Legal framework on freedom of religion and actual application
Australia is a federation with power divided between the federal government, six state governments and ten territories.
Federal protections
At a national level, Section 116 of the 1901 Constitution of Australia (revised in 1985)[1] provides: “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.”
This section has been interpreted narrowly by the High Court of Australia, which has ruled that an interference with religious freedom will only be unconstitutional if it pursues an aim forbidden by Section 116.[2] This section applies only to federal laws and not those passed by the states. Individual states have sovereignty to pass their own laws in relation to religious freedom. This would hypothetically include laws that would, in practice, prohibit the free exercise of religion.[3] Many of the laws which negatively impact freedom of religion are found at the state level.
In addition to the positive protections of the constitution, federal employment law also protects an employee or prospective employee from adverse action on the basis of, inter alia, their religion.[4]
Religious freedom is otherwise protected through exemptions to the anti-discrimination law (otherwise known as “balancing clauses”). For example, while discrimination on the basis of a person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy is unlawful, Section 37-1 (d) of the Sex Discrimination Act 1984 includes exemptions for activities such as the ordination or appointment of ministers of religion, and “any other act or practice of a body established for religious purposes, if such an act or practice 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”.[5] Religious groups are not required to register with the government, but to receive tax-exempt status they must be registered with the Australian Charities and Not-for-Profits Commission (ACNC) and apply to the Australian Taxation Office (ATO).[6]
Education policy is shared between the federal, state and territorial governments. “General religious education” – instruction on world faiths – is permitted, while “special religious education” in the “distinctive beliefs and practices of an approved religious persuasion” is allowed in some jurisdictions, including in some cases, during regular class time.[7]
State and territory protections
For individual states, religious freedom is protected through three legal methods that mirror the federal protections.
The first is through state constitutions or charters of rights[8] which provide for freedom of thought, conscience and belief. However, these rights cannot be enforced in and of themselves, but they can only be used as interpretive keys for other pieces of legislation or to issue a declaration that a breach has occurred. The charters provide no remedy in and of themselves.
The second is through protection against discrimination on the grounds of religious belief or activity. All states and territories except South Australia and New South Wales contain some protection for religion within their anti-discrimination laws.[9]
The third is through exemptions to anti-discrimination laws that operate in a similar way to those found in federal laws.
While this suggests a high level of protection for religious freedom in Australia, individual state laws can nevertheless operate to undermine these protections.
For example, in certain states and territories, faith-based care facilities for the aged are obliged to allow euthanasia and assisted suicide on site despite any religious objection they may have institutionally or among individual staff members.[10] Furthermore, medical practitioners who hold a religious objection to abortion are still required to refer women seeking abortions to a practitioner who will provide the abortion.[11] Additionally, prohibitions on conversion practices limit religious freedoms to teach and minister to LGBTQ+ persons in a manner consistent with religious beliefs, with the State of Victoria even specifically prohibiting the “carrying out of a religious practice, including but not limited to, a prayer-based practice” in its Change or Suppression (Conversion) Practices Prohibition Act 2021.[12]
Incidents and developments
Anti-religious incidents
There has been a significant increase in antisemitic attacks in Australia since the Hamas attack on Israel on 7 October 2023. According to records maintained by the Executive Council of Australian Jewry (ECAJ), in the 12-month period ending 30th September 2024, anti-Jewish incidents increased by 316 percent compared to the previous year.[13] These incidents have included assaults, vandalism, abuse, hateful messages and graffiti. In two significant examples, a rally held outside the Sydney Opera House included chants of “F*ck the Jews” and, according to several witnesses, “Gas the Jews!”[14] An arson attack also destroyed a Melbourne synagogue.[15] The Islamophobia Register Australia (IRA) also recorded a 13-fold increase in Islamophobic incidents since the 7th October 2023 attacks.[16] Examples provided in the Islamophobia in Australia Report 2023-2024 include physical assaults and verbal abuse of, and spitting upon, people wearing Islamic dress, as well as the smearing of faeces on a mosque.[17]
Legislative developments
In April 2023, the Australian Capital Territory (ACT) passed legislation to acquire Calvary Hospital, which had been owned and operated by the Little Company of Mary and was the only Catholic hospital within the ACT.[18] The law allowed the government to forcibly acquire the hospital, including its land, buildings, operations and 1,800 staff. While the acquisition was said to be unrelated to its Catholic operators, it came less than a month after an Australian government inquiry into abortion services specified that it was “problematic that one of the ACT’s major hospitals is, due to an overriding religious ethos, restricted in the services that can be delivered” and recommended the government address “an ethically fraught dependence on the Sisters of the Little Company of Mary for provision of health services”.[19]
Legislative proposals
Religious freedoms guaranteed through exemptions to the anti-discrimination law, particularly those that govern the operation of religious schools, continue to be challenged because of perceptions that they offer special treatment to religious groups to the detriment of staff and students.
