The release of the government’s draft religious discrimination bill has reignited debate about how far the law should go and the impact it might have.
According to Liberal backbencher Trent Zimmerman, being able to hold, or not hold, religious beliefs is a fundamental right in a democratic society.
Before the draft bill was released, he argued Australia lacks protections to safeguard people from religious discrimination.
“What we don’t have in Australia is a law that basically says that you cannot discriminate against someone because of their religious beliefs,” he told ABC TV.
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“It does seem to be a bit of a missing link in our legal regime, that there’s currently not that protection in place that says that you cannot discriminate against someone because of what they believe in,” he said.
Does Australia lack a law that prohibits discrimination against someone because of their religious beliefs, and do Australians currently not have any such protection in place?
RMIT ABC Fact Check investigates.
There’s more to the story than Zimmerman’s claim suggests.
Legal experts consulted by Fact Check said that while Australia had no stand-alone religious anti-discrimination law, a piecemeal legal framework did exist.
He is correct to say that Australia does not have “a law”, as in a stand-alone religious anti-discrimination law, similar to federal laws that protect against discrimination on the grounds of sex, race, age and disability.
However, he is incorrect to say, “there is currently not that protection in place that says you cannot discriminate against someone because of what they believe in”.
There is, in fact, a patchwork of federal and state laws that provides protection across the country, albeit weak protection in New South Wales and South Australia.
Unlike other states and territories, NSW and SA do not have legislation that specifically prohibits discrimination on the basis of religious belief.
Furthermore, Australia has obligations under international law, and under its constitution, to protect the right to freedom of religion and belief.
The broader context
Before examining existing laws, it’s worth considering how the matter came to be hotly debated.
During the passage of the same-sex marriage legislation in 2017, religious groups who believe marriage should only be between a man and a woman raised concerns that the change might restrict them from expressing their religious beliefs.
Amid parliamentary debate, then-prime minister Malcolm Turnbull set up an expert panel, led by former attorney-general Philip Ruddock, to examine whether Australian law adequately protected the right to freedom of religion.
The Religious Freedom Review, released to the public in December 2018, made 20 recommendations. It did not consider religious freedom to be in “imminent peril” but it did accept that the protection of people’s rights to their religious beliefs required “constant vigilance”.
The Morrison government promised to introduce a bill into parliament before the end of the year and commissioned the Australian Law Reform Commission to review the framework of religious exemptions in anti-discrimination laws across Australia.
In the meantime, the government has released its draft legislation.
Protection from religious discrimination
Australia’s patchwork of protection exists on a number of levels.
At the international level, Australia has a legal obligation to protect the right to religious freedom under a treaty known as the International Covenant on Civil and Political Rights (ICCPR).
Domestically, there are a variety of laws that protect religious freedom.
The Australian constitution provides some protection; state and territory laws address religious discrimination in a variety of ways and to differing extents.
Further to this, federal law also affords protection through anti-discrimination laws, human rights legislation and fair work legislation.
The International Covenant on Civil and Political Rights
Australia is a party to seven international human rights treaties, including the International Covenant on Civil and Political Rights.
Article 18 of this treaty states that everyone has the right to freedom of thought, conscience and religion; that no one should be subjected to coercion that would prevent them from having this freedom; and that only laws that are necessary to protect public safety, order, health, or the morals or fundamental rights and freedoms of others, can limit this freedom.
Australia encourages consideration of this right through the Parliamentary Joint Committee on Human Rights which scrutinises all bills, acts and legislative instruments for compatibility with human rights, as outlined by all seven treaties.
The Australian constitution
The Australian constitution protects religious freedom to some extent.
Section 116 of the constitution prohibits the Commonwealth from:
- Establishing any religion
- Imposing any religious observance
- Prohibiting the free exercise of any religion
- Requiring a religious test as a qualification for any office or public trust under the Commonwealth.
