ࡱ> jli%` Lbjbj"x"x 4l@@AG0X4@ttt8(4\D.6(-------$=/h1-t1"1"1"-tt-'''1"tt-'1"-'':,,tt.- @]`KC#, --0.-.;2$n;2.-;2t.-X'I4}--;'j.1"1"1"1"lltttttt SUBMISSION FREEDOM OF RELIGION AND BELIEF IN THE 21ST CENTURY BY KNIGHTS OF THE SOUTHERN CROSS (NSW) INC. This submission is made on behalf of the Knights of the Southern Cross NSW (KSC NSW). This Submission does not pretend to represent the views of the Knights of the Southern Cross in other States and or Territories or of the National Organisation, only for New South Wales. KSC NSW have as one of their Objects, The Christian Way of Life. They engage in and support educational, charitable, religious and social welfare work. KSC NSW are a Catholic Lay organisation that engages in good works in the community as an extension of the Catholic Faith and doctrinal teachings of that faith. We hasten to point out that Knights NSW are not governed nor directed by the Catholic Church hierarchy and it has its own executive and decision making machinery. As KSC NSW we are totally committed to the Freedom of Religion and Beliefs, this submission is presented for the consideration of the Human Rights Commission (HRC) Enquiry. THE BASIS FOR FREEDOM OF RELIGION AND BELIEFS The enquiry into the Freedom of religion and beliefs is a follow-up to the 1998 HREOC Report. In the 1998 Report numerous recommendations were made and, presumably, the HRC will endorse many of those recommendations and make new recommendations. This submission will focus on why there needs to be a stronger legal focus on the need to embolden in the public area the right to Religion and Beliefs. By this we emphasise the right to display the beliefs of people acting on religious conscience to live and act in harmony with their conscience. Article 18 of the Universal Declaration of Human Rights 1948 (UDHR) proclaims the Freedom of thought, conscience and religion. In order to place what is meant in context, the term belief should be interpreted strictly in connection with the term religion. It does not refer to beliefs of another character political, cultural, scientific, or economic, all of which are entitled to protection according to law but do not belong to the sphere normally described as religion. Article 18 of UDHR was restated and thus endorsed by a subsequent United Nations Convention, the International Convention on Civil and Political Rights 1996 (ICCPR). The ICCPR restated the freedom of thought, conscience and religion also at Article 18 and expanded upon it. It reads: Article 18 Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of ones choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice. Freedom to manifest ones religion or belief 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 freedom of others. The State parties to the present Covenant undertake to have respect for the liberty of parents and where applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. In the ICCPR Article, there was no attempt to depart from how the word belief should be read in connection with religion. Furthermore, the Human Rights Committee established by the ICCPR added more clarity to terms thought, conscience and religion in General Comment 22. The Committee said, inter alia: The Committee draws the attention of State Parties to the fact that freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. Joseph et al discussed the application of paragraph 3 of Article 18 and makes comment on how the manifestation of a religious belief may be limited. First, the limitation must be prescribed by law. This means the measure must be delineated in accessible legal instruments or decisions. .Secondly, the limitations must be designed to achieve one of the purposes enumerated in the provision: namely, public safety, order, health or morals or the fundamental rights and freedom of others. In bringing these matters to the attention of the HRC for the Enquiry, it is our submission that Catholic lay people who engage in public works or operate businesses should be and are entitled to engage in their activities in accordance with their religious beliefs. Catholic educational and health institutions must be protected in conducting the activities of these institutions in line with the religious beliefs that they embrace. Also the men and women charged with the responsibility to run these institutions must be protected in the selection of their staff who commit to the values and teachings of the Catholic Faith. These institutions and faith based welfare agencies are inspired in their public works due to the teachings of their religious faith. They are not in competition for material or financial enrichment. The men and women who work in these areas seek contentment in their spiritual lives. Article 18 grants them that fundamental right and it is for the HRC to embolden the right based on religion and belief. The extension of religious belief into the public area and the performance of good work is biblically based. These beliefs are not mere passing fads but part of a persons conscious obligation arising from his or her beliefs: for I was hungry and you gave me food, I was thirsty and you gave me something to drink. I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me. And the king will answer them. Truly I tell you, just as you did it to one of the least of these you did it to me The above can be read as referring to recognising the dignity of each person. Similarly, it is understood and accepted that the fundamental rights of each person are gifts endowed to each human being, at least from birth if not conception. We submit that the UDHR sets the foundations of all human rights in proper context at Article 1. Article 1 All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. WHAT