On 13 December 2018, the Prime Minister released the Report of the Expert Panel chaired by the Hon Philip Ruddock of the Religious Freedom Review Report (the Ruddock Report or the Report), as well as the Government’s response to the Ruddock Report and the recommendations contained therein.

There are three reasons why I thought it important to comment on the Report and its subject matter: first, the importance of freedom of religion to a free society, second, the public interest generated by the earlier release of some of the recommendations in the media and some slight misunderstandings of what freedom of religion actually is, and third, the intersection of religious freedom with the driving mission and values of this law firm.

There will be three short articles that will be published in the News section of the Stonebraker Lawyers’ website on the topics of:

What is Freedom of Religion?
Why Does Religious Freedom Matter?
What Does Freedom of Religion matter in Australia?

What is Freedom of Religion?

A preliminary question when approaching the Ruddock Report is – what is “freedom of religion” or “religious freedom”?

Whilst not an exhaustive categorisation, there are at least three main aspects of freedom of religion:

freedom of belief or freedom of conscience;
freedom of an individual or group to manifest, exercise, and profess its religion; and
non-establishment of religion (particularly for those countries following the more American understanding of freedom of religion.)

Some of the basic legal foundations for freedom of religion in Australia include:

Section 116 of the Constitution of the Commonwealth of Australia (the Constitution), which states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Article 18 of the Universal Declaration of Human Rights of 1948 (the Universal Declaration), which states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.

Article 18 of the International Covenant of Civil and Political Rights (the ICCPR) (to which Australia is a signatory), which states:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Freedom of Religion as Freedom of Conscience

In Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (the Scientology Case) [1983] HCA 40, Mason ACJ and Brennan J called freedom of religion the paradigm freedom of conscience, stating at [6]: “Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. 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.”

At its heart, freedom of religion is a human right which guarantees the freedom of individuals to follow the dictates of that individual’s conscience to believe what that individual will, about the largest questions about life and its meaning – including the question of whether or not there is a God and, if so, the requirements of that God for human life, society, and flourishing; or, if not, the implications of there being no god for human society, life, and flourishing.

One fundamental concept to understand with regards to what is called freedom of religion or religious freedom, is that such a right protects both the believer and the unbeliever, both the Christian and the atheist (and the Muslim and the agnostic for that matter).

In other words, freedom of religion means (at one level) that the State (be it at the Commonwealth or State or local level of government) can neither compel belief nor unbelief in individuals – the government cannot say that a person must be a Christian, Jew, Muslim, agnostic, or atheist. It also means that the government cannot say that a person must not be a Christian, Jew, Muslim, agnostic, or atheist.

This latter point is expressly recognised by Latham CJ in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth [1943] HCA 12 (the Jehovah’s Witnesses Case), where he states at [3] that “the prohibition in section 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law –Deorum injuriae Diis curae [a Latin phrase meaning “injuries to the Gods will be remedied by the Gods”]. Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.”

Freedom of Religion as Free Exercise of Religion

However, when we use the term freedom of religion, we do not only mean the right of an individual to believe a certain way according to the dictates of his or her conscience, but also mean the freedom of an individual or groups to exercise and profess his, her, or their religious belief (or lack thereof). In this way, freedom of religion also is closely related to and dependent upon the freedoms of speech and expression.

Section 116 of the Constitution states: “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.” (emphasis added)

This point is also expressed in Article 18 of the Universal Declaration, which reads:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.” (emphasis added)

As Mason ACJ and Brennan J recognised in the Scientology Case, religion or religious belief is not, for many if not most, a purely intellectual activity. Rather, people of faith generally believe that they must live out, or manifest, their faith in ways that are public and often in groups, including “teaching, practice, worship, and observance” of that religious faith.

