There are various state and territory instruments that go some way to offering protection of religious freedom, including human rights instruments and anti-discrimination legislation.
Some states and territories made submissions to this inquiry, outlining their frameworks for protecting religious freedom. Submissions were received from NSW, Victoria, Tasmania, and the ACT, as well as from the Victorian Multicultural Commission and Equal Opportunity Tasmania.
Tasmanian Constitution Act
The only state with constitutional protection of religious freedom is Tasmania. Section 46 of the Constitution Act 1934 states:
Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public offence.
Professor George Williams noted in his submission that this provision is “of limited, perhaps no, utility” as it is “not entrenched in that Constitution and may be overridden by any subsequent statute of the Tasmanian Parliament.” Dr Luke Beck concurred, calling the provision “largely useless”.
At the Sydney hearing, however, Professor Williams did qualify this legal ineffectiveness, remarking that such a section in the “highest law within a state” is “significant” as it “sets out what Tasmania sees as a value that deserves regard and respect”.
Charter of Rights/Human Rights Act
Only two Australian jurisdictions have enacted rights instruments of this kind.
The ACT was the first to do so, with the Human Rights Act 2004 (ACT) (HRA). The relevant section is section 14:
14. Freedom of thought, conscience, religion and belief
(1) Everyone has the right to freedom of thought, conscience and religion. This right includes—
(a) the freedom to have or to adopt a religion or belief of his or her choice; and
(b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private.
(2) No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.
Victoria enacted its Charter of Human Rights and Responsibilities Act in 2006, with the substantially similar section 14 the equivalent of the ACT provision. The instruments are similar both in the rights they enumerate and their operation.
The ACT and Victorian instruments require proposed laws to be accompanied by statements setting out their compatibility with human rights. In Victoria, the Scrutiny of Acts and Regulations Committee must consider Bills introduced into Parliament, and report to Parliament on whether the Bill is compatible with human rights. In the ACT, it is the “relevant standing committee”.
In each jurisdiction, if a question about a law’s compatibility with human rights arises during a proceeding before the Supreme Court, the Court can declare a law to be incompatible with human rights. In neither jurisdiction does such a declaration invalidate a law, nor does failure to comply with the requirements for statements of compatibility “affect the validity, operation or enforcement” of the law in question. In fact, the Victorian Parliament can make an express override declaration stating that an Act has effect despite being incompatible with the Charter.
The ACT Government noted the “dialogue process” of its Act, and provided an example of what this process looks like in practice, noted briefly in Chapter Three. Seeking to “safeguard rights to access abortion services in the ACT”, the ACT amended its Health Act 1993 to make it an offence to “protest, or film, in declared protected areas” in the vicinity of abortion service providers. This was “in response to community concerns about potentially intimidating and harassing conduct”. The submission states further:
The amendments clearly limited the protestors’ right to freedom of expression (including expression of their religious beliefs and convictions)… Yet, because the rights in the HRA are not absolute, but can be limited if they are considered reasonable and proportionate to achieve a justifiable policy aim the HRA processes facilitated an open community debate about the merits of the laws.
The ACT Government noted that the measures taken were the “least restrictive necessary”, in accordance with the HRA.
Support for State and Territory Instruments
Professor Iain Benson praised the Australian Charter of Rights model, specifically in the context of the Victorian Charter, noting that courts are given a “declaratory power”, maintaining the importance of the legislature. Professor Benson contrasts this to the courts in the US, Canada, and South Africa and what he calls the “spectacle of judicial usurpation, frankly, of principles that should be left to democracy”. Victorian courts can give “varying degrees of guidance” to parliaments but would leave to them “the determination as to how precisely the law is formulated in response to the judicial declaration”. This has been called an “advisory model” or a “dialogue model”.
As discussed further in Chapter Six, Professor Williams supports a human rights act model, saying that “it is the right time” to be talking about bills of rights at state level.
Ms Anna Brown of the Human Rights Law Centre argued that the Charter has developed a “human rights culture within the government”, resulting in better policymaking and “more thoughtfully considered” due to the balancing of competing rights under the Charter.
Criticism of State and Territory Instruments
The existing rights instruments have been criticised for failing to protect religious freedom. For example, the Presbyterian Church of Queensland argues that these instruments “effectively limit rather than protect human rights”. The Presbyterian Church of Queensland noted that the ICCPR permits only “necessary” limitations, in contrast to the Victorian and ACT instruments which permit “reasonable” state incursion. This distinction was discussed in more detail in Chapter Three.