IS RELIGION KSC NSW accept that the word religion can embrace those who have no belief in matters spiritual. Such people may be agnostics or simply non-believers of any form of life after death, reincarnation or the existence of any Supernatural Being. In this submission we do not take away or diminish the rights of those who doubt the possibility of any God, life after death or supernatural being. However, this submission seeks to embolden the rights of men and women who wish to manifest their belief based on a theistic religion. The High Court of Australia has made considered and thoughtful comments on attempting to define the word religion. In the Scientology case in the joint judgement of Mason ACJ and Brennan J they said: the criteria of religion are twofold: first belief in 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 any immunity, privilege or right conferred on the ground of religion. Earlier in their judgement, their Honours said: The canons of conduct which are part of a religion typically include the acceptance of a duty of ritual observance as well as ethical practice. The above references are most helpful in understanding, at least in part, the nature of religion. Similarly, is the comment that a religious belief is connected to canons of conduct which embodies ethical practice. A person who operates a small business, particularly a service oriented business, may from time to time be confronted with a request to perform an act that would breach his or her conscience. Such would be the case of a small printing business requested to publish broadsheets advocating Pro-choice literature. That is, the right to abortion. The business operator may refuse to publish the literature on the grounds of conscience and religious belief. As the laws on anti-discrimination vary from State to State, it is not clear whether such business operator would not be in breach of such a law. The application of such a law would clearly be inconsistent with paragraph 3 of Article 18 of the ICCPR. The business operators action would not threaten public safety or any persons health. Indeed, it may preserve morals. No contravention of anothers fundamental freedom would occur by a refusal to publish impugned material. Yet, despite these unassailable facts, the business operator may be breaching a law of the land. How can this be? How can it be said that the fundamental right to freedom of thought, conscience and religion is protected? The obvious is too painful a reality to digest. The HRC surely understands that religious belief is not a lifestyle choice that a person with such beliefs can discard and assemble at whim. There is an entitlement for each person who acts on conscience and or religious belief to have lawful protection to publicly manifest his or her belief. It is accepted that beliefs that threaten public safety or threaten health cannot be protected. KSC NSW has many members engaged in the provision of service industries and as a matter of fundamental right should never be coerced or by the application of unbalanced laws be made to breach their conscience. THREATS TO RELIGIOUS FREEDOM AND BELIEFS The denial of a persons right to act on conscience is an assault upon Article 18 of the ICCPR. The passing of the Abortion Law Reform Act 2008 by the Victorian Parliament is, in our submission, such an assault. It is incontrovertible that the exercise of conscience for doctors and others in the Victorian Health Industry has been severely compromised or denied. The Abortion Law Reform act is an ideological piece of legislation designed principally to further the right to abortion with minimal lawful constraint. Those who may be in the front line of participating in termination of a pregnancy cannot withdraw on the ground of conscience. The fundamental right to freedom of religion and belief is dealt a fatal blow in Victoria and inoperable. Similarly, the decision of the New South Wales Administration Decision Tribunal in OV and anor V Q2 and anor (No 2) (Wesley Mission Case). The facts were that a homosexual couple applied to an associated branch of the Wesley Mission Church to be considered as foster carers. The associated branch refused to give such consideration on the grounds of the applicant couple being homosexual and therefore denying to place a child in their care. The associated branch, and indeed the Wesley Church, believed, inter alia, that placing a child with a homosexual couple would deny the child the benefit of the dynamics of a man and woman within a marriage. The core of the defence by the associated branch was that homosexuality was contrary to the doctrine and belief of the Wesley Mission Church. The Administrative Decisions Tribunal held that the couple had been discriminated against on the grounds of their homosexuality. The law as applied in that case effectively meant that the Wesley Mission Church could not manifest in public its religious belief. There was no evidence to say that the homosexual couple would be denied the opportunity to act as foster carers by all agents providing such placements. Only that Wesley Mission Church would not consider the applicant couple. The alternative side of the Tribunal decision in that case illustrates that the Wesley Mission Church is denied its right to belief. Again, no evidence is present to support the limitation to manifest as stipulated at paragraph 3 of Article 18 at the ICCPR. The above two cases are examples where the provisions of Article 18 have been aggrieved to the detriment of religious beliefs. It is unquestionable that the enquiry undertaken by the HRC needs to address the above examples and other incidents where religious beliefs and conscience are dispatched as irrelevancies. DOES SECTION 116 ASSIST The HRC has made reference to Constitutional protection for religious belief as found at section 116 of the Constitution. Section 116 decrees that the Commonwealth shall not establish a religion for Australia, it states: Commonwealth not to legislate in repeat of religion. 