Religious Freedom and Parental Rights: The Most Important Development in Australian Legal History?
Find out if you have a claim in just 3 minutes
Use our free online claim check to find out where you stand and if you have a claim.
By Rebecca Stacy
Australia is commonly accepted as being a country of great cultural diversity with many different religious beliefs. In a recent survey by the National Church Life Survey Research Partnership, it has been found that 45% of Australians agree with the suggestion that ‘there is something beyond this life that makes sense of it all.’1 This high percentage of religious individuals raises discussion on the rights of parents in respect to religious beliefs and who should decide what is best for the children of religious families when conflict arises. There has been much development in this area of law, especially with the rise in reporting of cases of female genital mutilation and the issues that arise from this. The development of parental rights versus religious freedoms through government pledges, the implementation of legislation and preceding case law is arguably the most important development in Australian legal history. For such a strong belief system the Australian Constitution is very limited on the extent in which it outlines religious freedoms. It was stated in the 1998 Human Rights Commission report that the protections around religious freedoms in Australia are ‘relatively weak compared to a number of other comparable countries.’2 Chapter V, Section 166 of the Constitution states:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth3. Essentially this restricts the legislative powers of the Commonwealth from enacting legislation that would prohibit religious freedoms. However, this section is restricted as it only applies to the Commonwealth Parliament, not the states.4 In an effort to further strengthen the rights surrounding religious freedoms, the Australian Government became a party to the International Covenant on Civil and Political Rights (ICCPR) in 1980.5 This meant that the Australian Government, under article 2 of the Act, has duties to ensure and respect political and civil rights of people within its jurisdiction. This action also gave more clarity and rules surrounding religious freedoms in respect to children and their parents. Article 18 section 4 states that the government must have respect for the ‘liberty of parents and… legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’6 This says that parents are free to educate their children and raise them in accordance to their religion without being restricted by the government. However, following the introduction of Article 18 it was initially intended that a more descriptive treaty on religious freedom would be created, as Article 18 was quite broad.7 Such a treaty did not end up being produced, instead in 1981 the General Assembly of the United Nations passed the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.8
The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief is a non-binding declaration, however it did develop the rights of parents/guardians in respect to organising their family lives around their religious beliefs.9 In particular Article 5.1 and 5.2 allocated certain rights to parents in respect to religion. Article 5.1 of the declaration outlines the rights of parents to organise family life in accordance with their chosen religion and the moral education in which they think the child should be brought up.10 Article 5.2 states that parents shall not be compelled to force their children to receive teaching of religions different to their own and that the child has the right to have access to the religion of their parents choice.11 These two articles grant parents the right to exercise religious freedom in respect to their children, however Article 5.5 of the declaration places limitations on these rights. It states that the child must not be brought up or subject to any traditions or aspects of religion that are ‘injurious to his physical or mental health or to his full development, taking into account article 1, paragraph 3, of the present declaration.’12 This reference to Article 1 of the declaration is that a person has the freedom to manifest their religion/belief and this can only be subject to limitations that are prescribed by law in order to protect ‘public safety, health or morals or the fundamental rights and freedoms of others.’13 Essentially these two articles place limitations on a parent’s rights to raise their children according to their religion in circumstances where harm may arise to either the child or others around them. This places limitations on certain religious traditions that create subject children to harm, such as practices of child weddings, for example.
Further legislation however, has been implemented by the states in order to restrict parental rights and protect the rights of the child in regards to religious customs.14 Particular emphasis has been given to legislation that has been implemented to focus on addressing the rights of parents in regards to their child’s medical treatment when religion becomes a conflict. The Family Law Act 1975 (Cth) (FLA) gives the Family Court the power to make laws in regards to the welfare of children in Australia and hands courts a broad power to intervene in cases where the medical treatment of the child is of a ‘sufficiently serious nature.’15 The test for this level of seriousness has been defined in a multitude of cases including the case of Re Michael 1994, which involved ruling on life saving heat surgery on a child.16 Alongside this Act, the majority of the states have implemented legislation regulating the religious beliefs of parents and the medical treatment of their children.17 For example Western Australia has introduced section 306 of the Criminal Code Amendment Bill to make the religious tradition of female genital mutilation illegal and punishable by law.18 New South Wales has also introduced multiple pieces of legislation that regulate parental religious rights over their children.19 Similar to Western Australia, section 45 of the Crimes Act 1900 (NSW) outlaws female genital mutilation. New South Wales has also legislated on the outlawing of parental religious objections in section 174 (1) of the Children’s and Young Persons (Care and Protection) Act 1998 (NSW) (CCYPA) which allows medical practitioners to proceed with life saving operations that are necessary to save the life of a child or prevent serious harm.20 Furthermore this Act also legislates in respect of the scope in which the Children’s Court is to become involved if there is parental medical neglect and the child is in need of care and protection.21 This relates to parental religious beliefs interfering with the medical welfare of the child and is legislated under sections 34, 43, 46, 48, 49, 61, 71(1)(d), 72 and 79(1)(b) of the Act.22 Ultimately the final decision on whether to treat a child where religious beliefs are in conflict lies not with the parents, but with the Family Court, the state Supreme Court or other state level bodies such as the Children’s Court and the Guardianship Tribunal.23
As discussed above it is a general conception that courts will intervene with any parental objections surrounding religion when the life of the child is threatened. A case that adequately demonstrates the courts power to intervene against a parent’s religious beliefs is the case of Director General of the Department of Community Services v BB.24This case involved the courts intervention to override two Jehovah’s Witness parents who refused to consent to a lifesaving blood transfusion that would save their child’s life on the grounds of religious beliefs.25 The court held that as the child was suffering from Leukaemia, this could be classified as an emergency and using section 20A, the precursor to section 174 of the CCYPA, the court overrode the parent’s religious beliefs and prioritised the life of the child. This ruling was upheld in the similar case of The Sydney Children’s Hospital Network v X, in which a court found that ‘the sanctity of life in the end is a more powerful reason… to make the orders than is respect for the dignity of the individual’ and overruled the wishes of a Jehovah’s Witness couple and ordered their son a life saving blood infusion.
