While Australia has no Bill of Rights, its Constitution does protect certain rights. There are a small number of “express rights”, which are explicitly articulated in the Constitution, as well as certain “implied rights”, which are not articulated explicitly but which the High Court has found are implied by other provisions within the Constitution. Religious freedom is protected to some extent in section 116, while courts have found, among others, implied rights to political communication and freedom of association. These implied rights have implications for religious freedom.
The starting point in any discussion about religious freedom in Australia is section 116 of the Australian Constitution:
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.
There are four prohibitions on the Commonwealth in this section:
establishing any religion
imposing any religious observation
prohibiting the free exercise of any religion
requiring a religious test as a qualification for any office or public trust under the Commonwealth.
As Professor George Williams pointed out in his submission, these prohibitions apply to the Commonwealth, and not to the States. The Constitution contains no direct protection from State laws which may restrict religious freedom. Protection of religious freedom at State level is deliberately left to the States by the drafters of the Constitution. Indeed, the drafters’ primary purpose in section 116 was not to protect religious freedom, “but to preserve the States’ exclusive powers to regulate religious practices and local affairs”.
Dr Luke Beck, a constitutional scholar whose principal research focus is on the history, meaning, and operation of section 116, agreed that this was the intention of the framers.
State protections of religious freedom are discussed further in Chapter Five.
The “free exercise of religion” under section 116 has been interpreted narrowly by the High Court of Australia in the small number of cases that have considered the issue. As Dr Alex Deagon commented:
Any constitutional protection of religious exercise in Section 116 is questionable due to the historically narrow construction of the free exercise clause by the High Court.
This view was supported by a number of other submissions.
Krygger v Williams
In chronological order, the first major case brought to the Sub-Committee’s attention was the 1912 decision in Krygger v Williams. The plaintiff, Mr Krygger, was a Jehovah’s Witness who objected to involvement in “and support for” military operations. The relevant legislation, the Defence Act 1903, required all men to report for military training, but made concessions for those with conscientious objections to bearing arms by allowing them to undertake non-combatant roles, although they were still required to report for training. In dismissing Mr Krygger’s claims, the High Court took a narrow approach to freedom of religion, considering the allowances made for conscientious objectors to be adequate protection for the “exercise” of religion. Griffith CJ commented:
It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.
Barton J was even more dismissive:
…the Defence Act is not a law prohibiting the free exercise of the appellant’s religion, nor is there any attempt to show anything so absurd as that the appellant could not exercise his religion freely if he did the necessary drill.
Jehovah’s Witnesses case
The 1943 Jehovah’s Witnesses case is one of the most important section 116 cases. The case arose out of an effective ban on the Jehovah’s Witnesses by the Commonwealth under certain war-time regulations. The ban was found to be invalid, albeit not for the reason that it breached section 116.
Nevertheless, Latham CJ’s lengthy comments on the scope of religion are of ongoing importance. His Honour highlighted Buddhism as a non-theistic religion and emphasised that section 116 also protected the absence of religion. Notably, Latham CJ also remarked that the religion of the majority can “look after itself”, and that section 116 is required to “protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities”.
Referring to the term “exercise of religion”, Latham CJ stated:
Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.
Latham CJ also had some useful comments on the limits of religious freedom, citing John Stuart Mill’s opinion that self-protection is the “sole end” for which mankind, either individually or collectively, is warranted in interfering with “liberty of action”. Latham CJ said that it “may be going too far” to call self-protection the “sole end”, but that without the protection of society liberty would be “meaningless and ineffective”. Thus, ordered government, including state restraints on its citizens and on religious communities, may be consistent with the maintenance of religious liberty. The Courts will be required to determine whether a law fairly “protect[s] the existence of the community” or whether it goes beyond this and “prohibit[s] the free exercise of any religion”, and the purpose of the legislation in question should be taken into account.
Rich, Starke and Williams JJ also found that freedom of religion was not absolute and could be subject to restrictions necessary for the preservation of the community.
Chapter Three contains a more detailed discussion on appropriate limits on religious freedom.
The next major High Court decision on section 116 raised in the evidence is the Scientology case. It is worth citing Mason ACJ and Brennan J’s well-known comments, part of their lengthy consideration of the definition of religion, at length:
Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.
These comments have been seen as confirming the fundamental place of freedom of religion to democratic societies. As one submission stated, the statement:
provides a suitable recognition of the foundational importance of religious freedom within Australian society and a suitable standard against which to demonstrate the extent of incursion upon that freedom within current Commonwealth law.
