Religion and law in Slovenia [1 ed.] 9789041171450, 9041171452

Table of contents :
Cover
Title Page
Copyright Page
The Authors
List of Abbreviations
Preface
Acknowledgements
General Introduction
§1. General Background
§2. Social Facts about Religion
§3. Historical Background
I. Pre-1788: Indigenous History and Spirituality
II. 1788–1819: European ‘Discovery’ and ‘Settlement’
III. 1820–1850: Transition from ‘Penal Colony’ to ‘British Colony’
IV. 1851–1900: Decline of Establishment
V. 1901: Federation
VI. 1901–2010: Post-Federation
Part I. Legal Framework and Sources
Chapter 1. General Protections for Religion
§1. The Commonwealth Constitution
I. Preamble
II. Section 116
III. External Affairs Power
IV. Oaths of Office
§2. State Constitutions
I. Tasmania
II. State Constitutional Oaths
§3. Statutory Bills of Rights
§4. Common Law Rule of Statutory Interpretation
§5. Australian Human Rights Commission (AHRC) Inquiries
§6. Absence of Regulation
Chapter 2. Sui Generis Protections of Religion
§1. Children
§2. Food
I. Ritual Slaughter
II. Food Labelling
III. Food Export
§3. Clothes and Appearance
§4. Oaths and Affirmations in Court Proceedings
§5. Conscientious Objection
Chapter 3. Typology of the System
§1. Flexible Separation
§2. Non-intervention
§3. Neutrality
§4. Equality
§5. Secularity
§6. Freedom of Religion and Belief
Part II. Religious Freedom in General
Chapter 1. Individual Religious Freedom
§1. Scope of Section 116
I. The Need for Commonwealth Legislative Power
II. No Guarantee of Religious Freedom
III. The Need for Government Action
IV. Actions of the States
§2. Definition of Religion and Religious Belief
I. Wilson and Deane JJ
II. Mason ACJ and Brennan J
III. Murphy J
§3. Protected Manifestations of Religion
Chapter 2. Collective and Organizational Religious Freedom
§1. Constitutional and Legislative Protections
I. Indigenous Communities
II. Corporations
§2. Exemptions to Legislation
Part III. Legal Status of Religious Communities
Chapter 1. Formal Status of Religious Communities
§1. Unincorporated Associations
§2. Statutory Incorporation Schemes
I. Incorporation
II. Associations Incorporation
§3. Private Act of Parliament
Chapter 2. Autonomy of Religious Communities
§1. Generally
§2. Voluntary Associations
§3. Incorporation through Statute
Chapter 3. Fundamental Rights and Religious Communities
Chapter 4. Contractual Religious Freedom
Part IV. International, Transnational and Regional Effects on Religious Communities
Chapter 1. International Law Effects on Religious Communities
§1. Basic Principles
§2. International Legal Instruments on the Freedom of Religion Relevant to Australia
§3. Legislative Transformation of International Legal Norms on the Freedom of Religion
§4. Common Law Transformation of International Legal Norms on the Freedom of Religion
§5. Indigenous Religious Beliefs and Customs
Chapter 2. Transnational Law Effects on Religious Communities
Chapter 3. Regional Law Effects on Religious Communities
Part V. Religion and Politics
Chapter 1. Religious Influence in Politics
§1. Oath or Affirmation
§2. Prayer in Parliament
§3. Religious Organizations in Politics
Chapter 2. Political Influence in Religion
§1. Inquiry into Child Sexual Abuse in Religious Institutions
§2. Indigenous Religious Beliefs
§3. ‘Integration’ of ‘Muslims’
Chapter 3. Interaction between Religion and State on a Political and Legal Level
§1. Relationship Between the Preamble and Section 116 of the Constitution
§2. Conscience Vote
§3. Religious Rhetoric of Political Leaders
Part VI. Labour Law and Religion
Chapter 1. Scope of Application of Labour Law
§1. Is There a Contract?
§2. Is the Contract One of Employment?
§3. Will Religious Law Ever Apply?
Chapter 2. Religious Ministers and Labour Law
§1. Non-discrimination
§2. Income and Fringe Benefits Taxation
§3. Workers’ Compensation Legislation
§4. Working with Children
Chapter 3. Other Employees and Labour Law
§1. Non-discrimination
§2. Religious Worship in the Workplace
§3. Trade Union Membership
§4. Holidays
§5. Income Taxation
Part VII. Religious Communities and Protections of the Individual
Chapter 1. Protection of Privacy
§1. Data Protection
§2. Right to Privacy
§3. Sacred Aboriginal Sites, Objects, Laws and Customs
I. Heritage Legislation
II. Cultural Rights
III. Equitable Right over Information of Religious and Cultural Significance
IV. Public Interest Immunity
V. Common Law Rule of Statutory Construction
Chapter 2. Freedom to Marry
Chapter 3. Freedom of Expression
§1. Common Law Rule of Statutory Construction
§2. Right to Freedom of Expression
§3. Implied Constitutional Freedom of Political Communication
§4. Anti-vilification Legislation
I. Religious Vilification
A. Vilification from Members of Other Religious Organizations
B. Vilification from Lay Persons
C. Vilification from within Religious Organizations
II. Racial Vilification
§5. Blasphemy and Blasphemous Libel Offences
Chapter 4. Due Process Norms and Religious Groups
§1. Due Process in the Secular Courts
§2. Due Process and Administrative Decision-Makers
§3. Due Process and Religious Organizations
Chapter 5. Professional Secrecy
§1. Religious Confessions
§2. Ecclesiastical Censure
§3. Other Professional Confidential Communications
§4. Mandatory Reporting of Child Sexual Abuse
Chapter 6. Medical Deontology
§1. Refusal of Treatment
I. Blood Transfusions
II. Abortion
III. Parentage Testing
§2. Refusal to Treat
I. Abortion
II. Assisted Reproductive Therapy
III. Withdrawal of Life-Sustaining Treatment
§3. Medical Research
Chapter 7. Non-discrimination
§1. Non-discrimination Legislation
I. Prohibition of Discrimination
II. Specific Exemptions
A. Religious Orders
B. Religious Observance or Practice Exemption
C. Religious Bodies Exemption
D. Other Religious Exemptions
III. Special Measures
IV. Defence of Statutory Authority
§2. Victimization
§3. Right to Equality
§4. Inquiries by AHRC
Chapter 8. Penal Law and Religion
§1. Religious Offences
§2. Offences Prohibiting Certain Religious Conduct
§3. Offences Protecting Religious Groups
§4. Offences by Religious Ministers
§5. Religious Belief or Practice as a Defence
§6. Religion in Sentencing
Part VIII. Church Financing in Australia
Chapter 1. Funding from the Public
§1. Dispositions by Gift and Trust
§2. Undue Influence and Other Doctrines
§3. Charitable Status
I. Reforms
II. Definition of a Charity
III. Not-for-Profit Entity
IV. Charitable Purposes
V. Advancement of Religion
VI. Public Benefit
A. Advancing Religion
B. Generally
C. Disqualifying Purposes
Chapter 2. Taxation Benefits
§1. Commonwealth Taxes
I. Income Tax
II. Fringe Benefits Tax
III. Goods and Services Tax (GST)
IV. Deductible Gift Recipients
§2. State and Territory Taxes
I. Payroll Tax
II. Land Tax
III. Stamp Duty
IV. Rates
Chapter 3. Prohibiting or Facilitating Financing by Legislation
Chapter 4. State Fundraising Legislation
Part IX. Education
§1. The Australian National Curriculum
§2. National School Chaplaincy Programme
Chapter 1. Religious Education in Government Schools and Universities
§1. Government Schools
§2. Conscientious Objection to Attendance at Particular Classes
§3. Religious Worship and Observances
§4. Non-discrimination
Chapter 2. Religious Schools, Universities and Theological Colleges
§1. Establishment and Operation
§2. Home-Schooling
§3. Public Funding
§4. Non-discrimination
Part X. Matrimonial and Family Law
Chapter 1. Legal Position of Religious Marriage
§1. Ministers of Religion Performing Marriages
§2. Form of Ceremony
§3. Non-legal Religious Ceremonies
§4. Polygamy
§5. Arranged Marriage
§6. Underage Marriage
§7. Same-Sex Marriage
Chapter 2. Legal Position of Religious Family Law
§1. Divorce
§2. Property Settlement
§3. Children
Part XI. Religion and Culture
Chapter 1. Religion and Art
Chapter 2. Religion and Media
Chapter 3. Religion and Civil Society
Chapter 4. Religion and Public Debate
§1. Right-Wing Christian Organizations
§2. Indigenous Peoples
§3. Muslim Minority
Selected Bibliography
Index

Citation preview

Religion and Law in Australia

Religion and Law in Australia Paul Babie Joshua Neoh James Krumrey-Quinn Chong Tsang This book was originally published as a monograph in the International Encyclopaedia of Laws/Religion. General Editors: Roger Blanpain, Frank Hendrickx Volume Editor: Rik Torfs

Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Sold and distributed in all other countries by: Turpin Distribution Services Ltd. Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom Email: [email protected]

DISCLAIMER: The material in this volume is in the nature of general comment only. It is not offered as advice on any particular matter and should not be taken as such. The editor and the contributing authors expressly disclaim all liability to any person with regard to anything done or omitted to be done, and with respect to the consequences of anything done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents of this volume. No reader should act or refrain from acting on the basis of any matter contained in this volume without first obtaining professional advice regarding the particular facts and circumstances at issue. Any and all opinions expressed herein are those of the particular author and are not necessarily those of the editor or publisher of this volume.

Printed on acid-free paper ISBN 978-90-411-6071-3 This title is available on www.kluwerlawonline.com © 2015, Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY 10011-5201, USA. Email: [email protected] Printed and Bound by CPI Group (UK) Ltd, Croydon, CR0 4YY.

The Authors

Paul Babie is Professor of Law, Associate Dean of Law (Research), Adelaide Law School, Associate Dean (Research), Faculty of the Professions, and Director of the Research Unit for the Study of Society, Law and Religion at The University of Adelaide, Australia. He holds a BA in sociology and political science from the University of Calgary, a BThSt from Flinders University, an LLB from the University of Alberta, an LLM from the University of Melbourne, and a DPhil in law from the University of Oxford. His primary research areas are legal theory, especially the nature and concept of property, and law and religion, especially the relationship between theology and law; he has published widely in both areas. He is a Barrister and Solicitor (Inactive) of the Court of Queen’s Bench of Alberta (Canada), and an Associate Member and a Member of the Property Law Committee of the Law Society of South Australia. He teaches property law, property theory, law and religion, and Roman law.

Joshua Neoh is a Lecturer in Law at the Australian National University, and a member of the Management Board of the Research Unit for the Study of Society, Law and Religion at the University of Adelaide. Within the field of law and religion, he is especially interested in the intersection of legal theory and theology. He has law degrees from the Australian National University and Yale Law School.

James Krumrey-Quinn is Associate to the Honourable Justice Whelan of the Victorian Court of Appeal and is admitted as a Barrister and Solicitor of the New South Wales Supreme Court. He studied law at the University of Adelaide where he received first class honours. Besides law and religion, he has interests in critical theory and human rights law, evidence law and international law.

Chong Tsang is currently a solicitor in the dispute resolution division of King & Wood Mallesons. He holds a degree in Commerce and an Honours degree in law from the University of Adelaide. His academic interests include the interaction between religion and the law, the development of private law, and evidence law.

Table of Contents The Authors List of Abbreviations Preface Acknowledgements General Introduction §1.

GENERAL BACKGROUND

§2.

SOCIAL FACTS ABOUT RELIGION

§3.

HISTORICAL BACKGROUND I. Pre-1788: Indigenous History and Spirituality II. 1788–1819: European ‘Discovery’ and ‘Settlement’ III. 1820–1850: Transition from ‘Penal Colony’ to ‘British Colony’ IV. 1851–1900: Decline of Establishment V. 1901: Federation VI. 1901–2010: Post-Federation

Part I.

Legal Framework and Sources

Chapter 1. General Protections for Religion §1.

THE COMMONWEALTH CONSTITUTION I. Preamble II. Section 116 III. External Affairs Power IV. Oaths of Office

§2.

STATE CONSTITUTIONS I. Tasmania II. State Constitutional Oaths

§3.

STATUTORY BILLS OF RIGHTS

§4.

COMMON LAW RULE OF STATUTORY INTERPRETATION

§5.

AUSTRALIAN HUMAN RIGHTS COMMISSION (AHRC) INQUIRIES

§6.

ABSENCE OF REGULATION

Chapter 2. Sui Generis Protections of Religion §1.

CHILDREN

§2.

FOOD I. Ritual Slaughter II. Food Labelling III. Food Export

§3.

CLOTHES AND APPEARANCE

§4.

OATHS AND AFFIRMATIONS IN COURT PROCEEDINGS

§5.

CONSCIENTIOUS OBJECTION

Chapter 3. Typology of the System §1.

FLEXIBLE SEPARATION

§2.

NON-INTERVENTION

§3.

NEUTRALITY

§4.

EQUALITY

§5.

SECULARITY

§6.

FREEDOM OF RELIGION AND BELIEF

Part II.

Religious Freedom in General

Chapter 1. Individual Religious Freedom §1.

SCOPE OF SECTION 116 I. The Need for Commonwealth Legislative Power II. No Guarantee of Religious Freedom III. The Need for Government Action IV. Actions of the States

§2.

DEFINITION OF RELIGION AND RELIGIOUS BELIEF I. Wilson and Deane JJ II. Mason ACJ and Brennan J III. Murphy J

§3.

PROTECTED MANIFESTATIONS OF RELIGION

Chapter 2. Collective and Organizational Religious Freedom §1.

CONSTITUTIONAL AND LEGISLATIVE PROTECTIONS I. Indigenous Communities II. Corporations

§2.

EXEMPTIONS TO LEGISLATION

Part III.

Legal Status of Religious Communities

Chapter 1. Formal Status of Religious Communities §1.

UNINCORPORATED ASSOCIATIONS

§2.

STATUTORY INCORPORATION SCHEMES I. Incorporation II. Associations Incorporation

§3.

PRIVATE ACT OF PARLIAMENT

Chapter 2. Autonomy of Religious Communities §1.

GENERALLY

§2.

VOLUNTARY ASSOCIATIONS

§3.

INCORPORATION THROUGH STATUTE

Chapter 3. Fundamental Rights and Religious Communities Chapter 4. Contractual Religious Freedom Part IV.

International, Transnational and Regional Effects on Religious Communities

Chapter 1. International Law Effects on Religious Communities §1.

BASIC PRINCIPLES

§2.

INTERNATIONAL LEGAL INSTRUMENTS ON THE FREEDOM OF RELIGION RELEVANT TO AUSTRALIA

§3.

LEGISLATIVE TRANSFORMATION OF INTERNATIONAL LEGAL NORMS ON THE FREEDOM OF RELIGION

§4.

COMMON LAW TRANSFORMATION OF INTERNATIONAL LEGAL NORMS ON THE FREEDOM OF RELIGION

§5.

INDIGENOUS RELIGIOUS BELIEFS AND CUSTOMS

Chapter 2. Transnational Law Effects on Religious Communities Chapter 3. Regional Law Effects on Religious Communities Part V.

Religion and Politics

Chapter 1. Religious Influence in Politics §1.

OATH OR AFFIRMATION

§2.

PRAYER IN PARLIAMENT

§3.

RELIGIOUS ORGANIZATIONS IN POLITICS

Chapter 2. Political Influence in Religion

§1.

INQUIRY INTO CHILD SEXUAL ABUSE IN RELIGIOUS INSTITUTIONS

§2.

INDIGENOUS RELIGIOUS BELIEFS

§3.

‘INTEGRATION’ OF ‘MUSLIMS’

Chapter 3. Interaction between Religion and State on a Political and Legal Level §1.

RELATIONSHIP BETWEEN THE PREAMBLE AND SECTION 116 OF THE CONSTITUTION

§2.

CONSCIENCE VOTE

§3.

RELIGIOUS RHETORIC OF POLITICAL LEADERS

Part VI.

Labour Law and Religion

Chapter 1. Scope of Application of Labour Law §1.

IS THERE A CONTRACT?

§2.

IS THE CONTRACT ONE OF EMPLOYMENT?

§3.

WILL RELIGIOUS LAW EVER APPLY?

Chapter 2. Religious Ministers and Labour Law §1.

NON-DISCRIMINATION

§2.

INCOME AND FRINGE BENEFITS TAXATION

§3.

WORKERS’ COMPENSATION LEGISLATION

§4.

WORKING WITH CHILDREN

Chapter 3. Other Employees and Labour Law §1.

NON-DISCRIMINATION

§2.

RELIGIOUS WORSHIP IN THE WORKPLACE

§3.

TRADE UNION MEMBERSHIP

§4.

HOLIDAYS

§5.

INCOME TAXATION

Part VII. Religious Communities and Protections of the Individual Chapter 1. Protection of Privacy §1.

DATA PROTECTION

§2.

RIGHT TO PRIVACY

§3.

SACRED ABORIGINAL SITES, OBJECTS, LAWS AND CUSTOMS I. Heritage Legislation II. Cultural Rights III. Equitable Right over Information of Religious and Cultural Significance IV. Public Interest Immunity V. Common Law Rule of Statutory Construction

Chapter 2. Freedom to Marry Chapter 3. Freedom of Expression §1.

COMMON LAW RULE OF STATUTORY CONSTRUCTION

§2.

RIGHT TO FREEDOM OF EXPRESSION

§3.

IMPLIED CONSTITUTIONAL FREEDOM OF POLITICAL COMMUNICATION

§4.

ANTI-VILIFICATION LEGISLATION I. Religious Vilification A. Vilification from Members of Other Religious Organizations B. Vilification from Lay Persons C. Vilification from within Religious Organizations II. Racial Vilification

§5.

BLASPHEMY AND BLASPHEMOUS LIBEL OFFENCES

Chapter 4. Due Process Norms and Religious Groups §1.

DUE PROCESS IN THE SECULAR COURTS

§2.

DUE PROCESS AND ADMINISTRATIVE DECISION-MAKERS

§3.

DUE PROCESS AND RELIGIOUS ORGANIZATIONS

Chapter 5. Professional Secrecy §1.

RELIGIOUS CONFESSIONS

§2.

ECCLESIASTICAL CENSURE

§3.

OTHER PROFESSIONAL CONFIDENTIAL COMMUNICATIONS

§4.

MANDATORY REPORTING OF CHILD SEXUAL ABUSE

Chapter 6. Medical Deontology §1.

REFUSAL OF TREATMENT I. Blood Transfusions II. Abortion III. Parentage Testing

§2.

REFUSAL TO TREAT I. Abortion II. Assisted Reproductive Therapy III. Withdrawal of Life-Sustaining Treatment

§3.

MEDICAL RESEARCH

Chapter 7. Non-discrimination §1.

NON-DISCRIMINATION LEGISLATION I. Prohibition of Discrimination II. Specific Exemptions A. Religious Orders B. Religious Observance or Practice Exemption C. Religious Bodies Exemption D. Other Religious Exemptions III. Special Measures IV. Defence of Statutory Authority

§2.

VICTIMIZATION

§3.

RIGHT TO EQUALITY

§4.

INQUIRIES BY AHRC

Chapter 8. Penal Law and Religion §1.

RELIGIOUS OFFENCES

§2.

OFFENCES PROHIBITING CERTAIN RELIGIOUS CONDUCT

§3.

OFFENCES PROTECTING RELIGIOUS GROUPS

§4.

OFFENCES BY RELIGIOUS MINISTERS

§5.

RELIGIOUS BELIEF OR PRACTICE AS A DEFENCE

§6.

RELIGION IN SENTENCING

Part VIII. Church Financing in Australia Chapter 1. Funding from the Public §1.

DISPOSITIONS BY GIFT AND TRUST

§2.

UNDUE INFLUENCE AND OTHER DOCTRINES

§3.

CHARITABLE STATUS I. Reforms II. Definition of a Charity III. Not-for-Profit Entity IV. Charitable Purposes

V. VI.

Advancement of Religion Public Benefit A. Advancing Religion B. Generally C. Disqualifying Purposes

Chapter 2. Taxation Benefits §1.

COMMONWEALTH TAXES I. Income Tax II. Fringe Benefits Tax III. Goods and Services Tax (GST) IV. Deductible Gift Recipients

§2.

STATE AND TERRITORY TAXES I. Payroll Tax II. Land Tax III. Stamp Duty IV. Rates

Chapter 3. Prohibiting or Facilitating Financing by Legislation Chapter 4. State Fundraising Legislation Part IX.

Education

§1.

THE AUSTRALIAN NATIONAL CURRICULUM

§2.

NATIONAL SCHOOL CHAPLAINCY PROGRAMME

Chapter 1. Religious Education in Government Schools and Universities §1.

GOVERNMENT SCHOOLS

§2.

CONSCIENTIOUS OBJECTION TO ATTENDANCE AT PARTICULAR CLASSES

§3.

RELIGIOUS WORSHIP AND OBSERVANCES

§4.

NON-DISCRIMINATION

Chapter 2. Religious Schools, Universities and Theological Colleges §1.

ESTABLISHMENT AND OPERATION

§2.

HOME-SCHOOLING

§3.

PUBLIC FUNDING

§4.

NON-DISCRIMINATION

Part X.

Matrimonial and Family Law

Chapter 1. Legal Position of Religious Marriage §1.

MINISTERS OF RELIGION PERFORMING MARRIAGES

§2.

FORM OF CEREMONY

§3.

NON-LEGAL RELIGIOUS CEREMONIES

§4.

POLYGAMY

§5.

ARRANGED MARRIAGE

§6.

UNDERAGE MARRIAGE

§7.

SAME-SEX MARRIAGE

Chapter 2. Legal Position of Religious Family Law §1.

DIVORCE

§2.

PROPERTY SETTLEMENT

§3.

CHILDREN

Part XI.

Religion and Culture

Chapter 1. Religion and Art Chapter 2. Religion and Media Chapter 3. Religion and Civil Society Chapter 4. Religion and Public Debate §1.

RIGHT-WING CHRISTIAN ORGANIZATIONS

§2.

INDIGENOUS PEOPLES

§3.

MUSLIM MINORITY

Selected Bibliography Index

List of Abbreviations

ACNC ACT AHRC Charter Cth HRA ICCPR ICESCR NHMRC NSW Qld SA Tas TEQSA UNDRIP Vic WA WYD

Australian Charities and Not-for-profits Commission Australian Capital Territory Australian Human Rights Commission Charter of Human Rights and Responsibilities Act 2006 (Vic) Commonwealth of Australia Human Rights Act 2004 (ACT) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights National Health and Medical Research Council New South Wales Queensland South Australia Tasmania Tertiary Education Quality and Standards Agency United Nations Declaration on the Rights of Indigenous Peoples Victoria Western Australia World Youth Day

Preface

Australia is less a religious nation than a spiritual one; thus, while few people profess an affiliation to a specific church or religious organization or institution, many consider themselves to be ‘spiritual’, by which is meant ‘an experiential journey of encounter and relationship with otherness, with powers, forces and beings beyond the scope of everyday life’.1 Spirituality can be something which is developed as a personal matter, or it may draw on a number of institutional religions; either way, it is not defined solely by one institutional religious affiliation. Thus, the most recent census data, gathered in 2011, demonstrates a declining trend in such membership Australia, although a majority still profess to have such institutional affiliations. Because Australia is a nation built on comparatively recent, largely European, migration, the religious affiliations and practices of its citizens have been imported from overseas and integrated into a uniquely Australian spiritual life. Australian religious belief and practice is therefore generally of a medium intensity with at least 50% of people describing themselves as religious and finding comfort and importance in religious practice.2 However lower levels of participation and attendance is acceptable and normal in Australian society. Overall, then, Australian religion tends to be practised quietly and privately with a strong culture of ‘live and let live’.3 And yet we stand witness to a global religious revival.4 Increasingly, religion has something to say about the issues that face us: from the moral – same-sex marriage,5 abortion,6 poverty,7 homelessness8 or the environment9 – to the political10 – religious freedom and its protection of that freedom.11 But do personal beliefs and values enter our public life? There is a great deal of speculation about12 and anecdotal evidence for13 the proposition that, in liberal democracies, where it is formally denied a place in the public forum,14 religion nonetheless plays a role in the social interaction ostensibly structured by secular law. Some even argue that religion and religious law, such as Islamic or Sharia law, already governs or controls the lives of adherents even in countries that are ostensibly secular, such as the United States.15 In this book, we assess the ways in which religion finds a place in Australia’s law and its legal institutions. The law stated is current as at 1 January 2015. Paul Babie Joshua Neoh James Krumrey-Quinn Chong Tsang 14 January 2015 Adelaide, Australia

1. 2. 3. 4. 5. 6. 7. 8. 9.

Gary Bouma, Australian Soul: Religion and Spirituality in the Twenty-First Century 12 (Cambridge U. Press 2006). Rodney Tiffen & Ross Gittins, How Australian Compares 240 (1st ed., Cambridge U. Press 2004). Bouma, supra n. 1. William Twining, General Jurisprudence: Understanding Law from a Global Perspective 6–7, 125 (Cambridge U. Press 2009); John Micklethwait & Adrian Wooldridge, God Is Back: How the Global Rise of Faith Is Changing the World (Penguin 2009). See, e.g., Paul Babie, Synthesis or Separation? Church, State and Marriage in Byzantine Law, 26 J. L. & Rel. (2011). See, e.g., Issues at the Borders of Life (Bernadette Richards & Vic Pfitzner eds, ATF Theology 2010). See, e.g., Lifting Up the Poor: A Dialogue on Religion, Poverty & Welfare Reform (Mary Jo Bane & Lawrence M. Mead eds, Brookings Inst. Press 2003). See, e.g., Pontifical Council J. & Peace, Compendium of the Social Doctrine of the Church (St Paul’s Publ’n 2004). See, e.g., Roger S. Gottlieb, A Greener Faith: Religious Environmentalism and Our Planet’s Future (Oxford U. Press 2006).

