Laws that interfere with freedom of religion

4.38       Freedom of religion is infringed when a law prevents individuals from practising their religion or requires them to engage in conduct which is prohibited by their religion.^[52] Alternatively, the freedom will also be infringed when a law mandates a particular religious practice.

4.39       There are few Commonwealth laws that can be said to interfere with freedom of religion.^[53] The Law Council of Australia advised that it ‘has not identified any laws imposing any specific restriction on the freedom of religion’ and ‘that any specific encroachment is likely to arise in balancing religious freedom with other protected freedoms, such as freedom of speech’.^[54]

4.40       Similarly, Freedom 4 Faith stated that ‘the laws of the Commonwealth do not particularly encroach upon freedom of religion’.^[55]

4.41       Despite the limited number of provisions in Commonwealth law that may be said to interfere with religious freedom, Professor Patrick Parkinson AM stated that there remain important issues to be resolved in Australian law about

the balance to struck between the rights of religious organisations to conduct their affairs in accordance with their own beliefs and values and general non-discrimination principles in the community.^[56]

4.42       This chapter identifies provisions in Commonwealth laws that may be characterised as interfering with freedom of religion in the areas of:

• workplace relations laws;

• anti-discrimination law;

• solemnisation laws under the Marriage Act 1961 (Cth); and

• counter-terrorism legislation.

Workplace relations laws

4.43       The Terms of Reference ask the ALRC to consider laws that interfere with freedom of religion, particularly in workplace relations, commercial and corporate regulation and environmental regulation.

4.44       There are some provisions in workplace relations laws that prohibit employers from discriminating against an employee on the basis of a protected characteristic. This may be characterised as interfering with freedom of religion as it may affect the employment practices of religious organisations that may wish to select staff who conform to the beliefs of that organisation. For instance, in some circumstances, a religious organisation or body may seek to exclude a potential employee where the prospective employee does not adhere to the teachings of that religious organisation.

4.45       In the Fair Work Act 2009 (Cth)these provisions include the following:^[57]

• section 153, which provides that a modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

• section 195(1), which lists discriminatory terms in enterprise agreements including those terms that discriminate against an employee on the basis of their religion and other personal characteristics;

• section 351(1), which relates to the General Protections division of the Act and provides that any adverse action taken against an employee on the basis of a protected attribute or characteristic is prohibited; and

• section 772(1)(f), which provides that a person’s employment may not be terminated on the basis of a protected attribute, subject to exceptions in s 772(2)(b).

4.46       These provisions do not appear to be particularly controversial. They have not been raised in recent parliamentary inquiries on anti-discrimination law, or by stakeholders to this Inquiry. The next section outlines an area of anti-discrimination legislation that has raised significant discussion in recent years.

Anti-discrimination law

4.47       Commonwealth anti-discrimination law makes it unlawful to discriminate against a person on the basis of a person’s personal attributes, such as their sex or sexual orientation in areas of public life, including employment, education and the provision of goods, services and facilities. Under the Sex Discrimination Act 1984 (Cth) (SDA), it is unlawful to discriminate against a person on the basis of a person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding, and family responsibilities.^[58]

4.48       However, there are a range of exemptions for religious organisations and religious educational institutions where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. The exemptions include the following:

• section 23(3)(b), which provides that accommodation provided by a religious body is exempt from s 23(1) making it unlawful to discriminate against a person on the basis of a protected attribute in the provision of accommodation;

• section 37, which exempts the ordination or appointment of priests, Ministers of religion or members of any religious order and accommodation provided by a religious body from the effect of the SDA; and

• section 38, which exempts educational institutions established for religious purposes from the effect of the SDA in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.

4.49       The effect of these exemptions is that a religious school, for instance, may lawfully choose not to employ a pregnant, unmarried teacher, in circumstances where this would be discriminatory conduct for a non-religious organisation.

Religious organisation exemptions in the SDA

4.50       One of the most challenging issues in the interaction between religion and law is the accommodation or ‘special treatment’ of those who observe religious beliefs.^[59] In Australia, one way in which this debate has crystallised is about religious organisation exemptions in anti-discrimination legislation.

4.51       A wide range of stakeholders made submissions on the anti-discrimination provisions and religious organisation exemptions in the SDA.^[60] The submissions reflected various views about the existence and form of the religious organisation exemptions in ss 37 and 38.