But according to George Williams, a constitutional law expert at the University of New South Wales, these prohibitions only apply to the Commonwealth, not the states and territories.
Indeed, section 116 does not prevent any state enacting a law that infringes on religious freedom, he told Fact Check.
State and territory laws
Prohibitions on religious discrimination are inconsistent across Australia.
Legislation that prohibits discrimination specifically on the basis of religion exists in all states and territories, except NSW and SA.
In all jurisdictions, other than NSW and SA, the attribute that is specifically protected is religious belief, religious activity or religious conviction.
NSW prohibits discrimination on the basis of race, including “ethno-religious origin”, while South Australia prohibits discrimination based on “religious appearance or dress”.
The Religious Freedom Review last year recommended that New South Wales and South Australia should amend their anti-discrimination laws to make it unlawful to discriminate on the basis of a person’s “religious belief or activity”.
It’s important to note that legislation in the states and territories contains exemptions for religious bodies, that are similar to those that apply to discrimination laws at the federal level.
In addition, Victoria, Tasmania, Queensland and the ACT also have laws prohibiting public religious vilification (with some exceptions) while New South Wales prohibits vilification on the grounds of ethno-religious origin.
Here is a list of anti-discrimination legislation in each state and territory:
- Victoria: Equal Opportunity Act 2010
- Queensland: Anti-Discrimination Act 1991
- Western Australia: Equal Opportunity Act 1984
- Tasmania: Anti-Discrimination Act 1998
- Australian Capital Territory: Discrimination Act 1991
- Northern Territory: Anti-Discrimination Act 1992
- New South Wales: Anti-Discrimination Act 1977
- South Australia: Equal Opportunity Act 1984
The Fair Work Act
In the employment context, section 351 of the Fair Work Act 2009, prohibits an employer from taking “adverse action” against an employee or prospective employee on the basis of religion.
So, for example, an employer cannot sack someone on the basis of their religion.
Melbourne Law School’s Beth Gaze, an expert in equality and discrimination, told Fact Check the act also provides that awards and enterprise agreements cannot contain discriminatory terms.
However, the adverse action prohibition only applies if the conduct is also prohibited under anti-discrimination law in the jurisdiction where the conduct happened, she said.
Because of the lack of specific anti-discrimination legislation in NSW and SA, it would not be possible to bring a claim of “adverse action” on the basis of religion in these states, she said.
Federal anti-discrimination laws
There are four federal anti-discrimination acts:
- Sex Discrimination Act 1984
- Racial Discrimination Act 1975
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
These acts protect certain attributes, for example, race, sex, marital status, disability or sexual orientation. Religion, however, is not an explicitly protected attribute under these acts.
Nor is there a stand-alone Religious Discrimination Act — which means discrimination on the basis of religion is not prohibited by federal anti-discrimination legislation.
But discrimination laws impact the right to freedom of religion and belief in another way, says Monash University’s Luke Beck, a constitutional law scholar.
He told Fact Check: “prohibitions on discrimination can limit the ability of individuals and institutions to engage in religiously-motivated discriminatory conduct.”
The requirement by the Catholic church to ordain only men as priests is one such example that he provides in a new chapter in the forthcoming book, Contemporary Perspectives on Human Rights Law in Australia (second edition).
Exemptions under anti-discrimination laws
In recognition of this “religiously-motivated discriminatory conduct”, there are general exemptions for religious bodies, found within the Age Discrimination Act and the Sex Discrimination Act.
This means discrimination on the grounds of the attributes protected under these acts, under certain circumstances, is not deemed unlawful.
They apply “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”.
There are also specific exemptions under the Sex Discrimination Act.
Section 37 allows “religious bodies” to discriminate in relation to internal religious practices, such as the ordination or the appointment of priests or ministers, or the training and education of people seeking such positions.
Section 38 provides an exemption for “educational institutions established for religious purposes” – and this exemption has been controversial.
