Religious Freedom Under the Victorian Charter of Rights

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 of thought, conscience, religion and belief, including the 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.