Freedom of religion in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
is allowed in practice and protected to varying degrees through the constitution and legislation at the
Federal
Federal or foederal (archaic) may refer to:
Politics
General
*Federal monarchy, a federation of monarchies
*Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
,
state and territory level.
Australia is a
pluralist country with legislated principle of
state neutrality and with no
state religion
A state religion (also called religious state or official religion) is a religion or creed officially endorsed by a sovereign state. A state with an official religion (also known as confessional state), while not secular state, secular, is not n ...
. The nation has over 13.5 million people who identify as religious and 7.1 million who identify as
irreligious
Irreligion or nonreligion is the absence or rejection of religion, or indifference to it. Irreligion takes many forms, ranging from the casual and unaware to full-fledged philosophies such as atheism and agnosticism, secular humanism and ant ...
.
Relevant legislation protecting religious freedoms include sections of the
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
, Federal
anti-discrimination laws
Anti-discrimination law or non-discrimination law refers to legislation designed to prevent discrimination against particular groups of people; these groups are often referred to as protected groups or protected classes. Anti-discrimination laws ...
and State/Territory-based human rights acts and anti-discrimination laws. As these freedoms are not protected in a single piece of legislation, but rather appear as sections, clauses and exemptions in other acts or laws, legal religious freedom protections are often a source of great debate and difficult to discern in Australia.
Religious freedom laws
Federal level
The
Constitution of Australia
The Constitution of Australia (or Australian Constitution) is a written constitution, constitutional document that is Constitution, supreme law in Australia. It establishes Australia as a Federation of Australia, federation under a constitutio ...
prohibits the Commonwealth from establishing laws which create, force or prohibit any religion. It also restricts the Commonwealth from using religion as a qualifier or test in order to hold public office.
Section 116 of ''Chapter V. The States'' in the
Australian Constitution
The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
reads:
''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 Commonwealth.''
The section is based on the
First Amendment to the United States Constitution
The First Amendment (Amendment I) to the United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the ...
. The article does not prohibit the
states of Australia from implementing such laws, meaning legislation at the state level could provide for restriction or enforcement of religion.
State and territory level
Two
referendum
A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
s were held on whether to restrict the ability of states to legislate laws that may impede religious freedoms: the
and
1988 Australian referendum
The 1988 Australian referendum was held on 3 September 1988. It contained four referendum questions, none of which passed.
__NOTOC__
Results in detail Parliamentary Terms
:''This section is an excerpt from 1988 Australian referendum (Parliament ...
. Both failed to achieve a majority of support amongst the states and therefore did not pass into law. In theory, Australian State and Territory Governments can therefore pass laws impeding religious freedoms.
Some states and territories have implemented a bill or charter of rights which include freedom and protection for religion, such as ''Section 14: Freedom of thought, conscience, religion and belief'' in:
* ''
Human Rights Act 2004
The ''Human Rights Act 2004'' is an Act of the Australian Capital Territory Legislative Assembly that recognises the fundamental human rights of individuals. Ratified by the Australia Capital Territory (ACT) Legislative Assembly on the 1 July ...
'' (
Australian Capital Territory
The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. ...
)
*
''Charter of Human Rights & Responsibilities Act 2006'' (
Victoria)
These legislated acts are based on the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
, to which Australia was a signatory in 1966 despite no direct legislation to permit these freedoms. These acts do not prevent the passing of laws that impede any rights mentioned (including religious freedoms), but they do create a process by which all legislation must be scrutinised for human rights implications, and must be accompanied by a statement of compatibility with human rights before they can be passed by the relevant Parliament. In cases where the legislation is not compatible, it may still be passed despite contradicting these human rights acts.
Anti-discrimination laws
Anti-discrimination laws addressing unfair treatment on the basis of a range of attributes, including religion, also apply at the state and federal level. These laws contribute to religious freedoms by allowing Australians to practice religion without fear of consequence from the executive, organisations or individuals. This is achieved by prohibiting detrimental treatment as a result of an individual's religious appearance, beliefs or observances. Some argue these laws are inconsistent at the state level and may be limited at the federal level.
Federal level
The ''
Australian Human Rights Commission Act 1986
The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...
'' defines discrimination as:
''(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;''
In November 2021, the
Morrison government introduced th
Religious Discrimination Bill 2021 ostensibly to better protect the rights of religious Australians. The bill sparked a lot of controversy, especially over the so-called "Folau Clause", named after footballer
Israel Folau. The clause would have provided legal protection for persons against their employers when making statements of religious belief. Although this clause was removed in the latest iteration of the bill, the bill as a whole created concern that it would allow employers and schools to discriminate against LGBTQI+ employees and students. Key moderates within the Liberal party pushed for - and won - the repeal of Section 38.2 of the separate
Sex Discrimination Act 1984, which allows religious schools to discriminate on the basis of sexual orientation and gender identity. This change resulted in the
Australian Christian Lobby and
Christian Schools Australia
Christians () are people who follow or adhere to Christianity, a monotheistic Abrahamic religion based on the life and teachings of Jesus Christ. The words ''Christ'' and ''Christian'' derive from the Koine Greek title ''Christós'' (Χρι ...
