Last Updated 12 November 2019

A continent in itself, Australia is a federal, parliamentary democracy. With a population in excess of 23.6 million, and a total area of 7,692,024 km2, it is one of the most sparsely populated countries in the world.

Systemic Discrimination
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Constitution and government

The Australian constitution (section 116) bars the federal government from making any law that imposes a state religion or religious observance, prohibits the free exercise of religion or sets a religious test for a federal public office. The section only applies to legislation made by the Commonwealth and does not impose restrictions on the states of Australia. Only Tasmania has a similar provision in its constitution. The High Court has never ruled a legislative provision to be in contravention of Section 116 (Clarke, Keyzer & Stellios 2009, p. 1228).

There is no charter of general rights at the national level. Freedom of thought, conscience and religion is protected at common law as well as in various statute laws which follow UN conventions such as the Universal Declaration of Human Rights and the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

Favouring Christianity

Although the government is officially secular, it continues to favour Christianity for many public ceremonies. For example, each session of parliament begins with a joint recitation of the Lord’s Prayer.

Religious institutions in general also enjoy long-standing privileges in being exempt from paying tax and from complying with laws, such as the Victorian Equal Opportunity Act against discrimination and Australian Charities & Not-for-profits Commission Act for transparent governance. <The Purple Economy: supernatural charities, tax and the state, Max Wallace (Australian National Secular Association, 2007)>

Individuals who suffer discrimination on the grounds of religion or belief have recourse under federal discrimination laws or through the court system and bodies such as the Human Rights and Equal Opportunity Commission. Federal laws that protect freedom of religion include the Racial Discrimination Act, the Human Rights Commission Act and the Workplace Relations Act. Public service employees who believe they are denied a promotion on religious grounds can appeal to the public service merit protection commissioner.

In 2019, a ‘religious discrimination’ bill has been proposed that “prohibits discrimination in certain areas of public life on the ground of religious belief or activity”. Anti-discrimination commissions throughout the country have warned “it privileges religion over other rights and will cause “significant disruption” by overriding state laws”, with the Australian Council of Human Rights Authorities denouncing it would give medical practitioners the right to refuse treatment based on ‘reasons of conscience’, which is likely to harm LGBTI patients as well as women and people with disabilities.”The attorney general, Christian Porter, is working on amendments to the exposure draft before introducing it to parliament but has so far suggested only amendments to address concerns of religious aged care providers without making “massive or substantial” changes to the rest of the bill.”

Education and children’s rights

The state governments permit religious education in public schools, generally taught by volunteers using approved curricula, to varying degrees. Public schools in New South Wales provide secular ethics classes as an alternative for students who do not attend religious instruction classes.  In other states, there is no secular alternative to religious education, but non-religious students may opt out of the class.

The government’s National School Chaplaincy Program, established in 2007, provides annual support of up to A$20,000 (US$20,800) per chaplain in urban areas and A$24,000 (US$24,960) in remote areas for government and non-government school communities to conduct chaplaincy services. In 2011 the government authorized AU$222 million (US$230.9 million) to be disbursed between 2012 and 2014 to continue funding participating schools and extend funding to 1,000 more chaplains in remote and disadvantaged areas. In June 2012, following a challenge by a private individual, the High Court ruled that the program exceeded the Commonwealth’s spending powers. Later that month, parliament passed legislation authorizing the program. A further challenge by the same individual in 2014 found that legislation to contrary to the constitution. However, it was not under Section 116 but under Section 51 (xxiiiA) that the legislation was found invalid; being that the Commonwealth did not have the power granted by the constitution to make such laws.

Funding inequality between public and private schools

Both the Australian federal government and state and territory governments provide funding for private schools, the great majority of which are faith-based.

The federal government provides the largest part of the funding for private schools while the state or territory governments provide the largest part for the government owned public schools. Inequitable funding of private schools by the state results in better resourced private schools attracting families who can afford the fees away from public schools to private schools.

Private schools provide education for 35% of Australian pupils compared to an OECD average of 18%. For secondary schools the figure is higher at 41%. Consequently, Australian households spend well above the OECD average on private education

The federal government determines the amount of funding required by private schools on the perceived need per pupil and, because the education vote is limited, distributes a smaller amount per pupil to public schools. For every dollar of federal money provided per pupil to public schools, more than three dollars per pupil is provided to private schools. The states and territories offset this by providing more funding to public schools, but private schools catering for 15% of total pupils have incomes per pupil that are more than 50% greater than the per pupil income of public schools. The result is a ‘drain’ toward private schools and an ever-increasing gap between private and public school funding

Various governments have indicated an intention to address the problem of inequitable distribution, but this is yet to occur.

Family, community and society

Social services

The privileged status of religion in society has allowed government to cede control of various social services to religious institutions. In January 2013 the federal government appointed a Royal Commission “to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters”. The great majority of complaints have involved abusive clergy who were protected by their church, which was in turn accorded unwarranted deference by state authorities.

Freedom of expression, advocacy of humanist values

There are no constitutional protections for freedoms of speech and the press, but in practice there is a free press and citizens enjoy a culture that generally respects freedom of expression.

Blasphemy laws in the states

While there is no Commonwealth crime of blasphemy or blasphemous libel, Tasmania has Criminal Code offences for both, and similar crimes may yet exist in common law in other states.

The English common law offences of blasphemy and blasphemous libel with unlimited penalties were received into the law of the Australian colonies and territories at establishment, and became offences in the states and territories of the Commonwealth of Australia when the federation was formed in 1901. They may yet exist wherever they have not been specifically abolished.

With the introduction of criminal codes, both offences were definitively abolished and not replaced with code laws in Queensland in 1899, and in Western Australia in 1913. The Australian Capital Territory abolished blasphemous libel, but not blasphemy, in 1983. The Commonwealth of Australia abolished both offences in 1995, but this abolition does not impact on state and territory law. Tasmania abolished both common law offences in 1924 and replaced them with code offences. New South Wales has not abolished the common law offences and in the Crimes Act 1900 specifically recognises the existence of the common law offence of blasphemous libel.

Consequently, the common law offences of blasphemy and blasphemous libel may yet exist in New South Wales, Victoria, South Australia, and the Northern territory, and the common law offence of blasphemy in the Capital Territory. Code offences of blasphemy and blasphemous libel exist in Tasmania.

Religious “vilification” laws

The federal government and several states have passed laws outlawing “racial vilification” and the states of Tasmania, Queensland and Victoria have extended those laws to also outlaw “religious vilification”. There is debate about the extent to which these laws only proscribe incitement to hatred, or whether they may be used to suppress non-inciting speech about religious beliefs and practices.

The Racial and Religious Tolerance Act passed by Victoria in 2001 (Section 8) states: “A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.” “Ridicule”, even if “severe”, may set a low bar for “vilification”.

The Victorian Human Rights Commission asserts that “being critical of a religion” or “behaviour that offends people of a particular race or religion, but does not encourage others to hate, disrespect or abuse racial or religious groups” are examples of behaviour which are “not likely” to fall under the scope of racial or religious vilification.

Racial and religious “vilification” laws have been used a number of times, sometimes in circumstances that have drawn mixed reactions, with opponents saying that with regard to the religious sections of these laws, they may restrict free expression about religious beliefs that should not be classed as “incitement to hatred”.

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