Human Rights and Equal Opportunity Commission Act 1986 - Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion or Belief

The Declaration revolves around several core concepts. First, the right to freedom of thought, conscience, and religion is set out in Article 1(1). This includes the freedom to have a religion or whatever belief of one’s choice and, either individually or in community with others and in public or private, to manifest that religion or belief in worship, observance, practice, and teaching. The right to have a religion or belief is absolute. The right to manifest it is qualified by Article 1(3): limitations must be prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. This mirrors the structure of Article 18 of the International Covenant on Civil and Political Rights. Second, Article 2 defines “intolerance and discrimination based on religion or belief” as any distinction, exclusion, restriction or preference based on religion or belief that has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis. The definition covers both purpose and effect, so a practice that is neutral on its face but has a discriminatory impact is within scope. Third, Article 3 condemns discrimination on grounds of religion or belief as a violation of human rights and an obstacle to friendly relations. Fourth, Article 4 imposes duties on States to take effective measures to prevent and eliminate such discrimination in all fields of civil, economic, political, social and cultural life, and to enact or rescind legislation where necessary. Fifth, Article 5 addresses the rights of parents and children regarding religious upbringing, subject to the child’s best interests and protections against harm. Sixth, Article 6 provides a non-exhaustive list of freedoms encompassed by the right to manifest religion or belief, including worship, establishing charitable institutions, making and using ritual articles, writing publications, teaching, soliciting voluntary financial contributions, appointing leaders, observing rest days, and maintaining communications nationally and internationally. Seventh, Article 7 requires that these rights be accorded in national legislation so everyone can avail themselves of them in practice. Eighth, Article 8 is a savings clause: nothing in the Declaration restricts or derogates from any right in the Universal Declaration of Human Rights or the International Covenants. The Declaration also distinguishes between the freedom to have a belief (absolute) and the freedom to manifest it (qualified). The term “intolerance” is not defined in the text, which leaves scope for interpretation. The preamble also references the use of religion for ends inconsistent with the UN Charter as inadmissible, and notes concern about manifestations of intolerance in some areas of the world.

The Declaration itself is aspirational and directed at States. However, its designation under the HREOC Act affects a range of actors in Australia. Individuals who believe they have suffered discrimination on the ground of religion or belief can lodge a complaint with the Australian Human Rights Commission. The complaint must relate to conduct by a person or entity that is subject to Commonwealth jurisdiction. This includes conduct by the Commonwealth government and its agencies, as well as conduct by private actors in areas where the Commonwealth has legislative power (for example, under the corporations power or the external affairs power). The practical reach is therefore limited: most day to day religious discrimination in employment, housing, or provision of goods and services occurs under state laws, and the Commission’s inquiry functions under the HREOC Act are largely confined to Commonwealth action unless the conduct also breaches a separate Commonwealth anti-discrimination law. The declaration also affects religious organisations and institutions. Article 6 lists freedoms such as establishing and maintaining places of worship, charitable institutions, and appointing leaders. These freedoms are not directly enforceable under the declaration, but the Commission may examine whether Commonwealth laws or actions unduly restrict them. Employers, especially those operating as constitutional corporations or in Commonwealth territories, face the risk of a complaint if they refuse to accommodate religious practices or treat employees unfavourably because of their religion or belief. Educational institutions, particularly those receiving Commonwealth funding, may be scrutinised for policies that restrict religious expression or impose secular requirements that disproportionately burden certain faiths. State governments are largely unaffected directly because the declaration was made after consulting State ministers but does not bind them. However, the Commission can examine State laws if they are referred under the Act or if the matter involves Commonwealth action. Ultimately, the effect is diffuse: the declaration provides a standard against which conduct can be measured, but it does not create private rights of action or binding obligations. The main immediate effect is to expand the scope of complaints the AHRC can accept and thereby raise awareness of religious discrimination issues.

The Declaration sets out rights that are stated in affirmative terms. The central right is the right to freedom of thought, conscience, religion or belief in Article 1(1). This includes both the internal freedom to hold a belief and the external freedom to manifest it. The right to manifest is not absolute; it is subject to limitations that are prescribed by law and necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others (Article 1(3)). Article 2(1) declares that no one shall be subject to discrimination by any State, institution, group of persons, or person on grounds of religion or other belief. This is a prohibition addressed to all actors, but as a declaration it does not directly impose legal duties. Under Australian law, the duty is indirect: the HREOC Act requires the Commission to inquire into complaints and to report to the Attorney General if the complaint is substantiated. The Commission may also examine Commonwealth enactments and administrative practices for consistency with the Declaration. The duties on the State are found in Article 4: to take effective measures to prevent and eliminate discrimination in all fields (civil, economic, political, social, cultural), and to enact or rescind legislation where necessary. The Commonwealth has not enacted a standalone Religious Discrimination Act, so the extent to which it has fulfilled this duty is debatable. The Declaration also gives parents and legal guardians the right to organise family life according to their religion or belief (Article 5(1)), and the right of the child to access religious education in accordance with parental wishes, subject to the child’s best interests (Article 5(2)). Children are to be protected from discrimination on grounds of religion (Article 5(3)). Article 6 lists specific freedoms that governments should not interfere with, including the freedom to worship, establish institutions, make and use ritual articles, disseminate publications, teach, solicit voluntary financial contributions, appoint leaders, observe rest days, and maintain communications. These are not absolute; they are subject to the limitations in Article 1(3). The Declaration does not create a right to be free from criticism or offence; the freedom to manifest includes the freedom to teach and disseminate, but that can be limited if it threatens the fundamental rights of others (such as the right to freedom of religion of others). Overall, the rights are framed as individual liberties against state and private interference, but the enforcement mechanism through the AHRC is weak.

