ࡱ> %` ʵbjbj"x"x 4@@ x x x    ###8#tp$T C?$$$h%h%W&&,'>>>>>>>$SAhCj> [0W&W&[0[0> h%h%>333[0d h% h%>3[0>33r;T <h%$ #0:<>?0C?H<%Eg2%E<<8%E =-')3+--'-'-'>>3-'-'-'C?[0[0[0[0 # #  Comments supplied by the Presbyterian Church of Australia on the AHRC Discussion Paper, Protection from discrimination on the basis of sexual orientation and sex and/or gender identity I am writing a short response on behalf of the Presbyterian Church of Australia and its various State Assemblies to the call from the 鱨վ for comments in relation to the discussion paper, Protection from discrimination on the basis of sexual orientation and sex and/or gender identity. This discussion paper raises important questions of religious freedom and the proper role of the government and government bodies such as the AHRC. The Presbyterian Church has participated in numerous consultations with government bodies recently, in relation to issues which touch upon the issue of sexual orientation and sex and/or gender identity. Questionable sole focus on LGBTI community We note on page 4 of the discussion paper that you draw attention to the level of discrimination and violence experienced by the LGBTI community. For our part we acknowledge that, deplorably, persons can be subject to attack, whether verbal or physical on their person and property on account of their sexual orientation. However, regrettably such attacks also occur on account of a persons race, religion, disability, age, appearance, as well as other factors. It is not clear why the LGBTI community is singled out for special treatment by the Commission. The need for protection should be based on evidence and if deemed necessary should not be restricted to the LGBTI community. The evidence would suggest, for example, that both disabled people and elderly people are also at great risk of physical abuse. Existing laws are adequate We note the focus of the discussion paper on vilification and discrimination. Vilification and discrimination are already comprehensively regulated in many State based pieces of legislation, which are referred to in the discussion paper and research paper. Yet further regulation would be unnecessary, burdensome, conflicting and confusing. Vilification and discrimination should be left to regulation by the states. Vilification and the role of the courts In respect of hate crime, people need to learn to live together and accept that there will be different understandings about how life is to be lived, and that at times offence will be given and taken. The Christian community many times over has had to accept many hurtful and hateful things said by others including persons of homosexual orientation about their faith, and their activities and organisations, as have other faiths. The essence of a tolerant society is to accept these differences. It is a mistake to create what are basically thought crimes. The stupidity of hatred is better left to be revealed for its irrationality by being exposed than by being pursued in the courts. Whilst incitement to violence against persons and their property on the basis of identity must be treated as a criminal offence, matters such as ridicule, insults and generally giving offence, deplorable as they certainly are should be left as matters for education and social opprobrium and certainly not subject to parties arguing grievances in the civil courts. Transferring such issues into the court room rarely, if ever, achieves the desired outcome. More often than not it is actively harmful. The operation of the civil provisions in the Victorian Racial and Religious Tolerance Act 2001 (RRTA) in the Islamic Council of Victoria v Catch the Fire Ministries case is a perfect example of this. This dispute proved hugely expensive, lasted over 5 years to resolve, did nothing for the reputation of the Deputy President of VCAT, Judge Higgins, did nothing for Muslim Christian relations, and in the end deeply disappointed the Muslim community. Discrimination In respect of discrimination, the discussion paper correctly draws attention to the existence of religious exceptions in State Equal Opportunity legislation. Also noted is the breadth of the religious exceptions in the Victorian legislation. This is an important point to note as the Victorian legislation is the most recently reviewed and enacted as the Equal Opportunity Act 2010. The Victorian religious and other exceptions have been comprehensively amended following extensive consultation and hearings before the Victorian SARC in which religious bodies as well as the LGBTI community participated. These exceptions now introduce a compromise position between the views of difference sections of the community. Any further tampering with these provisions is unwarranted. We recommend that you consult the submissions made to those SARC hearings, particularly those from religious bodies which indicate the strength of the Churches collective position on freedom of conscience, thought and religion. The Churchs views in relation to sexuality It is worth outlining why Christian religious bodies have been so adamant in arguing the case for exemptions which allow a right of positive selection in employment and similar decisions against persons engaged in lifestyles that conflict with our moral beliefs including sexual conduct between persons of the same sex. Our concern, as acknowledged by the Victorian Government, is that people operating in the name of the religious institution or employed by it should not behave in ways which would publicly contradict the expectation that they support by life and testimony the doctrines, beliefs and principles of the institution. As Christians we have no interest in setting out to offend, humiliate, insult, ridicule or discriminate against homosexual persons. Jesus Christ said that we are to love our neighbour as ourselves, and certainly our neighbour includes the homosexual person. Similar sentiments of welcome and hospitality are common to all major religious faiths. However the Bible, which we take as the authoritative Word of God in matters of faith and conduct, as Christians have generally done for the past 2,000 years, is quite clear that a one flesh relationship belongs to the coupling of a male and a female, not two men or two women. As the Bible expresses it: Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh. Genesis chapter 2 verse 24 The Bible goes one step further. It lists homosexual practice as one of those transgressions of Gods law that keeps a person out of Gods Kingdom. Thus, Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. 