Summary:

• Australia’s implementation of international human rights is incomplete, especially when it comes to protecting people’s religious freedoms.
• A Religious Discrimination Bill (RDB) was introduced to the Federal parliament after receiving the support of major religious leaders and two bi-partisan parliamentary committee reviews.
• The RDB nevertheless failed to pass parliament and has now lapsed after the last federal election. People of faith in Australia await to see what form of RDB will be introduced by the new Labor government.

We are calling on the Federal Government to commit to protecting the rights of people of faith, and re-start consultations with faith groups so they can pass a robust Religious Discrimination Bill this term.

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.

We are calling on the Albanese Government to commit to protecting the rights of people of faith, and re-start consultations so they can pass the Religious Discrimination Bill this term.

Recently, a new proposal for a Human Rights Act has been suggested as an alternative to a religious discrimination bill. However, the current proposal actually further undermines religious freedom, rather than strengthening it.

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, in a step apparently intended to clear one of the main hurdles to passing a Religious Discrimination Bill. That review was due to report in April 2023 but, following a controversial discussion paper that once again significantly undermined faith schools, the review has been extended to December 31 2023.

This delay has raised questions about the Government’s ability to introduce a Religious Discrimination Bill in this parliamentary term. A bill that will carefully balances the various rights will need intensive consultation with religious leaders, and to this date we have heard of no such consultation amongst our extensive network of leaders of all faiths.

Our Request

Australia continues to have no Federal religious discrimination legislation, leaving people of all faiths open to discrimination based on their beliefs or religious affiliation, and leaving religious speech and institutions exposed.

We are calling on the Federal Government to commit to protecting the rights of people of faith, and re-start consultations with faith groups so they can pass a robust Religious Discrimination Bill this term.

Many MPs in the Federal parliament are unaware of the risk to religious freedom, or do not believe it is an issue in their community. It is imperative that we show them how concerned we are.

The most powerful way to do this is to have a meeting with them. Click here for a guide to making a meeting with your local MP.