CHRISTIAN PORTER
Attorney-General Christian Porter

Last week, the Coalition finally unveiled Attorney-General Christian Porter’s proposed religious freedom bill. It’s a law that has been firmly in the sights of conservatives ever since the marriage equality vote in 2017, and which got even greater traction from the right in the aftermath of the Israel Folau affair.

But the bill, which seeks to prohibit discrimination on the grounds of religion, leaves one crucial but difficult question undefined: exactly what does the law consider to be a religion?

What does the bill say?

The bill defines “religious belief or activity” as holding or not holding a religious belief, or engaging or not engaging in a “lawful religious activity”. Various existing state and territory anti-discrimination laws, such as Victoria’s Equal Opportunity Act define religion in similar terms. 

The bill’s explanatory notes offer little more guidance, but acknowledges that religious belief is intended to capture “beliefs associated with major faith traditions”. The notes further suggest it is intended to capture genuine beliefs, as opposed to those motivated by mental illness or criminal intent, and does not capture beliefs which are not fundamentally connected with a religion, such as pacifism or veganism.

Religious activity, according to the notes, may include participating in religious observances — praying, fasting and the like — wearing religious dress, or not engaging with certain conduct in accordance with religious belief.

How has Australia defined religion in the past?

The question of what a religion is has always been a tough one in Australia. One of the landmark court cases on this question concerned the Church of Scientology. In 1983, a Victorian tax commissioner found that the Church of the New Faith (as Scientology was officially calling itself) was not a religion, and therefore did not have tax exempt status. The case ultimately went to the High Court, which found that Scientology was, in fact, a religion. The court defined “religion” in the following terms:

For the purposes of the law, the criteria of religion are twofold: first, belief in a Supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.

That judgment remains authoritative — the Australian Bureau of Statistics still uses it in its Standard Classification of Religious Groups, which informs how it collects and deals with census data about religion.

But even the ABS concedes this approach has its limitations — Buddhism, for example, does not have a deity but is still considered a religion since it contains belief in the supernatural, and some canons of conduct. Confucianism also causes a bit of confusion: the ABS regards it as a religion even though it involves no belief in the supernatural, because it involves a moral code and elements of belief in supernatural principles

The Jedi problem 

The High Court’s classification of Scientology didn’t mark the end of the struggle to define religion. At the 2001 census, some 70,000 Australians listed their religion as “Jedi”, with similarly high numbers recorded on subsequent censuses. 

The Jedi have actually caused difficulties for demographers. In 2016, the Atheist Foundation of Australia lobbied people not to do this, arguing it led to these people being counted as “not defined”, thus making Australia look more religious than it really is. That year, the ABS removed all answers referring to Jedi, and counted them as “not defined”. That move angered Jedi “leaders”, who claimed the faith, with its focus on meditation and a defined moral code, should be considered a religion. 

The Jedi may have a point. The ABS’ standard classification list of other religions includes groups like the Aetherius Society (a new age group that believe in UFOs), and the Unification Church, which has long been labelled by critics as a cult. 

It’s unclear why the Jedi have less of a claim to religious classification than many of the fanciful, fringe New Age groups on the list, which points to just how contested and unclear the definition of religion is.

If the government’s bill passes, conferring greater protections (and rights to discriminate) on religious groups, the question of what constitutes a religion could, once again, be up for judicial scrutiny. It’s unclear whether we’ll be able to find an adequate answer.

Peter Fray

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