When considering all these statutes and cases of common law it is clear that the top priority for consideration in regards to parent’s rights is the welfare of the child. I agree with the fundamental right set out in section 166 of the Australian Constitution that guarantees a person religious freedoms. However, I also agree wholeheartedly with the restrictions that are placed upon certain religious practices. As discussed above Article 18.4 of the ICCPR outlines parental rights in respect to educating their children in line with their own religions. This is a concept that I agree with. I feel that it is very important for children to be exposed to the customs and traditions of their parent’s religion in order to form a close and spiritual relationship in their family relationships. The case of Arora v Melton Christian Collage is one that addresses the parental rights to raise a child as they see fit according to their own religious beliefs.26 The case involved a battle between a Christian School and the father of a child who was fighting for his religious freedom, under 166 of the Constitution, to dress his child in a traditional Sikh patka as it was in accordance with his religious beliefs. The school argued that this was against uniform policy, but ultimately it was found that the school had contravened section 38 (1) of the Equal Opportunity Act 2010 (VIC) which outlines the circumstances in which an educational authority is not to discriminate.27 I think this was the correct outcome for this case because it acknowledges the parental religious beliefs and upholds the idea of religious freedom in respect to raising children in accordance with their family’s religion. It was noted in the American case of Bellotti v Baird that ‘parents know their children at the most intimate level and the natural bonds of affection cause them to act in their child’s best interest.’28 I think for the most part this is true and in most cases religious freedom allows the parent child relationship to become stronger. However, where I do not think they should have full access is where it affects the overall physical or mental wellbeing of the child.
When discussing the debate between religious freedoms and parental rights I think that there is one factor that is often overlooked in the discussion. That is that parents have a duty, not a right, to care for their children. It was outlined in Harriton v Stephens that there is no principle of parent immunity for negligent supervision of children.29 This duty should not be interfered with by religious beliefs. The scope of this duty, outlined in St Mark’s Orthodox Coptic Collage v Abraham is to exercise reasonable care not to expose the child to foreseeable harm.30 In my opinion, this is when the courts should have the power to decide what is best for the wellbeing of the child. That is, when the parents are no longer fulfilling their prime facie duty of care and are clouded with outside religious conflictions. This is why I believe parents should have the right to raise their children as they see fit, as long as they are consistent with their duties as parents. I have discussed previously the common law rulings on medical treatment in regards to the welfare of the child. I think this is the correct intervention, as the duties of the parents are clearly not being upheld within the scope of their duty. There have been further case law examples of where parental responsibilities have not being upheld and court intervention has been necessary in response to religious violence against children. One case in particular, which has become a landmark trial in Australian history, is the recent case of R v A2; R v KM; R v Vaziri.31 This case is significant as it is the first case to deal with the prosecution of female genital mutilation.32 The procedure involved the genital mutilation of two sisters who were close to the age of seven years old when the procedure took place.33 The midwife and mother of the children were found to have contravened section 45(1)(a) of the Crimes Act 1900 (NSW), which outlaws genital mutilation.34 In my opinion this is exactly the type of situation where the courts should step in and have the power to act in the interests of the child. It is clear that this case dealt with religious conflictions and the law. Where there is harm to a child, as there was in this case, then it is evident that the parent has failed in their duty to protect their child from harm. Furthermore it is somewhat shocking that this case is the first case to prosecute in respect to female genital mutilation. According to the Royal Women’s Hospital in Melbourne, which has dedicated a clinic to assist girls who have suffered this procedure, since 2010 there have been six to seven hundred women reported to be suffering from complications of female genital mutilation in Melbourne alone.35 This says a lot about the secrecy of this abuse and the need for the states to make a bigger effort to uncover and address this issue. Where there is such a clear violation of parental duty, the courts must intervene.