1 Corinthians chapter 6, verses 9 and10 Now it may be that there are some Christians who will explain such a text away. Undoubtedly it is a text deeply offensive to many homosexuals. We dont expect non Christians to necessarily share our understanding. The point that we are making is a simple one. We will not agree to any actions which give approval, either directly or indirectly, to sexual conduct between persons of the same gender. The Church will continue to insist on the right, indeed the religious duty to teach, believe and promote our moral teaching including this view of sexual conduct between persons of the same sex. It will do so without any intention to be aggressive or hurtful. We are allowed to love a person while rejecting conduct we consider to be immoral. As Justice Morris wrote in Robin Fletcher v Salvation Army, it is important to make the distinction between the person and his beliefs, and by extension, the person and his conduct. Further laws which prohibit discrimination or vilification on the basis of sexuality (etc) have the potential to seriously reduce freedom of religion. Such laws are arguably a direct attack on the ability of the Christian churches to maintain their distinctive identity as religious organisations with defined doctrinal standards and moral codes. So whilst we understand the Commissions desire to see discrimination against the LGBTI community eliminated (though we have serious reservations as to the efficacy of the law in relation to persons principles, convictions and prejudices) and applaud any moves that might reduce incitement to violence against not just LGBTI persons and their property but all persons on account of race, religion, disability, sexual orientation, age and appearance, yet freedom of thought, conscience and religion is a precious freedom that we will not lightly give up. Indeed there is no reason in a civil and democratic society such as we enjoy in Australia, that we should be called upon to relinquish such a freedom. Freedom of religion Freedom of religion has been protected as a fundamental right for centuries. It is also strongly reflected in domestic and international legislation, going back to the 1688 Bill of Rights which sought to limit the power of the Crown and bring about a situation where religion, laws, and liberties might not again be in danger of being subverted. The Australian Constitution s 116 deals with 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. (italics added). Article 18 in both the 1948 United Nations Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights (to which Australia was a signatory) provide extensive and detailed recognition to freedom of thought, conscience and religion to which the United Nations has subsequently appended the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the 1984 Siracusa Declaration on the interpretation of the limitation clause in ICCPR Art 18 and in 1993, the UN Human Rights Committee made the various interpretive observations in General Comment 22 regarding the application and scope of ICCPR article 18. We attach for your consideration further detail on matters of freedom of thought, conscience and religion as they relate to matters of discrimination. A final point. We are disappointed that the Commission, contrary to widespread opinion, particularly amongst religious bodies, but by no means restricted to them, states as its belief that civil marriage should be available to same sex couples on an equal basis with opposite sex couples, despite abundant research evidence that demonstrates the benefit to society of heterosexual two-parent families cemented by the marriage vows. Yours sincerely Moderator General Appendix1: Freedom of Religion - Domestic and International Legislation (Extracted from the Submission of the Presbyterian Church of Victoria to the Victorian Parliaments Scrutiny of Acts and Regulations Committee enquiry into the Exceptions and Exemptions in the Equal Opportunity Act 1995. This submission may be viewed in full here:  HYPERLINK "http://candn.pcvic.org.au/media/pdf/articles_2/PCVSubmissionExceptionsExemptions.pdf" http://candn.pcvic.org.au/media/pdf/articles_2/PCVSubmissionExceptionsExemptions.pdf - note that the SARC website incorrectly links the Presbyterian Church of Victoria submission to that of the Lyceum Club.) 1688 In 1688, the Bill of Rights sought to bring about a situation where religion, laws, and liberties might not again be in danger of being subverted. This legislation is still part of Victorian statute law. 1900 In 1900, when the British Parliament passed the Commonwealth of Australia Constitution Act, the preamble commenced Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God .... There can be no dispute that Almighty God referred to the Christian God that had been worshipped for centuries in Western Europe and from which worship sprang the Western democratic tradition which is the basis of our society today. 1901 The Australian Constitution s 116 deals with 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". (emphasis added) 1948 In 1948, the United Nations Universal Declaration of Human Rights (to which Australia was a signatory) stated: Article 18. 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. 1966 In 1966, the UN International Covenant on Civil and Political Rights (to which Australia was a signatory) stated: Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 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. 