4.52       Some stakeholders objected to the form of the current exemptions,^[61] arguing against the practice of defining religious freedom by way of exceptions to generally applicable laws.^[62]

4.53       These exemptions do not interfere with religious freedom—they protect religious freedom. However, some stakeholders argued that the exemptions provide inadequate protection for religious groups. For instance, the ACL argued that ‘religious freedom should not be considered as a concession to more fundamental freedoms from non-discrimination’.^[63]

4.54       Parkinson argued:

Faith-based organisations have a right to select staff who fit with the values and mission of the organisation, just as political parties, environmental groups and LGBT organisations do. To select on the basis of ‘mission fit’ is not discrimination.^[64]

4.55       Freedom 4 Faith wrote that it is ‘inappropriate for anti-discrimination laws to address issues of religious freedom by means of exceptions or exemptions from otherwise applicable laws’.^[65]

4.56       Family Voice considered the current exemptions ‘completely inadequate’ and argued that courts and tribunals ‘should not be asked to determine such things as the “doctrines, tenets or beliefs” or the “injury to the religious susceptibilities of adherents” to a religious creed’.^[66]

4.57       Some of these stakeholders proposed new models for religious organisation exemptions. The models vary significantly and are outlined below.

4.58       The Wilberforce Foundation proposed a model exemption based on a so-called ‘conscience clause’, arguing that the SDA should provide that discrimination is only unlawful and actionable if the service which has been denied is not reasonably obtainable elsewhere. In its view, a provision of this nature will ensure that the right of religious freedom is on an equal footing with the right of non-discrimination.^[67]

4.59       Family Voice favoured a general exemption like that in s 61A of the Defence Act 1903 (Cth), which exempts certain groups of people such as ministers of religion and others, from military service.^[68]

4.60       The ACL favoured a general limitations clause as an alternative to the current religious organisation exemptions. In their view, a general limitations clause is favourable to an exemption, as the language of ‘exemptions’ implies an ‘entitlement to discriminate’.^[69]

4.61       In a submission to the Attorney-General’s Department’s Inquiry into the consolidation of Commonwealth anti-discrimination laws, Professors Parkinson and Aroney proposed a model that redefines discrimination to include limitations on freedom of religion where ‘necessary’.^[70] The proposed definition is comprehensive and combines direct and indirect discrimination. Further, the definition includes a proportionality test. The definition includes what is not discrimination—due to religious beliefs—within the definitional section itself, rather than expressing it as a limitation, exception or exemption:

1.   A distinction, exclusion, restriction or condition does not constitute discrimination if:

      a.    it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or

      b.   it is made because of the inherent requirements of the particular position concerned; or

      c.    it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or

      d.   it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.

2.   The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a).^[71]

4.62       In proposing this model, Parkinson and Aroney aimed to ensure that freedom from discrimination does not diminish freedom of religion. They argued that this

can readily happen, for example, if freedom of religion is respected only grudgingly and at the margins of anti-discrimination law as a concessionary ‘exception’ to general prohibitions on discrimination.^[72]

4.63       Other stakeholders opposed the exemptions altogether. Some of these stakeholders argued that the existence of the exemptions represented an inappropriate balance between freedom of religion and the principle of non-discrimination. These groups would argue that the general application of anti-discrimination legislation is a justifiable interference on religious freedom.

4.64       The Law Society of NSW Young Lawyers argued, for example, that the exemptions ‘severely limit the effectiveness of protections against discrimination’.^[73] Similarly, the National Association of Community Legal Centres opposed broad ‘permanent exemptions from anti-discrimination law for religious organisations’, arguing that they ‘undermine the effectiveness of anti-discrimination legislation’.^[74]

4.65       While PIAC accepted that a religious group may need to discriminate ‘on occasions to ensure ongoing manifestation of the core tenets of its faith’, it also recommended that current religious exemptions be amended to require that religious organisations justify discrimination in the specific circumstances of each proposed act.^[75]Further, PIAC recommended that an appropriate government body be given the function to consider claims of discrimination, in order to assess whether discrimination has occurred and to what extent an individual’s right to equality has been infringed.^[76]

4.66       Alaistair Lawrie argued that the exemptions amount to the Australian Government’s ‘tacit endorsement of discrimination, by religious organisations, against lesbian, gay, bisexual and transgender (LGBT) Australians’.^[77]

4.67       The NSW Gay & Lesbian Rights Lobby referred to the academic work of Professor Carolyn Evans and Leilani Ujvari who argued:

The message that such exemptions can give is that discrimination is relatively minor in comparison to other forms of harm against which the law protects and from which most religious schools have no exemptions. Law has a legitimating as well as a regulating function and when religious schools are permitted to avoid discrimination laws, it may serve to legitimate discrimination, conveying to a group of impressionable children that equality is a goal of limited value; something which can be avoided if desired.^[78]

