Right to refuse to answer questions relating to relgious beliefs

Robert Johnson (johnsorl@COLORADO.EDU)
Sun, 20 Aug 1995 19:20:22 -0600

Original Sender: nja@management.canberra.edu.au (Neil Andrews)
Mailing List: NATIVE-L (native-l@gnosys.svle.ma.us)

The government of South Australia has established a Royal Commission (an
inquiry with powers to compulsory require attendance, the disclosure of
documents and the giving of oral evidence on pain of punishment for perjury
and contempt) to examine whether or not evidence was fabricated that a
particular place was a sacred site in the traditions of an Aboriginal

The dispute in that community about the significance of the site was used
by the South Australian government as demonstrating recent invention of the
sacredness of the site. Such accusations are nothing new and is Standard
Response No .1 by developers and conservative media to claims by indigenous
people that a place is significant.

The holding of the Royal Commission is unusual because of its powers of
compulsion. There is no constitutional guarantee of freedom of religion in
Australia, or at least the provision forbidding the federal government to
establish a state religion, has not been so widely interpreted. Any attack
on the commission's powers to compel disclosure of religious beliefs would
appear to be need to be based on federal racial discrimination legislation
that Aboriginal witnesses are not being treated in the same way as other
witnesses, whose religious beliefs are not inquired into.

Are indigneous peoples in other jurisdictions compelled to reveal religious
beliefs in such circumstances? Are there constitutional,legislative or
common law provisions which prevent forced disclosure?

One common law provision which may operate in Australia is the privilege
against self-exposure to an ecclesiastical penalty although there is High
Court dicta to the effect that this was not received as part of the common
law as Australia had no established church.

Neil Andrews Tel: 61+6 201 2720
Law School Fax: 61+6 201 5198
University of Canberra
BELCONNEN ACT 2616 AUSTRALIA nja@management.canberra.edu.au

University of Canberra School of Law Home Page:


"ACT LawNet" at http://actag.canberra.edu.au/actag/ag1.html.