Legal framework on freedom of religion and actual application
Section 116 of the Australian constitution prohibits the government from “establishing any religion, […] imposing any religious observance, or […] prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust”.
Australia is a party to the International Covenant on Civil and Political Rights, which guarantees freedom of thought, conscience and religion. The right to religious freedom may be limited under certain circumstances “to protect public safety, order, health, or morals or the fundamental rights and freedoms of others” (Article 18).
Specific provisions exist to protect religious freedom at the state and territorial levels. In Tasmania, the state’s constitution specifically guarantees, subject to public order and morality, “freedom of conscience and the free profession and practice of religion”. In Queensland, Victoria and the Australian Capital Territory (ACT), the right to freedom of religion is protected by their respective human rights statutes, in approximately the same form: a person’s right to freedom of thought, conscience, religion and belief is protected, including the freedom to choose one’s religion and to demonstrate it in public and in private, subject to “such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”.
Discrimination on the basis of religious belief and ethno-religious background is explicitly prohibited by law in six of Australia’s eight states and territories. South Australia prohibits discrimination based on religious dress, while New South Wales bans discrimination based on ethno-religious origin. Victoria, Queensland, Tasmania, and the Australian Capital Territory have criminal laws against conduct (including speech) inciting “hatred against, serious contempt for, or severe ridicule of” a person or group based on religion or religious activity.
Religious groups are not required to register with the government, but to receive tax-exempt status, they must be a registered charity with the Australian Charities and Not-for-profits Commission and apply to the Australia Tax Office.
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.
In 2021, the Religious Discrimination Bill was introduced by then Prime Minister Scott Morrison. The proposed legislation would prohibit “discrimination on the basis of a person’s religious belief or activity in a range of areas of public life, including in relation to employment, education, access to premises and the provision of goods, services and accommodation; establish […] general and specific exceptions from the prohibition of religious discrimination; provide […] that certain statements of belief do not constitute discrimination for the purposes of certain specified Commonwealth, state or territory anti-discrimination laws; create […] offences in relation to victimisation and discriminatory advertisements; establish […] the office of the Religious Discrimination Commissioner; [and] confer […] certain functions on the Australian Human Rights Commission.”
The religious discrimination legislation was criticized by several factions. Some, like the Law Council of Australia, believed that the bill was a start but inadequate because it “privileges manifestation of religious belief over other human rights” such as freedom from discrimination on the grounds of sex, sexual orientation, gender identity, and others categories. The Australian Christian Lobby said the bill should be withdrawn because simultaneous changes to the Sex Discrimination Act via amendments (to remove protections for religious schools) would do “more harm than good”. The Australian National Imams Council argued that the parliament “lost sight of the original intent of the legislation”: to protect religious minorities. The Executive Council of Australian Jewry said, “shelving the bill was ‘preferable’ to it being defeated”. The bill lapsed at the end of the Parliamentary session in July 2022.
In May 2022, New South Wales became the last Australian state to legalize euthanasia and assisted suicide. Religious health care providers had sought religious exemption, the ability to ban euthanasia and assisted suicide from their premises, but those conscience protection amendments were rejected. In August 2022, lawmakers proposed a bill that would permit two (of ten) territories to similarly legalize the practice.
Incidents and developments
The Report on Antisemitism in Australia 2021 by the Executive Council of Australian Jewry (ECAJ) recorded an increase in anti-Semitic incidents during the period from 1 October 2020 to 30 September 2021 compared to the previous reporting period: 447 up from 331 (a 35 percent increase). The increased numbers were reflected in four categories: abuse / harassment (up 14 percent), graffiti (up 152 percent), stickers / posters (up 157 percent), and vandalism (up 10 percent). The number of physical assaults remained the same; postal and telephone threats were slightly lower, and there was a larger decrease in email threats.
The ECAJ observed that incidents in 2021 were often clustered around the Israel / Hamas conflict and relating to Covid-19. In May 2021, the Islamist group, Hizb ut’Tahrir, held an anti-Israel protest in Sydney in which slogans such as: “Khaybar, Khaybar, oh Jews! The army of Muhammad will return!”, “Oh Allah, give us the necks of the Jews!”, “Oh Allah, give us the necks of those evildoers!”, and “Oh Allah, help us purify the Al-Aqsa Mosque from their filth!”
Physical violence against Jews included a Brisbane assault on a Jewish man walking to synagogue during which the assailant shouted “Heil Hitler” and punched the man in the face. ECAJ reported that after “extensive media coverage, [a] couple who held [an] engagement party in Melbourne, in breach of state health [Covid] regulations in August 2021, received numerous death threats, had to hire private security and go into hiding.”
