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IsaiahOne Submission to Inquiry into Charter of Human Rights and Responsibilities Act 2006 - 1 July, 2011 (part two of summary)

Monday, 5 September 2011  | Angus McLeay

Religious Freedom and the (Victorian)Charter: What if any, have been the overall benefits and costs of the Charter?

The Charter explicitly protects religion at Section 14:

(1) Every person has the right to freedom of thought, conscience, religion and belief, including—

(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Despite this, the Charter’s possible effects on religious freedom have been of notable concern for a number of Christian groups.  The key evidence of the Charter’s impact on religious freedom over the past four years shall be examined, and is divided into three sub-sections:

1. Major Episodes of Concern over Religious Freedom

2. Court Cases Involving Religious Freedom under the Charter

3. Comparative Evidence of the State of Religious Freedom


1. Three Major Episodes of Concern over Religious Freedom
In the course of the National Consultation on Human Rights, 2008-10, the Committee found that three matters kept recurring with regard to Victoria’s Charter and religious freedom. These were:

  • the Catch the Fire Ministries case under the Racial and Religious Tolerance Act (2001) (Vic)
  • the Victorian abortion law reforms (2008)
  • changes to the Equal Opportunity Act (1995) (Vic)

Episode 1: Catch the Fire Ministries – Racial and Religious Tolerance Act

The Catch the Fire Ministries case was perhaps the most hotly contested issue involving freedom of religion in Victoria for many years. It acquired notoriety in several Christian communities and attracted enormous media attention, not only in Victoria but around the world.

It is against this background that efforts to link the Charter and this case should be understood. No credible link can in fact be made. The court cases involved occurred in 2005-2006, well before the Charter had come into effect. The Racial and Religious Tolerance Act was enacted in 2001, six years prior to the relevant provisions in the Charter becoming operative. Given the obvious irrelevance of the Charter it is striking that the National Human Rights Consultation found that the Catch the Fire Ministries episode was so often cited in concerns over the Charter.

This is not to deny that legitimate concerns are raised by the Racial and Religious Tolerance Act on issues of free speech and freedom of religion. Had the Charter been operative at the time the Bill as tabled community and Parliamentary debate may have paid greater attention to how well the legislation upheld rights to free speech and religious freedom.

Episode 2: The 2009 Abortion Law Reforms

Unlike the first example, this occurred following the Charter’s enactment and thus may be relevant.

Amendments to Victoria’s abortion laws particularly raised questions of freedom of conscience because one clause was seen by many as infringing the right of medical practitioners who object to abortion on religious grounds. Section 8(1) of the Abortion Law Reform Act (2009) obliges a registered health practitioner who has a conscientious objection to abortion to refer a woman requesting an abortion to another registered health practitioner “who the practitioner knows does not have a conscientious objection to abortion.”

The then Brumby Government rejected the claimed deleterious effect on religious conscience. However many felt the then Bill put religious conscience under undue pressure. Section 14 of the Charter states that “a person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief”. Section 28 of the Charter requires that all Bills tabled in Parliament have a statement of compatibility accompanying them. The Abortion Bill should have been subject to this compatibility check. In particular, the provisions in s 14 regarding religious conscience would have added an important dynamic to Parliamentary debate. But the Statement of Compatibility was not tabled. Why?

The reason was section 48 of the Bill, a special clause, unlike any other in comparable Charters, which states:  “Nothing in this Charter affects any law applicable to abortion or child destruction…”

Whatever the precise rationale for its existence, the presence of s 48 is a seriously complicating factor in judging what the Charter should have been able to achieve with respect to the Abortion Bill.

This section was used to nullify the Charter’s operation, including the application of s 14 to religious conscience. Had the Charter been operative it could have, indeed should have, supported religious conscience. It therefore seems odd to make the argument that an inoperative Charter is to blame for legislation which, had the Charter been working, could have been improved. The Charter was not the origin or reason for the offending clause in the Abortion Law Act; it was  rather a possible means to overcome its flaws.

