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PAGANISM AND THE LAW WITHIN AUSTRALIA
The history of Paganism in Australia is long one as the indigenous people were Pagan before the arrival of colonisation and its attendant Christian missionaries. The conversion of the Aboriginals to Christianity was uncompromising.
The earliest incidence of any connected with European Paganism in Australia is unknown, however, in Canberra, Australia's capital, there were reports of Wytches meeting during the 1920s. During the 1950s and 1960s, many immigrants brought their own traditions and practices with them from their home countries, and since the 1970s, numerous books have been published about the various Pagan traditions.
Although laws against "the pretence of the practice of witchcraft" remain on the statute books in a few States, the modern Pagan in Australia can basically practice their spiritual practice without fear of being arrested. However, as with other Western countries, Paganism still remains the target of some misinformed or Christian fundamentalist groups. This is despite what seems to be a current interest and general acceptance of Paganism, based on the number of publications now available in bookshops. For this, and probably numerous other reasons, some Pagans still prefer to practise their chosen spiritual path privately.
Australia is neither a theocratic state [ie, governed by a god or priest], nor does it have an official national religion. In 1983, in the case of the Church of the New Faith v Commission of Pay-Roll Tax (Victoria) forced the High Court into adopting an equalitarian concept of the status of religions and religious groups. Although the abovementioned case involved taxation purposes, High Court stated indicators which would constitute a religion. These indicators may include:
Belief in a supernatural being, thing or principle;
Acceptance of conduct in order to give effect to that belief;
Ideas that related to humanity's nature and place in the Universe, and its relation to things supernatural;
Acceptance that adherents constitute an identifiable group or groups; and
Participation by adherents in practices believed to have supernatural significance.
The High Court further went on to state that:
"Under our law, the State has no prophetic role in relation to religious belief; the State can neither declare supernatural truth nor determine the paths through which the human mind must search in a quest for supernatural truth.
Religious belief is more than a cosmology; it is a belief in a supernatural Being, Thing or Principle. But religious belief is not by itself a religion. Religion is also concerned, at least to some extent, with a relationship between man and the supernatural order and with supernatural influence upon his life and conduct."
Section 116 of the Commonwealth Constitution does not affect the legislative powers of the States and Territories:
"... the Constitution does not touch the States - and it is the States and Territories which have the most responsibility for the whole regulation that is likely to have some impact on the practice of religion."
Tasmania is the only State to provide for religious freedom in its constitution. Section 46 of the Constitution Act 1934 (Tas) provides:
"Freedom of conscience and the free profession and practise of religion are, subject to public order and morality, guaranteed to every citizen."
Victoria, Queensland, Western Australian, the Northern Territory and the A.C.T. have passed legislation prohibiting direct and indirect discrimination on the ground of religion. Under each of their Acts, it is unlawful to discriminate against another person on the basis of lawful religious beliefs and practices or the absence of lawful religion or religious belief and practices. None of their Acts contain a definition of religion or religious belief. The Northern Territory Act, however, does provide that religious belief and activity includes Indigenous spiritual belief and activity.
AUSTRALIAN GOVERNMENT'S REPORT INTO FREEDOM OF RELIGION AND BELIEF
On 28 April 1999 the then Minister of Foreign Affairs, the Hon. Alexander Downer MP asked the Joint Standing Committee on Foreign Affairs, Defence & Trade to inquire into and report on Australia's efforts to promote and protect freedom of religion and belief, in particular:
The extent of violations of religious freedom around the world and the probable caused of those violations;
Implications for other human rights arising from a lack of religious freedom and religious differences; and
The most effective means by which the Australian government and non government organisations can promote freedom of religion in the region and around the world.
All major Australian Churches were asked to forward submissions to this inquiry, as well as a range of Australian universities, Australian human rights organisations, relevant Commonwealth departments and other interested bodies. Over 100 submissions were received and public hearings were only held in Canberra, Sydney and Melbourne.
This report addressed the human right to freedom of religion and belief in Australia in Article 18 of the International Covenant on Civil and Political Rights. The right includes the freedom to have or adopt a religion or belief of one's 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.
The report recommends the enactment of a Federal Religious Freedom Act covering all aspects of the right. The Act should make discrimination and vilification on the ground of religion and belief unlawful.
The freedom of religion and belief extends to the right to manifest one's religion or belief in worship, observance, practice and teaching. The right to manifest a belief is subject only to limitations provided by law which are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
The report concludes that current laws are inadequate to protect the right to manifest Indigenous beliefs and religious beliefs concerning autopsies and medical procedures such as blood transfusions. It recommends that development of appropriate laws and guidelines which properly accommodate the right to manifest these beliefs and practices. Laws criminalising some Pagan practices are discriminatory, violate the freedom of belief and should be repealed.
For further information, please visit the website for the Australian Department of H.R.E.O.C.