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Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 Victorian Government Submission Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into The Status of the Human Right to Freedom of Religion or Belief April 2017 Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 The Victorian Government welcomes the opportunity to provide this submission to the Human Rights Sub-Committee of the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade Inquiry into ‘The Status of the Human Right to Freedom of Religion or Belief.’ Victoria is one of the most culturally, linguistically and religiously diverse societies in the world.
This diversity is one of Victoria’s greatest strengths – and our success has been built upon an important foundation – freedom, fairness, equality before the law and respect for all Victorians.

The Victorian Government strongly believes that all citizens have the right to participate equally in society.

This includes the right to freely celebrate and practice cultural and religious traditions.

At the same time, it is vital this is balanced with respect for the safety, freedoms and rights of others.
Because in Victoria we believe everyone can, and should, contribute and belong.

The Victorian Government acknowledges the Inquiry’s Terms of Reference, which provides an opportunity to examine how State and Territory governments protect freedom of religion or belief, promote religious tolerance, and prevent violations or abuses of this right.

The Victorian Government’s submission can be summarised as follows: 1.
Victoria has a strong legislative framework in place to protect freedom of religion and to protect Victorians from discrimination and vilification on the grounds of religious activity or belief.

2.

Legislation is supported by policy and initiatives to foster social cohesion, build the capacity of faith-based organisations to engage in interfaith work, and celebrate cultural and religious diversity.

3.
3.

The Victorian Government provides ongoing funding to support projects and programs that aim to build interfaith understanding and dialogue in the community.

4.

The Victorian Government believes that the right to freedom of religion must be balanced with other human rights, such as the right to equality before the law.
The freedoms set out in the Victorian Equal Opportunity Act 2010, for example, should be appropriately balanced so that both the right to be free from discrimination, and the right to religious freedom, can be fairly enjoyed.
Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 Comprehensive legislative framework for protecting freedom of religion or belief Freedom of religious expression in Victoria is protected by a robust and sophisticated legislative framework which includes the Charter of Human Rights and Responsibilities Act 2006 (the Charter), the Equal Opportunity Act 2010 (EOA) and the Racial and Religious Tolerance Act 2001 (RRTA).
Charter of Human Rights and Responsibilities Act 2006 Victoria is at the forefront of human rights protection in Australia, being the only state to have legislative protection of human rights in a standalone Act.
The Charter protects the human rights of all people in Victoria, including the right to freedom of religion, in three main ways:  Section 38(1) requires public authorities, such as Victorian state and local government departments and agencies and people delivering services on behalf of government, to act and make decisions compatible with the articulated human rights in the Charter.
In recognition of the importance of freedom of religion, subsection 38(4) creates a special exception to this obligation where a public authority's action or decision will impede or prevent a religious body (such as a denominational hospital) acting in conformity with its religious doctrines.

 Section 28 requires a Statement of Compatibility to be prepared for every Bill and tabled in Parliament, stating whether the Bill is incompatible or compatible with human rights.
Section 30 allows for scrutiny of Bills by the Scrutiny of Acts and Regulations Committee and reporting to Parliament of human rights compatibility.

These measures increase public scrutiny and debate of the human rights impacts of legislation.

 Section 32 requires courts to interpret legislation in a way that is compatible with human rights.
Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief and is modelled on articles 18(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR).

Section 14 includes the right to have or to adopt a religion or belief and demonstrate one’s religion or belief in worship, observance, practice and teaching in public or in private, either individually or as part of a community.
It also protects against coercion or restraints that limit freedom of religion.

Freedom of religion often intersects with other rights under the Charter, including freedom of expression (e.g.

racial vilification laws), the right to equality (e.g.

exemptions for religious organisations from anti-discrimination laws), property rights and cultural rights (e.g.
minority religious groups seeking permits to build places of worship) and protection from subjection to medical treatment without full, free and informed consent (e.g.

where a person refuses a blood transfusion on religious grounds).

There are times where a law, policy or procedure that promotes or protects one human right may limit another human right.

For this reason, all rights including the freedom of religion may be subject to reasonable limits in accordance with subsection 7(2) of the Charter (e.g.
for public health and safety reasons).