4.68       Some stakeholders also asked whether it is appropriate to exempt religious organisations that receive public funding from discrimination legislation. For instance, PIAC argued that where a religious organisation is in receipt of public funding or performing a service on behalf of government, it should not be permitted to discriminate in a way that would otherwise be unlawful.^[79]

4.69       On the other hand, there is an argument that the existence of religious schools that have some degree of autonomy from state control is an important part of a diverse and plural society.^[80] Some stakeholders argued that religious observance occurs in all facets of a student’s school experience and is not restricted to specific religious ceremonies.^[81] Teachers in religious schools may be seen as role models for students in the way they conduct their lives outside of structured classes. Christian Schools Australia Ltd explained that religion is ‘not simply taught as a stand-alone subject’. Rather,

it permeates all that takes place and is lived out in the daily lives of the community of the school … The conduct and character of individuals, and the nature of their relationships with others in the school community, are key concerns in establishing such a Christian learning community. This includes all manner of conduct—the use of appropriate language, the conduct of relationships, attitudes, values and expression of matters of sexuality, and many other aspects of conduct within the community in general.^[82]

Previous inquiries

4.70       There have been several parliamentary and other inquiries into the exemptions in the SDA.

4.71       The Senate Standing Committee on Legal and Constitutional Affairs conducted an Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. The Committee recommended that the religious organisation exemptions in the SDA not apply to discrimination on the grounds of sexual orientation, gender identity and intersex status with respect to the provision of aged care accommodation.^[83] The recommendation was adopted by the Government when enacting the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth). The Hon Mark Butler MP justified this decision on the basis that ‘when such services are provided with tax payer dollars, it is not appropriate for providers to discriminate in the provision of those services’.^[84]

4.72       The same Senate Standing Committee Inquiry noted the range of opinions on the existence and operation of the exemptions.^[85] The human rights statement of compatibility stated that the Bill was

compatible with human rights because it advances the protection of human rights, particularly the right to equality and non-discrimination. To the extent that it may limit rights, those limitations are reasonable, necessary and proportionate.^[86]

4.73       In 2008, the Senate Standing Committee inquired into the ‘Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Gender Inequality’. The Committee recommended that the exemptions in s 30 and ss 34 – 43 of the SDA—including those for religious organisations—be replaced by a general limitations clause.^[87] In making this recommendation, the Committee wrote that such a clause would permit discriminatory conduct within reasonable limits and allow a case-by-case consideration of discriminatory conduct. This would allow for a more ‘flexible’ and ‘nuanced’ approach to balancing competing rights.^[88]

4.74       The Australian Human Rights Commission’s 2011 report, Addressing Sexual Orientation and Sex and/or Gender Identity Discrimination, noted a divergence in stakeholder opinions on exemptions for religious organisations, reporting that the majority of the participants who commented on the issue opposed exemptions. Those who opposed the inclusion of such exemptions held a range of positions on the issue, including that there should be:

• no exemptions;

• no exemptions for organisations that receive public funding;

• no blanket exemptions, but that exemptions should be allowed on a case-by-case basis; or

• only narrow exemptions if any exemptions are contained in federal anti-discrimination legislation.^[89]

4.75       The Attorney-General’s Department undertook a public consultation process from 2011 to 2013 on a proposed consolidation of Commonwealth anti-discrimination laws. The Department’s Discussion Paper raised various models of exemptions in anti-discrimination law—without settling on a preferred model—including discussing the merits of a general limitations clause in the SDA.^[90]

Solemnising marriage ceremonies

4.76       It may be argued that the solemnisation provisions in the Marriage Act 1961 (Cth) (Marriage Act) affect freedom of religion.^[91] The provisions include the following:

• s 101, which provides that the solemnisation of marriage by an unauthorised person is a criminal offence. To be authorised under s 29, a religious leader must register their status as a marriage celebrant, provided that the denomination is recognised by the Australian Government, and the minister is nominated by their denomination. This may discriminate against smaller, less well-known religious groups, or break-away groups or sects within established religious traditions; and

• s 113(5), which makes it unlawful to conduct a religious wedding ceremony, unless it occurs after the performance of a legal civil marriage.

4.77       The Marriage Act gives direct legal effect to marriages conducted by religious celebrants. In doing so, the Act makes it unlawful to conduct a religious wedding unless it occurs after a civil marriage, and is conducted by an authorised celebrant. In other jurisdictions, such as in Europe, the civil ceremony creates the legal marriage, while the religious ceremony has no legal effect.^[92]

4.78       Parkinson and Krayem argue that the provisions of the Marriage Act are a ‘fetter on religious freedoms’, as they

operate as restraints upon conducting religious wedding ceremonies other than in accordance with the Act, and indeed s 101 makes doing so a criminal offence. That is a fetter on religious freedom.^[93]

4.79       There are clear policy justifications for regulating marriage, including to ensure that parties who enter into marriage do so as consenting adults, as well as to prevent polygamy and incest, and to maintain government records for family taxation and other regulatory purposes. There may be some religious leaders who are unaware of these offences. Criminal sanctions may be seen as an unjustifiable burden on an important form of religious expression.