10. See, e.g., Darby Kathleen Ray (ed.), Theology That Matters: Ecology, Economy, and God (Fortress Press 2006). 11. See, e.g., M.A. Glendon, Introduction in Universal Rights in a World of Diversity: The Case of Religious Freedom 3 (The Pontifical Academy of Social Sciences ed., Pontificia Academia Scientiarvm Socialivm 2010) www.vatican.va/roman_curia/pontifical_academies/acdscien/2011/passbooklet40.pdf; Religious Freedom under Bills of Rights (Paul Babie & Neville Rochow eds, U. Adelaide Press 2012). 12. See, e.g., Micklethwait & Wooldridge, supra n. 4. 13. In the United States, this has a long history: see, e.g., Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation (Random House 2006). 14. See John Rawls, Political Liberalism 458–462 (rev. ed., Columbia U. Press 2005); Michael W McConnell, Old Liberalism, New Liberalism, and People of Faith in Christian Perspectives on Legal Thought 5 (Michael W McConnell, Robert F Cochran Jr & Angela C Carmella eds, Yale U. Press 2001). 15. See Rowan Williams, Civil and Religious Law in England: a Religious Perspective 10 Ecclesiastical L.J. 262 (2008). See also Sharia in the West: Whose Law Counts Most? The Economist (online), 14 Oct. 2010 http://www.economist.com/node/17249634; Islamic Law and Democracy: Sense about Sharia, The Economist (online), 14 Oct. 2010, http://www.economist.com/node/17251830; Tennessee: An Uncivil Action, The Economist (online), 18 Nov. 2010, http://www.economist.com/node/17528070.

Acknowledgements

Paul Babie thanks Laira Krieg (LLB, 2014) and Jerome Squires (LLB, 2015) for outstanding research assistance in the preparation of this volume. Joshua Neoh would like to express his gratitude to: the ANU College of Law for research funding to complete this project; Rui Rong Lam whose internship at the Centre for International and Public Law at the ANU contributed to the writing of the chapter on Religion and Culture; and Tristian Delroy for his generous guidance and inspired instruction.

General Introduction Paul Babie §1. GENERAL BACKGROUND 1. Australia comprises 23,425,700 people.16 It has a large population of immigrants, the most common foreign countries of birth being England, New Zealand and China. Additionally, in the 2011 census, 34.3% of Australians stated that both their parents were born overseas; 11.9% had at least one parent born overseas. 2. The legal structures which govern this diverse populace emerged in 1901, when six British Colonies elected to unite under the federal Constitution of Australia, which preserved the laws and constitutions of each colony, transforming those founding documents into the laws of the six new states. The federation became the Commonwealth of Australia, which today includes the federal or Commonwealth government, and the original six states and various territories. The child of a colonial settlement of England, the Commonwealth of Australia inherited English legal traditions, characterized by a commitment to the rule of law, representative and responsible government, and an independent Judiciary. And while it inherited the full panoply of English common law upon the acquisition of sovereignty in 1788,17 subsequent case law confirms that this was not sufficient to extinguish any native title enjoyed by Australia’s Indigenous peoples.18 3. Yet, through federation in 1901 the Constitution of Australia assumed its modern place as the highest source of law, alterable or subject to repeal only by a majority of both citizens and states through referendum.19 The statute law of the Commonwealth and of the states therefore operates in a subordinate position to and is heavily conditioned by the operation of the Constitution and those of the states. The Constitution divides power between the Commonwealth and the states, the former empowered to legislate only in respect of enumerated matters, while the states retain a plenary power to legislate insofar as such enactments do not conflict with Commonwealth laws.20 Each of the Australian states therefore possess their own government, laws and constitution, preserved upon federation ‘subject to [the Federal] Constitution’.21 4. Laws enacted by the states may only be invalidated, however, by express or implied limitations within the Constitution, and these include the few powers expressly reserved to the Commonwealth, limits on federal power that have been found to apply to the states, and any express limits on state power.22 If not affected by these limitations, a law passed by a state cannot be outside its legislative power, as the states’ constitutions grant them plenary powers.23 As a consequence of their plenary powers, states are much more likely to enact laws relating to social policy, and therefore touching upon religion, yet are subject to minimal restrictions when doing so,24 the slight constitutional protection of freedom of religion does not extend to the states.25 5. Still, as between them, cooperative federalism characterizes the practical relationship between the Commonwealth and the states. The latter frequently collaborate to create uniform legislation in areas over which the Commonwealth lacks legislative power; such laws operate equally in respect of all Australians.26 Moreover, pursuant to section 51(xxxvii) of the Constitution, the states may also refer aspects of their power to the Commonwealth, and this power is used to promote uniformity between the states in instances where the Constitution fails to confer federal legislative power.27 6. Cooperation notwithstanding, the states nonetheless remain politically weaker than intended by the original

framers due to their financial dependence on the Commonwealth. Section 96 of the Australian Constitution, for instance, allows the Commonwealth to provide grants to the states on any terms and conditions. Intended to operate as a power to help with the transition to a federal system,28 the federal government has consistently used section 96 grants to influence state legislative action and thus gain otherwise unavailable federal power. In addition, the High Court weakened state power in 1920 by rejecting the doctrine that the states had retained pre-existing powers from their colonial status, which, it was claimed, assisted in defining the limits of Commonwealth power.29 7. In respect of the Commonwealth, the Constitution establishes a parliamentary system modelled on the English Westminster System, although the framers considered and in some cases borrowed aspects of governmental structure from a number of national federal democracies.30 The American features of a Senate representing each state equally, for instance, and the assignment of select powers to a federal government, were adopted from the United States Constitution.31 The outcome was a hybrid Constitution, separating power between the legislative, executive and judicial branches. 8. The constitutionally enshrined separation of powers places legislative power in a bicameral legislature, the Commonwealth Parliament, comprising a House of Representatives and a Senate with executive power responsible to the Parliament through the requirement that ministers be members of the Parliament. The Parliament may delegate its power to make laws to the executive for specified purposes by passing a statute to that effect. This is known as ‘delegated legislation’ or ‘legislative instruments’. 9. The Constitution vests the judicial power in a strictly independent judiciary, which enjoys the power of judicial review to strike down legislation inconsistent with the Constitution. Along with the Federal judicial system, separate state court hierarchies ultimately terminate with the High Court of Australia, thus establishing one uniform common law.32 And while not expressly conferred by the Constitution, the High Court has consistently interpreted the Constitution to include the power of judicial review due to the presumed intention that the Australian Constitution had been intended to operate along the same lines as the American Constitution.33 The courts exercise the power of review, however, on the basis of legislation being beyond the power of the Commonwealth legislature to enact, rather than on the grounds of individual freedoms. The Constitution contains no bill of rights, and the sparse individual rights contained therein, such as the section 116 freedom of religion clause or the implied freedom of political communication, have been interpreted as restrictions of legislative power and not as individual guarantees. Quite irrespective of judicial interpretation, however, section 116 prohibits the establishment of a state religion for Australia and, although the states are under no such prohibition, no state Parliament has ever attempted to establish a state church. 10. The Constitution orchestrates the Commonwealth relationship to the Territories through section 122 of the Constitution, which provides that ‘the Parliament may make laws for the government of any territory … and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit’. This produces a broad diversity in the administration of each Territory. The Northern Territory, Australian Capital Territory and Norfolk Island, for instance, each enjoy self-government, the former two being granted Parliamentary representation in both Commonwealth chambers, while many of Australia’s offshore island territories are largely uninhabited and therefore are governed directly by the Commonwealth Parliament. The main difference between the self-governing territories and the states is that the Commonwealth executive and legislature may override any Territory law and need not have it invalidated on Constitutional grounds.34 This provides the Commonwealth significantly greater control over the Territories, amplified by the fact that many limitations on federal power have been found not to apply when the Commonwealth legislates for the Territories.35 11. International law plays a relatively minor role in Australia’s constitutional system, which takes a dualist approach to international treaties: those ratified by the executive do not automatically become the law of Australia due to the separation of powers between executive and legislature.36 Rather, the legislature may choose whether or not to implement the treaty into the domestic law. This has resulted in Australia being repeatedly criticized for its

failure to implement treaty obligations assumed by the executive.37 The common law makes some concessions to international law, such as the requirement that in the case of ambiguity, a statute must be interpreted in conformity with Australia’s treaty obligations.38 12. Similarly, human rights play a minor role in Australia’s legal structure. As noted above, the framers found it unnecessary to entrench within the Constitution a bill of rights, based somewhat on the English notion of parliamentary supremacy, but more on the framers’ view that democracy and decency would preclude any need to protect individual rights.39 Post-federation attempts to insert such protections have all failed. As such, human rights in Australia receive only piecemeal protection through the Constitution, and the Commonwealth-created Australian Human Rights Commission (AHRC), which issues ‘reports and recommendations’, although these are ‘frequently ignored’.40 Four Commonwealth statutes prevent discrimination on various bases; these, however are narrowly focused.41 Only the Australian Capital Territory and the state of Victoria have legislative bills of rights, which permit judicial declarations of incompatibility with protected rights, but not the invalidation of laws. §2. SOCIAL FACTS ABOUT RELIGION 13. While it maintains a Christian majority, with 61.1% of the population identifying as Christians in the 2011 census, this once-dominant faith continues a downward trend in Australia, decreasing since 1947 from 88% of the population. The most common affiliations for Australian Christians today are Catholic (25.3% of the population), Anglican (17.1%) and Uniting Church (5%). It can today be said, then, that Australia is ‘ … partly a Christian country, partly a multi-faith country, and partly a secularist country’.42 14. In 2011, for the first time in Australian history, the second most common census response to religious affiliation after Catholicism was ‘No Religion’, with 22.3% of the population so identified. This group has grown by almost 30% since the 2006 census and includes all who answered Atheist, Agnostic, Humanist and Rationalist. Rather than holding no religious belief, some commentators suggest that those who identify themselves as having no religion may simply eschew organized forms of religion.43 15. A brief snapshot of the religious presence in Australia, then, looks like this. Catholicism comprises seven geographical Archdioceses embracing twenty-one smaller Dioceses; New South Wales and Victoria have above average proportions of Catholics, while South Australia and Tasmania have below average. Tasmania is the only state with more Anglicans than Catholics. Anglicanism, as well constituting a decreasing percentage of the population, has also experienced an overall negative growth rate. 16. Of the remaining Christian denominations, there has been: a rapid growth among non-denominational Christians, especially since the 2006 census (50%); a 12% growth of the Church of Jesus Christ of Latter Day Saints (LDS); and growth among Eastern Christians (especially amongst the Oriental Orthodox (26%) and Assyrian Apostolic (29%) churches). There is a strong Lutheran presence in South Australia and the Northern Territory. 17. Changing immigration trends continue to influence the Buddhist (the second largest religious affiliation following Christianity (26% growth since 2006)), Hindu (86% growth since 2006), and Muslim (40% growth since 2006) faiths. Members of the Jewish faith number 97,335, of which 87.2% live in New South Wales and Victoria. And, finally, traditional Aboriginal faiths are no longer widely practised, with the 2011 census showing that just 7,363 people stated affiliation to a traditional Aboriginal religion, while 69% of Indigenous Australians identify with a Christian Religion.44 18. The author of the magisterial history of Australia, Manning C Clark, probably captured best the Australian approach to religion, both for the individual in their private life and for the polity and its public life, when he wrote of Australian religion over half a century ago that it is ‘a shy hope in the heart’.45 More recently, Gary Bouma, the eminent Australian sociologist, author of the ground-breaking Australian Soul, explored the place of religion in Australian society and, elaborating upon Clark’s conclusion, characterized the Australian approach to

religion/spirituality, on the one hand, unlike the United States, as ‘much less use of neon lights and much less explicit public spirituality’, while on the other hand, unlike Europe, as there is, Bouma writes, a ‘comparatively high vitality of [Australian] religious and spiritual life’.46 19. In fact, Bouma identifies twelve themes that characterize this shy hope in the heart: (i) a serious but light touch in dealing with religion; (ii) a wariness of enthusiasm in religion, and especially high demand religion; (iii) a wariness of imported, mass culture religion and spirituality; (iv) serious distancing from authoritarian leaders promoting sacred causes or sacrifice for principle; (v) a serious commitment to living for now, not sacrificing for the future; (vi) an antipathy to empty formality; (vii) a serious mate-ship grounded in shared experience; (viii) serious tolerance of difference flowing from a commitment to seeking a fair go for everyone and keeping an even keel; (ix) a serious readiness for humour and to laugh at oneself; (x) a serious quiet reverence, a deliberate silence, including comfort with an inarticulate awe and a serious distaste for glib wordiness; (xi) a serious wariness and intolerance of the ‘gate-keepers’, the ‘straighteners’ and ‘God’s police’; (xii) a preference for live-and-let-live tolerance grounded in mutual respect as opposed to enforcing one group’s viewpoint on others as a primary mode of acceptable interreligious group relations.47 20. In other words, Bouma’s analysis demonstrates that for Australians, qualitatively, while it may be understated and wary of excessive public displays, religion/spirituality is part of life at the personal level of the individual rather than that of any structured organized religion. Indeed, for individuals, there may be a rejection of religious organizations, such as churches or temples in favour of a blended form of spirituality drawing on a number of otherwise unrelated religious traditions. And quantitatively, the most recent census data supports the conclusion that religion/spirituality is certainly present in the lives of Australians. In short, then, while it is there, Manning Clark’s ‘shy hope in the heart’ seems still to characterize the Australian attitude towards religion. To better understand these demographic trends surrounding the place of religion within Australia’s legal system, we need to look back over the course of Australia’s history. §3. HISTORICAL BACKGROUND 21. As a diverse, multi-cultural and tolerant society, no one religious or ethnic group has ever gained a monopoly in Australian society. Rather, Australia has generally taken a neutral stance toward religion. And while this neutrality towards religion can be characterized by tolerance and compromise, neither aggressive separation nor overt establishment, and by a mistrust of religion meddling with state and vice versa, one nonetheless continues to find a strong current of conservative Christian thought in Australian life. More significantly, it cannot be said, either historically or in modern Australia, that racism has never reared its ugly head in the Australian polity. Indeed, the very foundation of Australia’s European history rests on the racist understanding of the acquisition of the Australian continent through the fictional doctrine of terra nullius as a way of explaining away the prior occupation and possession of Indigenous peoples. This remains an issue to be addressed, the origins of which lie in the European ‘settlement’ of the continent in 1788. I.

Pre-1788: Indigenous History and Spirituality

22. Pre-European contact, 500,000 Indigenous Australians inhabited the continent, living in over 250 distinct language groups and tribes, largely untouched by international contact. These people knew a complex system of religion and spirituality, with every group having its own distinct religion, united through some common themes and elements. Indigenous religious traditions centred on the land on which their adherents lived. Long before Homer, strong oral traditions told of the creation of the land by people and animals in a long ago era called the Dreamtime. Great Spirits ruled this time, coming upon a formless and featureless land and by their movements and actions created the rivers, mountains, seasons and skies. Each tribe tailored its story to the unique landscape it inhabited; clans traced their ancestry back to these Spirits, and based claims to their lands upon descent from their Dreamtime ancestors. Aboriginal religions were and are practised through ceremonial rituals which re-enact the Dreaming stories.

Ceremonies involved dance, song and body decoration, while the depiction of the Dreaming in paintings on rock and bark represent a common expression of Aboriginal religion. II.

1788–1819: European ‘Discovery’ and ‘Settlement’

23. Australia’s Indigenous history changed radically with European ‘discovery’ and ‘settlement’ of the continent. In 1770, Captain James Cook claimed the Eastern coast of Australia for England, naming it New South Wales. Following the American Revolution in 1776, due to overcrowding of prisons in England, and due to the inability to transport criminals to the recently lost American colonies, Sir Joseph Banks suggested utilizing the newly claimed territory as a penal colony. Accordingly, in 1788 England appointed Captain Arthur Phillip CaptainGeneral and Governor in Chief of New South Wales, and was sent there with 750 convicts to establish a penal colony. Captain Phillip brought with him instructions to ‘enforce a due observance of religion’ and, from the beginning, the Colony operated upon the clear assumption that the Anglican Church was to be the established church. In practice this meant attempting to give exclusivity to the Anglican religion, and Phillip established compulsory convict attendance at Anglican services performed, until 1819, only by Anglican Chaplains appointed to the colonies. The chaplains enjoyed little success in bringing the convicts to any kind of religious observance and were often in conflict with the Governors over their attempts to impose moral order. The fact that chaplains also received appointment as magistrates only served further to alienate them from the convicts and to reinforce ties between the state and the Anglican Church.48 Not surprisingly, given the role of the Anglican Church, early British settlers approached Australia’s Indigenous peoples with a view to converting them to Christianity. The failure to understand their nomadic lifestyle – missionaries saw this as antithetical to a ‘civilized’ Christian faith – meant that missionaries had little success in their attempts to convert the Indigenous peoples.49 And while a minority of missionaries did attempt to learn Aboriginal languages and to establish missions sensitive to the Indigenous lifestyle, most British Anglican clergy ultimately concluded that any attempt at conversion was a wasted effort.50 III.

1820–1850: Transition from ‘Penal Colony’ to ‘British Colony’

24. In 1821, the status of New South Wales underwent a substantial change. Faced with the reality that transportation to the thriving colony was no longer a viable deterrent to crime in England, Parliament implemented recommendations to abolish the convict system and to treat New South Wales as a British, rather than merely a penal colony. The migration of free settlers soon followed, not only established, but also encouraged. Disagreement over the initial assumption of Anglican establishment characterized the church-state relationship within the colony in the years following the change of focus from penal to full colony. Anglican conservatives believed that money and support must be given to the Anglican Church alone; to support any other church would be to support falsehood.51 Irish-Catholics and non-Anglican Protestants, as well as an emergent secularist ideal in the colonies, opposed this approach, all of these groups being naturally against any privileging of the Anglican Church. Two issues dominated the debate over the future of an established religion in New South Wales: state funding of churches, and national schools. 25. The 1820s were the golden years for Anglican establishment.52 The earliest state-funded schooling effort, for instance, took the form of the Church and Schools Corporation, formed in 1825. The most definitive act of establishment achieved by the ascendant Anglican movement, the government of the colony conferred upon the Corporation the entire responsibility for education, together with significant lands and funding to achieve that end. Moreover, Anglican Clergy assumed sole responsibility for recording Births, Deaths and Marriages within the colony. 26. In 1833, Governor Bourke wrote to the Colonial Secretary in England, supporting the extension of state aid to all Christian churches, and possibly to ‘every congregation of dissenters and of Jews, if desired’.53 Suggesting the extension of funding to non-Christians was a radical proposal for the time and the colony was not fully ready for it.

As such, while the passage of the Church Act 1836 by the New South Wales Legislative Council represented a major defeat for establishment, the legislation provided funding only for ‘the advancement of the Christian Religion’.54 Yet, while the full effect of Governor Bourke’s proposal had not been implemented, the ties between church and state had been extended from Anglicanism to Christianity. Still, the attitude towards non-Christian religions remained unchanged; in the 1840s, the colony rejected two Jewish applications for funding, on the reasoning that the colony was a Christian entity and therefore could not support other doctrines.55 While a minority called for the repeal of the Church Act 1836 and the formal establishment of the Anglican Church, the movement never again gained sufficient support to pose a serious threat to the trend towards nonestablishment.56 Aside from anything else, it would have been impolitic formally to establish a church that could not claim half of the total colonial population as members.57 27. The Church Act 1836 also affected schooling, and the new funding allowed for increased funding for all Christian schools, producing a surplus of schools in more populated towns, but none at all in smaller settlements. Yet attempts to remedy this imbalance had little success. Efforts to replace the Church and Schools Corporation (officially abolished in 1833) met fierce opposition during the 1840s. Because the various Christian denominations were reluctant to give up any power over curriculum, proposals for a national system of schools giving general Christian education without teaching denominational doctrines suffered repeated delays.58 It was not until 1848 that New South Wales established a dual educational system, providing funding for existing denominational schools as well as for national schools in those areas which lacked schools, although, in practice, education remained in the hands of the Christian churches, with no state control over content. IV.

1851–1900: Decline of Establishment

28. In 1851, Port Phillip broke away from New South Wales to become the separate colony of Victoria, which inherited the New South Wales system of state aid to Christian churches and dual-system of state-funded church and national schools. But this political split served as the catalyst for the separation of religion and state in the Australian colonies. The first colony to achieve some form of separation was South Australia. Formed in 1836, South Australia was never a penal colony and was intended to be a religiously free society providing a haven for religious dissenters.59 This produced a diverse society, many members of which held liberal views about the role of religion in the state. Both the establishment of a system of national schools and the complete abolition of state aid to religion occurred in 1851. Progressive though it was, South Australian schools could hardly be called secular by any contemporary understanding of that term; indeed, they taught a general Christian religion without touching on doctrinal differences. Nonetheless, a system was in place which was entirely state controlled and was equipped to teach children of any denomination, something which the neighbouring colonies would not achieve for at least another twenty years. The other Australian colonies underwent significant social change before achieving the necessary public sentiment to stimulate formal separation. The 1850 Gold Rush, for instance, greatly affected Victorian society, and this rapid development of the social and economic life of the colony weakened the Anglican Church’s central importance to the settlers.60 Early scientific and scholarly criticism of the Bible also reduced social confidence in religion, creating a society much more receptive to secularist ideas. 29. By 1858, Victoria was giving state aid to non-Christian religions, giving its first grant to Jews. By 1870, however, the colony voted to end state aid to religion altogether. The succeeding three decades would see each of the six colonies provide free, compulsory and secular education. These developments severed the lingering ties of government to religion, as well as the legal duty of the colonial governments to advance the Christian faith.61 This minimal secularization of social life translated into the secularization of law; in 1863, the Privy Council itself decided that the Church of England held the status of a voluntary association in the colonies, rather than that of the established church.62 And the secularization of law notwithstanding, the concomitant secularization of social life remained minimal.

The Australian colonies continued, through the close of the nineteenth century and well into the twentieth, to retain a Christian majority and therefore significant Christian influence on government and law. Legislation continued to regulate public activity on Sundays: Victoria banned Sunday newspapers in 1887 because, it was claimed, the colony had ‘a right to have legislation of a Christian character’.63 The ban would remain in force for nearly eighty years. V.

1901: Federation

30. Proposals for central government, heard as early as the 1840s, gained serious recognition during the last two decades of the nineteenth century, by which time the colonies were linked by railways and telephones, inter-colonial trade had increased, and for the first time Europeans born in Australia outnumbered immigrants. These native-born Australians no longer considered themselves as ‘English’; rather, they sought a separate identity, one which would distinguish them from the country that created them.64 From this social and cultural mix emerged political support for a federation that would meet the need for common defence and the increasingly inter-economic relations between the colonies. A proposed Constitution was drafted during several national conventions held beginning in 1891. The delegates to the conventions, or ‘framers’, saw an opportunity to formalize through law the Christian character of Australia. An intense Protestant lobby sought the inclusion of the mention of God and the recognition of the nation’s Christian identity in the Constitution. Their efforts resulted in the preamble, which stated that the people of Australia, ‘humbly relying on the blessings of Almighty God’, agreed to federate. The separatist cause, however, managed to ensure the inclusion of a clause forbidding the Parliament from establishing any religion or religious practice. While the Constitution therefore effected a separation of church and state, the public lobbying for the mention of God in the preamble demonstrated the extent to which Australia remained a Christian nation.65 The establishment of the Commonwealth of Australia on 1 January 1901 did not sever Australia’s connection with England; rather, it entrenched the new nation as a part of the British Empire. While it remains so to this day, the legal control exerted by Britain slowly decreased during the twentieth century. VI.

1901–2010: Post-Federation

31. The twentieth century saw a gradual decline of Christian influence in public policy – moralistic laws backed by the church began to lose the support of the wider public.66 And the 1920s brought a noticeable change in the way Australians spent their Sundays. Laws requiring shops to be shut, public transport to be inoperative and banning Sunday sports fixtures were broken with increasing regularity. Religious campaigns failed to prevent mixed-gender bathing and extended hotel hours. More significantly, though, churches began to suffer an overall decline in church attendance. 32. Two major developments have shaped the contemporary place of religion in Australia. The first involves the treatment of Australia’s Indigenous peoples. By the twentieth century, the policy in most states with regards to the Indigenous population took a decidedly racist turn. Most states appointed a Chief Protector or board of protectors exercising wide powers over all Indigenous Australians. In some states, the Protector was made the legal guardian of all Indigenous children, and it was this power that led to the notorious policy, based upon spurious anthropological theory, now known as the ‘Stolen Generation’ (the state removal of Indigenous children from their families to be raised in institutions or white foster families), a practice that continued until the 1960s. The aim was to remove the children from any access to their Indigenous culture and heritage, in order to assimilate them into white-Australian society.67 Christian missions were often used as placements for the stolen children. It was not until the late twentieth and early twenty-first centuries that those who suffered at the hands of the state under these appalling policies would finally find some, albeit minimal, redress: in 1967 gaining the right to vote through amendment of the Constitution;68 the 1992 recognition by the High Court that native title had survived the English acquisition of sovereignty;69 and, in 2008, the official apology by Prime Minister Rudd for the harm caused to generations of Indigenous Australians through the Stolen Generations.70 Through these minimal recognitions of the treatment of

Australia’s Indigenous peoples, a greater understanding of the contribution of a lost culture and spirituality finally began to emerge. 33. The second, and equally important, development in the transformation of Australia’s religious character came with the defeat of the ‘White Australia Policy’. The ideal of creating a homogenous, white society in Australia was a common political platform from the time of federation. Implemented by the Commonwealth Parliament almost immediately after federation by prescribing a language test for immigrants, this discriminated against nonEuropean settlers, as well as paving the way for numerous instances of state legislation directly withholding rights from ‘Asiatics’ or Indigenous Australians.71 This racist immigration policy remained in place until 1958, when the language test was abandoned; the full White Australia policy was formally abolished in 1966 when the Minister for Immigration announced that immigrants would be assessed only on their suitability as settlers. This finally opened the door to non-European immigration, resulting in greater diversity of both Christian and non-Christian religions.72

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 63.