, along with multiple conservatives within the party, pulling support for the bill,
leading to it being shelved on December 2.
State and Territory level
State and Territory legislation prohibits unfavourable treatment on the basis of an individual's personal characteristics, but to varying degrees and with varying detail.
Personal characteristics includes religious beliefs or activities in anti-discrimination legislation for the majority of states, and as such these laws may be seen to support religious freedom by prohibiting unfair treatment using religion as a basis. Further, anti-discrimination acts States where religious beliefs and activities are protected include:
*''Equal Opportunity Act 1984'' (
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
)
*''Discrimination Act 1991'' (Australian Capital Territory)
*''
Anti-Discrimination Act 1991
The Queensland ''Anti-Discrimination Act 1991'' is an act of the Parliament of Queensland that provides protection against unfair discrimination, sexual harassment, and other objectionable conduct. The Act was passed by the Queensland Parliament ...
'' (
Queensland
)
, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, established_ ...
)
*''Anti-Discrimination Act 1996'' (
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an states and territories of Australia, Australian territory in the central and central northern regions of Australia. The Northern Territory ...
)
*''Anti-Discrimination Act 1998'' (
Tasmania
)
, nickname =
, image_map = Tasmania in Australia.svg
, map_caption = Location of Tasmania in AustraliaCoordinates:
, subdivision_type = Country
, subdi ...
)
*''
Equal Opportunity Act 2010'' (Victoria)
Two other state acts apply narrower protection to '
religious appearance or dress' (''Equal Opportunity Act 1984'',
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
) and '
Ethno-religious
An ethnoreligious group (or an ethno-religious group) is a grouping of people who are unified by a common religious and ethnic background.
Furthermore, the term ethno-religious group, along with ethno-regional and ethno-linguistic groups, is a s ...
or
national origin' (''
Anti-Discrimination Act 1977'',
New South Wales
)
, nickname =
, image_map = New South Wales in Australia.svg
, map_caption = Location of New South Wales in AustraliaCoordinates:
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, es ...
). It has been suggested that both states update their laws in order to align to the rest of the States and Territories.
Religious exemptions
General religious exception or exemption clauses exist within the various federal and state human rights acts with the aim to ensuring religious activities or observances are not impacted or inhibited by the protections provided by each act. These exemptions therefore protect freedom of religion by permitting what would otherwise be considered discrimination if it is in the context of "an act or practice of a body established for religious purposes that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious sensitivities of adherents of that religion."
In the case of the ''Australian Human Rights Commission Act 1986'', for example, an exemption is provided:
''Discrimination ... does not include any distinction, exclusion or preference:''
''(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.''
Varying groups have argued that existing religious exceptions and exemptions go too far and impede the rights of individuals, whilst others argue the correct balance has been struck,
and yet others petition for wider-reaching religious exemption clauses.
Judgements and interpretations
![Court 2 at the High Court of Australia](https://upload.wikimedia.org/wikipedia/commons/e/e5/Court_2_at_the_High_Court_of_Australia.jpg)
There have been few tests involving religious freedom put before the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
. Judgements from the Court are generally considered to interpret the primary piece of legislation relating to religious freedom, Section 116, narrowly.
''Church of the New Faith v Commissioner for Pay-Roll Tax (Vic)''
In the 1983 judgment of the High Court in ''Church of the New Faith v Commissioner for Pay-Roll Tax (Vic)'', the court was primarily concerned with whether
Scientology was a religion (and therefore entitled to
tax exempt
Tax exemption is the reduction or removal of a liability to make a compulsory payment that would otherwise be imposed by a ruling power upon persons, property, income, or transactions. Tax-exempt status may provide complete relief from taxes, redu ...
status). In judgement, the Court found that Scientology was a religion and argued that the definition of religion must be flexible, but also remain sceptical of false claims. Justices
Ronald Wilson
Sir Ronald Darling Wilson, (23 August 192215 July 2005) was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportun ...
and
William Deane set out five "
indicia" of a religion:
(i) That the collection of ideas and practices involved a belief in the supernatural (being something that could not be perceived by the senses); (ii) That 'the ideas relate to man's nature and place in the universe and his relation to things supernatural' ; (iii) That the adherents accept certain ideas as requiring them or encouraging them to observe particular codes of conduct or specific practices having some supernatural significance; (iv) The adherents themselves form an identifiable group or groups; (v) The adherents themselves see the collection of ideas, beliefs and practices as constituting a religion.
