3.19 Like all freedoms, the freedom of religion is not absolute: ‘it is subject to powers and restrictions of government essential to the preservation of the community’. As White J of the South Australian Supreme Court has stated:
the common law has never purported to prevent the Parliament from asserting and exercising absolute right to interfere with religious worship and the expression of religious beliefs at any time that it liked … the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression.
3.20 Similarly, in the UK case of R v Secretary of state for education and employment; ex prate Williamson (2005), Lord Nicholls of Birkhenhead stated that
under article 9 there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.
3.21 Legal protection of religious freedom depends on balancing respect for different religious values and beliefs with those principles and laws that underpin other freedoms, non-discrimination and equality in a pluralist, secular democracy:
As a practical matter, it is impossible for the legal order to guarantee religious liberty absolutely and without qualification … Governments have a perfectly legitimate claim to restrict the exercise of religion, both to ensure that the exercise of one religion will not interfere unduly with the exercise of other religions, and to ensure that practice of religion does not inhibit unduly the exercise of other civil liberties.
3.22 International law provides that freedom of religion may be limited where it is ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.
3.23 While some discrimination in employment practices— by religious schools for example—has been tolerated and even protected by law, limits on discrimination on religious grounds have been justified to ensure the protection of vulnerable people. Freedom of religion is fundamental, but so too is freedom from discrimination on the grounds of gender, race, sexual orientation or some other protected attribute. Freedom from discrimination is also a fundamental human right.
3.24 Where there is conflict between religious teaching and the rights of citizens to engage in public life without fear of persecution, religious freedoms may be limited. This arises in Commonwealth anti-discrimination legislation. Such a conflict may arise for example between religious teaching concerning sexuality, and the non-discrimination principles which inform unlawful dismissal provisions in employment law.
3.25 Religious freedom may be limited where one person’s religious observance may cause harm to another person. In Victoria, for instance, medical professionals who have a conscientious objection to performing a lawful termination of pregnancy are legally obliged to refer a patient to a doctor whom they ‘know does not have a conscientious objection to abortion’.
3.26 Encroachments on religious freedom are also sometimes said to be required to prevent an individual from causing themselves harm when following certain religious practices, particularly if that person is a minor. For instance, the decision of a minor to refuse life-saving therapeutic medical treatment on the basis of religious beliefs may be overruled by a court exercising its parens patriae jurisdiction.
3.27 Bills of rights allow for limits on most rights, but the limits must generally be reasonable, prescribed by law, and ‘demonstrably justified in a free and democratic society’.
3.28 Some laws that limit freedom of religion may be justified. The ALRC invites submissions identifying those Commonwealth laws that are not justified, and explaining why they are not justified.
Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 149 (Rich J).
Grace Bible Church v Reedman (1984) 36 SASR 376, 385, 388.
R v Secretary of state for education and employment; ex parte Williamson  UKHL 15 .
Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) 204.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 18(3); United Nations Human Rights Committee, General Comment No 22 (1993) on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 22.
Sex Discrimination Act 1984 (Cth) s 38.
Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors  VSCA 75 (16 April 2014)  (Maxwell P).
See, for example provisions in the Sex Discrimination Act 1984 (Cth) ss 37 and 38. These provisions provide exemptions to the requirement of non-discrimination on the grounds of gender, marital status and pregnancy in relation to the ordination of priests, and an exemption for employing staff in religious educational institutions.
Abortion Law Reform Act 2008 (Vic) s 8(1)(b). For some, this requirement may conflict with their religious objection to abortion by requiring them to indirectly help a woman to procure an abortion.
Evans, above n 14, 10.
X v The Sydney Children’s Hospitals Network (2013) 85 NSWLR 294.
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) s 1. See also, Charter of Human Rights and Responsibilities 2006 (Vic) s 7; Human Rights Act 2004 (ACT) s 28; Bill of Rights Act 1990 (NZ) s 5.