This is a balancing exercise and in such Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 circumstances it is important to consider the policy, decision or action from all viewpoints and ensure that the process is fair, transparent and accountable.

In some circumstances, a person can take court action and seek a remedy for breach of their Charter rights.
The Charter also requires courts to interpret legislation in a rights compatible manner, so far as it is possible to do so consistently with its purpose.
For example, the Victorian Court of Appeal found that in deciding whether to grant a permit for building of a mosque, a local council was correct to consider the freedom of religion of potential congregants in its decision to grant the permit.1 Following an independent review of the operation of the Charter in 2015, the Victorian Government is presently implementing numerous recommendations to strengthen the operation of the Charter and its human rights protections.
Equal Opportunity Act 2010 (EOA) The EOA prohibits discrimination on the basis of a number of individual attributes in key areas of public life, including employment, education and the provision of goods and services.

The EOA prohibits discrimination on the basis of a person’s religious belief or activity.

This means the holding, or not holding, of a lawful religious belief or view, and engaging in, not engaging in or refusing to engage in a lawful religious activity.
The EOA prohibits direct discrimination, which occurs if a person treats, or proposes to treat, a person with a protected attribute unfavourably because of that attribute.

The EOA also prohibits indirect discrimination, which occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, and that is not reasonable.
A person with a complaint of discrimination can seek to resolve their matter through dispute resolution at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC).

Dispute resolution offered by VEOHRC is free, voluntary and confidential.

According to VEOHRC’s 2015-16 Annual Report, of the 2116 complaints it received under the EOA and RRTA in that year, 54 were complaints of discrimination on the basis of religious belief or activity, and four were complaints of religious vilification.
Alternatively, a person can make an application to the Victorian Civil and Administrative Tribunal (VCAT) to have their legal complaint heard and determined.

Where VCAT finds that the EOA has been contravened, VCAT may make a range of orders, including that the person who contravened the EOA refrain from committing any further contravention of the EOA, pay compensation or do something else to redress any loss, damage or injury suffered as a result of the contravention.
The EOA provides for ‘exceptions’ to unlawful discrimination, which recognise that discrimination may be justified in certain circumstances.

An exception is a defence to an allegation of unlawful discrimination, and a person or body seeking to rely on an exception bears the legal responsibility of proving that it applies.

1 Hoskin v Greater Bendigo City Council (2015) 212 LGERA 362.
Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 The EOA includes exceptions to recognise and accommodate religious beliefs and practices.

None of the prohibitions of discrimination in the EOA applies to appointments within a religious order, training or education of people seeking religious appointment or the appointment of people to perform functions in relation to religious observance and practice.
The EOA also provides a defence for discriminatory actions of religious bodies and schools that conform with religious doctrines, beliefs or principles, or are reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.
These exceptions do not apply to all attributes protected by the EOA, but those considered most likely to conflict with religious beliefs, being: religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.
The EOA also includes exceptions that allow schools that operate wholly or mainly for students of a particular religious belief, and institutions established wholly or mainly for the welfare of persons of a particular religious belief, to exclude people who are not of the particular religious belief.
Racial and Religious Tolerance Act 2001 (RRTA) The RRTA provides protection against racial and religious vilification, which is defined as behaviour that incites or encourages hatred, serious contempt, revulsion or severe ridicule against another person or group of people because of their race or religion.

Part 2 of the RRTA contains civil vilification provisions (‘unlawful vilification’).
Section 7 states that ‘[a] person must not, on the ground of the race of another person or class of persons, engage in conduct that incites racial hatred against, serious contempt for, or revulsion or severe ridicule of that other person or class of persons’.

Section 8 repeats the prohibition in identical terms in relation to vilification on the grounds of religious belief or activity.
Consistent with the EOA, a person with a complaint under the RRTA can seek to resolve their matter through dispute resolution at VEOHRC.

Alternatively, the person can make an application to VCAT to have their legal complaint heard and determined.

Government and statutory agencies with responsibilities to protect freedom of religion or belief The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) VEOHRC is an independent statutory body with responsibilities under the Charter, EOA and RRTA.
VEOHRC provides a dispute resolution service for complaints under the EOA and RRTA and works closely with public authorities, organisations and employers to help them meet their obligations under the Charter and equal opportunity laws.