As of November 2014. Mabo v. Queensland [No 2] (1992) 175 CLR 1, 79–80 (Deane and Gaudron JJ). Mabo v. Queensland [No 2] (1992) 175 CLR 1. Commonwealth Constitution s. 128. Ibid. s. 109. Ibid. ss 106–108. Tony Blackshield & George Williams, Australian Constitutional Law and Theory: Commentary and Materials 426 (5th ed, Fedn. Press 1996). Union Steamship Co of Australia Pty Ltd v. King (1988) 166 CLR 1, 9. Gary Bouma et al., Freedom of Religion and Belief in 21st Century Australia 3 (Australian Hum. Rights Commn. 2011). Commonwealth Constitution s. 116. Blackshield & Williams, supra n. 22, at 212. See, e.g., New South Wales v. Commonwealth (‘Incorporation Case’) (1990) 169 CLR 482 in which the High Court ruled that the Commonwealth power over corporations did not provide for Commonwealth regulation of the incorporation process. Blackshield & Williams, supra n. 22, at 1083. Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129. Patrick Parkinson, Tradition and Change in Australian Law 137 (3d ed., LBC Info. Services 2005). Ibid. Lipohar v. The Queen (1999) 200 CLR 485, 505–506. Blackshield & Williams, supra n. 22, at 8 quoting from Australian Communist Party v. Commonwealth (‘Communist Party Case’) (1951) 83 CLR 1, 262. See also Judiciary Act 1903 (Cth) s. 30. Blackshield & Williams, supra n. 22, at 235. See Ibid. 235–5252. Minister for Immigration and Ethnics Affairs v. Teoh (1995) 183 CLR 273, 2863–287. Australian Hum. Rights Commn., UN Human Rights Committees Critique Australia’s Human Rights Remedies (14 Dec. 2012) Australian Hum. Rights Commn. http://humanrights.gov.au/human_rights/human_rights_dialogue/critique.html. Minister for Immigration and Ethnics Affairs v. Teoh (1995) 183 CLR 273, 287. Paul Babie & Neville Rochow, Feels Like D? Vu: An Australian Bill of Rights and Religious Freedom, 3 Brigham Young U. L. Rev. 821, 827 (2010). Ibid. 837. Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Age Discrimination Act 2004 (Cth); Disability Discrimination Act 1992 (Cth). Bouma et al., supra n. 24, at 4. Phillip Hughes, Are Australians ‘losing their religion’? 20 Pointers: Bull. Christian Research Assn. 1, 2 (2010). Bouma, supra n. 1, at 31. John Thornhill, Making Australia: Exploring Our National Conversation 172 (Millennium 1992), as cited in Bouma, supra n. 1, at 32. Bouma, supra n. 1, at 33 (citations omitted). Ibid. 45–47. Roger C. Thompson, Religion in Australia: A History 4 (2d ed, Oxford U. Press 2002). Ibid. 5. Ibid. J.S. Gregory, Church and State 31 (Cassel Austrl. 1973). Ibid. 10. Ibid. 15. Ibid. Ibid. 29. Ibid. 30. Ibid. 31. Manning Clark, A Short History of Australia 95 (2d ed., Macmillan Co. 1963). J.S. Gregory, Church and State (Cassel Australia, 1973) 164.

Clark, supra n. 58, at 141–145. Thompson, supra n. 48, at 44. Ibid. 52. Ibid. 71. Gregory, supra n. 51, at 91. Ibid. 123. Long v. Bishop of Cape Town (1863) I Moo NS 411, 461. National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Bringing them Home Report 27 (2007). Constitution Alteration (Aboriginals) 1967 (Cth), amending sections 51(xxvi) and 127 of the Commonwealth Constitution. Mabo v. Queensland [No 2] (1992) 175 CLR 1. Motion to be voted on by the House, apology to Indigenous Australians, presented by the Hon Kevin Rudd, Prime Minister of Australia, 13 Feb. 2008. 71. Clark, supra n. 58, at 177. 72. Bouma, supra n. 1, at 52. 64. 65. 66. 59. 60. 61. 62. 67. 68. 69. 70.

Part I.

Legal Framework and Sources

Paul Babie

Chapter 1. General Protections for Religion §1. THE COMMONWEALTH CONSTITUTION I.

Preamble

34. The preamble of the Australian Constitution begins: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth’. The framers of the Constitution saw this reference, which both acknowledges and invokes God, not as a mere formality but as a national plea for divine providence. Patrick Glynn, speaking in the Constitutional Convention debate of 1897, urged delegates to ‘grant [the petition which enshrined God in the Preamble] in a hope that the Justice we wish to execute may be rendered certain … and our union abiding and fruitful by the blessing of the Supreme Being’.73 This invocation found its way into the Constitution based upon overwhelming public support in the form of petitions and the recommendation of almost every Colonial government.74 Although the words themselves do not denote any particular God or Religion, there is no doubt that it was the Christian God to which the framers referred; at the time of the Constitutional Conventions, approximately 99% of all European Australians were Christians. The AHRC has found that in modern Australia, some continue to feel very strongly that the preamble evidences it as a Christian nation, and so the Parliament has a duty not only to respect, but also to favour the Christian religion.75 Yet what judicial examination exists of the effect of the Preamble strongly rejects this position. The South Australian Supreme Court, for instance, impatiently dismissed an argument advanced in 2007 that the Preamble imports ‘the laws of God’ into the Constitution.76 As such, it is doubtful, at least in the eyes of the courts, that the reference to God in the Preamble creates any Parliamentary powers or duties. II.

Section 116

35. The process that led to the insertion of God in the Preamble created another concern for the framers of the Constitution: would that inclusion result in an inferred power to legislate upon religious matters? The drafters framed section 116 of the Constitution in direct response to this concern.77 Section 116 of the Constitution states that: ‘the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. Still, while at first blush appearing expansive, section 116 suffers from two fatal flaws. The first is internal to its text, the second a product of its judicial treatment. In relation to the former, section 116 imposes no restriction on the power of states to legislate as concerns religion. Indeed, at least one of the framers intended that the states ought to retain the power to legislate in respect of religion and that section 116 created an assurance that the Commonwealth government would not interfere with that plenary state power.78 A 1988 referendum to extend the prohibition in section 116 to state legislatures failed in all states. 36. The courts have ensured that whatever role section 116 might have played in respect of protecting religious

freedom would not develop; in other words, the Commonwealth government is equally unrestricted in its treatment of religion as are the states. Consistent judicial interpretation treats the clause as a restriction on legislative power only, as opposed to a source of personal rights. As such, it does not guarantee freedom of religion or separation of church and state and no law has ever been invalidated on the basis of a violation of section 116. 37. Having considered these flaws, it is possible to consider section 116, which contains four components, in greater detail. Of the four components, only two, the anti-establishment and free exercise clauses have received judicial attention, albeit scant. The remaining two components, religious observance and the prohibition on a religious test for public office, have rarely been judicially analysed. It is very likely that religious observance would be interpreted according to the same reasoning applied to the free exercise and establishment clauses. The religious test provision has rarely been before the courts and has never received any substantive judicial consideration.79 38. The Australian courts narrowly interpret the anti-establishment component, which is similar in wording to the First Amendment to the United States Constitution (which reads that ‘Congress shall make no law respecting an establishment of religion’). The American courts interpret the First Amendment so as to erect a ‘wall of separation’ between church and state, tolerating not the slightest breach;80 the High Court of Australia, however, has rejected this interpretation, finding that the clause prohibits only a direct and purposeful declaration of one religion as a national institution.81 The test is a practical, not semantic, one: that is not to say that a certain level of statutory discrimination could not amount to establishment in the prohibited sense. Quick and Garran included in their definition of the establishment of religion ‘… the concession of special favours, titles and advantages to one church which are denied to another.’82 39. The second component, religious observance, has received little attention. Related to observance is the third component, free exercise, which, while infrequently considered, has also been narrowly interpreted. Only laws passed with a purpose to restrict the exercise of religion violate section 116; laws for an unrelated purpose which incidentally restrict do not.83 The High Court interpreted the use of the word ‘for’ in the clause as an intention that purpose was to be the relevant criterion in determining whether a law breached section 116; indeed, Gaudron J goes so far as to call it ‘the only criterion’.84 And, it has been suggested that section 116 retains scope for some restriction on religious freedom, provided the restriction is proportionate to fulfil a necessary social purpose.85 This interpretation is supported by Latham CJ’s judgment in Adelaide Company of Jehovah’s Witnesses v. Commonwealth, which suggested that section 116 could be correctly construed as prohibiting ‘undue infringement of religious freedom’.86 III.

External Affairs Power

40. As we have seen, there are no enumerated powers conferred upon the Commonwealth to legislate on matters of religious freedom. It is well established, however, that the power to implement treaty obligations is conferred by section 51(xxix).87 As such, as a consequence of its ratification of International Covenant on Civil and Political Rights (ICCPR), the Commonwealth would have the power to legislate for the broader protection of religious freedom by implementing the provisions found in Article 18, and similar provision from other international treaties. Yet, while the Human Rights and Equal Opportunity Commission, a Commonwealth statutory body succeeded by the AHRC, recommended the enactment of a Federal Religious Freedom Act in order to implement the provisions of the ICCPR,88 the Commonwealth has thus far failed to act upon the advice. IV.

Oaths of Office

41. This is discussed in detail in Chapter 1.1 of Part V. §2. STATE CONSTITUTIONS

I.

Tasmania

42. Tasmania’s Constitution Act 1934 (Tas) is the only state constitution which includes provisions relating to religion. Section 46 reads: (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. (2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office. While it has never been judicially considered, it is not a strong guarantee of religious freedom, capable as it is of being abrogated by inconsistent Commonwealth legislation or by an Act of State Parliament.89 II.

State Constitutional Oaths

43. Every state constitution requires some oath or affirmation to be taken before a person may take a seat as a member of parliament.90 Generally, a choice exists between an oath or pledge including a reference to God and a secular ‘affirmation’. Western Australia, provides a representative example; section 22 of the Constitution Act 1889 (WA) prescribes a form of oath for members of parliament, the beginning of which is governed by the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). Section 4 of the latter Act provides several options for the beginning of an oath: one may swear by Almighty God, the name of any deity their religion recognizes or ‘according to the religion and the beliefs [they] profess’. §3. STATUTORY BILLS OF RIGHTS 44. The Victorian and the Australian Capital Territory Bills of Rights – the Human Rights Act 2004 (ACT) (‘HRA’) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) – contain the rights to freedom of conscience, religion and belief,91 to peaceful assembly and freedom of association,92 to privacy93 to freedom of expression,94 and to culture (including to one’s religious background or to practise one’s religion).95 Both Bills, taking the form of non-Constitutionally entrenched legislation, are substantively similar. 45. Three mechanisms narrow the application of the right contained in the HRA and the Charter. First, in no way can the protection of such rights affect the validity of other legislation. Thus, in the enactment of legislation, and in its judicial interpretation, the legislature and the court must interpret other legislation so as to be consistent with the bills of rights.96 If a court finds it impossible to construe legislation so as to be compatible with the rights contained in the Charter, section 36(2) allows for a declaration of inconsistent interpretation which has no effect on the validity of the legislation or on the legal rights of any person.97 The HRA, however, provides the additional remedy of seeking redress for human rights violations by a public authority. Thus, section 40C of the HRA allows a person who is or would be a victim of a public authority ignoring human rights to bring an action in the Supreme Court of the Australian Capital Territory, and the Court may grant any remedy it considers appropriate, with the exception of damages. 46. Second, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.98 The Charter, however, restricts this provision through the application of section 39, which limits the right to seek legal action for breach of a human right by a public authority to persons who would have a cause of action against the public authority through avenues other than the Charter itself. Further, section 38(4) of the Charter creates an exemption in respect of religious bodies and provides that public authorities are not required to ‘act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates’.

47. The rights contained in the Charter are further narrowed by establishing that human rights may be subject to such ‘reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’ if the violation is proportionate to serving a legitimate interest of society.99 Moreover, Parliament may declare an Act to have effect despite containing a human rights violation, an override which expires after five years but which may be repeatedly re-enacted for a further five years.100 §4. COMMON LAW RULE OF STATUTORY INTERPRETATION 48. The common law contains some recognition of freedom of religion, not through the recognition of a general inalienable right to religious freedom,101 but through principles of statutory construction. Thus, legislation overriding freedom of religion must be in clear and unambiguous terms.102 Similarly if a statute is ambiguous, then the construction most in conformity with Australia’s treaty obligations concerning freedom of religion should be favoured.103 Importantly in respect of Australia’s treaty obligations, if those were used in future as a source of Commonwealth power for a religious freedom Act, that legislation would be interpreted by reference to the treaty. §5. AUSTRALIAN HUMAN RIGHTS COMMISSION (AHRC) INQUIRIES 49. The AHRC has the power to inquire into any act or practice that may be inconsistent with or contrary to any human rights, including the rights and freedoms set out in the ICCPR and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981, or that may constitute discrimination as defined under the Australian Human Rights Commission Act 1986.104 §6. ABSENCE OF REGULATION 50. The very lack of regulation of religious matters is itself a protection for religious freedom.105 Australia inherited this non-interventionist attitude towards religion in the private sphere from its British traditions and the culture of live-and-let-live. This arguably goes further towards creating a religiously free society in Australia than any rights or exemptions.106

73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98.

Official Report of the National Australasian Convention Debates, Adelaide, 22 Apr. 1897, 1186 (Patrick Glynn). John Quick & Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth 284 (Angus & Robertson 1901). Bouma et al, supra n. 24, at 23. Daniels v. Deputy Commissioner of Taxation [2007] SASC 431 (7 Dec. 2007) [13] (Debelle J). Babie & Rochow, supra n. 39, at 829. Official Record of the Debates of the Australasian Federal Convention Melbourne, 2 Mar. 1898, 1769 (Henry Bournes Higgins). Luke Beck, The Constitutional Prohibition on Religious Tests, 35 Melb. U. L. Rev. 323, 337–338 (2011). Everson v. Board of Education, 330 U.S. 1, 18 (1947). Attorney-General (Vic); Ex rel Black v. Commonwealth (DOGS Case) (1981) 146 CLR 559, 653 (Wilson J). Fish v. Nelson (1990) 92 ALR 187, 191. Kruger v. Commonwealth (‘Stolen Generations Case’) (1997) 190 CLR 1, 86 (Toohey J), 134 (Gaudron J), 161 (Gummow J). Stolen Generations Case (1997) 190 CLR 1, 132 (Gaudron J). Ibid. 134 (Gaudron J). (1943) 67 CLR 116, 131. Commonwealth v. Tasmania (‘Tasmanian Dam Case’) (1983) 158 CLR 1, 125 (Mason J). Hum. Rights & Equal Opportunity Commn., Art. 18: Freedom of Religion and Belief 24 (J.S. McMillan 1998). Hum. Rights & Equal Opportunity Commn., supra n. 87, at 14. See Constitution of Queensland 2001 (Qld) ss 22, 31, 43(5), and 59(2); Constitution Act 1936 (SA) s. 42; Constitution Act 1902 (NSW) s. 12; Constitution Act 1934 (Tas) s. 30; Constitution Act 1975 (Vic) s. 23(1), s. 88A and Sch. 3. Human Rights Act 2004 (ACT) ss 14 and 27; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 14. Human Rights Act 2004 (ACT) s. 15; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 16. Human Rights Act 2004 (ACT) s. 12; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 13. Human Rights Act 2004 (ACT) s. 16; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 15. Human Rights Act 2004 (ACT) s. 27; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 19. Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 28 and 32. And see Human Rights Act 2004 (ACT) ss 30, 32 and 37. Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 38.

99. 100. 101. 102. 103. 104. 105. 106.

Human Rights Act 2004 (ACT) s. 28(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 7. Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 31. Grace Bible Church v. Reedman (1984) 36 SASR 376. Re Bolton; Ex Parte Douglas Beane (1987) 162 CLR 514, 523 (Brennan J); Canterbury Municipal Council v. Moslem Alawy Society Ltd (1985) 1 NSWLR 525, 544 (McHugh J). Minister for Immigration and Ethnics Affairs v. Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). Australian Human Rights Commission Act 1986 (Cth) ss 20(1)(b), 31(1)(b). See further Pt IV, Ch 1.3; Pt VII Ch 7.4. Evans, supra n. 146, at 107. Mortensen, supra n. 129, at 178.

Chapter 2. Sui Generis Protections of Religion 51. Sui generis protections of religion can be found under labour,107 anti-vilification,108 non-discrimination,109 education,110 criminal,111 taxation, financing and fundraising,112 and matrimonial and family law.113 Additional protections can be found in respect of privacy,114 freedom of expression,115 due process,116 professional secrecy,117 medical deontology,118 art119 and media.120 Further sui generis protections relate to children, food, clothes and appearance, oaths and conscientious objection, and are addressed below. §1. CHILDREN 52. The operation of family law may subject children to regulation of their religious belief and practice in ways that adults may escape. Family law is a Commonwealth legislative power, and it has been exercised to enact the Family Law Act 1975 (Cth), which regulates the allocation and power of parental responsibility. Australia does not have a religious age of maturity distinct from the universal age of majority, which one attains at 18 years of age. As such, prior to attaining majority, those deemed by law to be ‘parents’ of minors hold the power of parental responsibility, which encompasses ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.121 With ultimate control over the care and upbringing of the child, parents hold the right to make decisions for the minor concerning religion. This generally remains a private issue for the family to decide, unless a Court is called upon to make a parenting order. 53. The Family Court of Australia may interfere with parental responsibility when anyone with standing applies for a parenting order in relation to a minor.122 When a parenting order is sought, the court gains the power to make ‘any order it thinks proper’, giving paramount consideration to the best interests of the child in making that decision.123 In considering such orders, the Family Law Act 1975 (Cth) lists matters which the court must consider in determining what are the best interests of a child;124 these do not include ‘rights of the parents’, and the court may dispense with the considerations which inform the child’s best interests if making an order with the consent of all parties.125 54. Generally, parenting orders affect religious upbringing in two ways commonly covered by such an order.126 First, the court may reallocate parental responsibility so as to change the party holding the power to choose the child’s religious upbringing.127 When only one parent is granted parental responsibility, that parent is entitled to make any decision about the child’s religion without consulting the other parent. Under a parenting order which gives shared parental responsibility, however, parents must make any decisions about ‘major long-term’ issues jointly.128 ‘Major long-term issues’ include any issues about the care, welfare and development of the child relating to their cultural or religious upbringing.129 Jointly making the decision about religion requires the parents to consult each other in the decision and to make a genuine attempt to come to a joint decision.130 55. In all but the most extreme of cases, a court granting a parenting order allocating parental responsibility or access will treat as irrelevant to the child’s best interests the religion or lack thereof of the parents.131 Rather, a court must not prefer one religious approach to another, or religion over non-religion, when deciding upon the child’s best interests in general.132 Appearing to do so can be a ground for reversal of a decision.133 56. Yet in some cases, the allocation of responsibility and access to the child are inextricably linked with religion. Religious beliefs and practices may affect the other considerations upon which a child’s best interests are to be decided; this may occur, for example, where there is a concern with the maintenance of meaningful relationships with a parent, the effect of separation from a parent, or with disruption to a child’s life by changing religious upbringing. These concerns can arise where parents are members of exclusivist religious sects,134 in which case the courts may examine the tenets and practices of that religion for the purposes of determining whether to grant a

parenting order when there is a possibility that the religious beliefs and practices of one parent could be detrimental to a child.135 57. The second way in which a parenting order can affect a child’s religious upbringing is where the court grants a direct order concerning the religious education or involvement of the child pursuant to the Family Law Act 1975 (Cth), section 64B(2)(i), which provides for parenting orders in respect of ‘any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’. Closely related to this form of order is that made under section 64B(2)(b) and (e) by which the court can determine the time and communication a child has with any person, including religious leaders and teachers; often, because the parents have been unable to agree, the court may be required to determine in which religious education or ceremonies the child is to be involved. Disputes of this character include Christian Baptisms136 and Jewish Bar Mitzvah ceremonies.137 58. The trend in parenting orders is to take the option which leaves more choice open for the child. Ensuring the child maintains a meaningful relationship with both parents, including sharing in their life and beliefs, is a primary concern;138 in Kiorgaard v. Kiorgaard and Lange, the court pointed out that there may be situations in which it is ‘contrary to the welfare of a child to have the parents endeavouring to indoctrinate the child in different religions’.139 Thus, the trend towards choice for the child. In Y & H, for instance, the court granted an order that an infant be baptized because it could open up an option for him later on in life.140 However, in Macri & Macri, the notion of keeping options open was utilized to restrain children having a Bar or Bat Mitzvah at age 13 because it formally committed them to a religion.141 While the approach taken by the Family Law Court is highly subjective and context-oriented, the cases may demonstrate at least an assumption that choice later in life is in a child’s best interests, revealing a possible individualist bias inherent in the Australian concept of ‘best interests’ as applied to children in relation to the religious views of their parents. 59. Whatever the outcome of a parenting order, however, if the outcome restricts the child’s religious practices or education, or allocates parental responsibility in such a way as to cause that effect, such result will find some inoculation from the operation of section 116 of the Commonwealth Constitution. Thus, In the Marriage of Firth found that it does not breach a parent’s free exercise of their religious practices to be restrained from parental responsibility or from teaching their children their religion.142 Yet, a court must reach this conclusion through a consideration of all matters related to ranting a parenting order and to the welfare of the child, as opposed to an isolated evaluation of the suitability or decency of the religion in itself.143 60. Above all, though, the law surrounding the grant of a parenting order does not mean that a child has no religious freedom. The views of the child are required to be taken into account when deciding on their best interests,144 and those views will be given varying weight depending on the age and maturity of the child. And, of perhaps greatest significance, children have standing to seek a parenting order concerning themselves under section 65C(b) of the Family Law Act 1975 (Cth). This may prove to be a vehicle to allow a child to achieve a limited form of freedom of religion. §2. FOOD I.

Ritual Slaughter

61. It is well known that in order to be considered fit for consumption, some religions require foods to be prepared in accordance with religious precepts; the most notable examples of this occur in Judaism and Islam. While the Jewish requirements of kashrut, or Kosher apply broadly to food preparation, it is in relation to method of slaughter of animals where the requirements most frequently clash with secular law. Under Jewish law, animals’ trachea, carotid arteries, oesophagus and jugular veins must be severed by a single cut, following which the animal must be completely exsanguinated.145 In order to be considered Kosher, the animal must have died by this and no other injury;146 hence, an animal may not be stunned before slaughter. And meat prepared under Islamic law, known

as Halal, is by some Islamic authorities also required to be alive at the time of slaughter.147 The scope of practice of ritual slaughter in Australian-approved establishments is comparatively small; for example, only 16,000 birds are slaughtered according to Jewish ritual law every week, compared to 7 million slaughtered for the general market.148 62. No Australian law directly bans Kosher or Halal slaughter. Indeed, a Commonwealth law phrased this way would likely breach section 116 of the Commonwealth Constitution for having the clear purpose of restricting religious practice (although it may be subject to the limitation balancing the right against other social welfare considerations).149 Moreover, because the Commonwealth does not have the constitutional power to legislate for animal welfare, regulation is left to state and territory animal cruelty and meat industry legislation. Although effectively prohibiting the methods of slaughter used for both Kosher and Halal, sui generis protections are made for religiously motivated non-standard slaughter. The effect of this generally is that a Kosher or Halal slaughter facility must be approved under the requisite state or territory authority. The New South Wales regime provides a representative example of the operation of ritual slaughter exceptions. Section 5(3)(b) of the Prevention of Cruelty to Animals Act 1979 (NSW) provides that ‘[a] person in charge of an animal shall not fail at any time, where pain is being inflicted upon the animal, to take such reasonable steps as are necessary to alleviate the pain’. The Act provides a defence so that a person is not guilty of any offence if the act or omission was committed ‘in the course of, and for the purpose of, destroying the animal, or preparing the animal for destruction … in accordance with the precepts of the Jewish religion or of any other religion prescribed for the purposes of this subparagraph’.150 The Commonwealth standards have been incorporated into the New South Wales regime through Regulation 64 of the Food Regulation 2010 (NSW) so that facilities which are allowed to forego pre-stunning must post-stun their ritually killed animals.151 Some jurisdictions, such as Victoria through its Meat Industry Act 2003 (Vic),152 provide for a case-by-case licensing system for meat production premises, including those which carry out ritual slaughter. These licenses may be subject to certain conditions so as to ensure the welfare of animals to be ritually slaughtered through poststunning and other means.153 II.