4.80       There is little departmental or other material that outlines the justifications for the solemnisation provisions of the Marriage Act. The Attorney-General’s Department has released Guidelines for Marriage Celebrants that explain the process for authorisation of a celebrant under the Act.^[94] The Explanatory Memorandum for the Marriage Bill 1960 (Cth) does not refer to justifications for the solemnisation provisions.

4.81       Second Reading speeches from the debate in the House of Representatives on the Marriage Bill evidence some concerns about the celebrant system. For example, Richard Cleaver MP pointed to the burden on religious celebrants:

One can sympathise with many ministers of religion who ask, ‘Why should this not be a civil ceremony of necessity, with a certificate supplied by the civil authority to the minister, freeing him from so much of the clerical duty?’ People who desire the blessing of the church on the marriage could have it, and the contract would be completed. … [I]t is also felt that ministers of religion should be freed as much as possible from the clerical and legal obligations that are laid down in the proposed legislation, for this calls upon them virtually to act as assistants to the registrar. That would enable ministers of religion who perform marriages to give their undivided attention to what is distinctly their duty according to their vocation—the religious guidance and counselling for marriage.^[95]

4.82       Parkinson and Krayem proposed thatthe solemnisation provision in the Marriage Act should provide that:

 (1) A person shall not solemnise a marriage, or purport to solemnise a marriage, at a place in Australia or under Part V unless the person is authorised by or under this Act to solemnise marriages at that place or under that Part, as the case may be.

 (2) Nothing in this section makes it unlawful for a person who is not authorised by or under this Act to solemnise marriages, to conduct a religious ceremony of marriage, provided that the parties to the marriage are at least 18 years of age and are informed in writing, or otherwise aware, that the celebrant is not authorised to solemnise marriages under the Marriage Act 1961, and that the religious ceremony has no legal effect.

4.83       If this model were adopted, ss 113(5) and 113(7) of the Marriage Act could be repealed.

Criminal law and national security legislation

4.84       Some offences in the Criminal Code (Cth) may be characterised as indirectly interfering with freedom of religion, as they may restrict religious expression. These laws include the following:

• s 80.2C, which creates the offence of ‘advocating terrorism’. This may be seen to limit religious expression by limiting the capacity of individuals to express religious views which might be radical and controversial;^[96]

• s 102.1(2), which provides that an organisation maybe prescribed as a terrorist organisation, making it an offence to be a member of that organisation, to provide resources or support to that organisation, or to train with that organisation. Some argued that this provision risks criminalising individuals for expressing radical, religious beliefs;^[97] and

• s 102.8, which makes it an offence to associate with a proscribed ‘terrorist organisation’. There may be interference with religious freedom where a person is seen to associate with a member of a terrorist organisation who attends the same place of worship or prayer group. While there is a defence in s 102.8(4)(b) where the association ‘is in a place being used for public religious worship and takes place in the course of practising a religion’, this may place a significant burden on defendants to prove that their association arose in the course of practising their religion.^[98]

Advocating terrorism offence

4.85       The Gilbert and Tobin Centre for Public Law raised concerns about the effect of s 80.2C of the Criminal Code on freedom of religion, arguing that it limits the capacity of individuals to express religious views which might be radical and controversial.^[99] Section 80.2C was introduced into the Criminal Code by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

4.86       The Gilbert and Tobin Centre argued that the offence is likely to have a ‘significant chilling effect’ on religious expression, as individuals may refrain from discussing their religious views and current events overseas out of fear they will be prosecuted.^[100]

4.87       The Parliamentary Joint Committee on Human Rights noted that this provision engaged the right to freedom of expression in art 19(3) of the ICCPR. The Committee sought further information from the relevant Minister about the necessity for this provision, writing that a number of existing provisions in the Criminal Code may apply to speech that incites violence:

such incitement offences may capture a range of speech acts, including ‘urging’, ‘stimulating’, ‘commanding’, ‘advising’ or ‘encouraging’ a person to commit an unlawful act.^[101]

4.88       The Committee concluded that the provision was ‘likely to be incompatible with the human right of opinion and expression’.^[102] Its comments are primarily related to restrictions on free speech and so are analysed more thoroughly in Chapter 3.^[103]