3. Freedom to manifest one's religion or beliefs 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 freedoms of others. 4. The States 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. 1981 In 1981, the UN made the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief which stated: Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed, ... Article 1 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice. 3. Freedom to manifest one's 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 freedoms of others. ... Article 5 1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up. 2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle. ... Article 6 In accordance with article I of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: (a) To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; (b) To establish and maintain appropriate charitable or humanitarian institutions; 1984 In 1984, the Siracusa Declaration was produced by the UN, entitled United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984). This Declaration does two important things. One, it mandates that all attempts by governments to limit human rights (including freedom of religion) by limitations clauses are subject to the restrictions set out in the Declaration. Two, it states D. Non-Derogable Rights 58. No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenants guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of retroactive criminal legislation; the right to recognition as a person before the law; and freedom of thought, conscience and religion. These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation. (emphasis added) This includes freedom of religion as a non-derogable right. Further, the restrictions on limitation clauses specifically relates to the interpretation of section 7 of the Victorian Charter which is a limitation clause. All of this demonstrates that UN principles require very powerful reasons supported by strong evidence before a State can derogate from the principle of freedom of religion. In the case of the material before SARC, neither of those fundamental qualifications are satisfied. It must at all times be remembered that the Options Paper tries to use its own interpretation of the Charter to limit religious freedom. When it is realised that the Charter itself derives from the ICCPR and the ICCPR is, in turn, subject to a number of UN Declarations, then the only conclusion that is available is that the arguments for restriction of religious freedom in the Options Paper are not supportable. 1993 In 1993, the UN Human Rights Committee made the following interpretive observations regarding the application and scope of article 18 ICCPR (religious freedom above) in its 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. HRI/GEN/1/Rev.1 at 35 (1994). 1. The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18.1 is far-reaching and profound; it encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4.2 of the Covenant. 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. 3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.1. In accordance with articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief. 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 to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications. ... 8. Article 18.3 permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of permissible limitation clauses, States parties should proceed from the need to protect the rights guaranteed under the Covenant, including the right to equality and non-discrimination on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by law and must not be applied in a manner that would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security. Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discriminatory manner. ... (emphasis added) 2006 In 2006, Victoria passed the Charter of Human Rights and Responsibilities Act 2006 and became the first and only Australian State to have a Charter. The Charter stated: 14 Freedom of thought, conscience, religion and belief Every person has the right to freedom of thought, conscience, religion and belief, including the freedom to have or to adopt a religion or belief of his or her choice; and 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. 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. ... 19 Cultural rights (1) All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy his or her culture, to declare and practise his or her religion and to use his or her language. (emphasis added) Similar Charters (or Bill of Rights or Human Rights Acts) are in force in the UK, Europe, Canada, New Zealand and the United States. It is clear that freedom of religions is recognised both domestically and Internationally as a fundamental human right. Limitations Clauses Charter rights have limitation clauses. No sensible person would say that the right to religious freedom is without limits. That, in turn, raises the questions of what the limits should be, who determines those limits, upon what evidence are they made and how they are enforced. The Victorian Charter has this limitation clause in s 7(2): (2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including the nature of the right; and the importance of the purpose of the limitation; and the nature and extent of the limitation; and the relationship between the limitation and its purpose; and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. The right to religious freedom is more entrenched that probably any other Human Right. Historically, there are centuries of wars and disputes which revolve around it. Many people have died defending this right. Many Presbyterians have died. It is a serious matter because it is fundamental to mankind. It is important to keep in mind that our Western democratic society has an entrenched right to religious freedom and has had it for centuries. Prima facie, it should stay that way. If it is to be changed, there must to be a very real need. It is for the proponents of change to prove the need for change, not for us to disprove it. To prove it, clear evidence must be produced. Appendix 2: International Law In the leading case of Kokkinakis (below), the European Court of Human Rights laid out the general principles with relation to freedom of religion. Article 9 of the European Convention provides: "1. 