Charters of Rights around the world do not extend ‘right to life’ protections to the unborn. Many Christians will find this a deficiency. Nevertheless, statements of human rights tend not to be specific on issues of disputed social policy such as abortion, euthanasia and same sex marriage. Rather human rights decisions typically defer to the State to determine the specific detail of social policy.

Episode 3: Amendments to the 1995 Equal Opportunity Act (Vic)

The third episode involves a review of, and subsequent amendments to, the Equal Opportunity Act (1995) Vic. For example, Jim Wallace from the Australian Christian Lobby declared that  “the Australian Greens and homosexual activists used the Victorian Charter of Human Rights and Responsibilities to try to remove this UN-guaranteed right (to employ people who share their faith and values).”

But as with the abortion law reforms, it is difficult to find evidence that the Charter Act was responsible for the amendments in question. The primary role of the Charter lay with s 28, that is, that amendments be Charter-compatible. It is noted that the then SARC made extensive use of Charter principles and did not recommend an inherent requirements test, thus allaying the primary concerns of many Christian groups. (The then Brumby Government did not adopt this recommendation, but the Baillieu Government has subsequently repealed some changes, demonstrating that the Charter is subject to Parliamentary sovereignty).

Despite the frequent reference to these episodes as examples of how the Charter is negatively affecting religious freedom, properly understood they offer negligible evidence for any such effect. In fact, it can be argued that had the Charter been applied to Catch the Fire and the abortion law reforms it would have assisted in strengthening religious freedom.

2. Specific Cases of Concern Over Religious Freedom: Court Cases

The two cases known to IsaiahOne, where the Charter has had a bearing on court decisions relating to religious freedom, are examined below.

 Anti-Discrimination Exemption on Cultural and Religious Grounds
The YMCA - Ascot Vale Leisure Centre applied to have an exemption from the Equal Opportunity Act (1995) to allow it to conduct women-only swim classes outside normal opening hours for Muslim women who sought the exemption stated that they could not swim in mixed gender environments for cultural and religious reasons. VCAT found that the application did invoke the Act’s prohibition against discrimination. But it decided to grant the exemption, using the limitations section of the Charter to weigh the interests served by the proposed exemption against those of the prohibitions.

Discrimination on the basis of sex was permitted in order to allow for the cultural and religious rights of a section of the community. The case is an example of a court using the Charter in such a way as to recognise and protect religious rights.

Cobaw v Christian Youth Camps
Another decision in VCAT has made more extensive use of the Charter in relation to religion. Many Christians will consider aspects of the Tribunal’s reasoning to be an example of poor handling by the courts of religious matters. This outcome is not, however, a direct result of the Charter itself. The primary fault lies with a failure to adequately employ the Charter in regard to religious conscience. At the time of submission this case was on appeal and the Court of Appeal may consider these.

WayOut, a support group for same-sex attracted youth at risk (run by Cobaw Community Health Services),made a discrimination complaint for being turned away when trying to book the Phillip Island Adventure Resort, which is operated by Brethren-run Christian Youth Camps, or CYC. The Victorian Civil and Administrative Tribunal (the Tribunal) found that CYC discriminated against Cobaw in denying the booking:

The Charter was only used in the case to interpret the scope of exemptions under the Equal Opportunity Act. Despite this, the Charter was not decisive for the Tribunal’s interpretations, which were established on common law grounds. Nevertheless, aspects of the Tribunal’s approach to religious belief raise questions about how religious belief and practice have been handled in this case.

The court accepted that the opinions of the Defendant (Mr Rowe) reflected those of the CYC Board and that the refusal of the booking arose from their beliefs. However Her Honour did not accept that those opinions in fact (objectively) conformed with Brethren doctrines:

The problem for religious freedom with the Tribunal’s reasoning is that it placed itself as an arbiter of religious doctrines and what they entail by way of conduct. This approach to religious matters lead the Tribunal to assess very personal and subjective spiritual views which many would suggest are not easily grasped in a judicial environment. In fact, this point has been highlighted by courts overseas which deal with human rights and religious freedom. For this reason such an approach is generally avoided by the courts in such cases and the Cobaw case is an anomaly in this regard.