Food Labelling

63. At present, there is no practice of government-approved labelling of food as Kosher or Halal, save Halal meat for export.154 While a centrally enforced legal definition was considered in the 2010 review of Food Labelling laws, it was ultimately decided that these were low-priority ‘values claims’, the regulation of which was being effectively handled by the communities who required them.155 The exception is New South Wales; the Food Act 2003 (NSW) incorporates standards of the AUS-MEAT Manual into its misleading and deceptive conduct provisions in relation to the sale of beef.156 The relevant provision of the AUS-MEAT Manual prescribes that: 5.3 Ritual Slaughter Where Beef product is advertised, packaged or labelled as being Halal or Kosher, a retail business must substantiate, where applicable, that Beef products to which the claim applies are derived from products that have been processed in accordance with the appropriate ritual slaughter procedure as set out in the Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (AS 4696:2007): a) b)

In accordance with Islamic rites in order to produce Halal meat; or In accordance with Judaic rites in order to produce Kosher meat.157

Kosher and Halal meat establishments, then, are to some extent required to substantiate claims of religious observance and of deference to the Australian Standard. These requirements operate, however, only in relation to meat sold as Kosher or Halal. Thus, in the case of Kosher slaughter facilities which may sell large quantities of meat from a Kosher-slaughtered animal – the reasons for this include additional religious laws about Kosher cuts of meat or simple excess of product158– this meat may be sent into the general market. And there is currently no requirement for this meat to be specifically labelled as having been killed without pre-stunning.

III.

Food Export

64. The Commonwealth deals with animal welfare as it pertains to export and international trade and through industry guidelines which have been incorporated into most state law through legislation or regulations.159 The principal Commonwealth standard is the Australian Standard for Construction of Premises and Hygienic Production of Meat and Meat Products for Human Consumption, with similar versions for poultry, game and other types of meat. These guidelines, while requiring pre-stunning of animals before they are killed, provide an exception for arrangements for slaughter without pre-stunning that have been approved by the applicable controlling authority. The standards provide that in these circumstances a facility which is allowed to forego pre-stunning must stun the animal ‘without delay’ after it is slaughtered.160 65. One area over which the Commonwealth does have legislative authority in relation to food is in respect of maritime law, and here legislation exists for the protection of religious beliefs, in the form of food which must be made available on vessels. Thus, the Navigation Act 2012 (Cth) provides that the master of a vessel must not take the vessel to sea unless it is carrying ‘food of suitable quality, quantity, nutritive value and variety … having regard to the nature and duration of the voyage and the number, and cultural and religious backgrounds, of the vessel’s seafarers’.161 §3. CLOTHES AND APPEARANCE 66. Some states and territories use legislation to deal with the issue of clothes and appearance for religious purposes. In Queensland, South Australia and Western Australia, for instance, Sikhs are exempted from wearing safety helmets when riding motorbikes and bicycles if they are wearing a religiously required turban. In two of these jurisdictions, the exemption is phrased as a general ‘religious’ exemption, while in South Australia the exemption applies to Sikhs specifically.162 67. Religious headdresses which cover the face stimulate a great deal of debate in Australia. Movements to ban Niqabs and Burquas, while small,163 resulted in two Bills being introduced in South Australia and New South Wales, but neither was enacted into law.164 As such, while no comprehensive ban on religious face coverings exists in Australia, the practice is not free from general limitations. New South Wales has enacted legislation allowing police officers to require the removal of any type of face covering for the purposes of identifying that person in circumstances where the police officer would otherwise be lawfully allowed to demand identification.165 Safeguards do, however, protect the privacy of Muslim women: if reasonably practicable, the police officer must provide privacy for the uncovering of the face and must conduct the identification quickly.166 Western Australia enacted a similar law in the Criminal Investigation (Identifying People) Amendment Act 2013 (WA). 68. Anti-discrimination regimes protect those who wear religious articles of clothing in public places as a matter of discrimination on the basis of religion. Not hiring someone based on their religious appearance or dress constitutes direct discrimination, while requiring the removal of an article of clothing represents indirect discrimination. Of course, these protections remain subject to any exceptions provided by the relevant statute, such as exceptions for the inherent requirements of a job or for religious employers.167 §4. OATHS AND AFFIRMATIONS IN COURT PROCEEDINGS 69. Oaths and affirmations are solemn declarations as to the binding nature of a person’s promise to do something. During court proceedings, they are administered to all witnesses before giving evidence, interpreters before giving interpretation, jurors before empanelment and upon retirement to consider their verdict, and to jury keepers. 70. The nature of an oath and an affirmation is distinct. An oath is normally a religious observance that acts as a solemn appeal to a Supreme Being to witness a statement as true and is intended to bind the religious conscience of

the oath taker.168 The oath requires a person to swear by ‘Almighty God’ or ‘a god recognized by his or her religion’.169 For example, the Commonwealth evidence legislation prescribes the following wording: I swear (or the person taking the oath may promise) by Almighty God (or the person may name a God recognized by his or her religion) that the evidence I shall give will be the truth, the whole truth and nothing but the truth.170 In some jurisdictions, instead of referring to God, an oath may instead refer to a person’s beliefs,171 be expressed in the form of a promise,172 or may be undertaken in any manner binding on the person’s conscience.173 There is also generally no requirement that a text be used in the administration of the oath or that the person has a particular religious belief.174 One cannot avoid liability for perjury by taking an oath whilst not holding any religious belief as the oath is valid and effective even if the person did not hold any religious belief or did not hold a particular kind of religious belief.175 In R v. Winneke; Ex Parte Gallagher, Murphy J, found that oaths are a religious observance for the purposes of section 116 of the Constitution and so that it was unconstitutional for a Commonwealth law not to provide for an equal non-religious alternative to an oath.176 The other justices decided the case on a different basis. 71. An affirmation is a solemn declaration. For example, the Commonwealth evidence legislation sets out the following wording: I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth.177 72. A person can choose whether to take the oath or the affirmation.178 If the person fails to choose or it is not reasonable to take an oath, the court can order them to affirm.179 Although both the oath and affirmation have the same effect,180 a witness can be cross-examined on their choice to affirm rather than take an oath in order to establish whether they consider the affirmation binding on their conscience, compelling them to give truthful evidence.181 A witness may also be crossexamined about the way in which they held a religious book in their hand whilst giving the oath.182 §5. CONSCIENTIOUS OBJECTION 73. Conscientious objection is not a protected manifestation of religion pursuant to the Constitution. Thus, in The Church of New Faith v. Commissioner of Pay-Roll Tax, Mason and Brennan JJ, discussing the scope of religious freedom, found that laws for the general good of society are not defeated by a religious obligation to break them.183 An indiscriminately applied duty secular in nature is not likely to attract the protection of section 116. Conscientious objection for religious reasons is very much a situation in which citizens are given opportunities for religious freedom rather than an entitlement to them. Some examples of such rights include serving in the military and voting. 74. In relation to military service, one of the earliest cases to interpret section 116, Krygger v. Williams, declared that compulsory military service did not breach religious freedom, because requiring non-religious acts was not preventing the free exercise of religion, even if it may be against one’s religion.184 Since that decision, though, legislation now deals with the matter. As Australia currently has no conscription, there exists no corresponding need for a system of conscientious objection. During war-time, however, the Defence Act 1903 (Cth), section 61A(1A), provides for conscientious objection up to a point, with the provision of noncombatant duties. The Act also provides exemptions for some religious personnel, including ministers of religion, members of religious orders and theological students.185 And, in claiming such exemptions, the Act provides that ‘No member of the Defence Force who has a conscientious objection shall be compelled to answer any question as to his religion, nor shall any regulation or other order compel attendance at any religious service.’186

75. Legislation makes voting compulsory in Australia for all citizens over the age of 18. The Commonwealth Electoral Act 1918 (Cth), section 245(14), therefore provides that ‘Without limiting the circumstances that may constitute a valid and sufficient reason for not voting, the fact that an elector believes it to be part of his or her religious duty to abstain from voting constitutes a valid and sufficient reason for the failure of the elector to vote.’ Section 245 provides that a valid and sufficient reason for not voting will exempt the conscientious objector from fines and court proceedings in relation to the failure to vote. The Act also provides for alternative voting means for people with religious beliefs which prevent them from attending a polling place on the correct day.187 As most Australian elections are held on a Saturday, this latter exemption carries greatest significance for Jews observing the Sabbath.

107. See Pt VI. 108. See Pt VII, Ch 3.3. 109. See Pt VII, Ch 7. In respect of non-discrimination legislation under other legislation see Pt VI, Chs 2.1 and 3.1 (employment legislation); Pt IX, Chs 1.4 and 2.4 (education legislation). 110. See Pt IX. 111. See Pt VII, Ch 8. 112. See Pt VIII. 113. See Pt X. 114. See Pt VII, Ch 1. 115. See Pt VII, Ch 3. 116. See Pt VII, Ch 4. 117. See Pt VII, Ch 5. 118. See Pt VII, Ch 6. 119. See Pt XI, Ch 1. 120. See Pt XI, Ch 2. 121. Family Law Act 1975 (Cth) s. 61C(1). 122. Ibid. s. 65C. 123. Ibid. s. 60CA, s. 65(1). 124. Ibid. s. 60CC(2) – (3). 125. Ibid. s. 60CC(5). 126. Ibid. s. 64B(2). 127. Ibid. s. 64B(2)(c). 128. Ibid. s. 65DAC. 129. Ibid. s. 4 (definition of ‘major long-term issues’). 130. Ibid. s. 65DAC(3). 131. In the Marriage of N (No 2) (1981) 7 Fam LR 889, 899 (Evatt CJ and Fogarty J). 132. In the Marriage of Plows (No 2) (1979) 5 Fam LR 590, 591 (Asche J). 133. In the Marriage of J J and D C Sheridan (1994) 18 Fam LR 415, 422. 134. For discussion see: Louise Thornthwaite, Separatist Religious Sects, the Family Law Act and Shared Parenting: An Examination of Cases Involving the Exclusive Brethren, 25 Australian J. Fam. L. 54 (2011). 135. In the Marriage of Firth (1988) 12 Fam LR 547, 554. 136. Y & H (2005) 192 FLR 126. 137. Macri & Macri [2010] FMCAfam 662. 138. Family Law Act 1975 (Cth) s. 60CC(2)(a). 139. [1967] Qd R 162, 166–167 (Hoare J). 140. Y & H (2005) 192 FLR 126, [22]. 141. Ibid. [47]. 142. In the Marriage of Firth (1988) 12 Fam LR 547, 555. 143. In the Marriage of Grimshaw (1981) 8 Fam LR 346, 351. 144. Family Law Act 1975 (Cth) s. 60CC(3)(a). 145. Joel Silver, Understanding Freedom of Religion in a Religious Industry: Kosher Slaughter (Shechita) and Animal Welfare, 42 Victoria U. Wellington L. Rev. 671, 676 (2011). 146. Ibid. 677. 147. Alex Bruce, Do Sacred Cows Make the Best Hamburgers? The Legal Regulation of Religious Slaughter of Animals, 17 U. New South Wales L.J. Forum 62, 64 (2011). 148. John Barnett, Greg Cronin & Peter Scott Behavioural Responses of Poultry During Kosher Slaughter and Their Implications for the Birds’ Welfare, 160 Veterinary R. 45 (2007). 149. See Pt II, Ch 1.1. 150. Prevention of Cruelty to Animals Act 1979 (NSW) s. 24(1)(c)(i). 151. Food Regulation Standing Committee (Cth), Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (CSIRO, 2007) cl 7.10. 152. See also Meat Industry Act 1993 (Vic) ss 10, 14 and 38; Primary Produce (Food Safety Schemes) (Meat Industry) Regulations 2006 (SA) reg. 12(1);

153. 154. 155. 156. 157. 158. 159. 160. 161. 162.

163. 164. 165. 166. 167. 168. 169.

170. 171.

172. 173. 174.

175. 176. 177. 178.

179. 180. 181. 182. 183. 184. 185. 186. 187.

Animal Welfare Regulations 2012 (SA) Sch. 2; Meat Industries Act (NT) s. 72; Animal Care and Protection Act 2001 (Qld) s. 45; Food Production (Safety) Act 2000 (Qld); Meat Hygiene Act 1985 (Tas); Western Australian Meat Industry Authority Act 1976 (WA); Animal Welfare Act 1993 (NT) s. 23. Silver, supra n. 332, at 684. See Pt I, Ch 2.2.III. Blewett et al., Labelling Logic: Review of Food Labelling Law and Policy 42, 105 (Cmmw. Austrl. 2011). Section 23B. AUS-MEAT, Domestic Retail Beef Register (3d ed., AUS-MEAT Ltd, 2011) 9, cl 5.3, http://www.ausmeat.com.au/industry-standards/domesticretail-beef-register.aspx. Silver, supra n. 332, at 701. Food Regulation Standing Committee (Cth), Australian Standard for the Hygienic Production and Transportation of Meat and Meat Products for Human Consumption (CSIRO, 2007). Ibid. cl 7.12. Navigation Act 2012 (Cth) s. 63(1)(b). Road Traffic (Road Rules – Ancillary And Miscellaneous Provisions) Regulations 1999 (SA) reg.26; Road Traffic Act 1961 (SA) s. 162C; Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) reg. 244B(3), 244F(3), 256(5); Road Traffic Code 2000 (WA) reg. 222(3) (a). For a discussion of the arguments for and against the banning of religious face coverings in the Australian context, see Evans, supra n. 146, at 112– 115. Facial Identification Bill 2010 (SA); Summary Offences Amendment (Full-Face Coverings Prohibition) Bill 2010 (NSW). Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) s. 19A(1)–(2). Ibid. s. 19A(3)(b). For more on the operation of non-discrimination law in relation to religion, see Part 2, Ch. 1, Section B, Equality. R v. VN (2006) 15 VR 113, 222 [100]. Evidence Act 1995 (Cth) Schedule; Evidence Act 2011 (ACT) Sch. 1; Evidence Act 1995 (NSW) Sch. 1; Oaths, Affidavits and Declarations Act (NT) s. 5(1)(a), (1)(b); Oaths Act 1867 (Qld) ss 23–31A (can only be made in respect of ‘God’); Evidence Act 1929 (SA) s. 6(1)(a), (1)(b); Evidence Act 2001 (Tas) Sch. 1; Evidence Act 2008 (Vic) Sch 1; Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s. 4(1)(a), (1)(b). Evidence Act 1995 (Cth) Sch. 1. Evidence Act 1995 (ACT) s. 24A; Evidence Act 1995 (NSW) s. 24A; Evidence Act 2008 (Vic) s. 24A; Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s. 4(1)(c). However, in the Australian Capital Territory, New South Wales and Victoria the provisions require the form of the oath to be in accordance with the regulations, which are yet to be enacted, raising a question of whether such a method is yet available. Oaths, Affidavits and Declarations Act (NT) s. 5(1)(a). Oaths, Affidavits and Declarations Act (NT) s. 11 (which also expressly requires that the person understand the consequences of the oath and take it honestly and in good faith); Evidence Act 1929 (SA) s. 6(1)(b); Oaths Act 1867 (Qld) s. 39. Evidence Act 1995 (Cth) s. 24; Evidence Act 2011 (ACT) s. 24; Evidence Act 1995 (NSW) s. 24; Oaths, Affidavits and Declarations Act (NT) s. 12; Evidence Act 1929 (SA) s. 6(2); Evidence Act 2001 (Tas) s. 24; Evidence Act 2008 (Vic) s. 24; Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s. 4(3). See, e.g., Evidence Act 1995 (Cth) s. 24(2)(a). (1982) 152 CLR 211, 227–229. Ibid. Sch 1. Evidence Act 1995 (Cth) s. 23; Evidence Act 2011 (ACT) s 23; Evidence Act 1995 (NSW) s. 23; Oaths, Affidavits and Declarations Act (NT) s. 5(2); Oaths Act 1867 (Qld) 17; Evidence Act 1929 (SA) s. 6(3); Evidence Act 2001 (Tas) s. 23; Evidence Act 2008 (Vic) s. 23; Oaths, Affidavits and Statutory Declarations Act 2005 (WA) s. 5. Evidence Act 1995 (Cth) s. 23(3); Evidence Act 2011 (ACT) s. 23(3); Evidence Act 1995 (NSW) s23(3); Oaths, Affidavits and Declarations Act (NT) s. 5(3); Evidence Act 2001 (Tas) s. 23(3); Evidence Act 2008 (Vic) 23(3). Evidence Act 1995 (Cth) s. 21(5); Evidence Act 2011 (ACT) s. 21(5); Evidence Act 1995 (NSW) s. 21(5); Oaths Act 1867 (Qld) s. 17(2); Evidence Act 1929 (SA) s. 6(5); Evidence Act 2001 (Tas) s. 21(5); Evidence Act 2008 (Vic) 21(5). R v. VN (2006) 15 VR 113, 223 [106]. Kamm v. The Queen [2008] NSWCCA 290 [33]–[38]. The Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 154 CLR 120, 135–136. Krygger v. Williams (1912) 15 CLR 366, 396 (Griffith CJ). Defence Act 1903 (Cth) s. 61A(1)(d)–(g). Ibid. s. 123B. Section 200A(1); Sch. 2.

Chapter 3. Typology of the System 76. The relative scarcity of definitive law concerning the relationship between religion and state in Australia makes it difficult to ascertain the typology of the system. Constitutionally, the states have the power to legislate on religion, with the Commonwealth only narrowly restricted, through the operation of section 116, in its ability to legislate on religion. As such, the state violation of religious freedoms remains a very real possibility. Yet, in spite of this lack of certainty, Australians generally do enjoy a high degree of religious freedom, with principles and attitudes underlying the Australian system informing how law and government operate in practice when relating to religion. It is possible to identify six broad dimensions that typify the Australian approach: flexible separation and accommodation; non-intervention in private spheres; neutrality; equality and inclusiveness; secularity; and, freedom of religion and belief. §1. FLEXIBLE SEPARATION 77. The unique and narrow judicial interpretation of section 116 of the Constitution leaves Australia with a system somewhere between separation of church and state and the accommodation of religious freedom. Commentators refer to this middle ground position as ‘flexible separation’,188 a term which refers to a focus not on eliminating state involvement with religion, but rather on ensuring that citizens are permitted to participate fully in Australian civil and political life regardless of their religion/faith.189 Adelaide Company of Jehovah’s Witnesses v. Commonwealth perhaps captured this best, when Latham CJ wrote that section 116 ‘assumes that citizens of all religions can be good citizens, and that this view is based upon the principle that ‘religion should, for political purposes, be regarded as irrelevant’.190 This flexible separation means that religion must be treated as politically irrelevant but not politically ignored. Based upon section 116, as we have seen, the Commonwealth may not establish a national religion and has no power to enforce religious observance; still, nothing in the operation of section 116 expels religion entirely from the state sphere, and it is for this reason that it maintains a quiet presence. Flexible separation allows the Australian government to work with the religious element found in the community where necessary, giving the system strong tendencies toward accommodation of and cooperation with religion. Examples of this approach include state funding of religious schools, the consultation of clergy on matters of social policy, and tax exemptions for religious organizations.191 In short, then, flexible separation creates a largely non-confrontational relationship between religion and state. Joshua Puls suggests that because separation in Australia is not as rigid as its American counterpart it has resulted in substantially less politicization of religion, creating ‘a more peaceful, more reasonable, and ironically, arguably more separate cohabitation’.192 §2. NON-INTERVENTION 78. In many ways much more importantly than any contribution that section 116 of the Constitution makes to flexible separation is the Australian attitude that religion and the state ultimately belong in different spheres, the former private and the latter public. Manning C Clark referred to the place of religion in the Australian mind-set as a ‘shy hope in the heart’.193 Thus, while section 116 was originally supported by a strong desire to see religious regulation in the hands of the states,194 largely due to the attitude of Australians towards religion, and while constitutionally the states are allowed to legislate upon religion, in practice they follow the Commonwealth in largely separating the two. Indeed, the framers of the Constitution omitted a clause forbidding the states from prohibiting the free exercise of religion because they believed that there was little chance of that occurring.195 This view operated in conjunction with the feeling that religion was better off without state interference.196 Today, then, religious groups in Australia are more comfortable being separated from state power, as they are exposed to less risk and have more control over their own powers and doctrines.197 And as such, Australian religious groups remain resistant to state intervention in

their concerns, and have been comfortable exchanging political power for independence and self-governance.198 §3. NEUTRALITY 79. While section 116 does little to prevent religious preference and regulation, especially by the states, Australian governments tend to practise neutrality between the various religions and between religion and the secular. And while there remain vestiges of Christian establishment, such as parliamentary prayers, the state generally takes a non-discriminatory approach to its dealings with religion. The establishment clause of section 116 prevents the Commonwealth identifying with one religion or ideology, and the wide definition given to religion in Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic), enables the Commonwealth to provide aid and cooperation to a wide variety of faiths and philosophies.199 State governments, although not bound by section 116, nonetheless overwhelmingly follow the Commonwealth approach to avoiding preference for one religion. The courts in particular employ neutrality in their treatment of religion, typically refusing to critique the merits and truth of any religion: ‘An Australian Court cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a “religious” upbringing is to be preferred to a “nonreligious” one.’200 The High Court provided the strongest pronouncement of state neutrality in Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic): Under our law, the State has no prophetic role in relation to religious belief; the State can neither declare supernatural truth nor determine the paths through which the human mind must search in a quest for supernatural truth. The courts are constrained to accord freedom to faith in the supernatural, for there are no means of finding upon evidence whether a postulated tenet of supernatural truth is erroneous or whether a supernatural revelation of truth has been made.201 A state approach of neutrality, then, both in the legislative and judicial spheres, characterizes the treatment of religion in Australia. §4. EQUALITY 80. The Australian social experience post-European settlement evokes a strong sense that the state working too closely with or favouring religions creates sectarian rivalry and social unrest. Australian governments have therefore long utilized equal treatment of religion to avoid this.202 Thus, both the Commonwealth and the states treat religions equally when conferring benefits such as tax exemptions and funding for education, and do not restrict the range of religions which are eligible for such benefits.203 Justices Mason and Brennan espoused this principle of equality in Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic), when they wrote that ‘there can be no acceptable discrimination between institutions which take their character from religions which the majority of the community recognizes as religions and institutions that take their character from religions which lack that general recognition’.204 This decision firmly established a very broad understanding of religion, making clear that government may not discriminate when conferring benefits or exemptions on religious groups, but, rather, must offer them equally to all: ‘The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted.’205 §5. SECULARITY 81. ‘Secularity’ denotes the creation of an environment in which diverse religions can flourish combined with a commitment to pluralism and tolerance; ‘secularism’, by contrast, refers to the creation of a space free from religion. Moreover, secularity entails openness towards religion in the public sphere, and Australia’s lack of a formal separation means that citizens have more freedom to bring religion with them into the public sphere.206 And the creation of a cooperative and harmonious multi-faith environment represents a key goal in Australian church-state relations. Secularity is found most prominently in the recognition of the multi-cultural nature of the country through State

Multicultural or Ethnic Affairs Commissions and the Australian Multicultural Council. Both the state and the Commonwealth bodies focus on religious diversity. The Victorian Multicultural Commission key principles, for instance, posit ‘that cultural, religious, racial and linguistic diversity should be recognised and valued’.207 Acting upon this recommendation, the Victorian government uses its Multicultural Commission ‘to support multi-faith activities, promote respect and understanding of different faiths and cultures in order to enhance community harmony’.208 The South Australian Multicultural and Ethic Affairs Commission’s recommendations include a yearly public gathering of religious groups to celebrate religious diversity and an acknowledgement of religious diversity by the Speaker of the House of Assembly before Parliamentary sessions.209 §6. FREEDOM OF RELIGION AND BELIEF 82. Freedom of religion and belief is firmly enshrined in Australia’s legal culture, even though it is yet to receive comprehensive legislative protection. Rooted in both the liberal democratic tradition and in the Australian notion of a ‘fair go’ for all citizens, the Australian legal system gives freedom of religion a significant place. The framers of the Australian Constitution seem to have intended that the Commonwealth was to be religiously free. They did not include more extensive religious freedom provisions partly because they found it unnecessary to do so in an ‘enlightened’ society, and partly because they expected that the prohibition of religious freedom would not be attempted.210 One convention delegate accurately predicted the nature of Australian religious freedom when he said: ‘Let everyone follow his own religious observances without shocking anybody, and do not let him impose his rule on anybody else.’211 The High Court generally follows the lead of the framers. In Church of the New Faith v. Commissioner of PayRoll Tax (Vic), Mason ACJ and Brennan J posited that ‘freedom of religion, the paradigm freedom of conscience, is of the essence of a free society’212 and thus its ‘protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none’.213 Chapters 1 and 2 of Part II outline in greater detail the scope of religious freedom as it pertains to individuals and organizations in Australia.

188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213.