Religious customs may not only subject children to risks of physical harm, but mental harm as well. A relevant example of this in Australia is child marriage. In February of 2013, forced marriage became comprehensively criminalised under the Commonwealth Criminal Code Act 1995.36 Section 270 (7B) outlines the offences of forced marriages.37 Before this the Federal Police of Australia had only received 3 referrals of alleged cases of child marriage.38 In 2014, following the introduction of this legislation, that number rose to 69.39 Section 95 of the Marriage Act 1961 also outlaws marriage to children of ‘not marriageable ages.’40 However, similar to cases of female genital mutilation mentioned above, there have been an insignificant amount of child marriage cases reaching the courts.41 In fact the first court case involving the conviction of an individual for the offense of child marriage was in September of 2017.42 The party was liable for the charge of marrying a person of non- marriageable age under section 95 (1) of the Marriage Act.43 The mother of the child, who was not sentenced, was said by the judge to have ‘made no attempt to protect her daughter.’44 Not only does this crime physically harm the child, through rape, but also has psychiatrically damaged her as well.45 I think this crime is just as heinous as the violent act of female genital mutilation. It shows a breach of duty of care from the parents who favoured their religion over their child’s welfare and parents for such acts should be held accountable.
Australia is a country of great religious diversity, however we are also a country that is a big regulator on ensuring children’s rights are being met. In regards to parental rights and religion Australia has come a long way in ensuring a balance between the two are met. Through the introduction of state acts, such as the Criminal Code Amendment Bill, the precedents made in case law and the introduction of Commonwealth legislation Australia has achieved a huge development in the rights of parents and their religious freedoms. It is not to say that Australia does not have a way to go, particularly in regards to female genital mutilation, but the development of law surrounding this issue as a whole is phenomenal and the most important development in our legal history as it protects our children and religious freedoms. As was said in Dwyer ‘no court has suggested it is altogether a mistake to find that parents have a right to determine their children’s lives merely on the basis of religious preference.’46 It is only when the parental duty of the child is breached that an issue arises.
1 National Church Life Survey Research Partnership, Australian Survey of Social Attitudes 2010 – Survey (2010).
2 Chris Sidoti, ‘Article 18: Freedom of Religion and Belief’ (1998), Human Rights
and Equal Opportunity Commission 23.
3 Australian Constitution s 166.
4 Carolyn Evans, ‘Legal Aspects of the Protection of Religious Freedom in Australia’ (2009), Melbourne Law School.
5 G. Bouma, D. Cahill, H. Dellal and A Zwartz, ‘Freedom of Religion and Belief in
21st Century Australia’ (2011) Human Rights Commission, 3.
6 Ibid aove n2.
7 Carolyn Evans, above n 4.
8 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN GAOR, UN Doc A/RES/36/55 (25 November 1981). 9 Bouma, Cahill, Dellal and Zwartz above n 5.
10 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, UN GAOR, art 5.1, UN Doc A/RES/36/55 (25
11 Ibid art 5.2.
12 Ibid art 5.5.
13 Ibid art 1.3.
14 Thomas Humphrey, ‘Children, Medical Treatment and Religion: Defining the Limits of Parental Responsibility’ (2008) Australian Journal of Human Rights, 147. 15 Ibid.
16 Re Michael  FLC 92-471.
17 Humphrey, above n14.
18 Criminal Code Amendment Bill (No 107) 2003 (WA) s 306.
19 Humphrey, above n 14.
20 Children’s and Young Persons (Care and Protection) Act 1998 (NSW) s 174 (1).
22 Ibid, s 34, 43, 46, 48, 49, 61, 71(1)(d), 72, 79(1)(b).
23 Humphrey above n 14, 148.
24 Director General of the Department of Community Services v “BB”  NSWSC 1169.
26 Arora v Melton Christian Collage (Human Rights)  VCAT 1507.
27 Arora v Melton Christian Collage (Human Rights)  VCAT 1507.
28 Bellotti v. Baird, 428 U.S. 132 (1976)
29 Harriton v Stephens (2006) 226 CLR 52.
30 St Mark’s Orthodox Coptic Collage v Abraham  NSWCA 185.
31 R v A2; R v KM; R v Vaziri (No. 19)  NSWSC 1700.
32Timebase, Jury Finds Three Accused Guilty in Australia’s First FGM Case, (19 November 2015), Australian Legal Publisher
33 R v A2; R v KM; R v Vaziri (No. 19)  NSWSC 1700.
35 Rita Panahi, Time to End the Culture Abuse Where Women Are Second Class Citizens (15 January 2017) Herlad Sun
<http://www.heraldsun.com.au/news/opinion/rita-panahi/time-to-end-the-culture-of- abuse-where-women-are-less-than-secondclass-citizens/news- story/ae992d6b02b52c7ebd5b46d8588d1f62>.
36 Criminal Code Act 1995 (Cth).
37 Ibid s 270 (7B).
38 Tina Jelenic and Matthew Keeley, ‘End Child Marriage Australia’ (2013) National Children’s Youth and Law Centre, 12.
40 Marriage Act 1961 (Cth).
41 Jelenic and Keeley above n 37.
42 DDVP v Shakir  VCC 1374.
44 Ibid.43 Ibid.
46 James G. Dwyer, ‘Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Right, (1994) CAL. L. REV, 82.