The federal Labor Party government committed to ensuring that religious schools do not discriminate against staff or students on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy, while continuing to “build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff”[20] and tasked the Australian Law Reform Commission (ALRC) to consider the legislative reforms needed to meet this commitment.
The ALRC recommended the repeal of all exemptions for religious educational institutions contained in federal anti-discrimination laws.[21] If these recommendations are implemented, faith-based educational institutions will not be able to insist that staff and volunteers conduct themselves in accordance with the religious ethos of the school, even if they do not share its beliefs. The implementation of the recommendations could also threaten the ability of religious educational institutions to teach their religious doctrines on marriage, gender and sexuality or to set policies about student behaviour relating to these matters and put them at risk of being sued for discrimination.
The federal government has not yet responded to the ALRC’s recommendations, and it has also put on hold a long-mooted bill that would have prohibited discrimination on the basis of religious belief or activity in areas outside of employment.
The federal government also proposed to expand existing anti-vilification laws to prohibit threatening force or violence against groups based on a protected attribute (including religion), and to expand the list of protected attributes to include sex, sexual orientation, gender identity, and intersex status.[22] This has been broadly viewed as benefiting religious freedom. Nonetheless, there are some concerns that wider anti-vilification laws could restrict the expression of religious beliefs.[23] A Senate inquiry has recommended the bill be passed,[24] however, this has not yet occurred.
Separately, a government-commissioned report from the Productivity Commission into Philanthropy recommended that “most classes of charitable activities” be afforded tax deductible status, but that charities with the purpose of advancing religion, as well as some involved in care of the elderly and education, should be excluded.[25] If implemented, these recommendations will result in decreased donations to religious charities.
Religious freedom in New South Wales will be likely be affected by the federal government’s response to an ongoing review[26] by the New South Wales Law Reform Commission (NSWLRC) into the state’s anti-discrimination laws. There is no timeline for the finalisation of the review.
In May 2024, the Parliamentary Joint Committee on Human Rights (PJCHR) recommended the federal parliament to enact a Human Rights Act for Australia.[27] The model legislation proposed by the Australian Human Rights Commission (AHRC) falls short in offering protections for religious freedoms that are consistent with Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR).[28] The model legislation would permit limitations that are deemed to be “reasonable and can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”.[29] The model legislation would also have no bearing on state laws that restrict religious freedom.[30]
Incidents related to religious speech
Attempts have been made to limit religiously motivated speech, particularly on matters relating to marriage, sexuality and gender. In May 2024, a popular Christian chastity proponent, Jason Evert, had a speech intended for a Catholic school made optional and moved from in-person to online following complaints from parents and students.[31] In 2023, the Queensland Civil and Administrative Tribunal (QCAT) dismissed a complaint against a prominent Christian campaigner, Lyle Shelton, after three years of litigation. The case was brought by an LGBTQ+ group, which was supported by the state government’s LGBTIQ+ Legal Service. The group alleged that Shelton violated the anti-vilification law by publishing blog posts saying drag queens are “dangerous role models” who should not read to children.[32] The group has now appealed this ruling, so the litigation continues. In June 2024, a parliamentary inquiry in Tasmania was launched into discrimination and bullying concerns in schools following the release of a pastoral letter by Archbishop Julian Porteous of Hobart (Tasmania), which was widely circulated to Catholic schools expressing Church teaching on marriage, transgenderism and wokeism.[33] In April 2024, a netball star was required to issue a public apology and undergo “inclusion” training after publicly objecting to the Transgender Day of Visibility coinciding with Easter Sunday.[34]
Prospects for freedom of religion
Prospects for religious freedom in Australia remain uncertain due to several ongoing, but significant, state and federal initiatives. Australia held a federal election on 3rd May 2025, the results of which will undoubtedly impact the legislative agenda relating to freedom of religion. Nevertheless, recognising some serious shortcomings, particularly at the state level, the outlook for religious freedom in Australia remains positive.
Sources
Australia