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Article 18 Freedom of Religion and Belief ARTICLEFreedom of religion and belief 18 Human Rights and Equal Opportunity Commission ã Commonwealth of Australia 1998. This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Human Rights and Equal Opportunity Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Executive Director, Human Rights and Equal Opportunity Commission, GPO Box 5218, Sydney NSW 1042. National Library of Australia Cataloguing-in-Publication entry. Article 18 Freedom of religion and belief. Bibliography ISBN 0 642 26959 9 1. Freedom of religion - Australia. 2. Religion and law - Australia. 3. Religious tolerance - Australia. 4. Civil rights - Australia - Religious aspects. I. Australia. Human Rights and Equal Opportunity Commission. 291.17720994 Design and layout by Jodey Wills. Printed by J.S. McMillan Pty Ltd. Human Rights and Equal Opportunity Commission July 1998 The Hon Daryl Williams AM QC MP Attorney-General Parliament House Canberra ACT 2600 Dear Attorney I present Article 18, the report of the inquiry into freedom of religion and belief in Australia. Yours sincerely Chris Sidoti Human Rights Commissioner Human Rights and Equal Opportunity Commission Level 8 Piccadilly Tower 133 Castlereagh Street Sydney NSW 2000 GPO Box 5218 Sydney NSW 1042 Abbreviations CEDAW Convention on the Elimination of Discrimination Against Women 1979 CERD International Convention on the Elimination of All Forms of Racial Discrimination 1969 Commission Human Rights and Equal Opportunity Commission CROC Convention on the Rights of the Child 1989 ICCPR International Covenant on Civil and Political Rights 1966 ILO 111 International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 Religion Declaration Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981 Table of Contents Executive Summary................................................................................................ iii List of Recommendations ........................................................................................ v 1 The inquiry into religious freedom in Australia ........................................ 1 1.1 Introduction ................................................................................................ 1 1.2 The role of the Commission ........................................................................ 2 1.3 The review process ..................................................................................... 4 1.4 This report ................................................................................................... 6 2 Freedom of religion and belief .................................................................. 7 2.1 Introduction ................................................................................................ 7 2.2 Freedom of religion and belief in Australian law ......................................... 8 2.3 Comparative law ....................................................................................... 14 2.4 International human rights law .................................................................. 19 2.5 Submissions to the Inquiry ........................................................................ 22 Findings and recommendations ................................................................ 23 3 Religious expression ............................................................................... 29 3.1 Introduction .............................................................................................. 29 3.2 Indigenous heritage protection .................................................................. 30 Findings and recommendations on Indigenous heritage protection ........... 38 3.3 Marriage laws ........................................................................................... 39 Findings on marriage laws ........................................................................ 41 3.4 Polygamy .................................................................................................. 41 Findings on polygamy ............................................................................... 43 3.5 Burials ....................................................................................................... 43 Finding and recommendations on burials and Indigenous beliefs ............. 44 3.6 Autopsies .................................................................................................. 45 Findings and recommendations on autopsies ............................................ 50 3.7 Medical interventions ............................................................................... 51 Findings and recommendations on childhood medical interventions ........ 55 3.8 Female genital mutilation .......................................................................... 56 Findings and recommendation on female genital mutilation ..................... 58 3.9 Male circumcision .................................................................................... 59 3.10 Paganism .................................................................................................. 60 Findings and recommendations on Paganism............................................ 64 3.11 New religious movements ......................................................................... 65 Findings and recommendation on new religious movements .................... 79 n i 4 Discrimination on the ground of religion or belief .................................. 87 4.1 Introduction .............................................................................................. 87 4.2 Discrimination under Australian law ......................................................... 88 4.3 Experiences of discrimination in public life ............................................... 92 4.4 Federal anti-discrimination legislation..................................................... 103 4.5 Exemptions for religious discrimination ................................................... 105 Findings and recommendation ................................................................. 111 5 Incitement to religious hatred .............................................................. 115 5.1 Introduction ............................................................................................. 115 5.2 Experiences of vilification and incitement to hatred ................................. 116 5.3 Current legal protection in Australia ........................................................ 123 5.4 Proposed federal anti-vilification law ...................................................... 128 5.5 International human rights law ................................................................ 130 5.6 Finding the balance in Australian law ..................................................... 132 5.7 Federal anti-vilification legislation .......................................................... 135 Findings and recommendations .............................................................. 139 Appendix 1 Religion Declaration .................................................................... 145 Appendix 2 Questions posed in the discussion paper ................................... 149 Appendix 3 List of Submissions ...................................................................... 151 Appendix 4 Workshop Groups and Participants ............................................. 162 Appendix 5 Inquiry Participants ..................................................................... 164 Select Bibliography ............................................................................................. 165 n ii Executive Summary Introduction This report addresses the human right to freedom of religion and belief in Australia. The right is contained in article 18, International Covenant on Civil and Political Rights. It includes the freedom to have or adopt a religion or belief of ones choice including theistic, non-theistic and atheistic beliefs. Discrimination and vilification on the basis of religion and belief discourages participation in the community and may infringe the right to freedom of religion and belief. 1 A federal Religious Freedom Act The Commission received submissions detailing experiences of discrimination and vilification on the basis of religion and belief which infringe the rights of individuals and groups. On the basis of those submissions the Commission recommends the enactment of a federal Religious Freedom Act (Recommendations 2.1-2.6). Discrimination on the basis of religion and belief To ensure the enjoyment of religion and belief the individual must be free from discrimination on the ground of religion and belief in all areas of public life including employment, education, the provision of goods and services and accommodation. The proposed Religious Freedom Act would contain provisions making discrimination on the ground of religion and belief unlawful subject to exemptions for discrimination based on the inherent requirements of the job and for discrimination in certain circumstances in connection with employment at an institution which is conducted in accordance with the doctrines, tenets or teachings of a particular religion or creed (Recommendation 4.1). Incitement to hatred on the basis of religion and belief Vilification, insults, threats or abuse against a person
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