Dr Paul Taylor stated they do “not meet the obligation” to respect and ensure rights, but “merely call for a human-rights-compatible interpretation of laws where this is possible”. The rights listed in the charters “[lack] the precision required by the Covenant” because they are subject to an omnibus limitation provision.
While not criticising the concept of charters of rights, Dr Beck said that committees should ask nuanced questions which require “much deeper and more practical thinking” than simply recommending such instruments be enacted. He stated:
Victoria has a charter of rights. New South Wales does not. The Victorian charter of rights protects freedom of speech and freedom of religion. Is freedom of speech and freedom of religion, in practice, better protected in people’s day-to-day lives in Victoria than in New South Wales? What is the lived experience of people? What sort of problems are people running into?... What, actually, would the statue do in practice?
State and territory legislation
The anti-discrimination laws of most states and territories prohibit discrimination on the basis of religion. New South Wales prohibits discrimination on the basis of race, and defines “race” to include “ethno-religious” origin. South Australia prohibits discrimination based on “religious appearance or dress”.
The ACT amended its Act in 2016 to add a definition of “religious conviction”, clarifying that it includes “engaging in religious activity” as well as having no religious conviction. The amendments also separated “political conviction” and “religious conviction”, which were previously combined as a single protected attribute. The threshold test for vilification was also revised by the amendments so that vilification is prohibited in respect of any act done “other than in private”. This revision was made to avoid technical arguments about what is a “public act”.
The various state and territory anti-discrimination legislation is summarised in a helpful table provided in Attachment A of the Attorney-General’s submission.
Exceptions and exemptions
The state and territory laws provide a range of exceptions for certain acts in certain contexts, which are broadly similar to the Commonwealth exceptions. Of note, Victoria is the only state that provides religious exemptions for individuals, as opposed to religious organisations or professionals. Section 84 of the Equal Opportunity Act 2010 (Vic) states:
Religious beliefs or principles
Nothing in Part 4 applies to discrimination by a person against another person on the basis of that person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity if the discrimination is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.
In September 2017, the Northern Territory Government (NT Government) indicated that it proposed to amend the Anti-Discrimination Act 1996 (NT). Amongst a range of other proposals, the NT Government proposes to remove automatic religious exemptions for religious organisations that act as accommodation service providers and for religious education institutions in relation to employment and student enrolment. Religious bodies would instead be required to seek exemptions from the Anti-Discrimination Commission and justify why their services require particular exemptions. Exemptions in relation to internal religious practices, such as the ordination of priests, ministers of religion or members of a religious order (including training or education) and the selection or appointment of people to perform functions in relation to any religious observance would remain in place. The NT Government has said that the proposals would “ensure that cultural and religious bodies are more accountable for their actions and more inclusive.”
Religious vilification laws
Religious vilification laws prohibit speech which attacks other people on the basis of their religion. The ACT, Queensland, Tasmania and Victoria have legislation which prohibits religious vilification or acts which incite hatred on religious grounds. Similar to its anti-discrimination provisions, NSW prohibits vilification on the grounds of ethno-religious origin.
The most comprehensive of the anti-vilification laws is the Victorian Racial and Religious Tolerance Act 2001 (Vic). Section 8 of that Act provides:
Religious vilification unlawful
A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
The most famous case relating to this provision is the Catch the Fire case. The case was brought by the Islamic Council of Victoria against a Christian organisation, Catch the Fire Ministries, and two pastors on the basis that statements the two pastors had made at a seminar and in publications criticising Islam contravened section 8 of the Racial and Religious Tolerance Act. In the first instance, the Victorian Civil and Administrative Tribunal found the pastors guilty of religious vilification. This decision was overturned on appeal, with Neave JA finding that the Tribunal had failed to distinguish between criticisms of the doctrines of Islam and the incitement of hatred towards followers of Islam. His Honour said:
… s 8 does not prohibit statements about religious beliefs per se or even statements which are critical or destructive of religious beliefs. Nor does it prohibit statements concerning the religious beliefs of a person or group of persons simply because they may offend or insult the person or group of persons. The proscription is limited to that which incites hatred or other relevant emotion and s 8 must be applied so as to give it that effect.
The parties ultimately settled after the matter was referred back to the Tribunal, but a number of commentators used this case to highlight their concerns that anti-vilification laws have an undesirable chilling effect on religious speech and debate.