Mason ACJ and Brennan J put it this way in the Scientology Case at [14]:

“Religious belief is more than a cosmology; it is a belief in a supernatural Being, Thing or Principle. But religious belief is not by itself a religion. Religion is also concerned, at least to some extent, with a relationship between man and the supernatural order and with supernatural influence upon his life and conduct. . . . Thus religion encompasses conduct, no less than belief.” (emphasis added)

Later, at [17]:

“We would therefore hold that, for the purposes of the law, the 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 immunity, privilege or right conferred on the grounds of religion.”

As this latter extract from Mason ACJ and Brennan J’s judgment in the Scientology Case implies, there are limitations on the free exercise of religion or the “canons of conduct” to give effect to religious belief. This aspect is somewhat unsettled in Australian case law. Latham CJ in the Jehovah’s Witnesses Case states at [10] that the test in relation to limitation of the freedom to manifest one’s freedom is “whether a particular law is an undue infringement of religious freedom.” Mason ACJ and Brennan J took a broader approach in the Scientology Case stating at [16] that “The freedom to act in accordance with one’s religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a pleas of religious obligation to breach them.”

This topic will be dealt with in a later section as it also features in the Ruddock Report’s recommendations, but in brief it is worth mentioning here that the Report’s Recommendation 2 is that “Commonwealth, State, and Territory governments should have regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights [the Siracusa Principles] when drafting laws that would limit the right to freedom of religion”.

As stated above, Article 18 of the ICCPR provides limited grounds which justify limiting religious freedom: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” As Professor Carolyn Evans writes in Legal Protection of Religious Freedom in Australia, “more than a mere public good or convenient idea is required to justify imposing a limitation on the right to manifest a religion or belief. In addition, it is not sufficient for one of these grounds simply to be present. The state must demonstrate that the measures that it has taken to restrict religious freedom are proportionate to the legitimate ends that it seeks to protect.”[1]

The Siracusa Principles, which were devised by experts in international law during a colloquium held at Siracusa, Italy in 1984, provide interpretative principles and guidance that are restrictive in relation to the justification of limitation of rights. These principles include:

“3. All limitation clauses shall be interpreted strictly and in favor of the rights at issue.

. . .

10. Whenever a limitation is required in the terms of the Covenant to be ‘necessary,’ this term implies that the limitation:

(a) is based on one of the grounds justifying limitations recognized by the relevant article of the Covenant;

(b) responds to a pressing public or social need;

(d) is proportionate to that aim.

Any assessment as to the necessity of a limitation shall be made on objective considerations.

11. In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation.”

The Siracusa Principles also state in principle 58 that the freedom of thought, conscience and religion, amongst others, “are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.”

Freedom of Religion as Non-Establishment of Religion

The third aspect of freedom of religion (at least in the United States and to a certain extent in Australia) is non-establishment of religion.

In Australia, the idea of non-establishment of religion finds its clearest legal expression in section 116 of the Constitution, which again states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. (emphasis added)

What exactly is meant by “establishment of religion” is a question that deserves a more detailed treatment than can be given here, suffice it to say in brief that it would certainly include the creation of a national church similar to the Church of England in the Britain. In God’s Joust, God’s Justice: Law and Religion in the Western Tradition, John Witte states that, in the American context, “the founders [of the United States] understood the establishment of religion to mean the actions of government to ‘settle,’ ‘fix,’ ‘define,’ ‘ordain,’ ‘enact,’ or ‘set up’ the religion of the community – its religious doctrines and liturgies, its religious texts and traditions, its clergy and property.”[2]

As for the Australian context, Barwick CJ in Attorney General (Vic) ex rel Black v Commonwealth [1981] HCA 2 (the DOGS Case) states at [23] that “[t]he establishment of any one of the Christian churches would, in my opinion, amount relevantly to the establishment of the Christian religion and a law to establish that church would be a law for establishing a religion . . . because that, in my opinion, would be to establish the Christian religion within the meaning and operation of section 116.”

Barwick CJ later outlines the following aspects of what is meant by “establishing a religion” at [30]:

“. . . establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth ‘establishment’.”

