Free to Believe?

The right to freedom of religion and belief in Australia

Human Rights and Equal Opportunity Commission

Introduction

The Australian legal system purports to treat Australia's many different religious communities equally. There is no established or State sponsored religion or church and religious law is not imposed by civil authority. This section of the paper discusses the extent to which the right to freedom of religion is protected and promoted in Australia by examining four relevant sources of law

• the Australian Constitution
• Australian federal laws
• Australian State and Territory laws
• international law.

Defining 'religion'

The High Court considered the threshold issue of defining 'religion' in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic). ^[15] The Court was asked to decide whether the Church of Scientology was a 'religious or public benevolent institution' for the purposes of the Pay-Roll Tax Act 1971 (Vic).^[16] If so, it would be exempt from pay-roll tax on wages paid or payable to its employees. The Court held that the beliefs, practices and observances of the Church of Scientology did, in fact, constitute a religion in Victoria. The judges proposed a number of different tests for the definition of 'religion' under the Act but no definition secured majority support. The narrowest test was proposed by Acting Chief Justice Mason and Justice Brennan and required two elements

• belief in a supernatural Being, Thing or Principle
• the acceptance of canons of conduct to give effect to that belief (though canons of conduct which offend against the ordinary laws are outside the areas of any immunity, privilege or right conferred on the grounds of religion).

Justices Wilson and Deane found no single characteristic that could be a formalised legal criterion for a particular system of beliefs and practices that constitutes a religion. In their view all that can be done is to formulate indicia or guiding principles by reference to which the question is to be decided. They identified five indicia

• a particular collection of ideas and/or practices involving belief in the supernatural
• ideas that relate to the nature and place of humanity in the universe and the relation of humanity to things supernatural
• ideas accepted by adherents requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance
• adherents constituting an identifiable group or identifiable groups regardless of however loosely knit and varying in beliefs and practices these adherents may be adherents themselves seeing the collection of ideas and/or practices as constituting a religion.

15. (1983) 154 CLR 120.
16. s.10.