Religious Discrimination Bill

Australia has no Federal legislation to protect from people religious discrimination, or to protect the rights of people of faith to hold, express or live out their faith. Some States have religious discrimination legislation; however the protection is often limited, and NSW and South Australia have none.

As well as protection from discrimination, people of faith need clear positive statements protecting their religious freedoms as defined by international law.

Currently, religious freedoms are only defined at the Federal level in a patchwork of exemptions in other anti-discrimination legislation. There are no positive statements about what religious freedom is, or how it is to be protected. As other forms of anti-discrimination legislation expand, there is a real risk that religious freedoms will be eroded.

What is religious freedom?

Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR), a multinational treaty that defines fundamental human rights. It is listed by the Attorney General’s office as one of the seven core international human rights treaties. As a signatory, Australia is required to protect the rights listed in it.

Article 18 of the ICCPR is the most significant article regarding religious freedom:

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

These are the rights and freedoms that Australia has committed to protecting. However, apart from limited exceptions carved out in other discrimination bills, there is currently no federal legislation protecting these rights, or laying out how these rights interact with other fundamental rights.

History of the Religious Discrimination Bill

During the debate around the legislation of same-sex marriage in 2017, many faith leaders were concerned that faiths holding to a traditional view of marriage would suffer under increasing religious intolerance. As a result, the Government commissioned the Religious Freedom Review (also called the Ruddock review). Recommendation 15 of that review was:

The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.

 Leading up to the 2022 Federal Election, the Morrison Government brought a Religious Discrimination Bill to Parliament. The bill was the result of a number of drafts over the intervening years, and had passed through the bi-partisan committee process with support from Labor and the Coalition.

When the bill was introduced into Parliament, additional amendments were proposed, one of which would have removed Section 38(3) of the Sex Discrimination Act. This amendment was pushed to prevent schools from expelling students because of their sexuality or gender identity, despite no evidence of this occurring. In reality, the amendment would have had far-reaching consequences of undermining the ability of faith schools to teach and operate based on their religious beliefs. The amendment was passed only after five Liberal MPs crossed the floor and voted with the then Labor Opposition and Cross-Bench. As a result, the Government decided not to let the legislation pass to the Senate, and the bill lapsed.

Following the 2022 election, the new Government referred Section 38(3) of the Sex Discrimination Act to the Australian Law Reform Commission (ALRC). The ALRC released its report in March 2024. Concerningly, the report recommended the removal of all of the “balancing clauses” in the SDA.

The Draft Bill Dies

Following this report, the Albanese government drafted a Religious Discrimination Bill.

In August 2024, the Prime Minister declared that he was not progressing with a religious discrimination bill in this term of Government. He said that it was because he could not get cooperation from the Opposition.

This is not entirely true. In the previous months, heads of faith and Freedom For Faith had taken part in a confidential consultation process. The Government had provided a draft religious discrimination bill. Certain leaders were invited to respond under the strictest conditions of confidentiality. A letter was submitted with a detailed analysis of the proposal, what was wrong and how it could be fixed.

The Government never responded to the letter. Despite multiple other letters and attempts to meet with the Attorney-General or the Prime Minister, the Government did not give any response.

The Government invited the Opposition to negotiate, and the Opposition replied that the Government needed to respond to proposals from the heads of faith. We again asked the Government to meet with us, to negotiate something we could encourage the Opposition to support. We also asked the leader of the Opposition to meet with the Prime Minister to start the conversation directly, or to publicly state that they support our proposals. Neither the Government nor the Opposition responded favourably to these requests.

So, without a single meeting to discuss the content of our proposals, the Prime Minister announced that the bill would not progress.

What’s Next?

If no bill is passed in this term of government, then it is more important than ever to have our voices heard clearly across the nation at the Federal election. It is imperative that we get clear commitments from both sides of politics about protecting religious freedoms.