The Declaration itself contains no penalties. It is a non binding international instrument that the General Assembly proclaimed as an ideal. Under the HREOC Act, the Commission’s enforcement powers are limited. Upon receiving a complaint, the Commission can investigate and attempt to conciliate the matter. If conciliation fails, the Commission may prepare a report to the Attorney General setting out its findings and recommendations. The Attorney General may table the report in Parliament. There is no power to issue binding orders, impose fines, or award damages. The Commission can also examine Commonwealth legislation and administrative practices and report to the Minister if they are inconsistent with the Declaration. That report may result in legislative or policy changes, but there is no compulsion. The practical consequence of a complaint being substantiated is primarily reputational: the Commission can publicise the finding and recommend changes. The absence of binding enforcement means that respondents can simply ignore the Commission’s findings without legal sanction. However, a complaint can still be costly for a respondent in terms of time, legal fees, and adverse publicity. In some cases, a complaint under the HREOC Act can be followed by a court action under other laws (for example, under state anti discrimination legislation or under the Fair Work Act for adverse action based on religion). But the declaration itself does not create a pathway to court. The Commission’s role is limited to conciliation and reporting. The only penalty that could flow is if the respondent refuses to participate in conciliation, in which case the Commission may report that fact. For Commonwealth government agencies, a negative report may influence policy or lead to internal disciplinary action. Overall, the enforcement regime is education and persuasion rather than compulsion. This creates a strong incentive for complainants to seek remedies under other laws, such as the Fair Work Act 2009 (s 351 prohibits adverse action based on religion) or state anti discrimination laws, which offer binding determinations and compensation. The declaration’s enforcement gap is therefore significant.

The declaration does not override or replace any existing Australian law. It sits alongside the HREOC Act and the other international instruments declared under that Act (such as the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child). The Commission can consider all relevant instruments when examining a complaint. The declaration may be used as a tool of statutory interpretation. Under section 15AB of the Acts Interpretation Act 1901, extrinsic material can be used to confirm the meaning of a provision, and international declarations may be considered. Courts may also refer to the declaration when interpreting constitutional provisions, such as the implied freedom of political communication or the freedom of religion in section 116 of the Constitution, though section 116 is limited to laws respecting an establishment of religion or prohibiting the free exercise thereof. The declaration’s broader definition of discrimination (including private actors) goes beyond section 116. The declaration also interacts with state anti discrimination laws. Most states and territories have legislation prohibiting religious discrimination in certain areas (e.g., the Anti Discrimination Act 1977 (NSW) s 4 defines “race” to include ethno religious origin, but not religion per se; Victoria’s Equal Opportunity Act 2010 protects against religious belief discrimination; Queensland, Western Australia, and the ACT have similar protections). The declaration provides a benchmark that may influence state tribunals and courts when interpreting those laws, but it is not binding on them. The Fair Work Act 2009 prohibits adverse action because of religion (s 351). The Australian Human Rights Commission can accept complaints about conduct that may also breach the Fair Work Act, but the Fair Work Commission has exclusive jurisdiction over general protections claims. The declaration does not create a parallel remedy. The interaction with charity law is also relevant: Article 6(b) protects the right to establish charitable institutions, but the Australian Charities and Not for profits Commission regulates charities under the Charities Act 2013, which requires a charitable purpose and public benefit. The declaration cannot override those requirements. Overall, the declaration’s interaction with Australian law is largely persuasive and interpretive, not coercive.

The source provides no amendment history. The UN Declaration itself has not been amended since its proclamation on 25 November 1981. The Australian declaration made by Attorney General Michael Duffy on 8 February 1993 has not been amended according to the source. The HREOC Act has been amended over time, but the declaration under section 47(1) remains the original instrument. The note at the end of the source indicates that the declaration commences on the date of publication in the Gazette, but there is no information about whether it was subsequently revoked or replaced. The absence of amendment suggests that the instrument has remained static since 1993, while Australian society and law have evolved. This means the declaration may be somewhat outdated in its framing, particularly around the concept of “intolerance” which is not defined and has been the subject of much public debate. The lack of amendment also means that no formal changes have been made to align the declaration with later treaties or protocols (such as the Optional Protocol to the ICCPR). The instrument therefore stands as a snapshot of Australia’s commitment to religious freedom in 1993, without subsequent legislative updating.