Stephen McLeish, Making Sense of Religion and the Constitution: A Fresh Start For Section 116, at 18 Monash U. L. Rev. 207, 221 (1992). Joshua Puls, The Wall of Separation: Section 116, The First Amendment and Constitutional Religious Guarantees, 26 Fed. L. Rev. 139, 151 (1998). (1943) 67 CLR 116, 126. Augusto Zimmermann & Lael Daniel Weinberger, Secularization by law? The establishment clauses and religion in the public square in Australia and the United States, 10 Intl. J. Const. L. 208, 219, 224 (2012). Puls, supra n. 104, at 163. Thornhill, supra n. 45, 172, as cited in Bouma, supra n. 1, at 32. Official Report of the National Australasian Convention Debates, Melbourne, 2 Mar. 1898, 1735 (Henry Higgins); Official Report of the National Australasian Convention Debates, Melbourne, 2 Mar. 1898, 1773 (B Wise). Official Report of the National Australasian Convention Debates, Melbourne, 2 Mar. 1898, 1770 (Edmund Barton). McLeish, supra n. 103, at 222–223. Bouma, supra n. 1, at 130. Ibid. (1983) 154 CLR 120. In the Marriage of Pasio (1978) 26 ALR 132, 134 (Evatt CJ, Asche and Marshall JJ). (1983) 154 CLR 120, 134 (Mason ACJ and Brennan J). McLeish, supra n. 103, at 221–222. Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120. Ibid. 132 (Mason ACJ and Brennan J). Ibid. Brett G. Scharffs & W. Cole Durham Jr., Law & Religion: National, International and Comparative Perspectives 140 (Aspen Publishers 2009). Victorian Multicultural Commn., The Government’s Vision for Citizenship in a Multicultural Victoria, 8. Victorian Multicultural Commn., Promoting Harmony, (20 Jan. 2013) http://www.multicultural.vic.gov.au/projects-and-initiatives/promotingharmony. Taskforce Relig. Diversity, Strengthening Religious Diversity and Harmony in South Australia, 5. Official Report of the National Australasian Convention Debates, Melbourne, 2 Mar. 1898, 1770 (Edmund Barton). Official Report of the National Australasian Convention Debates, Melbourne, 2 Mar. 1898, 1774 (B Wise). Church of the New Faith v. Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120, 130. Ibid. 132.

Part II.

Religious Freedom in General

Paul Babie

83. This Part focuses on the Commonwealth constitutional protection of religious freedom under section 116, as well as to a lesser extent the statutory bills of rights in the Australian Capital Territory and Victoria.

Chapter 1. Individual Religious Freedom §1. SCOPE OF SECTION 116 84. As we have seen, no one provision guarantees religious freedom to individuals; indeed, while Australia’s Constitution ensures that the nation remains religiously unaffiliated, which may serve to promote religious freedom, and while its prohibition on religious tests for public office certainly allows all people to serve the Commonwealth regardless of religion, there is little in its text that protects the individual right to individual belief and observance of religion or non-religion. In this regard, section 116 bears very significant limitations. The third and fourth components of section 116 provide that ‘[t]he Commonwealth shall not make any law … for imposing any religious observance or for prohibiting the free exercise of any religion’, yet there has been little case law on these provisions. And even if the High Court had occasion to pass judgment on these provisions, four considerations render this provision virtually powerless in securing individual religious freedom from action of both the Commonwealth and the states. I.

The Need for Commonwealth Legislative Power

85. The first limitation on the effectiveness of the free exercise clause is the simple fact that the clearer the religion-related purpose of the law in question, the less likely it is to be within one of the topics of Commonwealth legislative power, thus taking it beyond the purview of section 116.214 In Adelaide Company of Jehovah’s Witnesses Inc. v. Commonwealth, for instance, Williams J found that regulations which forbade the dissemination of the doctrines of outlawed groups would breach section 116 if within power, but held they were invalid because they were far beyond the scope of the defence power, the only possible head of power that would cover the law in question.215 II.

No Guarantee of Religious Freedom

86. The second limitation centres on the word ‘for’ used in section 116, which, as we saw in Chapter 1.1.II of Part I, has been read as a limitation on what section 116 actually prohibits. And because no law has ever been struck down as breaching the free exercise clause, there are no clear examples of what it does prohibit; only what it does not. For this reason, because its concern is only with government purpose and not practical barriers to religious exercise, section 116 cannot be seen as a guarantee of religious freedom. Consideration of the extant case law assists. 87. The High Court decision in Kruger v. Commonwealth (‘Stolen Generations Case’) concerned the Aboriginals Ordinance Act 1918 (Cth), which had authorized the Government Chief Protector to remove Indigenous or half-caste children from their tribal culture and birth families.216 The plaintiffs, all Indigenous Australians, sought a declaration that both the legislation and government actions taken under it were invalid. One of the arguments raised by the plaintiffs was a violation of religious freedom pursuant to section 116. The members of the Court agreed that for the purposes of section 116, the conduct prohibited by the law impugned must be the purpose or object of the legislation,217 the relevant purpose of the law must be the legislative purpose as determined by a court rather than purely the motives of Parliament.218 The reasons, however, differed as to how to ascertain the purpose of the law for this test, and thus what kinds of laws may be said to have this prohibited purpose. The judgments of Chief Justice Brennan and Dawson, Gummow and Toohey JJ took a narrow approach: a prohibited purpose must directly restrict a religion or religious practice on the face and language of the statute.219 As such, because the Aboriginals Ordinance Act 1918 (Cth) did not mention religion, it banned no religious practice nor required any particular religious upbringing for the children and, therefore, displayed no prohibited purpose.220 Justice Gummow conceded that extraneous considerations may possibly be taken into account to reveal the purpose of the law if Parliament used ‘a concealed means or circuitous device’ to restrict religion; but, this had not happened in Stolen Generations case.221

While Gaudron J decided that it was not possible to decide the Stolen Generations case on the basis of section 116 given the pleadings, her obiter comments nonetheless constitute a widest and systematic consideration of the free exercise clause, setting out a two-step test for determining breaches.222 The first step asks whether the impugned law prohibits free exercise. Gaudron J argued that section 116 ought to extend to laws which do not directly ban religious practice but which ‘prevent’ it in their operation.223 As opposed to the view of the majority, and that found in earlier High Court jurisprudence – if a law does not in terms ban the free exercise of religion then it cannot be said to be ‘for’ the prohibition thereof – Gaudron J found that it may yet be said to have that purpose. Thus, while the Aboriginals Ordinance Act 1918 (Cth) did not directly prohibit Indigenous children from practising their religion ‘removal from their communities and their traditional lands would, necessarily, have prevented the free exercise of their religion’.224 Justice Gaudron’s second step considers the purpose of the law225 and, unlike other members of the Court, Gaudron J took a wide view of ‘purpose’: [A] particular purpose may be subsumed in a larger or more general purpose … it might well be concluded that one purpose of the power conferred by s 16 of the Ordinance was to remove Aboriginal and half-caste children from their communities and, thus, prevent their participation in community practices. And if those practices included religious practices, that purpose necessarily extended to prohibiting the free exercise of religion.226 This view of purpose seems only to apply to general purposes; thus, a law passed for a ‘specific purpose unconnected with the free exercise of religion’ was said not to breach section 116 even if it incidentally prevents the free exercise of religion.227 88. Four observations about the free exercise clause can be gleaned from the Stolen Generations case. First, the free exercise clause is, like the establishment clause, hampered by a purposive test. Second, the purpose test is not about Parliamentary intent but the ‘object or end’ of the legislation. Third, while it was not articulated exactly how to glean such an object or end,228 it must be fairly clear, whether on the face of the statute or in extraneous materials. Finally, it remains unsettled the extent to which the effect or result of the law evidences its purpose. III.

The Need for Government Action

89. Section 116 requires that there be a law or government action that infringes the freedom of religion; it cannot be invoked to restrain the actions of private individuals or legal persons.229 This third limitation in the operation of section 116 means that it largely applies to legislation as opposed to executive action. While the High Court has accepted the proposition that section 116 applies to executive acts, those must be carried out under enabling legislation extending to an act which established a religion, in which case the enabling law will ‘most probably be a statute for [the purpose of] establishing a religion and therefore void as offending section 116’.230 Any executive action, the source of which power is not found in legislation – the prerogative powers, for instance – is not subject to section 116. This principle extends also to Commonwealth-created courts, which may not use their powers to breach section 116: the ‘Commonwealth cannot confer on the courts which it creates powers which the Commonwealth itself is prohibited from exercising’.231 Given these three limitations, rather than a guarantee of individual freedom of religion, the ambit of section 116 is limited to ensuring the neutrality of legislative purpose. This result stands in stark contrast to countries such as Germany, whose Basic Law declares freedom of faith, conscience religion and philosophy to be ‘inviolable’ and which guarantees the ‘undisturbed practice of religion’.232 Moreover, even when it might invalidate a law, no remedy exists for an infringement of one’s religious freedom or, indeed, for any other governmental breach of the constitution.233 Apart from the narrow protection found in section 116, then, Australians have no avenue through which to assert an entitlement to religious freedom. IV.

Actions of the States

90. The states are equally free to infringe upon religious freedom; because section 116 applies only to the

Commonwealth, unlike the United States, in the words of Gaudron J, it is equally clear, subject to the punishment of the ballot box, that ‘it makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the states may enact laws in derogation of that right’.234 More worrying, there seems no sense of urgency to remedy this lack of protection. Two referenda to extend section 116 to the states, in 1944 and 1988, failed. As such, laws and government actions which infringe religious freedom but which fall outside the effect of section 116, either through the limitations of its operation as concerns the Commonwealth, or through action pursued via the prerogative powers, or through state action, must therefore be invalidated on other grounds or repealed if religious freedom is to be restored. Whilst the states’ lack of restriction in this area has not caused any significant problems, it has been noticeable. An example is the anti-witchcraft and fortune-telling offences which were still present in Australia until Victoria repealed their Vagrancy Act 1966 (Vic) in 2005. These laws were a restriction of religious freedom for a number of Australians who practise neo-pagan religions, as well as tarot cards and other fortune-telling methods. The repeal of all remaining anti-witchcraft laws was recommended by the Human Rights and Equal Opportunity Commission, as named then, in 1998.235 All states have now either repealed such laws or narrowed their application to practising fortune-telling with intent to defraud;236 however, the material point is that they were not obliged to do so. Whilst the laws would have been unconstitutional if the Commonwealth had made them, they were valid at state level.237 §2. DEFINITION OF RELIGION AND RELIGIOUS BELIEF238 91. In applying what protection does exist for religious freedom in Australia, the obvious questions arise: what is a religion; and what is a ‘religious’ belief? The High Court addressed these twin questions in two different decisions, the first in 1943, when Latham CJ considered the questions in Adelaide Company of Jehovah’s Witnesses Inc. v. Commonwealth (‘Jehovah’s Witnesses case’), but did not offer a systematic definition. While religion will be defined differently by different people, and that different definitions may emphasize orthodoxy, orthopraxy or ritualism, for the purposes of section 116 of the Commonwealth Constitution, Latham CJ wrote that it ‘must be regarded as operating in relation to all these aspects of religion’.239 The religious nature of a belief, action or ritual, Latham CJ found, must not be decided by public opinions regarding its truth, goodness or propriety: [I]t should not be forgotten that such a provision as s 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.240 92. The High Court again considered the question of defining religion in 1983 when the Australian Tax Office refused the Church of Scientology (then called the Church of the New Faith) the tax exemption for religious institutions. Unlike in the Jehovah’s Witnesses case, in The Church of New Faith v. Commissioner of Pay-Roll Tax (‘Church of Scientology case’) the High Court found it necessary to formulate a legal definition of religion; the entire judgment considers whether Scientology can be considered a religion for legal purposes. The High Court was clearly hesitant to engage in such an investigation: Wilson and Deane JJ approached the task ‘[w]ith some hesitation’;241 Murphy J considered that any attempt to provide a definition represented a potential threat to religious freedom;242 Mason ACJ and Brennan J found the task ‘daunting’, citing religious historians who called the task of defining religion impossible.243 The High Court clearly had a difficult time understanding the canons and tenets of Scientology with sufficient clarity so as to evaluate them against the criterion they proposed: Mason ACJ and Brennan J found them ‘impenetrably obscure’ at times,244 exercising caution in attempting to determine the tenets of a religion from its foundational texts. For them, writings said to have religious significance cannot be examined in the same way as ordinary documentary evidence;245 the plain meaning of a religious text may not amount to a tenet of that religion. As such, Mason ACJ and Brennan J refused to use ‘parts of [L Ron] Hubbard’s writings which have not been illuminated by evidence’.246 This approach is highly beneficial to religious freedom as it recognizes the importance of interpretative authority and oral tradition in gleaning doctrine from religious texts. In the result, the High Court concluded that Scientology was indeed a religion, although each of the three

judgments provided different test for so concluding. Each began by rejecting the motivation of the founder of a claimed religion as being a relevant consideration. Rather, the content and nature of the beliefs and writings sincerely believed by the adherents of the religion – irrespective of their utility, truth or worth – was the touchstone.247 This does not extend to ‘religions’ obviously a sham or parody.248 Here the judgments diverged: each applied a different test to the beliefs and practices to determine if they were ‘religious’ in character. Yet despite this lack of uniformity, the case stands not only as a definition of religion for tax purposes, but also for the way that term operates in its section 116 context249 as well as having an influential role in religious discrimination cases and other statutory uses of the word. The remainder of this section considers each judgment in the Church of Scientology case in greater detail. I.

Wilson and Deane JJ

93. Justices Wilson and Deane in the Church of Scientology case outlined a set of indicia of religion derived from generally accepted religions, none of which were considered essential characteristics.250 Not even belief in a personal God with whom one has a relationship was considered by Wilson and Dean JJ as essential to a set of beliefs and practices; this, they concluded, lent too much of a Western bias to the definition. If this were an essential indicium, then Theravada Buddhism, Jainism and ‘classical Hinduism’, all popularly acknowledged religions, would not legally be so.251 Instead of essentialism, Wilson and Deane JJ rejected any legal formula for determining a religion, either of inclusion or exclusion. Rather, they list the most important ‘indicia or guidelines’ which, they said, were derived from ‘empirical observation of accepted religions’,252 although this empirical observation is not explained nor is it discussed in the judgment. There are five indicia: One of the more important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural, that is to say, belief that reality extends beyond that which is capable of perception by the senses. If that be absent, it is unlikely that one has ‘a religion’. Another is that the ideas relate to man’s nature and place in the universe and his relation to things supernatural. A third is that the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance. A fourth is that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups. A fifth, and perhaps more controversial, indicium … is that the adherents themselves see the collection of ideas and/or practices as constituting a religion.253 As we have seen, no one indicia is necessarily determinative of whether a religion exists for legal purposes; rather, a group which can point to a ‘sufficient’ number of indicia is likely a religion, while a group which fails on most or all will likely not be.254 Scientology, therefore, was a religion.255 II.

Mason ACJ and Brennan J

94. In order to preserve religious freedom, Mason ACJ and Brennan J in the Church of Scientology case favoured a wide definition of religion.256 They rejected a popular majority acceptance approach to the definition of religion; this would avoid discrimination towards institutions which took their religious character from organizations not recognized by the general community as being religions.257 Still, some objectivity was necessary, given that the policy behind the immunity claimed in this case would be undermined if every system of beliefs or practices claiming to be a religion was taken as such.258 Arguing that whatever indicia of religion a court might choose must be present in acknowledged religions,259 Mason ACJ and Brennan J found that a comparative study of all acknowledged religions, Eastern and Western, was beyond the Court’s expertise. Moreover, such an exercise might be impeded by the religions of the individual judges trying to make that determination.260 As such, ‘[t]he relevant inquiry is to ascertain what is meant by religion as an area of legal freedom or immunity, and that inquiry looks to those essential indicia of religion which attract that freedom or immunity’.261 Using this framework, Mason ACJ and Brennan J identified two indicia of acknowledged religions, establishing a two-step formula for ascertaining a religion for the purposes of law. As distinct from the

approach taken by Wilson and Deane JJ, this approach was an essentialist in character – both indicia are essential characteristics. 95. The first criterion of religion was ‘belief in a supernatural Being, Thing or Principle’.262 This corresponds to the immunity of religious freedom because ‘[t]he law seeks to leave man as free as possible in conscience to respond to the abiding and fundamental problems of human existence’. Secular convictions of conscience were not, therefore, sufficient; religious belief goes beyond that which the ‘natural and behavioural sciences and … other humanist disciplines’ can teach.263 ‘Faith in the supernatural, transcending reasoning about the natural order, is the stuff of religious belief’.264 On the one hand, this approach does not necessarily require belief in a personal God or in monotheism; on the other hand, it leaves open the possibility of polytheism and other forms of supernaturalism constituting a religion. Scientology’s belief in the Thetan, a spirit in the body which undergoes reincarnations, was therefore found to be a supernatural principle for the purpose of this first criterion.265 96. The second criterion was ‘the acceptance of canons of conduct in order to give effect to that belief [in the supernatural]’266 such that the freedom to believe would be undermined if one was restricted from giving effect to that belief.267 Two matters qualify this criterion: (i) the conduct in question must not be illegal according to ordinary laws, and (ii) the conduct must have a real connection to the person’s belief in the supernatural.268 97. The approach taken by Mason ACJ and Brennan J, then, takes a narrow, essentialist approach that provides for a legal formula rather than indicative indicia. Using this test, Mason ACJ and Brennan J found it difficult to conclude that Scientology was a religion. While the belief in a Supernatural principle was established easily, Mason ACJ and Brennan J found it hard to find evidence in L Ron Hubbard’s writings of a real connection between the beliefs of Scientology and the practices, conduct and ceremonies in which its members engaged.269 In the end, showing scepticism, they held: [A]n inference should be drawn – though the material to support it is not compelling – that the general group of adherents practice auditing and accept the other practices and observances of Scientology because, in doing what Mr Hubbard bids or advises them to do, they perceive themselves to be giving effect to their supernatural beliefs.270 98. What distinguishes this judgment from the others is the adamant assertion that ‘religious belief is not by itself a religion’.271 Thus, notwithstanding their assertions about the law leaving people free to believe what one wants, this judgment made both belief and action based squarely upon that belief necessary before a set of tenets would be treated as a ‘religion’. Under the test propounded by Mason ACJ and Brennan J, if a belief is not associated with canons of conduct it will not be considered a religion at law and will not attract the immunities and privileges associated with that status. III.

Murphy J

99. Justice Murphy in the Church of Scientology case delivered a characteristically unconventional judgment; unlike other members of the Court, he did not shy away from a survey of religion, quoting historical great thinkers as well as psychological and sociological explanations of religion. Strongly sceptical of religion – at one point Murphy J described Gods as ‘invented’272 – it is also classically liberal in the sense that it shows a strong concern for the protection of religious freedom. While Murphy J may not support religion, his judgment seeks to do everything possible to protect the freedom of those who do; yet, for Murphy J, any attempt to exhaustively define religion could constitute a threat to religious freedom.273 The organizing principle of the judgment, then, was that ‘[t]here is no single acceptable criterion, no essence of religion’.274 Justice Murphy eschewed a comprehensive definition of religion, opting instead to outline only what is ‘sufficient, even if not necessary, to bring a body which claims to be religious within the category’.275 His reasoning drew upon Latham CJ’s statement in Jehovah’s Witnesses that ‘each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in

character’.276 Thus, Murphy J established ‘sufficiencies’ of religion: [A]ny body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. For example, if a few followers of astrology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a religious institution. Any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious. The Aboriginal religion of Australia and of other countries must be included. The list is not exhaustive; the categories of religion are not closed.277 In using this ‘sufficiencies’ approach, Murphy J rejected as ‘unacceptable’ many criteria of religion used by the lower court and the other members of the High Court.278 What Murphy J sought to avoid was the inherent difficulty with the approach of the other members of the Court: that criteria or indicia of religions might potentially discount one of the popularly acknowledged religions.279 Justice Murphy rejected, for example, the criteria that a commercial element to a group discounts it as a religion on the basis that ‘the great organised religions are big business’.280 Using the approach adopted by the lower Court and by other members of the Court, Murphy J concluded that ‘early Christianity would not have been considered religious’.281 §3. PROTECTED MANIFESTATIONS OF RELIGION 100. The High Court found early in its interpretation of section 116 that it applies to more than simply the holding of religious beliefs.282 Rather, section 116 protects the freedom to adopt or change religion, to practise that religion or not, and to hold no religion.283 This latter point was established as the outer limits of section 116 in the Jehovah’s Witnesses case: The prohibition in s 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law … Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.284 101. The question arises, what constitutes ‘practising’ ones religion? One might reasonably surmise that if a belief is found to be religious, and religion can include any conduct which has a reasonable connection to that belief,285 then it would appear that the scope of protected manifestations of religion under section 116 extends to anything sincerely done in furtherance of one’s religious beliefs. However, largely due to the purposive test imposed upon section 116 by the High Court, historically this has not been the case. Thus, to take but one example, while courts have often acknowledged that something largely ‘secular’ can form the practice of a religion, they have similarly held that legislation of general application cannot have a proscribed purpose which interferes with that practice. Or, at the other extreme, legislatively imposed obligations to do something ‘secular’, such as military service, have been held not to be violations of one’s religious convictions sufficient to invoke section 116; Griffith CJ famously wrote in Krygger v. Williams that requiring acts of citizens unrelated to their religion did not prevent the free exercise of their religion.286 102. Still, since Krygger the scope of legally acknowledged manifestations of religious practice have widened dramatically. Chief Justice Latham held in the Jehovah’s Witnesses case that section 116 must extend to protecting religious belief and doctrine, conduct and rituals,287 expressing the view that: almost any matter may become an element in religious belief or religious conduct … Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.288

The High Court’s attempt in the Church of Scientology case to define religion largely followed Latham CJ’s view. The High Court held that religion includes conduct, and that such conduct is religious if it has a reasonable connection to the fulfilment of a religious belief.289 103. Still, notwithstanding such broad statements about the potential content of religion, the paucity of case law means that guidance on the application of this aspect of section 116 remains largely speculative. Moreover, proving that a practice is connected to religion is only the first, and arguably the easiest step in invalidating a law under the free exercise clause of section 116. While the focus of section 116 has changed from the narrow definition of religious practice in Krygger to the narrow purposive test found in the Stolen Generations case, the effect is essentially the same. In 2007, for instance, the South Australian Supreme Court used reasoning similar to that found in Krygger to deny relief under section 116 to a plaintiff who objected to paying a portion of his taxes which would be distributed towards providing abortions.290 In the Court’s view, a law about paying income tax was not something related to the performance of religious beliefs and so could not in any way have the character of a ‘law for prohibiting the free exercise of religion’.291 In short, the free exercise clause has not treated conscientious objectors as any different from any other member of the community subject to a generally applicable law not passed with a view to restricting religion. So while religion may be given a broad scope for the purposes of protected manifestations under the free exercise clause of section 116, ultimately it receives minimal protection due to the judicial reluctance to apply it to incidental prohibitions of the exercise of religion. While the scope of protected manifestations is theoretically broad, in practice under section 116 it is quite narrow,292 producing the anomalous and paradoxical situation where a neutral law which impacts different religious persons differently may be the subject of a claim under state non-discrimination legislation it may go without remedy pursuant to the Constitution. The scope of religious manifestations under nondiscrimination legislation is treated in greater detail in Chapter 7.1.II of Part VII. 104. As well as the structural limitations discussed above, practical limitations established by the High Court further constrain the operation of section 116. Thus, even if a law can be characterized as a law for the purpose of infringing religious freedom, the High Court has made it clear that immunity from Commonwealth religious interference is not absolute.293 The Jehovah’s Witnesses case was heard by the High Court during World War Two and concerned legislation allowing the Governor-General to declare bodies unlawful which, in his opinion, were prejudicial to the defence of the Commonwealth; the Governor-General exercised this power in respect of the Jehovah’s Witnesses. This allowed, amongst other things, premises to be seized and dissemination of doctrines to be declared unlawful. And while the High Court found these regulations beyond the Commonwealth defence power, the Court unanimously agreed that if they were within power, they did not infringe section 116. The High Court’s reasoning adopts a position which treats section 116 as not conferring absolute protections. Rather, its protections must be limited by general laws for the maintenance of civil government or the protection of the community, and must be read in conjunction with the provisions of the Constitution which provide for the regulation of internal and external affairs.294 105. That there are limits is a stance firmly established; the extent of the limitation is not. Two tests have been used to elaborate the scope of the limitation, one narrow, one wider. The first posits that if a law is found to be for the purpose of protecting the community, it cannot be a law for prohibiting the free exercise of religion.295 A law can have only one purpose. The wider test, really an extension of the first, narrower test, was proposed by Latham CJ and Starke J in the Jehovah’s Witnesses case. Under this test, a law may be for the prohibition of religious practice yet not breach section 116; there must be infringement, which must in turn be balanced against the good the law seeks to do. Justice Starke found that ‘limitations are such as are reasonably necessary for the protection of the community and in the interests of social order’.296 Chief Justice Latham stated that the test requires ‘undue infringement’ of religious freedom before section 116 can be said to have been breached.297 Justice Gaudron extended this reasoning in the Stolen Generations Case, finding that laws which may otherwise breach section 116 could still be valid if for the necessary purpose of attaining an ‘overriding public purpose’ or ‘pressing social need’.298

The wider test requires consideration of what constitutes an ‘overriding’ public purpose; unlike the first test, a law may have more than one purpose, and only one need be for a purpose prohibited by section 116 for the law to be invalid.299 Justice Gaudron suggested in cases where an overriding public purpose was found it should be asked whether ‘the interference with religious freedom, if any, effected by the Ordinance was appropriate and adapted or, which is the same thing, proportionate to the protection and preservation of [indigenous] people’.300 This wider test seems to have more support although the law in this area remains unclear. In addition to the two tests which emerged from it, the Jehovah’s Witnesses case also seemed to suggest a limitation tailored to the defence power. Three of the judges focussed on the need of the Commonwealth to defend itself, which requires accommodation when dealing with section 116.301 Thus, Williams J reasoned that when the nation is in danger, religious freedom must sometimes be infringed in order to preserve it in the long term.302 It is unclear, however, whether this is a specific war-time exception or whether it can be subsumed into Gaudron J’s overriding public purpose or Latham CJ’s undue infringement test.