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 worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." Section 14 of the Victorian Charter states: 14 Freedom of thought, conscience, religion and belief (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. The decisions of foreign courts are particularly important because both the European Convention and the Victorian Charter provisions are derived from the ICCPR and are, for practical purposes, identical. Foreign law is taken into account in Victoria by operation of section 32 of the Charter which states: 32 Interpretation (1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision. In KOKKINAKIS v. GREECE - 14307/88 [1993] ECHR 20 (25 May 1993), the Court said as follows: A. General principles 31. As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion". Bearing witness in words and deeds is bound up with the existence of religious convictions. (emphasis added) Australian Law The Australian Constitution of 1901 emphasise the principle of freedom of religion in section 116. The Constitution itself and the leading case, the Jehovahs Witness Case (1943) (below) were both established long before any Human Rights legislation. Thus they reflect the very powerful idea that freedom of religion is embedded in our Constitution and our society. The High Court held in the Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth ("Jehovah's Witnesses case") [1943] HCA 12; (1943) 67 CLR 116 (14 June 1943) as follows Latham C.J. 1. This proceeding raises important questions with reference to the nature and extent of the protection which is given to religion under the Constitution of the Commonwealth. Section 116 of the Constitution is as follows:"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." It is plain that by this provision it is intended to place some restriction upon the power of the Commonwealth to enact legislation which favours any religion, or which interferes with any religion. The principal questions which arise in the case are:Does s. 116 prevent the Commonwealth Parliament from legislating to restrain the activities of a body, the existence of which is, in the opinion of the Governor-General, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, if that body is a religious organization? Is the answer to this question affected by the fact that the subversive activities of such a body are founded upon the religious views of its members? Can such a body be suppressed? ... 3. Section 116 applies in express terms to "any religion," "any religious observance," the free exercise of "any religion" and any "religious test." Thus the section applies in relation to all religions, and not merely in relation to some one particular religion. It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance. What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. At all times there are many who agree with the reflective comment of the Roman poet"Tantum religio potuit suadere malorum." The prohibition in s. 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal lawDeorum injuriae Diis curae. Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion. ... 5. It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of s. 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. 6. The scope of religion has varied very greatly during human history. Probably most Europeans would regard religion as necessarily involving some ideas or doctrines affecting the relation of man to a Supreme Being. But Buddhism, one of the great religions of the world, is considered by many authorities to involve no conception of a God. For example, Professor Gilbert Murray says: "We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the conception of God at all; in his stead it has Dharma, the Eternal Law."Five Stages of Greek Religion, ch. 1. On the other hand, almost any matter may become an element in religious belief or religious conduct. The wearing of particular clothes, the eating or the non-eating of meat or other foods, the observance of ceremonies, not only in religious worship, but in the everyday life of the individualall of these may become part of religion. Once upon a time all the operations of agriculture were controlled by religious precepts. Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character. ... Section 116, however, is based upon the principle that religion should, for political purposes, be regarded as irrelevant. It assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion. 7. The examples which have been given illustrate the difficulty of the problem with which a court is confronted when it is asked to determine whether or not a particular law infringes the constitutional provision by prohibiting "the free exercise of ... religion." Can any person, by describing (and honestly describing) his beliefs and practices as religious exempt himself from obedience to the law? Does s. 116 protect any religious belief or any religious practice, irrespective of the political or social effect of that belief or practice? It has already been shown that beliefs entertained by a religious body as religious beliefs may be inconsistent with the maintenance of civil government. The complete protection of all religious beliefs might result in the disappearance of organized society, because some religious beliefs, as already indicated, regard the existence of organized society as essentially evil. 8. Section 116 does not merely protect the exercise of religion, it protects the free exercise of religion. The word "free" is vague and ambiguous, as is shown by the many decisions in this Court and in the Privy Council upon the meaning of