Mason ACJ and Brennan J did note that the freedom of religion can be limited:
But the area of legal immunity marked out by the concept of religion cannot extend to all conduct in which a person may engage in giving effect to his faith in the supernatural. The freedom to act in accordance with one's religious beliefs is not as inviolate as the freedom to believe, for general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them.
Kruger v Commonwealth
The most recent prominent High Court decision to consider the free exercise of religion aspect of section 116 is 1997 decision in Kruger v Commonwealth, better-known as the Stolen Generations case. The case was brought by a number of Aboriginal adults who challenged the Northern Territory Ordinance which had authorised their removal from their families and communities from the 1920s to the 1950s. The ordinance was enacted under Acts made by the Commonwealth under its territories power in section 122 of the Constitution.
The ordinance was challenged on a number of grounds, including the ground that it had been inconsistent with section 116 of the Constitution. That claim was unsuccessful but the case is notable because all the members of the Court confirmed the view that in order for a law to be invalid under section 116, its purpose or objective must be directed at achieving an object which section 116 forbids.
Gummow J (Dawson and McHugh JJ agreeing in separate judgments) said:
The use of the preposition "'for" in the expression in s 116 of the Constitution "for prohibiting the free exercise of any religion" directs attention to the objective or purpose of the law in issue. The question becomes whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be achieved. “Purpose” refers not to the underlying motive but to the end or object the legislation serves.
… none of the impugned laws on its proper construction can be seen as a law for prohibiting the free exercise of a religion … To attract invalidity under s 116, a law must have the purpose of achieving an object which s 116 forbids. None of the impugned laws has such a purpose …
Toohey J noted that even if the effect of a law is to impair religious practices, the law may not have such an effect as its purpose:
It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, … But I am unable to discern in the language of the Ordinance such a purpose.
Gaudron J agreed that the use of the “for” indicated that the “purpose” of the law was the “sole criterion selected by s 116 for invalidity”. However, her Honour qualified this test by saying:
[Section] 116 is not, in terms, directed to laws the express and single purpose of which offends one or other of its proscriptions. Rather, its terms are sufficiently wide to encompass any law which has a proscribed purpose. … Clearly a law may have more than one purpose. Similarly, a particular purpose may be subsumed in a larger or more general purpose. That latter proposition is well illustrated by the present case. It is clear from the terms of the Ordinance that one of its purposes, evident from the terms of s 16, was to remove Aboriginal and half-caste people to and keep them in Aboriginal reserves and institutions. That purpose is not necessarily inconsistent with the more general purpose which the Commonwealth asserts. And neither purpose is necessarily inconsistent with the purpose of removing Aboriginal children from their families and communities, thereby preventing them from participating in community practices. Indeed, in the absence of some overriding social or humanitarian need - and none is asserted -- it might well be concluded that one purpose of the power conferred by s 16 of the Ordinance was to remove Aboriginal and half-caste children from their communities and, thus, prevent their participation in community practices. And if those practices included religious practices, that purpose necessarily extended to prohibiting the free exercise of religion.
Her Honour was in the minority insofar as her opinion on the “purposive test” is concerned.
The case also confirmed that section 116 only acts as a limit to Commonwealth legislative power and is not a constitutional guarantee of the rights of individuals to freedom of religion. It further confirmed the view that section 116 does not bind the States and that States can enact laws which prohibit the free exercise of religion, as noted at the start of this Chapter.
Cheedy on behalf of the Yindjibarndi People v State of Western Australia
The purposive test in relation to the free exercise of religion under section 116 was confirmed by the Full Court of the Federal Court in Cheedy on behalf of the Yindjibarndi People v State of Western Australia. The case challenged provisions of the Native Title Act 1992 which allowed mining concessions on native land to be granted without the consent of local native title holders. The appellants argued that this impaired the exercise of religion obligations under their traditional Aboriginal spiritual views.
The Full Court in affirming the trial judge’s decision to dismiss the claim said:
The question thus became whether s 116 of the Constitution operates to invalidate Commonwealth laws which have the indirect effect of prohibiting the free exercise of religion.
The primary judge answered this question in the negative. He relied on Kruger. We agree that each of the judges in Kruger, in the passages extracted by the primary judge and which are referred to in these reasons at –, establish that the test for invalidity under s 116 is whether the Commonwealth law in question has the purpose of prohibiting the free exercise of religion.
The Full Court again confirmed that section 116 does not apply to legislation or actions taken by the States.
Implied right to freedom of political communication
A number of rights are said to be implied in the Constitution. One such implied right is the freedom of political communication.
