Freedom of religion in Australia


Freedom of religion in Australia is allowed in practice and protected to varying degrees through the constitution and legislation at the Federal, state and territory level. Australia is a pluralist country with legislated principle of state neutrality and with no state religion. The nation has over 13.6 million people who identify as religious and over 9.8 million who identify with no religion.
Relevant legislation protecting religious freedoms include sections of the Constitution of Australia, Federal 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 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 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 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 referendums were held on whether to restrict the ability of states to legislate laws that may impede religious freedoms: the 1944 Australian Post-War Reconstruction and Democratic Rights referendum and 1988 Australian referendum. 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:
These legislated Acts are based on the International Covenant on Civil and Political Rights, 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, 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 defines discrimination as:
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 the 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 members of the moderate faction 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, 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, religious beliefs and activities are protected through anti-discrimination Acts in some states including:
  • Equal Opportunity Act 1984
  • Discrimination Act 1991
  • Anti-Discrimination Act 1991
  • Anti-Discrimination Act 1996
  • Anti-Discrimination Act 1998
  • Equal Opportunity Act 2010
Two other state Acts apply narrower protection to 'religious appearance or dress' and 'Ethno-religious or national origin'. 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:
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

There have been few tests involving religious freedom put before the High Court of Australia. 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 , the court was primarily concerned with whether Scientology was a religion. 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 and William Deane set out five "indicia" of a religion:
That the collection of ideas and practices involved a belief in the supernatural ; That 'the ideas relate to man's nature and place in the universe and his relation to things supernatural' ; 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; The adherents themselves form an identifiable group or groups; 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 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 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 of the Constitution. Jehovah's Witnesses have since continued to practice in Australia unhindered.