Acts of vandalism included the use of swastikas targeting homes of Jewish families, schools, and businesses in Perth, Sydney, Wollongong, Brisbane, and elsewhere.
In a report published on 15 March 2022 (the third anniversary of the Christchurch terror attacks), covering 2018-2019 (the most recent available), the Islamophobia Register Australia reported 247 incidents (down from 349 in the previous reporting period). As in previous years, the majority of perpetrators were men (74 percent) and victims were overwhelmingly female (82 percent). In the case of women victims of abuse, nearly all wore a hijab.
The publication noted that most incidents were verbal, reported discrimination, or graffiti / vandalism. Physical assault constituted 8 percent of reported incidents. An example of a physical assault involved a knife being pulled on a woman with a face veil. Verbal threats and insults included asking, “is that a bomb in your bag” or “the Muslims had it coming,” referring to the Christchurch attacks.
Fifty-eight percent of mosques in Australia reported facing some form of violence or intolerance (arson, physical assault, graffiti, vandalism, verbal abuse, online abuse and hate mail, including death threats) during the period from 2014-2019.
Faith leaders and politicians rallied around the 2,000-strong Ahmadiyya community, many of whom are refugees, after its mosque east of Melbourne had been repeatedly vandalized in June 2022. In October 2022, a pig’s head and heart were left at the entry to a mosque on the Gold Coast, on a Friday (a holy day for Muslims) a day before the ‘National Mosque Open Day’.
For incidents with an anti-Christian bias, there are no organizations compiling reports. Incidents during the period under review included a vandalism attack on an historic cathedral in Goulburn, NSW, resulting in approximately $70,000 AUD (€45,000) in damage.
As of 1 November 2022, priests in Western Australia are legally required to report information about child sexual abuse gained during the sacrament of confession or face three years in jail, in violation of the Catholic Seal of Confession. In a formal statement to the Queensland Parliament, Brisbane Archbishop Mark Coleridge, President of the Australian Catholic Bishops’ Conference, argued that legislation removing the seal of the confessional made priests “less a servant of God than an agent of the state”. Archbishop Coleridge further asserted that the proposed legislation raised “major questions about religious freedom” and indicated a “poor knowledge of how the sacrament actually works in practice”. Not only, as affirmed by a Vatican submission to the deliberations in 2019, is a priest (upon penalty of automatic ex-communication) to defend the absolute secrecy of what is said in the confessional “at all costs, even at the cost of their lives”, but the law also impacts the ability of traditional faiths to fully practice their religious beliefs. Confronting a similar 2019 piece of legislation, S.B. 360, in California, Los Angeles Archbishop Jose H. Gomez, stated: “If any legislature can force believers to reveal their innermost thoughts and feelings shared with God in confession, then truly there is no area of human life that is free or safe from government.”
In October 2022, Andrew Thorburn, the newly appointed chief executive of a football club was forced to choose between the job and his personal role as an Anglican Church chairman. Thorburn resigned within 24 hours of his appointment in the football club after quotes from Church sermons were published in the Herald Sun. The sermons had been given nine years earlier. One such quote read: “Whereas today we look back [with] sadness and disgust over concentration camps, future generations will look back with sadness at the legal murder of hundreds of thousands human beings every day through medicine and in the name of freedom.” In other sermons, the pastor had said homosexual behavior was a sin. Legal experts have opined that this ultimatum clearly constituted religious discrimination.
In November 2022, a joint media investigation published an expose on the City Builders Church in Sale and then political candidate Renee Heath, whose father was pastor of the conservative Christian Church. The article accused the Church of holding homophobic beliefs and engaging in extreme religious practices. It further claimed that Ms Heath was an agent of the Church sent to infiltrate the legislative process to further the Church’s doctrinal beliefs. Opposition Leader Matthew Guy commented that because of her Conservative Christian views, she would not be allowed to sit in the Liberal’s party room if elected and that the party would have likely disendorsed her as a candidate if the story had come out earlier. Ms Heath, who denied allegations of homophobia, did eventually win her electoral seat.
In December 2022, the vilification claim brought against Lyle Shelton, former head of the Australian Christian Lobby, to the Queensland Civil and Administrative Tribunal, concluded. The claim arose from a blog post authored by Mr Shelton criticizing the use of public libraries for ‘drag queen story time’, an event where drag queens read story books to young children. A decision is not expected until 2023, but the mere fact that the case was admitted reveals dire prospects for religious freedom.
Prospects for freedom of religion
Although generally the right to religious freedom is respected in Australia, the recent adoption of legislation in Western Australia obliging a violation of the Catholic sacrament of confession is of concern. Cases of individuals suffering discrimination in the workplace is also of concern. Acknowledging these caveats, the prospects for religious freedom in Australia remain positive.
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