The Rights of Individual Belief

INDEX

• ACRONYMS USED
  
• COMMUNITY RIGHTS PROTECTED BY INTERNATIONAL TREATIES
  • General protection for freedom of religion and belief
  • Removal of these freedoms and failing to promote them 
  • Arbitrary and unlawful interference with these freedoms
  • Rights to choose one’s own belief, communicate & teach it.
  • Rights to create and use ritual objects
  • Right to seek and receive donations
  • Freedom from coercion to change one’s religion
  • Right of parents to raise children in their faith and State protection of that right
  • Directives to provide legal protection from discrimination & vilification
  • The use of penalties
  • You don’t have to discuss your faith

• COMMUNITY RIGHTS PROTECTED BY COMMONWEALTH AND STATE ACTS
  • The practise of religion is protected by the constitution 
  • HREOC can investigate where the Commonwealth are alleged to have breached FORB by reference to the ICCPR and DEIDRBΩ 
  • Directives to legislate FORB at the national level 
  • The Commonwealth can exercise authority over States through the ‘External Affairs Power’.
  • Legislation varies between States
  • No Discrimination from the Public Service
  • Contrary to the principles of cultural diversity

• THE FRENCH PROPOSAL
  • French Criteria for investigation
  • Religions & Beliefs targeted that would shock contemporary Australian 
  • Ongoing criticism by the US
  • Unique in western countries
  • Keeping Poor Company
  • Canada as an example

ACRONYMS USED

UDHR Universal Declaration of Human Rights (1948)

HRCGC Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993) Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. (1994)

ICCPR International Covenant on Civil and Political Rights (1980)

DEIDRB Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)

UDCD UNESCO Universal Declaration on Cultural Diversity (2001)

ICESCR International Covenant on Economic, Social and Cultural Rights (1966)

ICERD International Convention on the Elimination of All Forms of Racial Discrimination (1966)

OSCE Organization for Security and Co-operation in Europe

USCIRF The United States Commission on International Religious Freedom

CACA Commonwealth of Australia Constitution Act (1900)

CPSCDS Charter of Public Service in a Culturally Diverse Society (1998)

HREOC Human Rights and Equal Opportunity Commission (Act) (1986)

FORB Freedom of Religion & Belief

COMMUNITY RIGHTS PROTECTED BY INTERNATIONAL TREATIES

General protection for freedom of religion and belief

• Australia has signed several International agreements that ensures no discrimination on the basis of religion or belief. (UDHR, ICCPR, DEIDRB, ICESCR, ICERD)

  • to ensure to all individuals … the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ICCPR 2.1

Removal of these freedoms and failing to promote them

• Activities aimed at the destruction of these rights and freedoms is expressly prohibited. (ICCPR 5.1, ICESCR 5.1)

  • any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation. ICCPR 5.1

• Action that does not promote ‘understanding, tolerance and respect in matters relating to freedom of religion and belief‘ is inconsistent with the Charter of the UN and several other instruments. (DEIDRB Preamble)

Arbitrary and unlawful interference with these freedoms

• Arbitrary interference with personal privacy, such as investigations instigated solely due to an individuals religion or belief, is prohibited. (ICCPR 17.1)

• Unlawful attacks that damage an individuals honour and reputation are prohibited. (ICCPR 17.1)

  • No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. ICCPR 17.1

• The Right to protection by law against arbitrary interference with personal privacy and unlawful attacks damaging honour and reputation. (ICCPR 17.2)

  • Everyone has the right to the protection of the law against such interference or attacks. ICCPR 17.2

Rights to choose one’s own belief, communicate & teach it.

• Individuals have the Right to believe what they wish, practise their beliefs with others, practise beliefs in public, to teach others their spiritual belief. (UDHR 18, ICCPR 18.1, DEIDRB 1.1, ICERD 5.d.vii)

  • 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. UDHR 18

• A person’s Religion or Belief does not have to be traditional, have institutional characteristics, or recognisable practises, and it doesn’t matter if they are newly established beliefs. (HRCGC 2)

  • Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community. HRCGC 2

• The Right to speak, write, and use all forms of media to communicate one’s religion or belief. (UDHR 19, ICCPR 19.2, DEIDRB 6.d, HRCGC 4)

  • The freedom to manifest religion or belief may be exercised “either individually or in community with others and in public or private”. The freedom … encompasses a broad range of acts. (It) extends to ritual and ceremonial acts … the use of ritual formulae and objects, the display of symbols. …may include the observance of dietary regulations, wearing of distinctive clothing or headcoverings, … use of a particular language customarily spoken by a group. … teaching of religion or belief includes … freedom to choose religious leaders, priests and teachers, freedom to establish seminaries or religious schools, freedom to distribute religious publications. HRCGC 4

• The Right “To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.” (DEIDRB 6.i)

• A specific Right to teach a religion or belief. (DEIDRB 6.e, HRCGC 4)

• The Right to train and select leaders through several methods. (DEIDRB 6.g)

  • To train, appoint, elect or designate by succession appropriate leaders

Rights to create and use ritual objects

• The Right to make and use objects for ritual use in the practise of a religion or belief. (DEIDRB 6.c)

  • To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief

• “The concept of worship extends to ritual and ceremonial acts … (and) various practices integral to such acts, including … the use of ritual formulae and objects, the display of symbols...” (HRCGC 4)

• “particular attention must be paid to the diversity of the supply of creative work… and to the specificity of cultural goods and services which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods.” (UDCD 8)

• there are directives in the UDCD for creation of cultural policies and conditions that are “conducive to the production and dissemination of diversified cultural goods and services.” (UDCD 9).

• The Right to “benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (ICESCR 15.1.c)

Right to seek and receive donations

• The Right ‘to solicit and receive voluntary financial and other contributions from individuals and institutions‘. (DEIDRB 6.f)

Freedom from coercion to change one’s religion

• Coercion that would impair an individuals freedom to choose their own religion or belief is prohibited. (ICCPR 18.2, DEIDRB 1.2)

  • No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. ICCPR 18.2

• The Right to hold religious beliefs without interference (UDHR 19, ICCPR 19.1)

  • Everyone shall have the right to hold opinions without interference. ICCPR 19.1

Right of parents to raise children in their faith and State protection of that right

• Parents have the right to raise their children in the faith of their choice. (ICCPR 18.4, DEIDRB 5.1, 5.2)

  • … 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. ICCPR 18.4

• The State must protect children from discrimination on the basis of religion. (ICCPR 24.1, DEIDRB 5.3)

  • The child shall be protected from any form of discrimination on the ground of religion or belief. DEIDRB 5.3

Directives to provide legal protection from discrimination & vilification

• Incitement of hostility and violence towards anyone based on their religion or belief is prohibited. (ICCPR 20.2)

  • Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

• There are several directives from International Agreements to provide legal protection from discrimination against religion and belief. This includes protection from ‘cult-busters’ organisations that target communities on the basis of faith alone, and vilification from public servants, the media and others. (ICCPR 26, DEIDRB 4.1, 4.2, 7)

  • All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief… in all fields of civil, economic, political, social and cultural life. DEIDRB 4.1

  • All States shall … enact or rescind legislation … to prohibit … discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or beliefs… DEIDRB 4.2

The use of penalties

• An empowered body that had the power to threaten and/or apply penal sactions is of concern as “Article 18.2 bars coercion … including the use of threat of … penal sanctions to compel believers or non-believers to … recant their religion or belief or to convert.” (HRCGC 5)

You don’t have to discuss your faith

• “no one can be compelled to reveal his thoughts or adherence to a religion or belief” (HRCGC 3).