The right is derived from the Constitutional system of representative government in a pair of cases decided in 1992. In the Nationwide News case, Deane and Toohey JJ discerned from this Constitutional system “an implication of freedom of communication of information and opinions about matters relating to the government of the Commonwealth”, arguing:
The people of the Commonwealth would be unable responsibly to discharge and exercise the powers of governmental control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication.
In Australian Capital Television Pty Ltd v The Commonwealth, Mason CJ called freedom of communication an “indispensable” element of representative government, stating that only with this freedom can a citizen:
communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision… criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives.
The High Court has unanimously upheld the implied right.
This implied right is of great relevance to religious freedom. Professor Adrienne Stone has argued that other kinds of communication might be “at least as important” or even more so than political speech:
people may form their political opinions by discussion of matters not on the political agenda, including matters like religion and philosophy that develop more fundamental commitments.
This argument was repeated in a number of submissions. Dr Deagon argued that since voters’ political predilections may be “fundamentally influenced by their religious convictions”, the implied freedom of political communication “operates to protect religious speech”.
Professor Carolyn Evans agreed at the Melbourne hearing that “there will be times when the implied freedom of political communication at a constitutional level – that about which one is communicating which is political – may also be religious”.
Mr Joshua Forrester, Dr Augusto Zimmermann and Ms Lorraine Finlay also argued for this view, stating that “religion informs the opinions of many Australians about politics and government”. Their submission noted the 2008 Federal Court case Evans v NSW, in which the Court stated:
Religious beliefs and doctrines frequently attract public debate and sometimes have political consequences reflected in government laws and policies.
Similar comments are found in the Jehovah’s Witnesses case:
Such [religious] beliefs are concerned with the relation between man and the God whom he worships, although they are also concerned with the relation between man and the civil government under which he lives.
These comments, it is argued, show that the implied freedom of political communication “extends to limiting laws that may inhibit expression of religious views on government and political matters”.
Professor Williams took a more cautious approach, emphasising that the implied rights (including other implied rights such as association) are implied in the “broader structures of the Constitution – to establish a judiciary, a representative government”, and are not related to religion.
Implied right to freedom of association
Another right which is implied in the Constitution is the right to freedom of association. In Australian Capital Television Pty Ltd v Commonwealth, Gaudron J said:
The notion of a free society governed in accordance with the principles of representative parliamentary democracy may entail freedom of movement, freedom of association and, perhaps, freedom of speech generally.
In Kruger v The Commonwealth, Gaudron J observed the link between freedom of political communication and freedom of association:
[J]ust as communication would be impossible if ‘each person was an island’, so too it is substantially impeded if citizens are held in enclaves, no matter how large the enclave or congenial its composition. Freedom of political communication depends on human contact and entails at least a significant measure of freedom to associate with others.
Later decisions of the High Court have clarified that the implied right to freedom of association is not a free standing right under the Constitution. Rather, it is only a corollary of the implied right to freedom of political communication. As stated by Gummow and Hayne JJ (Heydon J agreeing):
There is no such ‘‘free-standing’’ right [of association] to be implied from the Constitution. A freedom of association to some degree may be a corollary of the freedom of communication formulated in Lange v Australian Broadcasting Corporation and considered in subsequent cases.
This view was confirmed in Tajjour v New South Wales, in which Hayne J observed that the High Court has found no “free-standing” right of association implied in the Constitution, and any such right exists “only as a corollary” to that of political communication. Hayne J said that these conclusions “should not be revisited”.
In the same decision, Gageler J clarified:
Statements in subsequent cases, to the effect that any freedom of association implied by the Constitution would exist only as a corollary of the freedom of communication formulated in Lange, should be read in light of that observed reality [that political communication depends on the freedom to associate with others]. They should not be read as suggesting that the constitutional protection of freedom of association for governmental or political purposes is in doubt. They should not be read as suggesting that it is secondary or derivative. Association for the purpose of engaging in communication on governmental or political matter is part and parcel of the protected freedom.
In their submission, Mr Forrester, Dr Zimmermann and Ms Finlay argued that the implied freedom of association is an indispensable incident to the exercise of religion, which involves activities taken in community with others. They also argued that as the implied freedom of association is a corollary of the implied freedom political communication, laws impeding a religion’s ability to organise would impermissibly infringe the implied freedom of political communication.
Several other submissions noted the link between freedom of religion and freedom of association, although they did not specifically refer to the implied freedom of association under the Constitution.