214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258.

Reid Mortensen, The Unfinished Experiment: A Report on Religious Freedom in Australia, 21 Emory Intl. L. Rev. 167, 170 (2007). Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 69 CLR 116, 164–165. (1997) 190 CLR 1. Ibid. 40 (Brennan CJ). Ibid. 86 (Toohey J), 160 (Gummow J). Ibid. 40 (Brennan CJ), 60–1 (Dawson J) 86 (Toohey J), 161 (Gummow J). Ibid. 161 (Gummow J). Ibid. Ibid. 130. Ibid. 131. Ibid. 132. Ibid. 132. Ibid. 133. Ibid. 134. Luke Beck, Clear and Emphatic: the Separation of Church and State under the Australian Constitution, 27 U. Tasmania L. Rev. 161, 169 (2008). Carolyn Maree Evans, Legal Protection of Religious Freedom in Australia 72–73 (Fedn. Press 2012). Attorney-General (Vic) (Ex rel Black) v. Commonwealth (1981) 146 CLR 559, 580–581 (Barwick CJ). See also Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (1987) 17 FCR 373, 378 (Jackson J). Evers v. Evers (1972) 19 FLR 296, 302 (Carmichael J). Grundgesetz f? Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] Art. 4. Stolen Generations Case (1997) 190 CLR 1, 46 (Brennan CJ), 124–125 (Gaudron J). Ibid. 125. Hum. Rights & Equal Opportunity Commn., supra n. 87, at vii. Summary Offences Act 1953 (SA) s. 40. With the possible exception of Tasmania under its constitutional religious freedom guarantee. When dealing with non-discrimination and anti-vilification legislation, some religious groups may qualify as racial or ethnic groups: see, further, Part VII, Chs 3.3 and 3.4. Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 69 CLR 116, 123 (Latham CJ). Ibid. 123–124. The Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 154 CLR 120, 165. Ibid. 150. Ibid. 133. Ibid. 145. Ibid. 130. Ibid. 130. Ibid. 141 (Mason ACJ and Brennan J), 171–172, 174 (Wilson and Deane JJ), 150 (Murphy J). Ibid. 171, 174 (Wilson and Deane JJ). Ibid. 130 (Mason ACJ and Brennan J). Ibid. 173. Ibid. 172–173, 176. Ibid. Ibid. 174. Ibid. Ibid. 167–168, 176. Ibid. 132. Ibid. Ibid.

259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 301. 302.

Ibid. 133. Ibid. Ibid. 133, 136. Ibid. 137 (Mason ACJ and Brennan J). Ibid. 134. Ibid. Ibid. 143. Ibid. 137. Ibid. 135. Ibid. 135–136. Ibid. 146. Ibid. 148. Ibid. 135. Ibid. 152. Ibid. 150. Ibid. 151. Ibid. Ibid. Ibid. Ibid. 154. Ibid. 155, 157–158, 160–161. Ibid. 161. Ibid. Jehovah’s Witnesses Case (1943) 69 CLR 116, 124 (Latham CJ). Ibid. 123. Ibid. 123. Church of Scientology Case (1983) 154 CLR 120, 135–136 (Mason ACJ and Brennan J). (1912) 15 CLR 366, 396. Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 69 CLR 116, 123. Ibid. 124. The Church of New Faith v. Commissioner of Pay-Roll Tax (1983) 154 CLR 120, 135–136 (Mason ACJ and Brennan J). Daniels v. Deputy Commissioner of Taxation [2007] SASC 431 (7 Dec. 2007) [12] (Debelle J). Ibid. Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 69 CLR 116, 148 (Rich J). Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 69 CLR 116. Ibid. 130 (Latham CJ), 149–150 (Rich J), 155 (Starke J), 159–160 (Williams J). Ibid. 132 (Latham CJ), 160 (Williams J). Ibid. 155 (Starke J). Ibid. 131. (1997) 190 CLR 1, 134. Ibid. 86 (Toohey J), 133 (Gaudron J). Ibid. 134. (1943) 69 CLR 116, 150 (Rich J), 157 (McTiernan J). Ibid. 160.

Chapter 2. Collective and Organizational Religious Freedom §1. CONSTITUTIONAL AND LEGISLATIVE PROTECTIONS 106. The ICCPR, to which Australia is a signatory, promises freedom of religion and religious practice ‘either individually or in community with others’.303 Like so many of its international obligations, Australia has not enacted any of the obligations about collective religious freedom into domestic law; rather, what protections for religious freedom that exist are directed towards the individual. That being said, Australia imposes no legal bars to forming a religious community, in the sense that any group of people may practise or worship together as an unincorporated association. The freedom to do so is somewhat protected from legislative interference by the implied freedom of political communication,304 and by the freedoms of association and movement which are a necessary part of political communication.305 107. Freedom of peaceful assembly and freedom of association in the Australian Capital Territory and Victorian bills of rights will impact upon collective religious freedom in those jurisdictions as well, but only to the limited extent.306 108. How section 116 of the Constitution and the statutory bills of rights might operate in relation to collective religious freedom has been considered in two areas: Indigenous Australians; and corporations. I.

Indigenous Communities

109. Justice Gaudron suggested in the High Court’s decision in the Stolen Generations case that the purpose of removing Indigenous children from their birth communities could prevent them from participating in religious community practices and thereby could be said to be a law for prohibiting the free exercise of religion.307 This suggests that there may be an element of community access implicit in the practice of religion, and so collective practice may be included in section 116’s scope of protection. II.

Corporations

110. We know that the Australian Capital Territory and Victorian statutory bills of rights protect only individual natural persons, as opposed to groups of people or legal persons.308 The application of section 116 to the activities of corporations is more contentious. Because it limits legislative power rather than conferring ‘rights’, it is not correct to ask whether corporations have rights under section 116. Rather it should be asked whether the dissolving or regulating of a religious corporate body prohibits the free exercise of religion, if the rights of individual members to practise were still intact. The Jehovah’s Witnesses case dealt with this issue, providing an uncertain outcome.309 The power granted to disband and regulate ‘subversive bodies’ during World War Two had been used to declare the Jehovah’s Witnesses nonexistent and to seize their property because they taught doctrines which were said to be subversive to the war effort. Justice Rich wrote that suppressing the incorporated body did not prohibit ‘the free exercise of any part of the religious faith ascribed by the case stated to the individual corporators’,310 while Latham CJ found it ‘obvious that a company cannot exercise a religion’.311 However, the Court’s reasoning nonetheless suggested that legislating to prevent the existence and spread of bodies which advocate subversive doctrines was not in breach of section 116 because religious freedom must be limited by the need to ensure the existence of the Commonwealth and the Government. This, rather than the religious incapacity of legal persons, was the main focus of the Court’s reasoning.312 It remains unclear, then, whether a corporation can exercise a religion for the purposes of section 116. 111. Recent case law dealing with non-discrimination legislation, however, suggests that a corporation cannot hold religious beliefs. In Christian Youth Camps Ltd v. Cobaw Community Health Service Ltd, in deciding whether a corporation could rely on an exception for conduct necessary for the discriminating person ‘to comply with the

person’s genuine religious beliefs or principles’,313 the Victorian Court of Appeal held that, short of a legislative mechanism providing a method of imputing a religious belief to a corporation, it could not hold one itself.314 If that is the case, though, it may remain possible to case the claim in terms of the individual exercise of the religion in the community and not of the corporation itself. §2. EXEMPTIONS TO LEGISLATION 112. The scarcity of law in the area of collective and organizational religious freedom highlights the reality that Australian governments tend not to regulate the activities of religious groups and instead grants them significant leeway to conduct their own affairs. Rather than rights protections for their freedom, religious communities in Australia are granted privileges and exemptions. Freedom to assemble and worship, for example, is directly protected from private, as opposed to government, interference by criminal offences about disturbing religious worship and interfering with an officiating minister.315 These laws are privileged protections specific to religion rather than broad freedoms. And Australian governments rarely prosecute these offences. 113. The most significant category of exemptions are those found in respect of non-discrimination measures designed to allow religious bodies to operate according to the religious doctrines they espouse.316 Such institutions are not completely exempt from these laws; rather, the exceptions are crafted to allow for specific attributes and situations determined by statute. Exceptions of this nature have been most controversial when applied to the provision of services to the general public.317 114. Because no legal definition exists for differentiating between a religion and a cult,318 the regulation of such groups can cause difficulties in the application of the exceptions to non-discrimination legislation. No specific regulation of cults currently exists, save general criminal offences of causing harm, stalking, false imprisonment and other like offences. Australians, though, tend to be uncomfortable with high fervour religion, and this is reflected by the examination of coercive and potentially damaging tactics used by cults by relatively recent law reform reports.319 Two reports recommended the convening of an interfaith dialogue to discuss religious coercion and to formulate minimum standards for the practices of religious groups,320 yet these were never acted upon. As such, the difficulty with how to treat cults is an ongoing issue in Australian law.

303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320.

ICCPR, opened for signature 19 Dec. 1966, 999 UNTS 171 (entered into force 23 Mar. 1976) Art. 18. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 559. See, further, Pt VII, Ch 3.1.2. Stolen Generations Case (1997) 190 CLR 1, 115. Human Rights Act 2004 (ACT) s. 15; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 16. (1997) 190 CLR 1, 133 (Gaudron J). Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 3 (definition of ‘person’), 6(1); Human Rights Act 2004 (ACT) s. 5. (1943) 69 CLR 116. Ibid. 149. Ibid. 147. Ibid. 132 (Latham CJ), 149 (Rich J), 155 (Starke J), 157 (McTiernan J), 159 (Williams J). Equal Opportunity Act 1995 (Vic) s. 77. (2014) 308 ALR 615 [317]–[318] (Maxwell P), [413]-[418] (Neave JA). Summary Offences Act 1966 (VIC) s. 21; Summary Offences Act (NT) s. 46C; Criminal Code Act (NT) Sch. 1, s. 125; Criminal Code Act 1899 (Qld) Sch. 1, ss 206–207; Summary Offences Act 1953 (SA) s. 7A; Criminal Code Act 1924 (Tas) Sch. 1, ss 120–121. See, further, Pt VII, Ch 7.1.II. See, further, Pt VII, Ch 7.1.II.C. Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Conviction with Compassion: A Report on Freedom of Religion and Belief 177 (2000). Model Criminal Code Officers Committee, Ch. 5 – Non Fatal Offences Against the Person 28–31(1998); Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, supra n. 433, at Ch. 10; Hum. Rights & Equal Opportunity Commn., supra n. 87, at 65–80. Hum. Rights & Equal Opportunity Commn., supra n. 87, at 80; Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, supra n. 433, at 184.

Part III.

Legal Status of Religious Communities

Paul Babie

Chapter 1. Formal Status of Religious Communities 115. Australia has never had a clearly established church. In the early colonial years, it was unclear whether the parishes of the Church of England being set up in the Australian colony were part of the Church of England in England.321 By 1863, though, the Church of England in Australia as well as all other colonial Anglican churches, was in the same position as any other non-established church, which meant a separate voluntary association bound by the agreement of its members.322 As such, the ecclesiastical law of the Church of England never formed a part of the law of Australia. That position continues to the present day; Australia has no overarching scheme for the registration and regulation of religious bodies. Rather, some registration and recognition schemes exist for specific purposes, such as the need for a religious body seeking to receive tax exemptions requiring registration as a charity with the Australian Charities and Not-for-Profits Commission (ACNC),323 or the proclamation listing those religious bodies eligible to perform legally binding weddings.324 Yet for general purposes, no system exists for the formation and recognition of a religious community, and religious bodies have the ability to gain legal status through the same instruments and laws as non-religious bodies. Any group of people, then, may form a religious community and begin practising a religion together, and for those groups that seek a more formal status, three avenues of the general law are open to them: operation as an unincorporated association; incorporation through statutory incorporation scheme; or incorporation through passage of a private member’s bill. §1. UNINCORPORATED ASSOCIATIONS 116. Religious bodies may function without legal incorporation; such a body enjoys no separate legal entity to that of its members. Under Australian law, such organizations have the status of a voluntary association,325 a common law doctrine used to regulate the activities of any organized but non-incorporated not-for-profit group. Strongly related to contract, the doctrine provides that members are bound by a consensual compact which give rise to ‘mutual relations and obligations’.326 The terms of such a compact will not often be enforced as a common law contract unless the disputed terms relate to a proprietary right, civil right of a proprietary nature or the terms of a trust.327 Cases involving religious voluntary associations particularly emphasize this point, with courts exercising great caution in entering into religious disputes and doctrine in the absence of a concrete legal right at stake.328 In order to be treated as a charity, an unincorporated association must have a formal constitution or other governing document with a non-profit clause and cannot hold property in its own right.329 Property can, though, be held on trust for the purposes of the organization; such trusts can either be created expressly by the association members, by statute, or through implication pursuant to the rule in Attorney-General v. Pearson.330 The association itself cannot be party to a contract; however, contracts for its purposes may create liability for all members. Liability for such contracts depends on whether a party expressly or impliedly acted as an agent for the committee or the members of an association.331 The primary difficulty with such associations involves the lack of legal personality which results in the association being unable to sue or be sued in its own name. In tort or other civil actions, the action must be brought

against an individual rather than the association.332 Thus, in Grigor Scott v. Jones an otherwise successful action for vilification against Jews was reversed because the complainant had identified an unincorporated association as the respondent.333 Additionally, an unincorporated religious association cannot be held vicariously liable for the actions of its members or management, nor can a committee member be sued as a representative of an unincorporated association unless it is alleged that all members of the association are equally liable.334 In any case, then, where the members of the committee or all of the members of the association are found liable in contract or tort, this is a consequence of the general rules of agency and vicarious liability.335 The lack of legal personality of a religious unincorporated association can cause significant difficulties for those seeking redress from them; this has recently been amplified by actions brought by victims of sexual abuse. In Trustees of the Roman Catholic Church for the Archdiocese of Sydney v. Ellis,336 the plaintiff had allegedly been subject to sexual abuse by a priest who was by then deceased. Suing in tort, the plaintiff was unsuccessful in identifying a natural or juridical person who could be said to be liable for the actions, in part because of the lack of an incorporated body in a direct supervisory role over the priest in question. This rule, which has become known as the ‘Ellis defence’, has been a controversial stumbling block in Australian sexual abuse claims against the Catholic Church, as it has left some victims with no viable defendant once the people directly involved in the circumstances of the abuse are dead. §2. STATUTORY INCORPORATION SCHEMES I.

Incorporation

117. A religious body may incorporate pursuant to the Commonwealth Corporations Act 2001. This option carries the advantage of limited liability and the powers of an individual which are granted to a body corporate. Of course, with those benefits come the burdens of onerous regulation. Incorporation may occur in the case of a company limited by shares, although this is a weak option given that the corporation cannot provide dividends to shareholders and it may not be eligible for charitable status. Religiously affiliated companies such as religious bookstores might choose this option, for instance, although without a not-forprofit clause they would be ineligible for charitable status, and due to the commercial nature of activities may not be a ‘religious body’ for the purposes of a number of laws. 118. Limitation by guarantee represents a more practical incorporation option for a non-commercial religious body. This entails a set monetary amount to which each member is liable should the company be wound up,337 and was a popular choice amongst Australian religious groups before the widespread passage of Associations Incorporation legislation. And while such a company may not issue shares, this is not a concern for a non-profit company.338 Charitable companies registered under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) need not use the word ‘Limited’ in their company title if they meet certain requirements concerning the payment of directors.339 119. Incorporated religious bodies must comply with extensive regulation and reporting requirements as set out in the Corporations Act 2001 (Cth), although exemptions exist in respect of certain regulatory duties for companies that are also registered charities under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). Most churches qualify as charities for the purposes of the legislation.340 The Corporations (Review Fees) Regulations 2003 (Cth) also provide for drastically reduced fees for companies that apply their profits solely to the promotion of religion.341 II.

Associations Incorporation

120. Australian states and territories have created a less onerous mean for not-for-profit groups to gain legal personality through their respective associations incorporation Acts.342 These systems create inexpensive, simple options for incorporation designed to be used by charities and other community groups. The South Australian

Associations Incorporation Act 1985 provides an example: eligibility for incorporation rests upon classification as one of the listed, non-commercial entities, which includes religious purposes;343 and the entity must be strictly nonprofit (it must not engage in trade for the pecuniary gain of its members, or engage in trade or commerce except in limited circumstances).344 An incorporated association gains the powers of a natural person, as well as the limited liability of its members.345 While subject to minimal regulation, such associations must have a committee – the members of which are subject to duties of disclosure and honesty not dissimilar to those found in the Corporations Act 2001 (Cth) – and hold annual general meetings. §3. PRIVATE ACT OF PARLIAMENT 121. Some churches or the trustees of churches have become a legal entity through the passage of legislation.346 More common in the early-to-mid twentieth century – many from that period are still in force – these Acts expressly confer corporate status upon a church or ecclesiastical office, or leave it as an unincorporated voluntary association while vesting it with the property of the association in an incorporated trust body. In the latter case, two bodies then hold one name: the corporate body made by statute to hold property and the wider unincorporated association for which the corporate body holds the property. An ecclesiastical office which obtains corporate status in this way is a Corporation Sole, which has neither members nor shareholders, and is not recognized as a corporation for the purposes of the Commonwealth corporations legislation.347 The most notable use of this technique involved the uniform enabling Acts which recognized the Church of England in Australia in 1961, officially severing any final legal ties with the main Church of England. The effect of these Acts was to bring into existence or recognize a national voluntary association known as the Church of England in Australia, and to declare the Constitution which governed it.348

321. 322. 323. 324. 325. 326. 327. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342.

343. 344. 345. 346.

Scandrett v. Dowling (1992) 27 NSWLR 483, 492 (Mahoney JA). Long v. Bishop of Capetown (1863) 1 Moore N.S. 411, 461. Income Tax Assessment Act 1997 (Cth) ss 50.1–50.5, 995.1 (definition of ‘registered charity’). Marriage (Recognised Denominations) Proclamation 2007 (Cth). B.H. McPherson, The Church as Consensual Compact, Trust and Corporation, 74 Austrl. L.J. 159, 159 (2000). MacQueen v. Frackleton (1909) 8 CLR 673, 679 (Griffith CJ). Cameron v. Hogan (1934) 51 CLR 358, 370–371; Wylde v. Attorney-General (NSW) ex rel Ashelford (1948) 78 CLR 224, 272–272 (Latham CJ). Scandrett v. Dowling (1992) 27 NSWLR 483, 505–506 (Mahoney JA). See, further, Pt VIII, Ch 1.3. (1817) 3 Mer 323; 36 ER 135. LexisNexis, Halsbury’s Laws of Australia, (at 2 Jul. 2010) 435 Voluntary Associations, ‘4 Contractual Relations’ [435-210]. Trustees of the Roman Catholic Church for the Archdiocese of Sydney v. Ellis (2007) 70 NSWLR 565, 576 [47] (Mason P). (2008) 168 FCR 450. Trustees of the Roman Catholic Church for the Archdiocese of Sydney v. Ellis (2007) 70 NSWLR 565, 584–585 [83] (Mason P). LexisNexis, Halsbury’s Laws of Australia, (at 2 Jul. 2010) 435 Voluntary Associations, ‘5 Liability of Associations in Tort’ [435-230]; also see Trustees of the Roman Catholic Church for the Archdiocese of Sydney v. Ellis (2007) 70 NSWLR 565, 578–579 [55]–[61] (Mason P). (2007) 70 NSWLR 565. Corporations Act 2001 (Cth) s. 9 (definition of ‘company limited by guarantee’). Ibid. s. 124. Ibid. s. 150(1). Charities Act 2013 (Cth) ss 7(e), 12(1)(d). Section 3 (definition of ‘special purpose company’) Sch. 1. Associations Incorporation Act 1985 (SA); Associations Incorporation Act 2009 (NSW); Associations Incorporation Act 1981 (Qld); Associations Incorporation Act 1964 (Tas); Associations Incorporation Reform Act 2012 (Vic); Associations Incorporation Act 1987 (WA); Associations Incorporation Act 1991 (ACT); Associations Act (NT). Associations Incorporation Act 1985 (SA) s. 18(a). Ibid. s. 18(5)–(6). Ibid. ss 20–21. Just a few examples of this phenomenon include: The Great Synagogue, Sydney, Act 1931 (Private Act) (NSW); The Synod of Eastern Australia Property Act 1918 (Private Act) (NSW); Roman Catholic Church Trust Property Act 1936 (NSW); Churches Of Christ, Scientist, Incorporation Act (Tas); Uniting Church in Australia Act 1977 (Qld); Hungarian Reformed Church Of Australia (Victorian District) Incorporation Act 1973 (Vic).

347. Corporations Act 2001 (Cth) s. 57A(2)(b). 348. Scandrett v. Dowling (1992) 27 NSWLR 483, 502 (Mahoney JA).

Chapter 2. Autonomy of Religious Communities §1. GENERALLY 122. With the exception of religious schools,349 religious communities in Australia tend to operate outside the sphere of Government control. The state is not involved in the appointment of religious personnel, the membership of religious groups or their internal administration. Thus, while the dictum of Griffiths CJ in Colonial Sugar Refining Co Ltd v. Attorney-General (Cth) strongly suggests that section 116 of the Constitution would prohibit Commonwealth investigation of the tenets, assets, administration of revenue and internal administration of any religious body by way of Royal Commission,350 the constitutional barriers to regulation of religious communities are few, particularly in relation to the states.351 Still, and importantly, whatever the theoretical possibility of direct regulation of religious communities by Australian Governments, the reality is that it has been and is rarely attempted. In fact, the reality is that religion in Australia is granted quite substantial autonomy by Australian legislatures through exceptions from the general law, particularly non-discrimination law.352 Outside direct involvement in religious ministry and rituals, the exemptions are generally based on an objective test which requires proving that discrimination conformed to the tenets of the religion or was necessary to avoid injury to the sensitivities of adherents of the religion. And the use of these objective tests reduce the autonomy granted by these exceptions as religious groups can be and are called upon to defend their discrimination and prove its necessity to a civil standard; they are not given automatic deference. 123. A major exception to this trend of religious autonomy has recently occurred with the opening in 2013 of the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse. The Terms of Reference did not mention the Catholic Church or religion generally, and the Commission is empowered to look into any institution which has been involved with children; however, the Commission was established in direct response to the crises emerging from the Catholic and other churches and the panels have scrutinized the Catholic Church Towards Healing process as well as responses by Anglican Dioceses and the Salvation Army. This Commission therefore gives every impression that the internal autonomy of religious groups will not be left unchallenged when it comes to the welfare of Australia’s children. In particular, there have been calls to consider extending mandatory reporting of child sex abuse to crimes revealed in religious confessions.353 §2. VOLUNTARY ASSOCIATIONS 124. There exists no general doctrine prohibiting Australian courts from involvement, if necessary, in the internal disputes of religious associations. And, given their status as voluntary associations, legal jurisdiction over church affairs is no different to that over any other voluntary association, incorporated or unincorporated. This means that the member of a church or other religious association cannot allege in judicial proceedings a breach of the internal rules unless that member can show that membership in the voluntary association was intended to give rise to contractual legal relations between members.354 This has often been readily found in non-religious voluntary associations, particularly trade unions and professional associations.355 However, a religious association’s internal rules will not often be found to have intended greater legal relationships between members; the compact created by joining together as a church has been described as ‘partly civil and partly spiritual’. The leading case on this point, Scandrett v. Dowling, held that aside from rules relating to church property, the Anglican Church constitution bound in conscience only.356 As such, breaches of internal ecclesiastical rules are not actionable as breaches of a common law contract.357 Without this contractual nexus, justiciability of intra-religious disputes only arises when the plaintiff has a legal right at stake apart from a pure breach of association rules.358 In these situations, a court may give effect to a ‘partly civil’ compact as though it were a common law contract.359 The basis for such jurisdiction is sometimes described as a civil right of a proprietary nature and sometimes simply as a civil right.360 However, it may very well be the case

that they amount to largely the same thing; in Macqueen v. Frackelton, Griffith CJ noted that a plaintiff needed to show he had ‘suffered any infringement of a civil right, or, in other words, sustained any loss of money or property’.361 In Macqueen, jurisdiction resulted from the loss of the status of Minister within the church and the consequent loss of compensation for that position.362 More controversially, jurisdiction might arise where the conduct in question affects the reputation of a member of the clergy.363 Breach of purely doctrinal or ritual religious rules, however, will not be justiciable in a civil court unless such breach relates to a dispute about church property.364 Where the breach does bear on the issue of a proprietary or civil right, courts will attempt to adjudicate a religious question. The same principle applies to the enforcement of trusts set up for church or religious property; because a trust is by its nature related to proprietary interests, it will be justiciable even if the content of the trust is for a religious purpose. And if a trust term is tied to a religious doctrine, the court has a duty to examine practice and doctrine in order to enforce the original trust.365 However, it must be stressed that in such cases courts are not determining the correctness of religious doctrine, but rather the original intent of the trust.366 The most notable case in which the courts exercised such jurisdiction occurred in Wylde v. Attorney-General (NSW) (Ex rel Ashelford), where the terms of the trust pursuant to which property of the Anglican Church was held brought ritual church practices of the Church under adjudication. The High Court of Australia ordered an injunction restraining a bishop of the Church of England in New South Wales from ringing a sanctus bell and making the sign of the cross during Holy Communion. The reasoning turned on the fact that the church building was held on trust to be used for a certain form of worship, and these actions deviated from that purpose.367 Still, Reid Mortensen notes that courts commonly express their feelings of incompetence to determine wholly religious disputes in these circumstances.368 This means that issues such as expulsion of members, church practice and/or other internal church decisions cannot be taken to a civil court unless the plaintiff can show the nexus between property and ritual. If such nexus is proved, church decision-making may be subject to certain due process requirements.369 In all other matters, a religious association is completely autonomous and – provided it operates in compliance with the general law – may set up its own tribunals to administer church rules and discipline and, subject to the above exceptions, the decisions of such tribunals will be final. §3. INCORPORATION THROUGH STATUTE 125. When a religious community creates a trust or gains legal personality through a statute, the legal effect of any religious or administrative governing terms of the association is dependent upon the wording of the statute. Religious groups which gain legal personality through statutory measures are subject to the administrative requirements of the statute under which they incorporated. Jurisdiction to intervene in the affairs of religious bodies incorporated under statute is also governed by the enabling statutes; jurisdiction is generally wider than for unincorporated voluntary associations due to the statutory actions available for members. The South Australian members’ action for oppressive or unreasonable conduct by an incorporated association, for instance, demonstrates the wider jurisdiction available in cases of statutory incorporation.370

349. 350. 351. 352. 353. 354. 355. 356. 357.