the word "free" in another place when it appears in the Constitutionin s. 92, which provides for free trade, commerce and intercourse between the States. When a slogan is incorporated in a constitution, and the interpretation of the slogan is entrusted to a court, difficulties will inevitably arise. The word "free" is used in many senses, and the meaning of the word varies almost indefinitely with the context. A man is said to be free when he is not a slave, but he is also said to be free when he is not imprisoned, and is not subject to any other form of physical restraint. In another sense a man is only truly free when he has freedom of thought and expression, as well as of physical movement. But in all these cases an obligation to obey the laws which apply generally to the community is not regarded as inconsistent with freedom. Freedom of speech is a highly valued element in our society. But freedom of speech does not mean that an individual is at liberty to create a panic in a theatre by raising a false alarm of fire, as was pointed out in the United States of America in the case of Schenck v. United States[1]. ... In the United States the problems created by this provision have been solved in large measure by holding that the provision for the protection of religion is not an absolute, to be interpreted and applied independently of other provisions of the Constitution. The Supreme Court said in Jones v. Opelika[5], with reference to the constitutional guarantees of freedom of speech, freedom of press and freedom of religion: "They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument." It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living "without which constitutional guarantees of civil liberties would be a mockery." ... 9. The cases to which I have just referred are recent cases. But before the Constitution of the Commonwealth was adopted in 1900 decisions of the Supreme Court of the United States had dealt with the subject of the constitutional protection of religious freedom. These cases quite clearly determined that such protection was not absolute and that it did not involve a dispensation from obedience to a general law of the land which was not directed against religion. ... 10. There is, therefore, full legal justification for adopting in Australia an interpretation of s. 116 which had, before the enactment of the Commonwealth Constitution, already been given to similar words in the United States. This interpretation leaves it to the court to determine whether a particular law is an undue infringement of religious freedom. ... It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community. The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all reality from the constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law "for prohibiting the free exercise of any religion." The word "for" shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character. Starke J The liberty and freedom predicated in s. 116 of the Constitution is liberty and freedom in a community organized under the Constitution. The constitutional provision does not protect unsocial actions or actions subversive of the community itself. Consequently the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and the duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order. Therefore there is no difficulty in affirming that laws or regulations may be lawfully made by the Commonwealth controlling the activities of religious bodies that are seditious, subversive or prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. (emphasis added)  We have made submissions to: the Scrutiny of Acts and Regulations Committee of the Victorian Parliament in relation to the religious exemptions in the Victorian Equal Opportunity Act the Eames enquiry into Identity motivated hate crime in Victoria Parliamentarians in relation to Senator Sarah Hanson-Youngs Marriage Equality Amendment Bill 2009 the AHRCs Freedom of Religion and Belief in the 21st Century project, which arguably touched on the same issues.  See section 81 of the Victorian Equal Opportunity Act 2010.  Fletcher v Salvation Army Australia (Anti Discrimination) [2005] VCAT 1523 (1 August 2005)  HYPERLINK "http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2005/1523.html?query=Robin%20Fletcher" http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2005/1523.html?query=Robin%20Fletcher  See for example:  HYPERLINK "http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features40Sep+2010" http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features40Sep+2010; Judge Paul Coleridge, "Family breakdown is now a national tragedy", The Telegraph (UK), June 17, 2009. URL:  HYPERLINK "http://www.telegraph.co.uk/family/5561776/Family-breakdown-is-now-a-national-tragedy.html" www.telegraph.co.uk/family/5561776/Family-breakdown-is-now-a-national-tragedy.html Judge Paul Coleridge's original speech to the Family Holiday Association, (delivered at House of Commons, London), June 16, 2009. URL:  HYPERLINK "http://www.fhaonline.org.uk/Documents/COUNCIL090616MrJusticeColeridgeSPEECH.pdf" www.fhaonline.org.uk/Documents/COUNCIL090616MrJusticeColeridgeSPEECH.pdf Galena K. Rhoades, Scott M. Stanley and Howard J. Markman, "Working with cohabitation in relationship education and therapy", Journal of Couple and Relationship Therapy, Vol. 8, Issue 4, 2009, pages 95-112. URL:  HYPERLINK "http://www.tandf.co.uk/journals/wcrt" www.tandf.co.uk/journals/wcrt Scott M. Stanley and Galena K. Rhoades, "Living with cohabitation: what it means for relationship education" Microsoft PowerPoint presentation (Center for Marital and Family Studies, University of Denver, Colorado, US), July 9, 2009. URL:  HYPERLINK "http://www.prepinc.com/main/docs/2009SM_livingwithcohab.pdf" www.prepinc.com/main/docs/2009SM_livingwithcohab.pdf Bill Muehlenberg's review of Dawn Stefanowicz's book, Out From Under: The Impact of Homosexual Parenting, News Weekly, November 14, 2009. 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