The source does not record any litigation involving this specific declaration. Because the declaration does not create a private right of action, it is unlikely to be the direct subject of court proceedings. However, it may have been cited in cases involving the AHRC’s jurisdiction or in arguments about the interpretation of anti discrimination laws. For example, in cases where the Federal Court has considered the scope of the HREOC Act, the declaration might be referenced as one of the instruments the Commission can consider. But because the source is limited to the text of the UN Declaration and the Attorney General’s declaration, there is no case law provided. It is also possible that the declaration has been used in administrative law reviews of AHRC decisions, but no such cases are mentioned. In the absence of source information, the litigation history appears to be minimal or non existent. This is consistent with the weak enforcement mechanisms, which provide little incentive for litigants to rely on the declaration as a cause of action.

Several aspects of the declaration are traps for the unwary. First, the declaration uses the phrase “intolerance and discrimination based on religion or belief” but does not define “intolerance”. This leaves a wide area for subjective interpretation. The Commission might treat certain expressions of criticism or speech as intolerance, which could chill legitimate debate about religious doctrines. Second, the definition of discrimination in Article 2(2) includes both purpose and effect. This means that a facially neutral rule that disproportionately affects one religion could be caught, even if there is no intent to discriminate. For example, a policy banning headwear for safety reasons might be found to have a discriminatory effect on Sikhs or Muslims. Third, Article 1(3) permits limitations only if they are prescribed by law and necessary for public safety, order, health or morals, or the fundamental rights of others. The term “morals” is vague and could be used to justify restrictions on religious practices that offend prevailing social norms. Fourth, Article 5(5) warns that practices of a religion or belief in which a child is brought up must not be injurious to physical or mental health. This could be used to challenge practices such as male circumcision, withholding medical treatment, or certain dietary restrictions if they are deemed harmful. The qualification is open to expert disagreement. Fifth, the declaration recognises the right to manifest religion “in worship, observance, practice and teaching”. The term “teaching” includes the right to proselytise. This could conflict with anti proselytism laws in some states or with workplace policies that restrict religious expression. Sixth, the Australian delegation’s explanation (paragraphs 78 79) notes that Australia observes Sunday as a day of rest. This implies that the declaration does not require all days of rest to be treated equally, so an employer who only provides Sunday off may be able to defend that as a reasonable limitation. However, this point is not in the declaration itself, only in the delegate’s explanation. Seventh, the declaration was made under section 47(1) of the HREOC Act, which requires consultation with State ministers. But the declaration does not bind the States; it only applies to Commonwealth matters. A complainant who experiences discrimination by a state government or a local council may find the Commission cannot act unless the conduct falls within a Commonwealth head of power. Eighth, the declaration is not a treaty and does not create binding obligations under international law. It is a soft law instrument. Lawyers and advocates may overstate its weight. Ninth, the list in Article 6 is not exhaustive; the words “inter alia” mean other freedoms are included. This creates uncertainty about what other manifestations are protected. Tenth, the declaration’s commencement is tied to publication in the Gazette of multiple documents, and the note suggests those may have occurred on different dates. A practitioner needs to verify the exact commencement date to ensure the declaration was in force at the time of the alleged conduct.

Since the declaration does not impose directly binding duties on private entities, compliance is best understood as managing the risk of a complaint to the AHRC and the associated reputational and financial costs. Organisations should adopt policies that prohibit discrimination on the ground of religion or belief in employment, service delivery, and other dealings. This includes avoiding direct discrimination (e.g., refusing to hire someone because of their religion) and indirect discrimination (e.g., imposing a requirement that disproportionately excludes a religious group and is not reasonable). Practical steps include: reviewing workplace policies to ensure they accommodate religious practices such as prayer times, dress codes, and observance of religious holidays where reasonably practicable; adopting a flexibility principle that allows employees to request changes for religious reasons; ensuring that customer service policies do not deny services on religious grounds; training staff on religious diversity and the complaints process; and maintaining records of any decisions that affect religious expression to demonstrate a legitimate justification if challenged. For religious organisations, compliance means ensuring that internal rules do not violate the rights of members in ways that could be considered discrimination. However, the declaration recognises the right to appoint leaders according to religious requirements (Article 6(g)), so religious organisations have some latitude. For government agencies, compliance involves reviewing legislation and administrative practices for consistency with the Declaration and amending any that create distinctions based on religion without a legitimate objective and proportionality. The AHRC’s complaint process is often initiated by an individual. The best defence to a complaint is a clear policy that accommodates religion to the point of undue hardship or genuine occupational requirement. Organisations should document any refusals of accommodation with reasons tied to safety, operational necessity, or legal obligations. If a complaint is lodged, it is advisable to participate in conciliation and consider a settlement, as an adverse report can result in negative publicity and potential follow on litigation under other laws. There is no binding determination, but a failure to engage may be noted. Finally, organisations should monitor legislative developments, as the Commonwealth may enact a Religious Discrimination Act that would create enforceable rights; the declaration provides a framework for what that future law might look like. In the interim, compliance with the declaration is largely voluntary, but the reputational risks are real.