reports on anti-Semitism demonstrate that it is an “increasing” problem and sometimes involves threats or acts of violence. Mr Wertheim told the Sub-Committee that the last 18 months have seen “the rise of a small but tightly organised group espousing Nazism as an ideology”.
The 2016 census recorded a record number of Australians stating they had “No Religion” or “Secular Beliefs”, with around 7 million people marking one of these options. This was up from around 4.8 million in 2011, and accounts for about 30 per cent of the population. In addition, a record 2.3 million or ten per cent did not state or inadequately stated an answer, meaning around 40 per cent of the population chose not to positively identify with any religion.
This inquiry has received evidence from individuals and organisations representing non-religious views. For the purposes of this section, this is to be understood to mean a belief system or worldview, for example humanism, atheism, or secularism. This is in contrast to organisations which are religiously or ideologically neutral or do not represent a particular religious belief, for example government departments and some types of charity or human rights organisation. It is also in contrast to individuals or legal scholars, for example, who may or may not personally adhere to a religion or belief system but who are speaking only to legal matters and not representing any particular religion or religious view.
Many non-religious submitters have argued for the importance of the right to ‘freedom from religion’. The Humanist Society of Queensland (HSQ) stated that the “right to freedom from the influence of religion or belief is just as strong as the right to freedom of religion or belief”. Humanist Society of Queensland President Dr Meg Wallace has argued that the right to freedom from “the dictates of the beliefs of others” is “inherent in the meaning of Article 18”, saying:
Its intention is not to privilege the liberty to act according to one’s beliefs, but to ensure that governments restrict their policies and legislation subject to their adopted political worldview. They should separate their decision-making from the dictates of belief.
The evidence presented to this inquiry highlights a number of areas in which religion is purportedly privileged, or given inappropriate preference in public policy in contrast to non-religious people.
The most significant example of alleged privilege or preference given to religion, or to Christianity in particular, is that of religious exemptions in anti-discrimination law. Civil Liberties Australia warns against an “emerging trend to argue that respect for freedom of religion requires special exemptions for religious believers from anti-discrimination and other laws”, citing such exemptions in the amended Marriage Act as an example. The Humanist Society of Queensland argues that such exemptions are “too broad” and should be restricted to “conduct directly related to protecting the manifestation of personal belief”. The Secular Party of Australia calls the “tolerance by government of religious exemptions” a “special religious privilege”, arguing it is resulting in “denial of services” and discrimination.
Over 15,000 Australians identified with Paganism on the 2016 census, and over 6,600 with Wiccan (Witchcraft), a drop since 2011.167 The Sub-Committee received evidence from Mr David Garland of the Pagan Awareness Network. Mr Garland commented on the broad lack of acceptance of witchcraft and paganism in Australia, noting that witchcraft was illegal in Queensland until 2001, and that “any form of enchantment, conjuration, summoning or prophecy” was unlawful in Victoria under the Vagrancy Act until 2005.
According to Mr Garland, Paganism faces several challenges in Australia. Some issues arise due to the solitary nature of the religion, which has “no
church and… no overarching group”.169 Historically, pagans have faced societal pressure:
We had the ‘satanic panic’ in the 80s, where we were very heavily persecuted and accused of being Satanists. People were bashed and all types of stuff happened… I was sacked in 1998 for my religion. There were no religious protections at work then. I’ve had numerous death threats, to the point where my phone was tapped by the police and calls were being traced so that they could find out where they were coming from, all because I’m pagan.
In the eighties we were accused of eating babies and sacrificing virgins and all that type of stuff… It’s hard, because in some of the texts – Exodus 18, 19 and 21, I think – ‘thou shalt not suffer a witch to live’ in the King James version.
Mr Garland noted that Pagans have found recourse after being subjected to “vilification of our religion in the press” in the Victorian Racial and Religious Tolerance Act. With no similar act in NSW, such recourse is not available in that state for religious vilification. Pagan religious practice includes the use of a doubled-edged blade called an athame, which is prohibited by federal law but subject to different state laws.
About 1,700 Australians identified with the Religious Society of Friends, also known as Quakers, on the 2016 census. The Quakers identified the lack of explicit protection for religious freedom in Commonwealth law, and supported a Charter of Rights that would specify rights to be protected in Australia.
The Quakers submission highlighted the role of the Australian Partnership of Religious Organisations and Religions for Peace Australia, praising the interfaith dialogue facilitated by these groups and saying they both offer “important avenues for people from the different religious groups to be supported”. The Quakers emphasised their concern to preserve the right of conscientious objection to military service, including for religious reasons. They noted the Defence Legislation Amendment Act 1992, which made conscientious objection to a particular war an acceptable ground for exemption to military service, as opposed to objection to war in general.
Centro Espirita Beneficente Uniao do Vegetal
(the UDV) The Sub-Committee received a short submission from the Centro Espirita Beneficente Uniao do Vegetal (the UDV) Australia. UDV is a Christian Spiritist Religion which began in Brazil.
The UDV noted the limited interpretation of section 116, citing Kruger v Commonwealth, in which the High Court said that a law must have the explicit purpose of interfering with the free exercise of a religion in order to be invalid. Laws which do not have this purpose are not invalid even if they do have that effect. UDV recommends a law similar to the United States’ Religious Freedom Restoration Act, which requires any law which interferes with religious practice to have both a “compelling governmental interest” but also to be the “least restrictive means”. UDV argues this puts the “burden of proof” on the government, and argues that a similar legislative measure is required in Australia today. The Sub-Committee notes that this resembles comments made by Dr Alex Deagon, who based his argument on Gaudron J’s dissent in Kruger.
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