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. There is no evidence available to KSC NSW that Freedom of Religion and Beliefs is afforded constitutional protection. In the Jehovahs Witnesses case words contained in the judgment of Stark, J. appear to sum up the position best: The Commonwealth is prohibited from making any law for the establishment of any religion or prohibiting the free exercise thereof. The Parliament is given no express power to legislate with respect to religion, but it has many other legislative powers. And those powers cannot be exercised in contravention of the provision for religious liberty or freedom protected and guaranteed by the Constitution. But liberty and freedom in an organised community are relative and not absolute terms. His Honour makes plain there is no Constitutional protection other than the guarantee that the Commonwealth cannot legislate to make illegal the right to freedom of religion. As Latham, CJ. said: Section 116 is a general prohibition applying to all laws Latham, CJ. was in accord with Starke, J. that section 116 prohibited any law which established or dismantled religion within Australia. KSC NSW would oppose any recommendation to legislate a Religion Act of some sought. A Religion Act would not correct the real issue whereby the expression of monotheistic or theistic religious beliefs in the public sphere are on numerous occasions dismissed or held to be irrelevant or offensive to others of no monotheistic or theistic religious beliefs. Parliaments and judicial bodies limit theistic religious beliefs as if they are public homilies. The fundamental right to freedom of thought, religion, conscience and belief is not a concept to be bestowed by a legislative body as if it is a material gift. The said fundamental right is a right that belongs to all human beings for no other reason than for being human. To consign the said fundamental rights to the whim and generosity of parliament is itself a diminution of and, in part, a dismantling of the said fundamental right. 5. CONCLUSION KSC NSW look to the HRC to restate and to support the position that Freedom of Religion and Belief stands in its own right and that this right is not to be treated as a freedom in competition with other freedoms. Freedom of Religion and Belief is inescapably linked to those beliefs that require obligations, responsibilities and ethical practice. This is the second limb of the canons of a religion as described by Mason ACJ and Brennan J in the Scientology case. Those institutions and individuals who order their existence and lives on monotheistic or theistic beliefs and accordingly groom their conduct and behaviour to the obligations, responsibilities and ethical practices on which those beliefs are founded, must be protected. Anti-discrimination laws should not prevent nor make illegal the spoken words of those beliefs that may offend or be in conflict with other beliefs. Nor should the spoken words of a monotheistic or theistic belief that hold immoral various lifestyle choices be the subject of unlawful conduct in the raft of anti-discrimination laws. The right to assert publicly theistic beliefs, genuinely held and responsibly spoken, should not be curtailed or limited to be expressed only in private. Freedom of Religion and Belief should not be treated as a commodity but be recognised as a meaningful, deeply held set of values which provide inspiration and guidance to many holders of these beliefs. Such people are good or better citizens than those who have no disciplined canons of conduct and behaviour. They should be encouraged. Submitted by Basil Toohey State Chairman, on behalf of Knights of the Southern Cross (NSW) Inc. February 2009  Ed. Johan D. Vander Vyver and John Witte Jr, RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE Legal Perspectives, Martinus Njhoff Publishers 1996, p87.  Sarah Joseph, Jenny Schultz, Melissa Castan, The International Convention on Civil and Political Rights, cases, material and commentary 2nd Ed. Oxford University Press 2005, p 502.  Op cit, see note 2.  Ibid, p 507 [17.14]  Gospel of St Matthew 25:35, 36; 40  Church of New Faith v Commissioner of Pay-roll Tax (Vic) (1982) 154 CLR 120.  Ibid, at para 17.  Ibid, at para 15  [2008] NSW ADT 115 (1 April 2008)  Commonwealth of Australia Constitution Act.  Adelaide Company of Jehovahs Witnesses Inc. v Commonwealth [1943] HCA12; (1943 67 CLR 116, 14 June 1943).  Ibid, para 3 of his Honours judgment.  Jehovahs Witnesses case, see n11 at para 2.  Op. cit, see n 6 above.     Page  PAGE 9 of  NUMPAGES 9 35=ijl| } 7 8 . 679`iwǿ֘pbpbpbpbpbhihVR6PJmH sH hihVR6PJmH o(sH hVR6PJmH o(sH hVR6PJmH sH hhVR6PJmH o(sH jhnhVR0J6UhnhVR6hihVR6 hihVRhihVR5hVR hLxhVR hqhVR hVR5hqhVR5H*hqhVR5& >Ajkl}  [ 8 . 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PLP^P`LhH.bJ;]<        VR{ if3 ^gbf>w!y\pDME]-+ O@@@hZ@@DP@UnknownGz Times New Roman5Symbol3& z ArialI& ??Arial Unicode MS5& zaTahoma"1hFF҆ Z7!v Z7!v!T74@@2QHX ?VR2 SUBMISSIONKnights of the Southern CrossCassandra Dawes  Oh+'0 ,8 X d p | SUBMISSION Knights of the Southern Cross normal.dotCassandra Dawes2Microsoft Office Word@F#@d.@@ZK@@ZK Z7՜.+,0 hp   Catholic Archdicoese of Sydneyv!@'  SUBMISSION Title  !"#$%&'()*+,-./012345689:;<=>@ABCDEFGHIJKLMNOPQRSTUVWXZ[\]^_`bcdefghkRoot Entry F01``KmData 71Table?O2WordDocument4lSummaryInformation(YDocumentSummaryInformation8aCompObjq  FMicrosoft Office Word Document MSWordDocWord.Document.89q