Protections from statutory encroachment

Australian Constitution

4.20       Religious freedom is one of the few freedoms that receives some constitutional protection in Australia. Section 116 of the Australian Constitution 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.

4.21       This provision has been read narrowly by the High Court.^[21] The provision restrains the legislative power of the Commonwealth to enact laws that would establish a religion or prohibit the free exercise of religion, but does not explicitly create a personal or individual right to religious freedom. Indeed, Latham CJ stated that not all infringements of religion will be invalidated by s 116, but rather only those that exert ‘undue infringement[s] of religious freedom’.^[22]

4.22       Australian courts have considered s 116 in only a small number of cases. Those cases have concerned the meaning of ‘religion’, the ‘free exercise’ clause and the ‘establishment of a religion’.

4.23       In Krygger v Williams the High Court upheld a law requiring attendance at compulsory peacetime military training by persons who conscientiously objected to military training on religious grounds. The Court found the law requiring attendance at military training did not infringe s 116:

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion.^[23]

4.24       Section 116 is purposive in nature, being directed at laws that explicitly establish a religion or prohibit the free exercise of religion. For instance in Kruger v Commonwealth, the High Court explained that laws that indirectly prohibit the ‘free exercise’ of religion do not restrict s 116.^[24]

4.25       Given the limitations of s 116 as a protection of religious freedom,^[25] and the limited protection at common law,^[26] there is some debate about the extent to which freedom of religion is protected by Australian law.^[27]

4.26       The Commonwealth has the power to legislate with regard to ‘external affairs’^[28] by way of implementing treaty obligations. Given the protections afforded for religious freedom in the International Covenant on Civil and Political Rights (ICCPR)—to which Australia is a party—this may be seen as one way that the Australian legislature can legislate with regard to religion.^[29]

4.27       A diverse group of stakeholders noted that there is limited legal protection for religious freedom in Commonwealth law.^[30] Several of these stakeholders suggested ways to reform the law to better protect religious freedom.

4.28       The Law Society of NSW Young Lawyers advocated that religion be included as a protected attribute in Commonwealth anti-discrimination legislation.^[31]

4.29       The Australian Christian Lobby (ACL) submitted that there should be a ‘clear statement of legislative intent to protect freedom of religion’, modelled on art 18 of the ICCPR.^[32] While the ACL did not specify in which act this statement could be introduced, they stated their opposition to a bill of rights.

4.30       The Public Interest Advocacy Centre (PIAC) advocated an amendment to the Acts Interpretation Act 1901 (Cth) to require that Commonwealth legislation be interpreted in a non-discriminatory way unless it is ‘clearly stated that the government intended for the legislative provision to be discriminatory’.^[33] PIAC argued that this would ‘provide general protection for religious belief’.^[34]

Principle of legality

4.31       The principle of legality provides some protection to freedom of religion.^[35] When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of religion, unless this intention was made unambiguously clear.^[36] McHugh JA in Canterbury Municipal Council v Moslem Alawy Society suggested that Australian courts should show restraint in upholding provisions which interfere with religious exercise:

If the ordinance is capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so, I think that a court should prefer that construction to one which will prevent them from doing so.^[37]

International law

4.32       Article 18 of the Universal Declaration of Human Rights  enshrines freedom of religion:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.^[38]

4.33       The ICCPR provides in art 18(i) that ‘everyone shall have the right to freedom of thought, conscience and religion’.^[39]

4.34       The United Nations Human Rights Committee has explained that the infringement of a person’s rights under art 18 will often engage a number of other rights and freedoms protected in the ICCPR, including the right to privacy,^[40] the rights to hold opinions and freedom of expression,^[41] the right of peaceful assembly,^[42] and liberty of movement.^[43]

4.35       International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.^[44] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.^[45]

Bills of rights

4.36       In some countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. Bills of rights and human rights statutes protect freedom of religion in the United States,^[46] the United Kingdom,^[47] Canada^[48] and New Zealand.^[49] An example is s 15 of the New Zealand Bill of Rights Act, which provides:

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.^[50]

4.37       The Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2004 (ACT) also include protection for religious freedom.^[51]