In the United States, the establishment clause found in the First Amendment of the United States Constitution (U.S. First Amendment), which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” (emphasis added)has been interpreted quite strictly. It is this establishment clause in the U.S. Constitution that is the basis for the legal principle of a separation of Church and state and the colloquial maxim that there must be “a wall of separation between Church and state” which finds its origin in a letter of Founding Father, Thomas Jefferson, to the Danbury Connecticut Baptists.[3]

However, as John Witte notes, and drawing upon Jackson J’s concurring judgment in McCollum v Board of Education, 333 U.S. 203 (1948),the relationship between Church and state in the United States has been a fairly “serpentine wall” of separation.[4]It is worth noting, for example, as John Witte has pointed out “In 1789, six states still had some form of religious establishment, which both their state legislatures and constitutional conventions defined and defended, often against strong opposition from religious dissenters. Moreover, Virginia had just passed Jefferson’s bill ‘for the establishment of religious freedom,’ also against the firm opposition by defenders of the traditional establishment of Anglicanism.” that at the time of adoption of the U.S. First Amendment six of the thirteen U.S. States had established churches, the last of which would not be dismantled until nearly ninety years after the U.S. First Amendment was adopted (or, arguably, not until a series of cases around 1947).

It is clear that the U.S. First Amendment formed at least one basis for section 116 of the Australia Constitution. Nonetheless, the similarities between section 116 of the Australian Constitution and the U.S. First Amendment do not mean that the interpretations given to the U.S. First Amendment are definitive or even controlling, as noted by Barwick CJ in the DOGS Case, at [16]

“the text of our own Constitution is always controlling. Even similar or identical language in the American instrument to that in our Constitution can, in my view, rarely, if ever, be controlling. But divergencies in the respective texts must inevitably weaken, if indeed they do not destroy, any support which might be sought to be derived from the American text or its construction.”

Barwick CJ continues at [17]:

“Further, in the instant case, not merely is there difference between the Australian text and the language of the relevant provisions of the [U.S.] Bill of Rights, but that language had received an interpretation before the adoption of our Constitution. It later had further and at times different interpretation. The adoption of such diverging language thus has a more than usual significance.”

The key distinction for Barwick CJ, as discussed at [19]-[20], was the use of the words “for establishing any religion” rather than “respecting an establishment of religion”, with Barwick CJ’s explanation being that “because the whole expression is ‘for establishing any religion’, the law to satisfy the description must have that objective as its express and, as I think, single purpose.”

Importantly for the debates currently ongoing in Australia, these distinctions, among others, have led to a divergence in Australian law from American law on the question of government funding for religious schools.

Conclusion

In this brief article, I have looked at the question – “What is Freedom of Religion?” through the prism of three main aspects of freedom of religion:

freedom of belief or freedom of conscience;
freedom of an individual or group to manifest, exercise, and profess its religion; and
non-establishment of religion (particularly for those countries following the more American understanding of freedom of religion.)

I have also made reference to some of the more important legal foundations for the idea of freedom of religion in Australia and how they interact with these three aspects of that freedom.

In the coming weeks, Stonebraker Lawyers will provide at least two more articles on the questions of: “Why Does Religious Freedom Matter?” and “What Does Freedom of Religion matter in Australia?”

Johnathan Stonebraker

Principal, Stonebraker Lawyers

Phone: 02 4580 7170

Email: Jstonebraker@stonebrakerlawyers.com.au

[1]Carolyn Evans, Legal Protection of Religious Freedom in Australia(Federation Press, 2012), 29.

[2]John Witte, Jr, God’s Joust, God’s Justice: Law and Religion in the Western Tradition(Wm B Eerdmans Publishing Co, 2006), 186.

[3]Thomas Jefferson Letter to the Danbury Baptists (1802), accessible from the website of the Library of Congress <https://www.loc.gov/loc/lcib/9806/danpre.html>.

[4]John Witte, Jr, God’s Joust, God’s Justice: Law and Religion in the Western Tradition(Wm B Eerdmans Publishing Co, 2006), 207.