In this judgement Section 116 was interpreted more broadly than in previous cases. The justices held that Section 116 provides fundamental guarantees to freedom of religion:
The development of the law towards complete religious liberty and religious equality... would be subverted and the guarantees in s. 116 of the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority religions out of the main streams of religious thought.
''Adelaide Co of Jehovah's Witnesses Inc v Commonwealth''
In the 1941 the Commonwealth Government declared
Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.7 million adherents involved in ...
to be a risk to national security, indicating they were believed to be "prejudicial to the defence of the Commonwealth" and the "efficient prosecution of the
war" due to their following ideals of another Kingdom. Police occupied premises of the religious group, prompting a lawsuit heard by the High Court in which Jehovah's Witnesses argued their rights granted under Section 116 of the Constitution were infringed.
The court held that the ''National Security (Subversive Organisations) Regulations'' 1940, under which the Government had taken action, did not infringe against Section 116, but that the government had exceeded their "defence power" in
section 51(vi) of the Constitution. Jehovah's Witnesses have since continued to practice in Australia unabated.
Criticism and status quo
The absence of a Federal
Bill of Rights (or Human Rights Act) which provide a guarantee of religious and other freedoms in almost all other western democracies, has been noted as a primary failure to solidify the current ''de facto'' and ''de jure'' rights to freedom of religion in Australia. The
Australian Human Rights Commission
The Australian Human Rights Commission is the national human rights institution of Australia, established in 1986 as the Human Rights and Equal Opportunity Commission (HREOC) and renamed in 2008. It is a statutory body funded by, but opera ...
has criticised the lack of protections for religious freedom alongside other ''de facto'' freedoms and has recommended the introduction of a Bill of Rights to formally protect the rights of people.
Others have highlighted that religion and religious freedoms are already well-protected, including with exemptions to anti-discrimination legislation.
Frequently highlighted examples include
religious school
A religious school is a school that either has a religious component in its operations or its curriculum, or exists primarily for the purpose of teaching aspects of a particular religion.
Children
A school can either be of two types, though the sa ...
s having rights not extended to other institutions, including the ability to fire teachers who do not align with the institution's religious beliefs for any reason. This occurred in the case of the Perth
South Coast Baptist College and teacher Craig Campbell who was sacked for coming out as homosexual in 2017.
Ruddock Review
Report commission
Following the passage of
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
legislation in Australia in 2017, a federal review was commissioned by the
Turnbull government to examine the suitability of current religious freedom protections, specifically within the context of the new
. The Religious Freedom Review was chaired by
Philip Ruddock, the former
Attorney-General for Australia
The Attorney-GeneralThe title is officially "Attorney-General". For the purposes of distinguishing the office from other attorneys-general, and in accordance with usual practice in the United Kingdom and other common law jurisdictions, the Aust ...
at the time same-sex marriage was
banned
A ban is a formal or informal prohibition of something. Bans are formed for the prohibition of activities within a certain political territory. Some bans in commerce are referred to as embargoes. ''Ban'' is also used as a verb similar in meaning ...
by the
Howard government in 2004, and had no associated terms of reference.
The review panel was composed of Ruddock alongside
Jesuit
, image = Ihs-logo.svg
, image_size = 175px
, caption = ChristogramOfficial seal of the Jesuits
, abbreviation = SJ
, nickname = Jesuits
, formation =
, founders ...
priest
Frank Brennan, former judge
Annabelle Bennett
Annabelle Claire Bennett (born 8 January 1950) is the Chancellor of Bond University and a former Judge of the Federal Court of Australia.
Early life and education
Annabelle Claire Bennett (born Darin) was born in Sydney, Australia, to Emanue ...
, Human Rights Commission president
Ros Croucher
Rosalind Frances Croucher (born 14 November 1954) is an Australian lawyer and academic who is the current President of the Australian Human Rights Commission, in office since July 2017. She was previously President of the Australian Law Reform ...
and constitutional lawyer Nicholas Aroney. The expert review panel first met on 10 January 2018, and on 18 May the final review was handed to the Turnbull government. The Government has declined to release the review in full pending cabinet discussion on its recommendations.
The Ruddock review has been interpreted as a way to allow the speedy passage of Dean Smith's marriage bill and to postpone discussions of religious freedom. Proponents of the Ruddock Review argue it is necessary to ensure that religious freedoms are upheld in the wake of religious objection to same-sex marriage, whilst opponents highlight that further protections for religion are not necessary and will occur at the expense of an individual's right to be free from discrimination (particularly in the case of same-sex marriages).