By way of example, VEOHRC, with the support of the Victorian Multicultural Commission and other organisations ran a public campaign to address vilification and discrimination (the ‘Anti-Hate Spray’ campaign).
The initiative focused on equipping Victorians with practical tools to respond to hate and support victims, including resources for responding to discrimination online and in person.

Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 In addition, in 2014-15 VEOHRC conducted a compliance review under the EOA and the Charter into Monash Health’s same-gendered healthcare policy.
The Commission considered how the policy applied to patients requesting same-gender care due to their cultural and religious backgrounds.

As a result of VEOHRC’s review, Monash Health implemented recommendations including amending their policy to state that staff would try to accommodate requests for same gender care wherever possible.

VEOHRC also promotes and protects equal opportunity and human rights through education, consultancy, dispute resolution, and monitoring.
Its monitoring function includes the tabling of an annual report on the operation of the Charter in Parliament.

The Victorian Ombudsman The Victorian Ombudsman is an independent officer of the Victorian Parliament.

The Ombudsman is empowered to inquire into and investigate alleged breaches of the Charter.

This includes where complaints are made about administrative actions taken by Victorian public authorities, or by way of own-motion investigation.
The Ombudsman can report and make recommendations to remedy non-compliance with the Charter.

Human Rights Unit The Human Rights Unit (HRU) is part of the Department of Justice and Regulation.

The HRU provides policy advice to government on the compliance of processes, policy and legislation with the Charter.

It also provides resources on the Charter and training on human rights culture and compliance within the Victorian Government.
Where a policy or Bill promotes or limits freedom of religion, the HRU will draw this to the attention of the relevant policy area to assist with proper consideration in decision-making.

Victorian Government Support for Faith and Interfaith Initiatives Victoria’s legislation is supported by a policy and program framework in the multicultural affairs portfolio that aims to foster social cohesion and build intercultural and interfaith understanding and dialogue in the community.
Current initiatives that specifically support freedom of religion and the practice of religious and cultural activities are coordinated by the Multicultural Affairs and Social Cohesion Division (MASC) in the Department of Premier and Cabinet.

These include:    the Community Harmony Program the Multicultural Community Grants Program the Multifaith Advisory Group.
Community Harmony Program The Community Harmony Program supports activities that foster understanding, appreciation and respect and provides opportunities to share one’s culture, beliefs, faith background and experience with others.
A range of initiatives to facilitate engagement with Inquiry into the status of the human right to freedom of religion or beliefSubmission 328 faith organisations and interfaith organisations provide capacity building and development opportunities for Victorians from diverse faith backgrounds, promote respect and understanding of different faiths and cultures and support communities to work together.
Multicultural Community Grants Program The Multicultural Community Grants Program supports social cohesion and community harmony through preventative initiatives that address the root causes of social disharmony and racial, ethnic and religious intolerance.

The program supports intercultural and interfaith events, and open discussion about common values and cultural and religious similarities.
Organisations typically funded through the Grants Program include faith and interfaith organisations, peak faith bodies in Victoria and local interfaith networks in metropolitan, rural and regional areas.

Multifaith Advisory Group (MAG) The MAG is an advisory body which represents the voice of Victoria’s faith leaders to the Victorian Government through the multicultural affairs portfolio.
The MAG aims to ensure ongoing dialogue between the Victorian Government and Victoria’s faith leaders and communities, and assists the Government to understand and appropriately respond to situations which arise in diverse faith and multicultural communities around Victoria.

Established in 2008, the MAG currently consists of approximately 25 senior representatives from Victoria’s diverse faith communities, including various Christian, Jewish, Muslim, Sikh, Hindu, Buddhist and Baha'i communities.
Balancing freedom of religion and belief with the rights of others In order to fully protect the freedoms that reflect the diversity and experience of every Victorians, we need to be able to have full, frank and informed discussions about the kind of state we want to be.
Discussions about our diversity follow from the understanding that every Victorian has a duty to respect and uphold the laws and values of the state, a right to be themselves and a responsibility to let others live as they choose without fear or discrimination.

In short: every Victorian should be able to contribute and belong.

Inquiry into the status of the human right to freedom of religion or beliefSubmission 328