Freedom of religion in Australia

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.[4]

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.

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:

• Human Rights Act 2004 (Australian Capital Territory)[5]
• Charter of Human Rights & Responsibilities Act 2006 (Victoria)[6]

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 (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.

The Australian Human Rights Commission Act 1986 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;[7]

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.[8] Further, anti-discrimination acts States where religious beliefs and activities are protected include:

• Equal Opportunity Act 1984 (Western Australia)
• Discrimination Act 1991 (Australian Capital Territory)
• Anti-Discrimination Act 1991 (Queensland)
• Anti-Discrimination Act 1996 (Northern Territory)
• Anti-Discrimination Act 1998 (Tasmania)
• Equal Opportunity Act 2010 (Victoria)[9]

Two other state acts apply narrower protection to 'religious appearance or dress' (Equal Opportunity Act 1984, South Australia) and 'Ethno-religious or national origin' (Anti-Discrimination Act 1977, New South Wales). It has been suggested that both states update their laws in order to align to the rest of the States and Territories.[10]

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."[11]

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.[7]

Varying groups have argued that existing religious exceptions and exemptions go too far and impede the rights of individuals,[12] whilst others argue the correct balance has been struck,[13] and yet others petition for wider-reaching religious exemption clauses.[14]

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 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 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.[16]

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.[16]

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.[17] 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.[18]

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.[19]

Following the passage of same-sex marriage 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 Marriage Amendment (Definition and Religious Freedoms) Act 2017.[23] The Religious Freedom Review was chaired by Philip Ruddock, the former Attorney-General for Australia at the time same-sex marriage was banned by the Howard Government in 2004, and had no associated terms of reference.[24]

The review panel was composed of Ruddock alongside Jesuit priest Frank Brennan, former judge Annabelle Bennett, Human Rights Commission president Ros Croucher 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.[25]

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.[26] 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).[24][27] 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 by enshrining all fundamental rights.[2][10]

Turnbull's government indicated it would not release the report received in May 2018 until it had been considered in full by the government.[28] 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.[29] 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 Prime Minister.[30][31]

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.[32][33] 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.[29]

On 9 October 2018, extracts of the review were leaked to Fairfax Media, 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.[34] The Prime Minister initially defended this, but stated that the media coverage of the leaked report was "confused".[35] 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.[36]

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.[37] The Morrison Government subsequently agreed to introduce a bill to parliament with that aim.[38][39] The Australian Greens 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.[40]

The full recommendations of the review were subsequently leaked to Fairfax and reported on 12 October 2018.[41]