Groups such as the
Victorian Aids Council and Australian Human Rights Commission have argued that a comprehensive Bill of Rights -rather than an exclusive religious freedoms law- should be implemented as this would also give full effect to Australia's obligations and commitments under the
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
by enshrining all fundamental rights.
Government response
Turnbull's government indicated it would not release the report received in May 2018 until it had been considered in full by the government. Following the deposition of Malcolm Turnbull as Prime Minister, his replacement
Scott Morrison indicated his government would not release the report or form a full response to it before the end of 2018.
This drew criticism from
Michael Kirby and
Kerryn Phelps given the timing of the
Wentworth by-election, as voters would not have an understanding of any changes to religious law potentially instituted by Australia's first
Pentecostal
Pentecostalism or classical Pentecostalism is a Protestant Charismatic Christian movement Prime Minister.
Despite a senate motion ordering its release ahead of the by-election, the government refused to comply, claiming that a release would "harm the public interest" and interfere in cabinet consideration. The Prime Minister
Scott Morrison suggested in an
ABC Radio interview that the Ruddock review had recommended that people of different religions have the same protections as other attributes such as gender and race.
Leaks and media coverage
On 9 October 2018, extracts of the review were leaked to
Fairfax Media
Fairfax Media was a media company in Australia and New Zealand, with investments in newspaper, magazines, radio and digital properties. The company was founded by John Fairfax as John Fairfax and Sons, who purchased ''The Sydney Morning Herald' ...
, which reported that schools affiliated with a religion "would be guaranteed the right to turn away gay students and teachers under changes to federal anti-discrimination laws" recommended by the review. The Prime Minister initially defended this, but stated that the media coverage of the leaked report was "confused". Religious schools have held the right to discriminate against teachers and students on the basis of their gender or sexual orientation since 2013, however the Ruddock report recommended that schools additionally be required to hold a publicly available policy and put the best interests of the child first.
Following further media coverage and public pressure, the Labor opposition announced their support would be lent to the government should it seek to repeal the discrimination law exemptions already in existence which allow religious schools to ban students based on their sexuality. The
Morrison government subsequently agreed to introduce a bill to parliament with that aim. The
Australian Greens
The Australian Greens, commonly known as The Greens, are a confederation of Green state and territory political parties in Australia. As of the 2022 federal election, the Greens are the third largest political party in Australia by vote and th ...
and Labor opposition have further committed to revoking discrimination exemptions that also allow discrimination against teachers based on their sexual orientation, however the government has so far not indicated its position.
The full recommendations of the review were subsequently leaked to Fairfax and reported on 12 October 2018.
Attempts to legislate
The
Morrison government ultimately drafted the
Religious Discrimination Bill 2021
Religion is usually defined as a social-cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatural, tra ...
in response to the Ruddock Review. The bill was introduced to the
lower house
A lower house is one of two Debate chamber, chambers of a Bicameralism, bicameral legislature, the other chamber being the upper house. Despite its official position "below" the upper house, in many legislatures worldwide, the lower house has co ...
, where amendments to protect transgender students were passed when government back-benchers
crossed the floor
Crossed may refer to:
* ''Crossed'' (comics), a 2008 comic book series by Garth Ennis
* ''Crossed'' (novel), a 2010 young adult novel by Ally Condie
* "Crossed" (''The Walking Dead''), an episode of the television series ''The Walking Dead''
S ...
to vote with the opposition. The
Morrison government ultimately shelved the bill in the final session of parliament, instead making it a
2022 Australian federal election
The 2022 Australian federal election was held on Saturday 21 May 2022 to elect members of the 47th Parliament of Australia. The incumbent Liberal/National Coalition government, led by Prime Minister Scott Morrison, sought to win a fourth conse ...
promise to pass it.
Following an election loss for Morrison, the bill's future is uncertain under the new
Labor Albanese government.
See also
*
Section 116 of the Constitution of Australia
*
Religion in Australia
*
Separation of church and state in Australia The Constitution of Australia prevents the Commonwealth from establishing any religion or requiring a religious test for any office:—
: Ch 5 § 116 ''The Commonwealth shall not make any law for establishing any religion, or for imposing any relig ...
*
Australian Bill of Rights Group
*
Broken Rites &
Catholic Church sexual abuse cases in Australia
Catholic sexual abuse cases in Australia, like Catholic Church sexual abuse cases elsewhere, have involved convictions, trials and ongoing investigations into allegations of sex crimes committed by Catholic priests, members of religious orders an ...
References
{{Religion in Australia
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
Constitution of Australia
Politics of Australia
Religion in Australia