Religious educational institutions can discriminate on the grounds of sex, sexual orientation, gender identity, marital or relationship status or pregnancy, in relation to employment of staff or in connection with providing education and training.
But this discrimination must be in “good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”.
As a Law Reform Commission report notes, 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 school”.
Exemptions under same-sex marriage legislation
Finally, there are also exemptions for religious bodies contained in the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, the legislation that allows same-sex marriage.
Section 47 of the legislation enables ministers of religion, religious marriage celebrants, chaplains and religious bodies to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds.
The following table provides an overview of the laws that apply in all Australian jurisdictions.
Where does the Australian Human Rights Commission fit in?
The president of the Australian Human Rights Commission, an independent statutory body, is responsible for inquiring into and attempting to conciliate complaints of unlawful discrimination, as outlined in the four federal anti-discrimination laws.
The anti-discrimination laws, as well as the Australian Human Rights Commission Act 1986, (which established the commission) do not make discrimination on the basis of religion, unlawful.
Nonetheless, the Human Rights Commissioner can still inquire into and conciliate an act or practice that might constitute religious discrimination.
To this extent, the Human Rights Commission provides a level of protection against religious discrimination.
Back to Zimmerman’s claim
Monash University’s Associate Professor Beck told Fact Check that while Australia’s legal framework to protect against religious discrimination was patchwork in nature, it nonetheless provided protection.
“In almost every situation you wouldn’t be able to get away with religious discrimination because of state laws and federal laws,” he said.
Beck said a new religious anti-discrimination law would strengthen the legal framework and act as a “gap-filler” where state laws were weak.
He said Zimmerman’s claims — that Australia didn’t have “a law” against religious discrimination, and that there was a “missing link in our legal regime, that there’s currently not that protection in place” — was only partially correct. “He’s not quite right, but he’s not entirely wrong either,” he said.
The Melbourne Law School’s Professor Gaze told Fact Check that while there was a piecemeal legal framework of protections across the country, there was a “missing link” in NSW and South Australia, because they are the only states that do not have legislation that specifically prohibits discrimination on the grounds of religion.
Constitutional law expert Williams said there was some merit in Zimmerman’s claims, because in his view current state and federal laws were inadequate.
“There is a very big gap [in Australia’s legal framework], and it’s a major problem. But to say there’s nothing is just not right, because there is some patchwork protection, that is limited, but useful in particular contexts.”
Principal researcher: Sushi Das, chief of staff
- Trent Zimmerman, Afternoon Briefing, ABC TV, July 9, 2019
- Religious Freedom Review, May 2018
- Marriage Amendment (Definition and Religious Freedoms) Act 2017
- The Australian Constitution
- Inquiry into the status of the human right to freedom of religion and belief, Joint Standing Committee on Foreign Affairs, Defence and Trade (lapsed)
- Submissions to the Inquiry into the status of human right to freedom of religion or belief by the Joint Standing Committee of Foreign Affairs, Defence and Trade (lapsed). Attorney-General, submission: No. 193, April 2017
- Submissions to the Inquiry into the status of human right to freedom of religion or belief by the Joint Standing Committee of Foreign Affairs, Defence and Trade (lapsed). Professor George Williams, submission: No. 71, April 2017
- Second interim report: Freedom of religion and belief, the Australian experience,
- Inquiry into the status of the human right to freedom of religion or belief, April 3, 2019
- International Covenant on Civil and Political Rights
- Fair Work Act, 2009
- Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges, Australian Law Reform Commission, Chapter 4
- Coalition stops short of ‘licence to discriminate’ in religious freedom bill, The Guardian, Sarah Martin and Naaman Zhou, August 20, 2019
- Media release, Attorney-General, Christian Porter, Review into the framework of religious exemptions in anti-discrimination legislation, April 10, 2019
- Media release, Attorney-General, Christian Porter, Government response to Religious Freedom Review, December 13, 2018
- Exposure Draft, Religious Discrimination Bill, 2019