See, further, Pt IX, Ch 2. (1912) 15 CLR 182, 195. See, further, Part II, Ch 2. See, further, Pt VII, Ch 7. Simon Cullen, Royal Commission to Consider Confessional Seal (14 Nov. 2012) ABC News http://www.abc.net.au/news/2012-11-14/roxon-beginsconsultations-on-royal-commission/4370498. Cameron v. Hogan (1934) 51 CLR 358, 370–371 (Rich, Dixon, Evatt and McTiernan JJ). LexisNexis, Halsbury’s Laws of Australia, (at 2 Jul. 2010) 435 Voluntary Associations, ‘9 Membership Rights and Duties in Voluntary Associations’ [435-210]. Scandrett v. Dowling (1992) 27 NSWLR 483, 513, 557–558 (Priestly JA). Cameron v. Hogan (1934) 51 CLR 358, 370–372 (Rich, Dixon, Evatt and McTiernan JJ); Scandrett v. Dowling (1992) 27 NSWLR 483, 562 (Priestly JA).

358. 359. 360. 361. 362. 363. 364. 365. 366. 367. 368. 369. 370.

Scandrett v. Dowling (1992) 27 NSWLR 483, 513, 558 (Priestly JA). Ibid. 558. Scandrett v. Dowling (1992) 27 NSWLR 483, 513, 558 (Priestly JA) cf 554 (Priestly JA). (1909) 8 CLR 673, 693 (‘Macqueen’). Macqueen v. Frackelton (1909) 8 CLR 673, 724 (Isaacs J). Sturt v. Bishop of Newcastle [2012] NSWSC 400, [147]–[163]; Plenty v. Seventh-Day Adventist Church of Port Pirie [2009] SASC 10 [68]. Cf. Harrington v. Coote [2013] SASCFC 154, [18]–[20]. Wylde v. Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224, 282 (Rich J); Scandrett v. Dowling (1992) 27 NSWLR 483, 499 (Mahoney JA), 564 (Priestley JA). Wylde v. Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224, 257, 271 (Latham CJ). Ibid. 262–263 (Latham CJ); Scandrett v. Dowling (1992) 27 NSWLR 483, 491 (Mahoney JA). Wylde v. Attorney-General (NSW) (Ex rel Ashelford) (1948) 78 CLR 224, 310 (Williams J). Reid Mortensen, ‘Church Legal Autonomy’ (1994) 14 The Queensland Lawyer 217, 219. See, further, Pt VII, Ch 4.3. Associations Incorporation Act 1985 (SA) s. 61.

Chapter 3. Fundamental Rights and Religious Communities 126. Chapters 1 and 2 of this Part fully outline the rights of religious communities.

Chapter 4. Contractual Religious Freedom 127. Chapters 1 and 2 of this Part and Chapter 4.3 of Part VII fully outline the contractual religious freedoms that exist in Australia.

Part IV.

International, Transnational and Regional Effects on Religious Communities

Joshua Neoh

128. Religious communities in Australia are affected by international and regional law, but not transnational law (as Australia is not part of any transnational political union). Australia has ratified international law instruments relevant to the freedom of religion. In Australia, however, international law is not enforceable until it is transformed into domestic law through legislation or the judicial development of the common law. Although the instruments are part of the complaints process of the AHRC, the Commonwealth Parliament has not enacted a Religious Freedom Act. The instruments have influenced the judicial interpretation of legislation, and there is a notable effect of international law in matters involving indigenous beliefs. Regionally, two of the nine jurisdictions in Australia – the state of Victoria and the Australian Capital Territory – have enacted statutory bills of rights which protect the freedom of religion.

Chapter 1. International Law Effects on Religious Communities §1. BASIC PRINCIPLES 129. The relationship between international law and national law could be conceptualized in terms of two competing theories: monism and dualism. Monism views international law and national law as part of ‘one great system of law’; dualism, on the other hand, views international law and national law as two distinct systems of law.371 The adoption of either of these theoretical positions has doctrinal implications on how one sees the interaction between international law and national law. Theoretical monism entails doctrinal incorporation, which posits that international law is automatically incorporated into national law. By contrast, theoretical dualism entails doctrinal transformation, which posits that international law is not binding within the national legal system unless and until it has been transformed into domestic law. Australia adopts the dualist position: in order for international law to be enforceable within the Australian legal regime, it has to be transformed into ‘Australian’ law.372 Transformation could be accomplished legislatively through an Act of Parliament, or judicially through the development of the common law. §2. INTERNATIONAL LEGAL INSTRUMENTS ON THE FREEDOM OF RELIGION RELEVANT TO AUSTRALIA 130. Australia has ratified both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which contain key provisions protecting the freedom of religion, notably Article 18 of the ICCPR. Article 18(1) states that ‘everyone shall have the right to freedom of thought, conscience and religion [which] 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’. In addition, Australia has also ratified the Optional Protocol to the ICCPR, which allows for complaints (‘communications’) of human rights violations to be brought to the United Nations Human Rights Committee. Of special relevance to Australia is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which affirms the right of indigenous peoples to ‘manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains’ (Article 12). Australia, under the Coalition government, voted against the declaration when it was adopted by the United Nations General Assembly in 2007. In 2009, Australia, under the new Labour government, issued a statement which purported to change Australia’s position. The statement declared that Australia supported the Declaration, with the caveat that the Declaration ‘is non-binding and does not affect existing Australian law’. Under international law, ‘the orthodox view seems to be that they [i.e., the rights mentioned in the Declaration] are not new or special rights but an extension of what already exists in the human rights universe’.373 In any case, the Declaration has no direct effect within the Australian legal system in the absence legislative or judicial transformation, in line with the dualist theory. §3. LEGISLATIVE TRANSFORMATION OF INTERNATIONAL LEGAL NORMS ON THE FREEDOM OF RELIGION 131. The Commonwealth Parliament has not fully transformed the ICCPR or the ICESCR into domestic law. However, the ICCPR is included as a schedule to the Australian Human Rights Commission Act 1986 (Cth), which allows for complaints to be made to the AHRC. ‘Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament’; the Commission ‘can also advise Parliament on action that should be taken to promote compliance’, but it has ‘no authority over the courts’.374 In 1993, the Commonwealth Attorney-General, exercising his power under section 47, declared the ‘Declaration

on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981’ (‘the Religion Declaration’) to be a ‘relevant international instrument’ for the purposes of the Australian Human Rights Commission Act 1986 (Cth). In 1998, the Human Rights Commissioner presented the Attorney-General with the report of the inquiry into freedom of religion and belief in Australia. The report recommended that the Commonwealth Parliament should enact a Religious Freedom Act, which should cover the full range of rights and freedoms recognized in ICCPR Article 18 and Religion Declaration Articles 1, 5 and 6.375 To date, no such Act has yet been enacted in Australia §4. COMMON LAW TRANSFORMATION OF INTERNATIONAL LEGAL NORMS ON THE FREEDOM OF RELIGION 132. In interpreting parliamentary statutes and delegated legislation, there is a common law presumption that ‘the courts should favour [a] construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party.’376 The application of this common law presumption in relation to the freedom of religion as expressed under international law is aptly illustrated in the case of Evans v. NSW.377 In the lead-up to the World Youth Day (WYD)378 celebration in Sydney in 2008, the New South Wales Parliament passed the WYD Act 2006 (NSW). Section 58 of the Act authorized the Governor to make regulations with respect to ‘regulating the use by the public of, and the conduct of the public on, WYD venues and facilities’. Clause 7 of the Regulations gave police officers and authorized persons the power to direct people to cease engaging in conduct that: (a) is a risk to safety, (b) causes annoyance or inconvenience to WYD participants, or (c) obstructs a WYD event. The applicants, who were part of an organization known as the ‘No to Pope’ Coalition, intended to protest during the WYD celebration. They sought a declaration that Clause 7 of the Regulation was invalid as it exceeded the power granted under section 58 of the Act. In construing the scope of section 58, the Court noted that, on the one hand, ‘freedom of speech and of the press has long enjoyed special recognition at common law’.379 On the other hand, the Court also noted that there was another important freedom that was at stake in the case: the freedom of religion. After quoting Article 18 of the ICCPR in full, the Court stated that conduct ‘which involves disruption of, or interference with, the free expression of religious beliefs by participants in WYD events’ could be regulated. Hence Clause 7(a) and (c) could be supported by section 58 properly construed. However, Clause 7(b), insofar as it related to ‘annoyance’, affected the freedom of speech in a way that could not be supported by section 58. §5. INDIGENOUS RELIGIOUS BELIEFS AND CUSTOMS 133. Indigenous religious beliefs and customs deserve special attention because of their unique status within Australia. In addition to being covered by the generic provisions in the ICCPR, they are also specifically addressed in the UNDRIP. We see the influence of both the Convention and the Declaration in the case of Jones v. Dodd.380 In Jones, the plaintiff’s son, who was of Aboriginal descent, died intestate. The plaintiff wished that his son be buried at Oodnadatta, which was, in the Aboriginal sense, his family country. The defendant, who was the former de facto wife of the deceased, sought to have the deceased buried at Port Augusta. In reaching its decision, the Court ruled that ‘considerations should be given to cultural, spiritual and religious factors’.381 The Court referred to Article 18 of the ICCPR, which is the general provision on the freedom of religion, and Article 27 of the ICCPR, which specifically provides that ‘in those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion’. In addition, the Court also cited the Declaration on the Rights of Indigenous Peoples, which acknowledges the ‘right to the repatriation of human remains’ as inherent to ‘the right to manifest, practice … their spiritual and religious traditions, customs and ceremonies’.382 Taking into account ‘cultural, spiritual and religious factors’, the Court concluded that, in this case, ‘the views of the head of the family should prevail’: on that basis, the Court decided that the father of the deceased was the appropriate person to designate the place of burial for his son.383 134. Given the deep connection between land and indigenous religious beliefs and customs, questions have been raised about whether indigenous proprietary rights over land include the protection of indigenous religious beliefs

and customs. In WA v. Ward,384 one of the questions was whether native title in relation to land or waters included the protection of cultural knowledge. The majority ruled that, ‘in so far as claims to a right to maintain, protect and prevent the misuse of cultural knowledge went beyond a right to deny or control access to land or waters, they were not rights protected by the NTA [Native Title Act 1993 (Cth)]’.385 Kirby J dissented. In his dissent, he emphasized the ‘land-relatedness’ of the ‘spiritual beliefs and cultural narratives’ of indigenous peoples; to support his reasoning, Kirby J cited the ICCPR, ICESCR and UNDRIP.386 Similar questions were raised in the case of Wurridjal v. Cth,387 which challenged the legal validity of the Northern Territory National Emergency Response Act 2007 (Cth). The Act was supposedly enacted as a ‘national emergency response to protect Aboriginal children in the Northern Territory from sexual abuse and family violence’.388 Two Aboriginal persons, claiming to be members of a descent group who had a spiritual affiliation with certain land to which the Act applied, sought declarations that various provisions of the Act effected an acquisition of land, and that the acquisition was not on just terms within the meaning of section 51(xxxi) of the Constitution.389 Kirby J, again in dissent, reasserted the principle that cultural and religious rights are directly connected to the land of indigenous peoples.390 Wurridjal was one of the last judgments delivered by Kirby J before he retired from the High Court of Australia.

371. Peter Bailey, The Human Rights Enterprise in Australia and Internationally 260 (Lexis Nexis But-terworth 2009). 372. Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273, 286–287. 373. Megan Davis, To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On, 19 Austrl. Intl. L.J. 17, 27 (2012). 374. Austrl. Hum. Rights Commn., Human Rights Brief No. 3: Freedom of Religion and Belief, accessible at: http://www.humanrights.gov.au/publications/human-rights-brief-no-3 (10 Dec. 2013). 375. Hum. Rights & Equal Opportunity Commn., supra n. 87. 376. Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273, 287. 377. (2008) 168 FCR 576 (‘Evans’). 378. The World Youth Day is an annual gathering of Roman Catholic youths. The 2008 World Youth Day in Sydney ‘attracted 223,000 registered pilgrims, including 110,000 from 170 nations’: http://www.wyd.org.au/index.php/about/wyd-sydney (10 Dec. 2013). 379. Evans (2008) 168 FCR 576, 595. 380. (1999) 73 SASR 328 (‘Jones’). 381. Ibid. 339. 382. Ibid. 337–338. 383. Ibid. 339. 384. (2002) 213 CLR 1 (‘Ward’). 385. Ibid. 8. 386. Ibid. 247. 387. (2009) 237 CLR 309 (‘Wurridjal’). 388. Austrl. Hum. Rights Commn., Social Justice Report 2007 – Ch. 3: The Northern Territory ‘Emergency Response’ Intervention, http://www.humanrights.gov.au/publications/social-justice-report-2007-chapter-3-northern-territory-emergency-response-intervention#fnB1 (12 Dec. 2013). 389. Wurridjal (2009) 237 CLR 309, 311. 390. Ibid. 411.

Chapter 2. Transnational Law Effects on Religious Communities 135. Australia is not part of any transnational political union, and it is not subject to any transnational court of human rights.

Chapter 3. Regional Law Effects on Religious Communities 136. Australia is a federation with a federal government, six states and two self-governing federal territories. Each state and territory has its own legislature. In total, there are nine jurisdictions in Australia. Of the nine jurisdictions, only two jurisdictions – the Australian Capital Territory and the state of Victoria – have enacted statutory bills of rights: Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic), both of which contain provisions protecting the freedom of religion.391 In particular, both pieces of legislation state that ‘international law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right (or in Victoria the statutory provision)’.392 A similar Schedule 1 of the Australian Capital Territory Act explicitly links Article 18 of the ICCPR as the source of the human right under section 31. While Article 18 of the ICCPR is the primary provision in the ICCPR that guarantees freedom of religion, Article 20 protects an individual from religious vilification. Article 20(2) of the ICCPR states that ‘any advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. 391. See, further, Pt 1, Ch 1.3. 392. Human Rights Act 2004 (ACT) s 31; Charter of Rights and Responsibilities Act 2006 (Vic) s 32(1).

Part V.

Religion and Politics

Joshua Neoh

137. The influence of religion on politics in Australia is evident in parliamentary practices and procedures such as the making of oaths or affirmations and prayer in Parliament. Religious organizations are also active in political lobbying. Conversely, the influence of politics on religion is seen in inquiries into sexual abuse against children in religious institutions; the examination of indigenous beliefs in cultural heritage, native title and land rights issues; and attempts to ‘integrate’ Muslims. There is also interaction between the two, as evinced by section 116 and the Preamble of the Constitution, conscience voting, and the apparent recent rise in the use of religious rhetoric by politicians.

Chapter 1. Religious Influence in Politics §1. OATH OR AFFIRMATION 138. Section 42 of the Commonwealth Constitution stipulates that ‘every (Commonwealth) senator and every (Commonwealth) member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution’. The Schedule to the Constitution provides the wording for the oath and affirmation: OATH I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD! AFFIRMATION I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law (NOTE: The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.) The oath contains a clear religious reference to God. The affirmation, on the other hand, contains no reference to God. Hence, one may be inclined to think that the original motivating rationale for allowing the use of the affirmation as an alternative to the oath was to provide atheists and secularists with a non-religious formula. While it is true that atheists and secularists may prefer the affirmation over the oath, the original impetus for allowing the use of the affirmation was motivated by distinctly religious concerns in England. ‘The option of taking an affirmation was imported to Australia out of English law, where it has existed since the Act of Toleration of 1689 … .It was introduced out of respect for the consciences not of atheists, but of Quakers. They, and later Christian objectors to oath-taking, cite a biblical justification [founded on the Gospel of Matthew 5: 33–37].’393 The formulation of the affirmation was subsequently transplanted to Australia and ended up in the Constitution. At least in their genesis, both the oath and the affirmation were religiously motivated. Although there has been an increase in the number of parliamentarians who opt for the affirmation, the oath is still more popular than the affirmation.394 One should also bear in mind that religious people may decide to take an affirmation, instead of an oath, for religious reasons. In September 2010, Ed Husic, a Labour MP, became the first person to take the oath and be sworn into the Commonwealth Parliament on a Qur’an. Julia Gillard was the first Prime Minister to make an affirmation, as opposed to an oath, of office on 24 June 2010. 139. Three other types of oath are also found in relation to offices held under the Commonwealth Constitution. Section 62 of the Constitution prescribes that Executive councillors be ‘sworn in’. Any deputies of the GovernorGeneral are required to take two oaths by the Letters Patent, although the Constitution contains no set form of oath, the form taken being chosen by the Governor-General. Finally, legislation requires that an oath be taken by members of the Federal judiciary, all of which mention God in some way. §2. PRAYER IN PARLIAMENT 140. In both the Senate and the House of Representative, a prayer for Parliament and the Lord’s Prayer are recited by the President of the Senate ‘on taking the chair each day’ and the Speaker of the House ‘on taking the Chair at the beginning of each sitting’.395 The prayer for Parliament that is prescribed in the Standing Orders is a modified version of ‘A Prayer for the High Court of Parliament’ in the Church of England’s Book of Common Prayer; the final line of the Lord’s Prayer that is prescribed in the Standing Orders – ‘for thine is the kingdom, and the power and the glory, for ever and ever’ – appears only in the authorized King James Version of the Bible used by Protestants, as opposed to the Catholic version of the prayer.396 Every now and then, there have been calls for the

abolition of the practice of prayer in Parliament. There will then be the usual defence of the practice on the basis of Australia’s Judeo-Christian heritage. Although there have been some academic discussion about the constitutionality of this practice under section 116 of the Constitution,397 the matter has not been challenged before the High Court. §3. RELIGIOUS ORGANIZATIONS IN POLITICS 141. There are numerous religious organizations that make representations to the government to safeguard their interests and voice their beliefs in the public sphere. This sub-section will only highlight a few of them as examples of the range of beliefs and activities that are pursued by these organizations. 142. The Australian Christian Lobby is a registered company that acts as an ‘evangelical lobby group’.398 It is not – and neither does it claim to be – the peak representative body for the churches in Australia. It is governed by a board that acts as the final arbiter on policy issues faced by the group.399 Its vision is to ‘see Christian principles and ethics accepted and influencing the way we are governed, do business and relate to each other as a community’; it does that by ‘lobby[ing] to affect Christian principles in government and legislation’.400 It adopts what it calls ‘an orthodox historical understanding of Biblical Christian teaching’.401 It campaigns on a host of issues, one of the most prominent of which is its anti-same-sex marriage campaign. 143. The Australian Federation of Islamic Councils is the umbrella national group and the peak body for the Islamic Councils of the various states and territories, and Christmas Island. The mission of AFIC is to ‘advocate on behalf of the Muslim community on all such matters that will affect the community’s relevance, settlement and integration within Australian society’.402 In its submission to the Australian Parliament Joint Standing Committee on Migration in response to the Committee’s Inquiry into Multiculturalism in Australia, it raised the issue of Islamic Sharia law and argued that ‘multiculturalism should lead to legal pluralism’.403 144. The Executive Council of Australian Jewry Inc. is ‘the officially elected representative organisation and the voice of the Australian Jewish Community’.404 The objects of the Council are: ‘(a) to represent and speak officially on behalf of Australian Jewry; (b) to take such action as it considers necessary on behalf of Australian Jewry in matters that concern Australian Jewry or Jewry in other parts of the world; and (c) to support and strengthen the connection of Australian Jewry with the State of Israel’.405 Its activities include making submissions to government inquiries, and issuing statements and media releases on matters which affect the Australian Jewish Community, in line with its comprehensive Policy Platform.

393. Marrion Maddox, For God and Country; Religious Dynamics in Australian Federal Politics, Department of the Parliamentary Library, Canberra, 2001, 116 http://www.aph.gov.au/binaries/library/pubs/monographs/maddox/maddoxmonograph.pdf. 394. For a detailed statistical analysis of the trend, see Deirdre McKeown, Oaths and Affirmations made by the Executive and Members of Federal Parliament since 1901, Parliamentary Library, Department of Parliamentary Services, Canberra, 2013. http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314/OathsAffirmations. 395. Senate Standing Order 50; House of Representatives Standing Order 38. 396. Beck, supra n. 78 323, 341. 397. Gonzalo Villalta Puig & Steven Tudor, To the Advancement of Thy Glory?: A Constitutional and Policy Critique of Parliamentary Prayers, 20 Pub. L. Rev. 56 (2009). 398. John Warhurst, Religion and Politics in the Howard Decade 42 Australian J. Political Sci. 19 (2007). 399. Australian Christian Lobby, How ACL operates, http://www.acl.org.au/about/. 400. Australian Christian Lobby, Annual Report 2013 (2013), 10. 401. Australian Christian Lobby, supra n. 506. 402. Australian Federation of Islamic Councils, Submission No. 81 to the Australian Parliament Joint Standing Committee on Migration, Inquiry into Multiculturalism in Australia, 4 Apr. 2011, 1. 403. Ibid. 8. 404. http://www.ecaj.org.au/. 405. Constitution of the Executive Council of Australian Jewry Inc., as adopted at General Meeting of Councillors on 27 Nov. 2011, cl 3.1.