For example, the Australian Lawyers for Human Rights argued that freedom of religion is a “gateway” to other freedoms, including the freedom of association, and that “there can be no free religious community life without respect for those other freedoms”. This was echoed by the Human Rights Law Alliance and Australian Christian Lobby joint submission:
All the democratic freedoms, including speech, expression and association, depend on freedom of thought, conscience and religion or belief. When a citizen is free to speak, they speak their beliefs and convictions. When free to express, they live out their convictions in practice. When free to associate, they form official and unofficial groups around common causes borne out of their beliefs and convictions. Freedom of thought, conscience and religion or belief is therefore, in the words of Mason CJ and Brennan J, “the essence of a free society.”
No implied right to freedom of religion
It is worth noting briefly one South Australian case which attempted to invoke an implied right to freedom of religion in the Constitution. This failed, with the South Australian Supreme Court confirming that the Constitution does not prevent the States from restricting the free exercise of religion, and further stating that “the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression”.
Outside the Constitution, specific religious protection in federal law is limited to the Fair Work Act 2009, which prohibits discrimination on the basis of religion, along with other protected attributes, in a range of cases. For example, an employer is prohibited from taking “adverse action against” an employee or prospective employee, and an award must not contain a term that discriminates, based on these protected attributes.
There are four anti-discrimination laws in place at the federal level: the Race Discrimination Act 1975, the Sex Discrimination Act 1984 (SDA), the Disability Discrimination Act 1992, and the Age Discrimination Act 2004 (ADA). Discrimination on the basis of religion is not prohibited by federal anti-discrimination legislation.
Anti-discrimination law: exemptions and exceptions
Some level of religious protection is found within the federal SDA and the ADA in the form of exemptions specifically for religious bodies in certain contexts. Specifically, Division 4 in each Act covers exemptions for a variety of reasons. Section 35 of the ADA reads:
This Part does not affect an act or practice of a body established for religious purposes that:
(a) conforms to the doctrines, tenets or beliefs of that religion; or
(b) is necessary to avoid injury to the religious sensitivities of adherents of that religion
In the SDA, section 37 creates exemptions for internal religious practices including ordination and appointment of priests, ministers, and members of a religious order, the training or education of persons seeking these appointments, and selection or appointment of persons to perform duties or functions in connection with any religious observance or practice. The section also exempts religious bodies for:
any other act or practice of a body established for religious purposes, being an act that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Amendments in 2013 provided that these exemptions do not apply to Commonwealth-funded aged care providers, both in the provision of aged care and the employment of aged care providers.
Section 38 applies to “educational institutions established for religious purposes”. It provides that the Act does not render it unlawful to discriminate on the basis of “sex, sexual orientation, gender identity, marital or relationship status or pregnancy” in connection with employment, including a position as a contract worker, or with the provision of education or training by:
an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teaching of a particular religion or creed, if the first-mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.
Common law protections
There is some degree of protection for religion in the common law. Dr Beck noted that:
The general proposition at common law is that you are free to do anything at all you want unless some law expressly forbids you from doing it”.
This has been established by the High Court in Lange v Australian Broadcasting Corporation.
However, common law protection is limited and can be overruled. Professor Williams stated at the Sydney hearing:
The common law provides no effective protection. At the margins it may well be useful in interpreting statutes, but it is not recognised as a right that can trump any legislation.
Similarly, Dr Paul Taylor said that while “possibly an interpretative principle in favour of religious freedom might be argued for”, common law protection is “very minimal”.
Mr Martyn Iles, the Managing Director of the Human Rights Law Alliance, observed in response to the discussion of this principle that “the only reason the freedom [of religion] is being limited is that there are laws which infringe”.
Principle of legality
The “interpretative principle” referred to by Dr Taylor is the principle of legality, a common law principle of statutory interpretation that:
assumes that Parliament does not intend to interfere with fundamental human rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.
This principle has been endorsed by the High Court in a number of cases, notably in Coco v The Queen. It applies to all fundamental common law rights and has been applied by Courts specifically to freedom of religion. In Coco, the majority stated that the insistence on an “express authorization” curtailing a particular right is a requirement for some indication that:
the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.
The principle has been further examined at some length by French CJ in more recent High Court cases.
The principle is not a strong protection of freedom of religion, however. The Australian Law Reform Commission (ALRC) notes that it “has its limits”, and that the presumption that a parliament “does not intend to interfere with common law rights and freedoms remains rebuttable.” The Presbyterian Church of Queensland submission states that the principle:
fails to provide a clearly enunciated religious freedom protection, and suffers from the prospect of failing to protect religious freedom against legislative incursion.
