Section 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.

 

Section 14 protects a number of rights with respect to freedom of thought, conscience, religion and belief.


It protects not only a right to entertain ideas or hold positions of conscience and religious and other beliefs (including the right not to have religious beliefs), but also a right to demonstrate one’s religion or belief, whether individually or collectively, whether in private or public, and whether through worship, observance, practice and teaching. Note that the right to demonstrate only extends to a person’s religion or belief and does not extend to all matters of thought and conscience.


These two forms of protection can be distinguished. The right to freedom of thought, conscience, religion or belief is concerned with the right to internally hold certain thoughts, beliefs, or positions; whereas the right to demonstrate religion or belief relates to how a person chooses to externally demonstrate his or her religion or belief through a broad range of acts including worship, observance, practice and teaching.


The rights to freedom of thought, conscience, religion and belief In international human rights law the right to freedom of thought, conscience, religion and belief has been interpreted broadly to include ‘freedom of thought on all matters, personal conviction and the commitment to religion or belief’.105


The Charter does not define what is meant by ‘thought’, ‘conscience’ and ‘religion and belief’.


The following guidance may be helpful:

‘Thought’


The Charter protects the freedom to think freely. This right is likely to include political, philosophical and social thought and to protect against brainwashing and indoctrination by a public authority.


‘Conscience’


The notion of ‘conscience’ is often bound up with religious belief, but international human rights law suggests that the term requires that there be some philosophical basis for a belief to amount to ‘conscience’.


An example of the application of this freedom in Canada involved the Correction Service of Canada being ordered to provide a vegetarian diet to accommodate an inmate’s non-religious conscientious beliefs.106


Note though that the right to freedom of thought and conscience does not imply the right to refuse all legal obligations imposed by law, such as paying taxes,107 nor does it provide immunity from criminal liability for every such refusal.108

‘Religion’


The UN Human Rights Committee has not defined religion. It has only said that ‘religion’ should be interpreted broadly to include ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.’109 This suggests that ‘religion’ does not just refer to traditional institutional religions but also to new religions. In other contexts, the High Court of Australia has also adopted a broad interpretation of the notion of religion.110


Any religion practised in Victoria is likely to be covered by this section. If you are unsure about whether a particular collection of ideas or practices can be characterised as a religion, you should consult Australian law on the subject.111

 

The Charter does not only protect 'reasonable' religious befiefs: all religious beliefs are prima facie protected. 112

‘Belief’


Article 18(1) of the ICCPR provides that the right to ‘freedom of thought, conscience and religion’ includes a freedom to adopt a religion or belief of one’s choice and a freedom to demonstrate religion or belief in worship, observance, practice and teaching. The implication is that ‘belief’ is an aspect of ‘thought, conscience and religion.’


The UN Human Rights Committee has not defined what is meant by ‘belief’. It has, however, made clear that the right to freedom of thought, conscience and religion encompasses a broad range of beliefs including religious and non-religious beliefs, such as atheism, agnosticism, and scepticism about religious matters.

Scope of these rights


The scope of the right to freedom of religion and belief is outlined in the following points:

  • It protects the right to have a religion or belief of one’s choice. This is closely linked to the right to freedom of thought and conscience.
  • It protects the right to adopt a religion or belief of one’s choice. This means that people have the right to change their religion or belief, including a right to leave their religion or convert to another religion.
  • It protects freedom from religion or certain beliefs. This means that the government cannot be seen to impose religion or take sides in matters of religion or belief.
  • It protects the right to demonstrate one’s religion or belief, whether individually or in community with others, whether in public or private. This right is discussed further below.


Positive or negative obligation?


In international human rights law, the right to freedom of thought, conscience, religion and belief have generally been regarded as primarily negative obligations requiring a nation state to exercise restraint from interference with this right, rather than imposing positive duties on the nation state.


However, the state may be obliged in some circumstances to intervene to protect this right, for example where to fail to do so may lead to a ‘seriously offensive attack on religious sensitivities’.112 This may include appropriately drafted laws prohibiting religious vilification. In order to protect religious freedom in this positive sense, restrictions will sometimes be required to be placed on freedom of expression.

These circumstances may include, for example:

  • the publication of offensive portrayals of religious worship;113
  • where private individuals instigate a campaign of harassment against a church or religious group;114
  • broadcasting a film ending with a violent denunciation of a particular religious group;115 and
  • any of the above in relation to a person’s belief (which may be non-religious).


Right to demonstrate religion or belief


As noted above, s. 14 also protects the right to demonstrate one’s religion or belief. The scope of this right relates only to religion and belief and does not extend to freedom of thought or conscience.


The right to demonstrate one’s religion or belief encompasses a broad range of acts and has both individual and collective aspects. It means that a public authority must not prevent a person from demonstrating his or her religion or belief either alone or with others and either in private or in public. It is for the individual persons to determine whether they wish to demonstrate their religion or belief in public or private; for example, the government cannot force them to worship in private.

‘Worship’


Religious worship means ritual and ceremonial acts giving direct expression to religious beliefs. For example:

  • building of places of worship;
  • using ritual formulae and objects;
  • displaying symbols;
  • observing holidays and days of rest.


‘Observance’


The UN Human Rights Committee has provided guidance on the meaning of ‘observance’.116


Observance includes:

  • ceremonial acts;
  • dietary regulations;
  • wearing distinctive clothing; and
  • participating in rituals associated with particular life stages.

It will also include the use of a particular language customarily spoken by a group.


‘Practice or teaching’


The expression ‘practice or teaching’ is likely to include acts covered by the concept of observance but may also include acts by religious groups integral to the conduct of their basic affairs, such as choosing religious leaders and teachers, establishing religious schools, and preparing religious texts and publications.117

 

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105 UN Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 155 (2003) [1].

106 Maurice v. Canada (Attorney-General) (2002) 210 DLR (4th) 186.


107 JP v. Canada, Human Rights Committee, Communication No. 446/1991, UN Doc. CCPR/C/43/D/446/1991
(8 November 1991) [4.2].


108 Westerman v. The Netherlands, Human Rights Committee, Communication No. 682/1996, UN Doc. CCPR/C/67/D/682/1996 (3 November 1999).

109 UN Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 155 (2003) [2].


110 Church of New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120.


111 See for example, Butterworths, Halsbury’s Laws of Australia, 21 Human Rights, ‘4 Civil and Political Rights’ [81]; Church of New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120.

112 See R v Secretary of State for Education and Employment and others, ex parte Williamson and others [2005] UKHL 15; Police v Razamjoo [2005] DCR 408 (NZ).

112 Otto-Preminger Institute v. Austria (1995) 295 Eur Court HR (ser A); (1995) 19 EHRR 34.

113 Ibid.


114 Church of Scientology v. Sweden [1979] ECC 511.


115 Otto-Preminger Institute v. Austria (1995) 295 Eur Court HR (ser A); (1995) 19 EHRR 34.

116 UN Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 155 (2003) [4].


117 UN Human Rights Committee, General Comment 22, Article 18 (Forty-eighth session, 1993), UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 155 (2003) [4].