Religious Freedom Under the Victorian Charter of Rights

Matthew Groves and Colin Campbell (eds), Australian Charters of Rights a Decade On (Federation Press, 2016)

19 Pages Posted: 10 Aug 2016 Last revised: 17 Aug 2016

See all articles by Nicholas Aroney

Nicholas Aroney

University of Queensland - TC Beirne School of Law

Joel Harrison

Sydney Law School, University of Sydney

Paul T. Babie

University of Adelaide - School of Law

Date Written: July 31, 2016

Abstract

When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it was claimed that the Act would protect the rights of all persons, whatever their gender, age, disability, income, background or religion. Purporting to follow the International Covenant of Civil and Political Rights, the Charter proclaimed the right of every person to "freedom of thought, conscience, religion and belief", including 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".

Despite the assurances of the Victorian Charter, however, many people of religious faith in Australia feel that their freedom to practice their religion is under threat – no less in Victoria than elsewhere in the country. Moreover, the principal concern articulated by religious believers is a sense that it is the state and its agencies, not other religious believers, that poses the greatest threat to freedom of religion. If it is one of the purposes of the liberal democratic state to ensure the peaceful coordination and flourishing of different groups, this is not a very promising state of affairs.

In this chapter, written for a forthcoming collection on the impact of the Victorian Charter of Human Rights, we interrogate the state of religious freedom in Victoria, focusing on the threats that it faces, both manifested and perceived. The chapter begins by sketching the various religious freedom protections that exist in Australian law and note legislation, especially in Victoria, that has raised religious liberty concerns – anti-discrimination, anti-vilification and abortion law in particular. The chapter then surveys the case-law under the Charter. Here we find that the Charter has played virtually no substantive role in protecting freedom of religion. Instead, anti-discrimination law has been increasingly prioritised. Lastly, we offer an account of three recent reviews of Victorian law as they relate to religion.

We find that a contest has occurred, primarily between religious believers and organisations on one hand, and anti-discrimination agencies and human rights advocates on the other, over the exact boundaries to be laid down in state law between religious freedom and other state interests. We argue that an underlying pattern is discernible, whereby a certain image of liberal citizenship is progressively imposed upon persons, groups and organisations whose religious convictions, practices or identities are deemed to be recalcitrantly non-liberal. We conclude that, as a result, religious freedom has become a second-class right in Victoria. Managing serious and growing pluralism, we argue, requires deeper attention to fundamental principles of religious liberty.

Keywords: freedom of religion, human rights, international covenant, discrimination, abortion

Suggested Citation

Aroney, Nicholas and Harrison, Joel and Babie, Paul T., Religious Freedom Under the Victorian Charter of Rights (July 31, 2016). Matthew Groves and Colin Campbell (eds), Australian Charters of Rights a Decade On (Federation Press, 2016). Available at SSRN: https://ssrn.com/abstract=2816687 or http://dx.doi.org/10.2139/ssrn.2816687

Nicholas Aroney (Contact Author)

University of Queensland - TC Beirne School of Law ( email )

Brisbane 4072, Queensland
Australia
+61-(0)7-3365 3053 (Phone)

HOME PAGE: http://www.law.uq.edu.au/dr-nicholas-aroney

Joel Harrison

Sydney Law School, University of Sydney ( email )

Faculty of Law Building, F10
Sydney, NSW
Australia

Paul T. Babie

University of Adelaide - School of Law ( email )

The University of Adelaide
Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia
+61 8 8313 5521 (Phone)
+61 8 8313 4344 (Fax)

HOME PAGE: http://www.adelaide.edu.au/directory/paul.babie

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