3. International Human Rights Jurisprudence

International human rights jurisprudence shows that religious conduct or belief is best accepted by a simple ‘face-value’ test rather than interrogated for objective legitimacy. For example, leading Canadian jurisprudence does not require a person to objectively demonstrate that his or her religious beliefs or practices are supported by a particular doctrine of their faith. By contrast the Cobaw decision sought to establish whether the defendant’s conduct was ‘objectively’ required by their religion and indeed whether the stated beliefs of the Defendants qualified as ‘doctrine’. The approach had the effect of sidelining the Defendant’s religious beliefs as mere ‘opinions’.

It is to be expected that Victorian tribunals and courts will take time adjusting to Charter jurisprudence. It is hoped that in the longer term this jurisprudence will offer valuable resources as courts deal with an evolving multi-religious / non-religious social landscape.  Leading international human rights jurisprudence shows that religious rights can be argued forcefully and without prejudice to one set of rights, be they religious or not, over another.

Conclusion: Costs of the Charter to Religious Freedom (the courts)

Over the past few years the Charter’s religious freedom provisions have been rarely dealt with by the courts. In one instance religious issues were dealt with positively. In another instance, some parts of the decision raise concerns about the way in which religious belief, conscience and conduct can be handled by the courts (although, as noted above, the Cobaw decision is on appeal). The limited experience of the Charter involving the courts does not allow a firm conclusion that its operation is at a cost to religious freedom. International human rights law suggests that in time, the Charter is more likely to protect than erode religious freedom.

Options for Reform or Improvement of Protections for Religious Freedom under the Charter

The scope and significance of Christian concerns over the Charter in connection with religious freedom cannot be overlooked. Many Christians recognise the importance of Article 18 of the International Covenant on Civil and Political Rights (ICCPR) for the protection of religion. IsaiahOne recommends that the scope and strength of religious protections in the Charter (s 14) be clarified in relation to Article 18 as follows:

(A) the Limitations Clause is Too Broad

The limitations clause in s 7 (2) fails to distinguish between derogable and non-derogable rights within the Charter. Derogable rights are those which may be limited in certain circumstances. For instance, if two rights are in conflict one or both may have to be limited, or if there is an emergency, or to protect public health and morals. Non-derogable rights are those which may in no circumstances be limited, they are ‘absolute’. The ICCPR indicates which rights may be limited (derogable). The distinctions have been further amplified since the ICCPR was drafted by the Human Rights Committee90, additional international human rights documents and through jurisprudence.

The limitations clause in s 7(2) of the Charter strictly applies to all rights contained therein. In doing so it allows for non-derogable rights to be limited. Such an approach is not consistent with the ICCPR or its subsequent elaboration. The right to freedom of thought, conscience, religion and belief is non-derogable. 

Section 7(2) should be clarified so as to confirm that such rights are not subject to limitations, including the right to religious freedom.  

(B) The Override Clause Can Suspend Too Much

A related concern is that, on the face of it, the Charter’s override clause (s 31) permits the suspension of non-derogable rights. The override clause enables Parliament to suspend the Charter in “exceptional circumstances”. The scope of the override seems at odds with the concept of non-derogable rights such as those in s 14(1)(a) which are not meant to be compromised under any circumstances. The problem is compounded by the unlimited renewability of the ‘sunset clause’ (s 31(8)).

The Charter should be amended to preclude suspension of non-derogable rights including freedom of religion.

(C) The Charter Does Not Reflect One Element of Religious Protection

There is no provision comparable to Article 18.4 of the International Covenant on Civil and Political Rights: “The State 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”.  The right of parents to raise their children in accordance with their religion or belief is reiterated in Article 5 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

The Charter should be amended so as to reflect the scope of religious protections in Article 18.4 of the ICCPR.  

Amending the Charter in these respects will not only make Victoria’s Charter more consistent with comparable instruments elsewhere, it will allay concerns about weaknesses in the Charter’s religious protections.

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