On the other hand, the organisation involved in this case, the Islamic Council of Victoria (ICV), stated in its submission:
In 2001 the Government of Victoria enacted the Racial and Religious Tolerance Act 2001. The ICV has experience in the use of this Act which is applicable today to only the most extreme cases of religious vilification. Although it can be argued that it has proved weak in preventing the rise of Islamophobia in Victoria, the ICV commend Victoria’s efforts to keep multiculturalism relevant and to find new narratives for diversity which the ICV recognise and support.
Others laws that prohibit certain speech against religion are blasphemy laws. Blasphemy is still a crime under statute in NSW, the ACT and Tasmania and likely remains a crime under common law in the Northern Territory, South Australia and Victoria. Queensland and Western Australia have specifically abolished common law blasphemy by statute.
Dr Beck argued that the offence of blasphemy, which is “not about vilification or inciting hatred”, is only related to speech against Christian beliefs and therefore gives “official preference to Christianity”. He noted that although attempts had been made to use the laws, there were no successful prosecutions. The most well-known example was in 1997, when Catholic Archbishop of Melbourne George Pell, as he then was, sought an injunction against the National Gallery of Victoria, seeking to prevent the display of an artwork titled “Piss Christ” on the basis that is contravened the common law crime of blasphemous libel. Harper J refused to grant the injunction, essentially finding that the matter was one best suited to criminal sanctions, but found that the common law crime of blasphemous libel may still exist.
Common law decisions
CYC v Cobaw
A significant case dealing with religious freedom under state law, especially as it interacts with anti-discrimination law, is the Victorian case Christian Youth Camps Limited v Cobaw Community Health Service Limited (‘Cobaw’). That case involved a camping organisation run by Christian Brethren, Christian Youth Camps (CYC), refusing to accept a booking for a program being run for same-sex attracted young people. Cobaw Community Health Service (Cobaw), the organisation running the program, sued CYC for discrimination on the basis of sexual orientation.
Under the 1995 Equal Opportunity Act, an exemption existed for discrimination that was “necessary for the first person to comply with the person’s genuine religious beliefs or principles”. An exemption also existed for a “body established for religious purposes” for conduct that conforms to religious doctrine or is “necessary to avoid injury to the religious sensitivities of the people of the religion”.
The Victorian Supreme Court interpreted these provisions narrowly, first by holding that CYC was not a “body established for religious purposes”, due to the commercial nature of the business. This was despite the fact that its Constitution focused on activities conducted in accordance with Brethren beliefs, being established under a Brethren Trust, and requiring staff to subscribe to a statement of faith.
Secondly, the Court found that CYC’s rejection of Cobaw was not done in order to conform with the doctrines of the Brethren faith, and limited “doctrines” to “core architectural statements of faith”.
Finally, the Court also determined that the conduct was not “necessary” to conform to the Brethren faith as the belief about sexuality was a “rule of private morality”.
The application of the Charter of Rights and Responsibilities had been discussed earlier in the Tribunal decision. In weighing the right to freedom of religion in section 14 of the Charter against the rights to equality and freedom from discrimination in section 8, Her Honour Judge Hampel made the following comments:
I must therefore interpret ss 75(2) and 77, having regard to the purpose of those exceptions, namely to protect religious freedoms, and in a manner consistent with the rights to freedom of thought, conscience, religion and belief in s 14 of the Charter, and freedom of expression in s 15 of the Charter but also, so far as is possible, in a manner which is compatible with the rights to equality and freedom from discrimination in s 8 of the Charter. I must do so in a way which does not privilege one right over another, but recognises their co-existence.
Professors Aroney and Babie and Dr Harrison called the “bright-line” between religious and commercial purposes a “blunt instrument”, noting that many organisations “undertake commercial work within a religious ethos”. Examples of such organisations may be kosher or halal certifiers, religious publishers, and wedding photographers, with the authors commenting that:
CYC’s decision not to attempt a booking does not necessarily cease to be an act of religious conscience simply because it takes place in a commercial setting.
This echoed the dissenting judgement in that case from Redlich JA, who stated that:
Engagement in commercial activity will not ordinarily support an imputation that the person does not in that setting rely upon their religious beliefs or principles or has abandoned their obligation of obedience to them.
This case is discussed further in Chapter Seven in the context of non-discrimination and religious freedom.
Other state case law
There have been a small number of Victorian cases which have dealt with that State’s Charter of Rights. In Hoskin v Greater Bendigo City Council, Victorian Court of Appeal found that a city council was obliged to consider the Charter, including section 14, in its decision regarding the construction of a mosque.