The Parliamentary Joint Committee on Human Rights was established by the Human Rights (Parliamentary Scrutiny) Act 2011 to examine all Bills and legislative instruments which come before either House of Parliament for compatibility with human rights, and to report to both Houses on that issue
The Human Rights (Parliamentary Scrutiny) Act 2011 defines human rights as the rights and freedoms recognised or declared by the seven core international human rights treaties which Australia has ratified, including the ICCPR. This means that the Committee must consider whether Bills or legislative instruments are compatible with the freedom of religion or belief as articulated in Article 18 of the ICCPR.
Since its establishment, the Committee has raised concerns about the impact on freedom of religion or belief by the following Bills: the Social Services Legislation Amendment (No Jab, No Pay) Bill 2015; the Marriage Legislation Amendment Bill 2015; the Marriage Legislation Amendment Bill 2016; the Marriage Legislation Amendment Bill 2016 [No. 2]; and the Criminal Code Amendment (Prohibition of Full Face Coverings in Public Places) Bill 2017.
Professor Williams argues that the Committee has not been effective in protecting religious freedom or other rights, noting that there are many examples where Parliament has enacted laws despite the Committee raising concerns about limitations to the freedom of religion and other rights.
Australian Human Rights Commission
Established by the Australian Human Rights Commission Act 1986 (Cth), the Australian Human Rights Commission (AHRC) is an independent statutory body and is Australia’s national human rights institution.
The Commission consists of a President and seven Commissioners, one for each federal anti-discrimination law, as well as the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Children’s Commissioner and the Human Rights Commissioner. The Human Rights Commissioner has a wide portfolio and is responsible for certain basic freedoms, including freedom of religion.
One of the functions of the President of the Commission is to inquire into, and attempt to conciliate, complaints of unlawful discrimination. The Australian Human Rights Commission Act 1986 does not make religious discrimination “unlawful” – the definition of unlawful discrimination in the Act being limited to acts, omissions or practices that are unlawful under the four federal anti-discrimination laws. As previously noted, religious discrimination is not prescribed as being unlawful by any of the federal anti-discrimination laws.
Nevertheless, the President of the Commission does have the power to inquire into and attempt to conciliation in relation to any act or practice that may constitute religious discrimination or that may be inconsistent with or contrary to the human rights in Articles 18 and 26 of the ICCPR and Article 1 of the Religion Declaration. The President of the Commission also has the power to inquire into and conciliate complaints of religious discrimination in employment
Where the Commission finds that a complaint has been substantiated, it must prepare a report for the Attorney-General setting out its findings and any recommendations for preventing a repetition of the act and any recommendations on remedies, including compensation. Any recommendations made by the Commission are not binding on the person found to be at fault or on the Commonwealth.
In addition to its inquiry and conciliation functions, the Commission’s functions also include promoting understanding, acceptance and public discussion of human rights in Australia and undertaking research and educational programs and other programs on behalf of the Commonwealth to promote human rights. Mr Edward Santow, the Human Rights Commissioner, highlighted the importance of education in increasing the understanding of human rights issues in society at the Canberra hearing.
Commonwealth protection for freedom of religion or belief is limited. The Constitution does prohibit Parliament from restricting religion and the free exercise of religion, and there is a set of implied Constitutional rights which combine to offer some further protection in the form of, for example, religious expression and association. These Constitutional protections are not absolute in their effect, nor do they prohibit such restrictions at state or territory level. There is no positive protection of religious freedom.
There is also a history of common law protection for fundamental rights, including religious freedom. There is a general principle of Australians being free to act as they wish unless a law specifically prohibits them. However, evidence to the inquiry suggests that there has been a slow erosion of this general freedom, or a concern that it may be eroded in the future, by the enactment of legislation, including of legislation which seeks to uphold other rights but may conflict with religious freedom.
Suggestions to strengthen protections for religious freedom include a broad human rights instrument such as a bill of rights, a specific religious freedom act, and a religious discrimination act, or a variation or combination of these.
Addressing the perceived current threats to religious freedom found in federal laws, there are questions about the effectiveness and the appropriateness of existing religious exemptions and exceptions in non-discrimination laws. While many believe the existing exemptions are appropriate, some believe they inappropriately favour religious freedom over non-discrimination, while others believe they are inadequate in their protection of religious freedom. The Sub-Committee will consider whether policymakers should give consideration to a general limitations clause as an alternative means of balancing religious freedom and non-discrimination, and the Sub-Committee will continue to consider this in its deliberations throughout the inquiry and in the Final Report.