Rutherford & Ors v Hume CC also considered an application to build a mosque, in this case next door to an Assyrian Church. The Victorian Civil and Administrative Tribunal stated that allowing the mosque to be built would not offend charter or the religious freedoms of the church members. While they did not finally decide on whether refusing the permit would offend the Charter, the bench noted the Council’s argument that it may do so by “impinging on the ability of an identifiable group of Shi’ite Muslims to practise their faith.”
In Fraser v Walker, a woman protesting outside an abortion clinic and displaying a poster showing aborted foetuses was charged with displaying an obscene figure. She argued that displaying the poster was part of her right to freedom of conscience and religion. This was rejected, with the Court stating that “the display of obscene figures is not part of religion nor can it be said the display is done in furtherance of religion”.
A number of cases from outside of Victoria are also worth noting. One case which received some attention in submissions was the NSW case OV & OW v Members of the Board of the Wesley Mission Council. This case also involved a “religious organisation” and considerations of what constitutes doctrine and the relevance of doctrine to behaviour. The case involved a same-sex couple which inquired about becoming foster carers of a child through the services of the religious organisation, Wesley Dalmar. Wesley Dalmar, relying on the exemptions in section 56 of the Anti Discrimination Act, told the couple they would not be permitted to apply because they were a same-sex couple. Wesley Dalmar argued that one of its doctrinal beliefs was that the “monogamous heterosexual partnership within marriage is both the norm and ideal of the family”. The Administrative Decisions Tribunal initially found that Wesley Dalmar had failed to establish that the belief was a doctrine of the Christian religion. On appeal, the Court of Appeal ordered the Administrative Decision Tribunal to reconsider the matter. The Administrative Decisions Tribunal ultimately found that the organisation was “entitled to propagate its own doctrines… by teaching or other means not necessarily amounting to the formal pronouncement of a ‘doctrine’”.
Professor Foster briefly cites several other cases. In McIntosh, Ahmad v TAFE Tasmania, the Tasmanian Anti-Discrimination Tribunal ruled that the TAFE had not discriminated against a Muslim employee by not providing a separate prayer room. This decision was made on the basis that any other member of staff requesting a room set aside for their own purposes would also have been declined.
In Walsh v St Vincent de Paul Society Queensland (No 2), a woman was asked to step down from her position because she was not a Roman Catholic. The St Vincent de Paul Society attempted to use the exemption allowing a “religious body” to discriminate on the basis of religion, but the Tribunal ruled that the exemption did not apply because St Vincent de Paul Society is not a “religious body”. This decision was discussed at some length at the Melbourne hearing.
Finally, Professor Foster notes Burke v Tralaggan, a NSW decision in which a Christian couple who refused to allow an unmarried couple to rent their flat had unlawfully discriminated based on “marital status”. The refusal was based on moral grounds informed by their religious convictions. Professor Foster noted that the NSW Anti-Discrimination Act does not prohibit discrimination if the provider of the accommodation lives on the premises and the premises contains no more than six beds, suggesting that NSW has determined that discrimination law should not extend as far as people who provide accommodation in what is effectively their own home. The relevance of this is apparent in light of the UK case Bull v Hall, in which a couple was found guilty of discrimination on the grounds of sexual orientation when they refused, on religious grounds, to give accommodation in their home-based boarding house to a same-sex couple. This case was raised in a number of submissions.
State human rights commissions
Each of the States and Territories has an independent statutory human rights commission or anti-discrimination body which handles complaints made under its relevant anti-discrimination laws, including complaints of religious discrimination. The State and Territory bodies also provide public training and education on human rights, undertake community engagement activities and advise their governments on discrimination and/or human rights matters.
Notably, the ACT Human Rights Commission and the Victorian Equal Opportunity and Human Rights Commission do not deal with complaints arising out of their human rights legislation. In the case of the ACT, persons whose human rights are breached by a public authority can commence proceedings in the ACT Supreme Court to enforce those rights. In Victoria, complaints about breaches to its Charter by public authorities are the remit of the Victorian Ombudsman while complaints in relation to police misconduct are handled by the Victorian Independent Broad-based Anti-corruption Commission.
There is a range of approaches to protecting religious freedom among the states and territories. Two jurisdictions have human rights instruments which have been proffered as potential models on which to base an equivalent instrument at federal level. While many people praise the existing instruments, some have concerns that they do not adequately protect ICCPR rights including religious freedom.
One reason for this concern is a lower threshold for when religious freedom may be limited. The threshold of “reasonable” rather than “necessary” diverges from the ICCPR and international human rights jurisprudence.
All states and territories have anti-discrimination laws, although not all of these include religion as a protected attribute.