Chapter 2. Political Influence in Religion §1. INQUIRY INTO CHILD SEXUAL ABUSE IN RELIGIOUS INSTITUTIONS 145. A Royal Commission into Institutional Responses to Child Sexual Abuse was set up at the national level in response to concerns about the sexual abuse of children in religious and non-religious institutions, especially in Roman Catholic institutions. The suspicion of institutional cover-up was a subject of transnational concern, as evidenced by the fact that similar inquiries have been set up in other countries besides Australia. The establishment of the Royal Commission was announced by the then Prime Minister, Julia Gillard, on 12 November 2012. The Royal Commission was formally created when the Governor-General issued the Letters Patent on 11 January 2013 under the Royal Commissions Act 1902 (Cth). The Letters Patent contains the Terms of Reference, which authorize the Commission ‘to inquire into institutional responses to allegations and incidents of child sexual abuse’. The Commission has to submit an initial report by 30 June 2014 and the final report by 31 December 2015. The inquiry is not confined to religious institutions, although that may have been the initial impetus. Religious representatives have been called to testify before the inquiry. There have been some media speculations about the status of the religious confessions privilege in relation to the power of the Royal Commission. The speculation is ‘whether Catholic priests should be forced to tell police about crimes against children told to them in the confessional’.406 The issue has not arisen, as yet; if the issue were to arise in the course of the inquiry, there may be a constitutional question with regard to the scope of the ‘free exercise’ clause under section 116 of the Constitution. 146. In addition to the inquiry at the national level, there have also been state-based inquiries into this matter. In the state of Victoria, for example, the Governor in Council, under section 33(1)(b) of the Parliamentary Committees Act 2003, ordered that the Family and Community Development Committee ‘inquire into, consider and report to the Parliament on the processes by which religious and other non-government organisations respond to the criminal abuse of children by personnel within their organisations’.407 Unlike the terms of reference for the national inquiry, the terms of reference here explicitly mentioned religious organizations. The final report was tabled on 13 November 2013. The Committee found that ‘there has been a substantial body of credible evidence presented to the Inquiry and ultimately concessions made by senior representatives of religious bodies, including the Catholic Church, that they had taken steps with the direct objective of concealing wrongdoing’.408 The Committee recommended that ‘the Victorian Government consider requiring organisations it funds or provides with tax exemptions and other entitlements to be incorporated and adequately insured’, and that ‘the Victorian Government work with the Australian Government to require religious and other non-government organisations that engage with children to adopt incorporated legal structures’.409 If these recommendations are adopted, they may affect the legal structure and legal personality of the Catholic Church. §2. INDIGENOUS RELIGIOUS BELIEFS 147. The protection of indigenous sacred sites through cultural heritage legislation often draws on the spiritual connection that indigenous people have to the land. It relies on ‘the mystical value of the land’.410 In the enforcement of such legislation, sometimes the state is called upon to decide on the authenticity of claims of indigenous religion and spirituality, which may require a political intrusion into the religious sphere. One such incident was the Hindmarsh Island bridge controversy, which lasted for more than a decade. A group of indigenous people opposed the construction of the bridge linking the island to the mainland on the basis of the ‘cosmological significance’ of the area to ‘the local Ngarrindjeri people’, especially for ‘women’s business’.411 Relying on the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), an application was made to the relevant Commonwealth Minister to stop the bridge from being built. Representations regarding the religious and cosmological significance of the site were made to the federal government on the condition that the submitted materials should be read by women only. A Royal Commission, established by the South Australian state government, found that the ‘secret women’s business’ was a fabrication. However, von Doussa J, sitting as a Federal

Court judge, disagreed with the finding of the Royal Commission.412 In 2010, the South Australian state government endorsed the 2001 finding of von Doussa J that the ‘secret women’s business’ was ‘a genuine part of Aboriginal tradition and was not fabricated’.413 148. The state recognition of native title and the granting of indigenous land rights may often require state determination of indigenous religious beliefs, customs and spirituality. In the landmark case of Mabo v. Queensland (No 2), the High Court of Australia ruled that ‘the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands’.414 The ‘laws or customs’ of indigenous people are often intrinsically tied with indigenous religious beliefs and spirituality. The Native Title Act 1993 (Cth), which was enacted by the Parliament in response to the Mabo decision, contains an elaborate procedure for establishing native title. 149. Besides native title, the various states and territories also have indigenous land rights legislation which allow for the granting of land rights to indigenous peoples. Different schemes operate differently in the various states and territories. The first Australian indigenous land rights legislation was enacted by the Commonwealth in 1976. It grew out of the Aboriginal Land Rights Commission Report in 1974. The report stated that one of the aims of indigenous land rights is ‘the preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs’.415 Section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) defines ‘traditional Aboriginal owners’ as ‘a local descent group of Aboriginals who [inter alia] have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land’. §3. ‘INTEGRATION’ OF ‘MUSLIMS’ 150. ‘Until 2001, Muslims in Australia were primarily perceived according to their ethnicity rather than their religious identity [but] after September 11 they went from being migrants to “Muslims”.’416 Driven by governmental concerns about the prospect of ‘Islamic’ terrorism, a Muslim Community Reference Group, consisting of ‘moderate’ Muslim leaders, was set up to ‘assist the Australian Government to move forward from the Prime Minister’s Summit with Muslim Community Leaders of 23 August 2005’.417 At about the same time, the government introduced the National Action Plan to Build on Social Cohesion, Harmony and Security as a whole-ofgovernment initiative.418 The National Action Plan included the training of religious leaders and teachers in Australia. The underlying concern was that religious leaders who were trained outside of Australia might ‘be inappropriately trained, in some cases, to meet the needs of their congregation in an Australian environment’; therefore, they had to be retrained in line with ‘Australian values and culture’ and ‘the cultural norms of mainstream Australian society’.419

406. Cullen, supra n. 464. 407. Order in Council, Referral of Terms of Reference to the Family and Community Development Committee, http://www.parliament.vic.gov.au/fcdc/article/1790 (accessed 11 Feb. 2014). 408. Family & Community Dev. Comm., Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organizations vol 1, xxvi (2013). 409. Ibid. xxxix. 410. Aliza Taubman, Protecting Aboriginal Sacred Sites: The Aftermath of the Hindmarsh Island Dispute 19 Envtl. & Plan. L.J. 140, 147 (2002). 411. Ibid. 148. 412. Chapman v. Luminis Pty Ltd [2001] FCA 1106. 413. David Nason, Pain Eases with Apology over Ngarrindjeri Secret Women’s Business, The Australian, 7 Jul. 2010, http://www.theaustralian.com.au/news/nation/pain-eases-with-apology-over-ngarrindjeri-secret-womens-business/story-e6frg6nf-1225888703016 (accessed 11 Feb. 2014). 414. (1992) 175 CLR 1, [2]. 415. Aboriginal Land Rights Commission Report, Second Report, Parliamentary Paper No. 69 (1974). 416. Michalis Michael, Australia’s Handling of Tensions between Islam and the West under the Howard Government, 17 Asian J. Political Sci. 45, 59

(2009). 417. Muslim Community Reference Group, Building on Social Cohesion, Harmony and Security: An Action Plan by the Muslim Community Reference Group (2006). 418. Department of Immigration and Border Protection, National Action Plan to Build on Social Cohesion, Harmony and Security, http://www.immi.gov.au/living-in-australia/a-multicultural-australia/national-action-plan/, (accessed 18 Feb. 2014). 419. Department of Immigration and Border Protection, National Action Plan to Build on Social Cohesion, Harmony and Security, http://www.immi.gov.au/living-in-australia/a-multicultural-australia/national-action-plan/nap.htm, (accessed 18 Feb. 2014).

Chapter 3. Interaction between Religion and State on a Political and Legal Level §1. RELATIONSHIP BETWEEN THE PREAMBLE AND SECTION 116 OF THE CONSTITUTION 151. The Preamble to the Constitution contains an explicit reference to God, in which the people of the various states of Australia rely ‘on the blessing of Almighty God’ in the formation of the Commonwealth. ‘The framers, along with leading commentators of the time, anticipated a role for the Preamble in constitutional interpretation.’420 To counteract the potential effect of the Preamble, the framers inserted section 116 into the Constitution, which provides that ‘the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. Section 116 was inserted ‘to meet the danger’ of the Commonwealth passing laws on religious matters.421 We are left with the situation where God and religion have a symbolic role in the Constitution, with no practical legal effect. There are two hands at work here: on the one hand, the Preamble evinces a symbolic interaction between religion and state on a political and legal level; on the other hand, section 116 erects a wall to separate them. §2. CONSCIENCE VOTE 152. The allowance of a free or conscience vote in Parliament has been an occasion for Members of Parliament to vote according to their beliefs, including their religious beliefs, without having to tow the party line. It is an opportunity for their religious beliefs to inform their politics in a direct way. The recent occasions for conscience voting have been on issues that are religiously charged: euthanasia, stem cell research and abortion. The parliamentary debates on these issues had ‘strong religious–secular overtones’.422 When the same-sex marriage or marriage equality bill went before Federal Parliament in 2012, the Labour party allowed for a conscience vote on the bill, but the Liberal-National coalition did not. The bill was ultimately defeated. §3. RELIGIOUS RHETORIC OF POLITICAL LEADERS 153. Scholars of religion and politics in Australia have noted a paradoxical trend in Australia: there has been a decrease in religious practice among the general population, but an increase in religious rhetoric among political leaders. Kevin Rudd, the former Prime Minister, and Tony Abbott, the present Prime Minister, openly declared their religious faith in the public sphere. In a widely cited essay entitled ‘Faith in Politics’, published in The Monthly, a national magazine on Australian politics, society and culture, Kevin Rudd wrote that ‘Bonhoeffer is, without doubt, the man I admire most in the history of the twentieth century. He was a man of faith.’423 Dietrich Bonhoeffer was a German theologian. When Tony Abbott was a minister in the Howard government, he delivered a speech in which he told his audience that ‘the Howard government [had] done much which Christians should applaud’; he then listed as examples all the hot-button issues of religion and politics, in which the government had acted in support of Christian values: euthanasia, abortion and same-sex marriage.424 The rise in religious rhetoric is not merely the idiosyncrasy of two men, Rudd and Abbott. A ‘quantitative-semantic’ analysis of 2,422 speeches by prominent Commonwealth Members of Parliament between 2000 and 2006 showed that the proportion of speeches containing Christian terms increased from 9.1% in 2000 to 21.7% in 2006.425 An analysis of maiden speeches by parliamentarians from 1983 to 2007 also showed a similar rise in religious rhetoric.426 The reasons for this paradoxical trend continue to be the subject of scholarly debate.

420. Mark McKenna, Amelia Simpson & George Williams, First Words: The Preamble to the Australian Constitution, 24 U. New S. Wales L.J. 382, 386 (2001). 421. Ibid. 387. 422. John Warhurst, Religion and Politics in the Howard Decade, 42 Australian J. Political Sci. 19, 25 (2007). 423. Kevin Rudd, Faith in Politics, The Monthly, October 2006, http://www.themonthly.com.au/issue/2006/october/1330040298/kevin-rudd/faith-politics

(accessed 11 Feb. 2014). 424. As quoted in Michael Kirby, Law, Human Rights and Religion, 9 Macquarie L.J. 3, 6 (2009). 425. Anna Crabb, Invoking Religion in Australian Politics, 44 Australian J. Political Sci. 259 (2009). 426. Willie Gin, Jesus Q. Politician: Explaining the Politicization of Religion in the United States, Australia, and Canada, 5 Pol. & Rel. 317 (2012).

Part VI.

Labour Law and Religion

James Krumrey-Quinn

Chapter 1. Scope of Application of Labour Law 154. Labour law is chiefly regulated at the Commonwealth and state levels by workplace or industrial relations legislation, and the common law. They regulate both relations between individual employer and employees as well as groups of employers and employees especially in respect of wages, working hours and industrial action such as strikes. Separate legislation at Commonwealth, state and territory levels cover other labour-related areas including non-discrimination in the workplace, workplace injuries and income taxation. 155. The Commonwealth workplace relations regime applies to employers that are organizations incorporated under the Commonwealth’s corporations legislation, to the Commonwealth and its employees, all persons in the Territories, and throughout Victoria where state Parliament has referred its industrial relations powers to the Commonwealth.427 Where a religious organization is not incorporated under Commonwealth legislation, the Commonwealth workplace relations regime will not apply to them. The state regimes apply more broadly to unincorporated organizations, largely picking up any industrial matters that fall outside the Commonwealth legislation. The broad application of both Commonwealth and state regimes means religious bodies such as churches, religious charitable organizations, religious schools, and religious hospitals will be regulated by one or the other of the regimes. 156. Most workplace relations and related legislation refer to ‘employers’ and ‘employees’, which requires the existence of a contract of employment. Issues to do with the existence and nature of the contract arise most commonly in respect of ministers of religion to which I now turn. §1. IS THERE A CONTRACT? 157. Religious bodies are generally responsible for any contracts entered into where, just as for any secular body, there is: an intention to create legal relations; agreement between the parties; and consideration for that agreement. 158. An intention to create legal relations will arise where the parties intended for their dispute to be adjudicated before the (secular) courts.428 Categorization of the relationship turns on an analysis of the facts of the specific situation.429 This categorization requires an objective assessment of the subject matter of the agreement, the status of the parties to it, their relationship to one another and other surrounding factors. There is no presumption that the relations between a church body and its religious ministers are of a purely religious rather than legal nature.430 Whilst some aspects of the relationship may be essentially spiritual, such as the running of the liturgy, others may give rise to legally enforceable rights and duties, including economic and proprietary entitlements. 159. Any agreement must contain terms that are certain. Difficulty arises where the purported employer is an unincorporated association (such as a religious charity or community group) as the employer lacks separate legal personality, making it difficult to determine with whom the purported employee is contracting and who is responsible for any breach of contractual duties.431

160. Although religious ministers will not ordinarily be paid a salary, consideration will normally be provided in the form of food, lodging or a stipend. 161. In Ermogenous v. Greek Orthodox Community of SA Inc., a Greek Orthodox Archbishop sued the association responsible for the autocephalous Greek Orthodox Church in Australia for annual leave and long service entitlements after the Archbishop fell out with the community organization, Greek Orthodox Community of SA, that had first engaged his services.432 The High Court upheld the findings of the Industrial Magistrate that, on consideration of the charters, statutes and documents of fundamental belief of the Orthodox faith as well as the actual position of the clergy in respect of each of the relevant Churches, there was no bar on the creation of employment contracts between the Archbishop and community organization. It based its decision on the fact that the community organization reserved and indeed exercised the right to control the way in which the Archbishop went about his duties including in the running of church affairs such as the consecration of priests, disciplining of clergy and the calling and conduct of synods, and that the Archbishop was allowed no say in the evolution of the community itself and was called upon merely to play his role and discharge his duties.433 The High Court reiterated that the agreement was entered into between the Archbishop and the community organization and not the church itself, with remit of the community organization extending beyond the administration of religious matters to include the wider promotion of Hellenic and Orthodox culture.434 Taken as a whole, the objective circumstances indicated the intention of the parties to make a contract enforceable in law rather than an arrangement binding only in honour.435 §2. IS THE CONTRACT ONE OF EMPLOYMENT? 162. Even where a contract exists, it will only fall within the ambit of workplace relations legislation if it is a contract of employment rather than merely a contract for services, whose workers are often referred to as contractors. To determine whether the contract is one of employment, the courts look at a range of indicia including the control and direction of the purported employer.436 In Greek Orthodox Community of SA Inc. v. Ermogenous, the South Australian Supreme Court, on remitter from the High Court, refused leave to appeal an Industrial Magistrate’s determination that the Greek community organization had engaged the Greek Orthodox Archbishop in an employment contract for the provision of religious services and so was liable to compensate for unpaid annual leave and holiday pay entitlements.437 Not only had the Archbishop been recorded as an employee and was an integral part of their community, the community organization exercised a significant degree of control over spiritual matters, leaving the Archbishop with no real degree of independence or distinct sphere of competence during the period in which he worked for the organization.438 163. A strand of English common law authority suggests that where a religious minister is an ‘office holder’, any duties arising out of this relationship are not owed to the religious minister individually but to the office.439 This line of authority has not been considered in Australia but may not be followed in this jurisdiction as in Australia public sector officer holders are generally considered employees under the common law.440 §3. WILL RELIGIOUS LAW EVER APPLY? 164. The parties to a contract governed by Australian law may agree to incorporate provisions of another system of law, such as a religious legal system, as provisions of the contract, provided there is certainty as to what is being incorporated.441 Whether or not recourse to the religious legal system is available or required is a matter for determination by the secular courts. For example, in Engel v. The Adelaide Hebrew Congregation Incorporated, a Rabbi sued his congregation for giving notice that it did not intend to renew his contract after which they commenced possession proceedings in respect of the accommodation he had been provided.442 The Rabbi relied on a term of the contract that required issues as to his performance be resolved by recourse to a Jewish ecclesiastical court, whose decision would bind the parties. The Rabbi, however, failed in his claim as the contract had come to an

end, and there was no evidence that the provisions of Jewish law incorporated by the dispute resolution clause might result in the ecclesiastical court deciding that the appellant remained the rabbi of the Congregation; the dispute resolution clause related to the rabbi’s performance and not determination of whether the contract had expired.

Fair Work Act 2009 (Cth). South Australia v. The Commonwealth (1962) 108 CLR 130, 154. Ermogenous v. Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105 [25]. Ibid. 106 [26]; 121–122 [74]–[76]. Cameron v. Hogan (1934) 51 CLR 358, 371. (2002) 209 CLR 95. Ibid. 102 [17]; 112 [45]. Ibid. 111 [41]–[42]. Ibid. 112 [44]. Stevens v. Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. [2002] SASC 384. Greek Orthodox Community of SA Inc v. Ermogenous [2002] SASC 384, [13]. Curates Case [1912] 2 Ch. 563, 568–570; Paul [1914] SC 16, 23–24. Greek Orthodox Community of SA Inc v. Ermogenous (2000) 77 SASR 523, [205]. Cf. Ermogenous v. Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 107 [31] the question was left open. 441. Engel v. The Adelaide Hebrew Congregation Incorporated (2007) 98 SASR 402, [36]. 442. (2007) 98 SASR 402. 427. 428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 440.

Chapter 2. Religious Ministers and Labour Law 165. If a court finds that a religious minister is an employee, workplace relations law will apply as it would for any lay employee of a lay organization. However, a number of other areas of the law affecting the workplace apply to religious ministers regardless of their work status, including in the areas of nondiscrimination, income taxation and worker’s compensation law, and where the work involves children. §1. NON-DISCRIMINATION 166. Non-discrimination provisions under Commonwealth, state and territory workplace relations and nondiscrimination regimes generally prohibit discrimination in the employment context.443 Under non-discrimination regimes, exemptions are specifically available in respect of the ordination or appointment of priests, ministers of religion or members of any religious order.444 §2. INCOME AND FRINGE BENEFITS TAXATION 167. Under Australia’s centralized income taxation system, although most religious institutions are generally exempt from the payments of most forms of taxation, ‘religious practitioners’ are not. They must have a tax file number and are subject to the Pay as you Go withholding obligation.445 Under the Pay as you Go system, most employers must withhold a portion of all payments to employees in satisfaction of the employee’s end-of-year tax liabilities. This obligation expressly extends to religious practitioners, which is defined as ministers of religion or members of religious orders, as well as those training to be ministers or members of such orders. The obligation falls chiefly on religious institutions paying religious practitioners for activities performed in pursuit of the religious practitioner’s vocation or simply as a member of the religious institution and any allowances provided, but also extends to non-religious entities that use religious practitioners for their counselling or chaplaincy services and pay them above a prescribed amount.446 Religious practitioners are permitted to make deductions for ‘occupation specific clothing’ such as ‘religious cleric’s ceremonial robes’.447 168. Taxation Ruling 92/17 offers guidance on the meaning of ‘religious minister’ and ‘member of a religious order’.448 The ruling states that ‘religious ministers’ are: members of a religious institution; ordained, admitted, commissioned or authorized on the basis of their level of theological knowledge or training; officially recognized as having authority in matters of doctrine or practice; occupy a position distinct from ordinary adherents; themselves acknowledge their leadership in spiritual affairs of the institution; and are authorized to discharge the duties of a minister or spiritual leader such as in respect of religious ceremonies.449 By contrast, ‘members of religious orders’ are: separated from secular society; regularly participate in activities such as prayer, religious study, teaching, care of the aged, missionary work or church reform; part of an order related to a religious institution and generally under the latter’s control and supervision; renounce possession of property and are committed to self-sacrifice. Whilst an individual need not possess each of the characteristics, they will usually possess ‘most’ of them.450 169. Religious practitioners are also subject to fringe benefits taxation on any benefits they may acquire during their employment. An exemption arises where the benefit is provided principally in respect of any ‘pastoral duties’ or ‘any other duties or activities that are directly related to the practice, study, teaching or propagation of religious beliefs’.451 In these circumstances, pastoral duties include: communication of beliefs; teaching and counselling; provision of spiritual guidance and support; attendance at trainings of a spiritual nature; meeting with and visiting adherents, the sick, the poor or other persons in need of emotional and spiritual support.452 Further, the other duties and activities may include secular activities if there is a direct link between the activities and religious beliefs of the person concerned as well as missionary work.453 Administration of a church, school or other ecclesiastical unit however falls outside of the scope of both of these terms.454 Notwithstanding the fact that a religious practitioner might undertake non-pastoral activities (e.g., administrative tasks undertaken as headmaster of a school), as long as

the benefit is directed toward the pastoral or ‘other’ activity it will be exempt from fringe benefit taxation.455 §3. WORKERS’ COMPENSATION LEGISLATION 170. Workers’ compensation legislation provides a legal regime for workers to claim compensation for any injuries suffered during employment. Special provision is made in all but two jurisdictions for ministers of religion. In the majority of jurisdictions, religious bodies may request that they be deemed employers or that the religious minister working with them be deemed an employee for the purposes of the application of the relevant legislation.456 In South Australia, the work of a minister is deemed to fall within the operation of the relevant regulation, although ministers of the Anglican, Catholic and Uniting Churches and the Salvation Army are specifically excluded.457 By contrast, in Western Australia clergymen of the Baptist and Anglican Churches are expressly stated to be covered by the legislation.458 §4. WORKING WITH CHILDREN 171. Legislative regimes exist in most states and territories requiring individuals that work with children to undergo background checks or register as undertaking such work. The legislation expressly extends to ministers of religion or other members or representatives of religious organizations, such as in the counselling provided in a secular school by a religious minister, and to the provision of religious services, such as in the teaching of Sunday school.459 It is usually an offence not to undertake the relevant background check or to register.

443. 444. 445. 446. 447. 448. 449. 450. 451. 452. 453. 454. 455. 456.

457. 458. 459.

See, further, Part VI, Ch. 3.1. See, further, Part VI, Ch. 7.1.2. Taxation Administration Act 1953 (Cth), Sch. 1, Ch. 2, Pt 2-5, s. 12–47. Australian Taxation Office, ‘Withholding for religious practitioners’ (9 Jan. 2014, ATO website). Income Tax Assessment Act 1997 (Cth), s. 34-20. Australian Taxation Office, Income Tax and Fringe Benefits Tax: Exemptions for ‘Religious Institutions’, Taxation Ruling TR 92/17, (10 Dec. 1992), [12]. Ibid. [13]. Ibid. [14]. Fringe Benefits Tax Assessment Act 1986 (Cth) s. 57. Australian Taxation Office, Income Tax and Fringe Benefits Tax: Exemptions for ‘Religious Institutions’, Taxation Ruling TR 92/17, (10 Dec. 1992), [21]. Ibid. [22] and [24]. Ibid. [25]. Ibid. [29] and [35]. Workers Compensation Act 1951 (ACT) s. 17(1); Workplace Injury Management and Workers Compensation Act 1998 (NSW) s. 4(1), Sch. 1 cll 17, 18; Workers Rehabilitation and Compensation Act 1988 (Tas) s. 3(4); Accident Compensation Act 1985 (Vic) s. 12; Workers’ Compensation and Injury Management Act 1981 (WA) s. 10. Workers Rehabilitation and Compensation Regulations 2010 (SA) regs 5(5), 6(1). Workers’ Compensation and Injury Management Act 1981 (WA), ss 8–9. Working with Vulnerable People (Background Checking) Act 2011 (ACT); Children Protection (Working with Children) Act 2012 (NSW); Care and Protection of Children Act (NT); Working with Children (Risk Management and Screening) Act 2000 (Qld); Working with Children Act 2005 (Vic); Working with Children (Criminal Record Checking) Act 2004 (WA).

Chapter 3. Other Employees and Labour Law 172. The regulation of lay labour within religious organizations is generally the same as its regulation in secular organizations. The exception is in the areas of nondiscrimination, religious worship in the workplace, trade union membership, holidays and income taxation. §1. NON-DISCRIMINATION 173. Non-discrimination provisions relevant to the labour context can be found under both workplace relations and non-discrimination legislative regimes. Both regimes will generally apply concurrently to a given act of discrimination, giving the worker a choice of forums. The AHRC also has the power to investigate discrimination in the workplace. 174. The Commonwealth workplace relations legislation prohibits an employer from taking adverse action against an employee or prospective employee because of, amongst other attributes, the person’s religion.460 Adverse action falling within the above provision includes dismissal, injury to the employee, altering the position of the employee to the employee’s prejudice, discriminating between the employee and other employees, refusing to employ a prospective employee or discriminating against a prospective employee in the terms or conditions on which employment is offered.461 175. The prohibition on adverse action will not apply to action that is ‘not unlawful under non-discrimination law in force in the place where the action is taken’.462 Anna Chapman notes two possible interpretations, both of which mean that the protection afforded to religion by adverse action varies from state to state just as nondiscrimination law does.463 On the one hand, the provision may mean that if the conduct falls under a relevant exception in an applicable non-discrimination statute then the exception also applies to the adverse action. On the other hand, it could mean that if the conduct is not unlawful at all under the relevant non-discrimination statute then it is not an unlawful adverse action. If the second interpretation is taken, the equality provisions of the Commonwealth workplace relations legislation do nothing new other than opening up a new forum for the same complaints.464 If this were the full meaning then under the Commonwealth, South Australia and New South Wales non-discrimination legislation, where religious discrimination is not unlawful, individuals would still have no protection. The Commonwealth legislation also prohibits the inclusion of discriminatory terms in awards and enterprise agreements as well as in the termination of agreements.465 176. The workplace relations regimes of each state offer protection, albeit narrower in scope than the Commonwealth legislation. In Queensland, South Australia and Tasmania, dismissal for reasons of, amongst other things, an employee’s religion is unlawful.466 Discriminatory terms in an award are also prohibited or are liable to being changed by the relevant industrial authority in New South Wales, Queensland, South Australia and Western Australia.467 Although in the New South Wales workplace relations legislation the relevant provision refers back to its nondiscrimination legislation, the South Australian legislation does not, further extending the scope of protection against discrimination on the basis of religion in that state. Further distinctive features of the South Australian legislation are that: the South Australian Industrial Relations Commission is required not to register enterprise agreements where the provision discriminates against an employee (including on the basis of religion); and the activities of charitable organizations (which will usually include religious organizations) can be exempt from the operation of awards.468 177. Non-discrimination regimes also expressly apply to the labour context and provide an additional layer of protection to workers. In respect of employees and prospective employees, legislation is largely identical across all jurisdictions and prohibits discrimination in determining who should be offered employment and the terms or condition on which employment is offered, as well as in the variation of terms or conditions of employment, denial

or limitation of access to opportunities for promotion, transfer, training or any other benefits, dismissal, or subjecting an employee to any other detriment or less favourable action.469 Unlike the workplace relations regimes, non-discrimination regimes expand the protection to cover people who fall outside the traditional employment relationship (governed by a contract of service) such as independent contractors (governed by a contract for services).470 In some jurisdictions, the protection also extends to volunteers.471 178. The AHRC has the power to inquire into any act or practice that may be inconsistent with or contrary to any human rights, including the rights and freedoms set out in the International Labour Organization’s 1958 Discrimination (Employment and Occupation) Convention, or that may constitute discrimination in employment as defined under the Australian Human Rights Commission Act 1986.472 Under the Convention, employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.473 Inquiries concerning either the Convention or discrimination under the Act extend to discrimination on a number of bases, including religion.474 The power to inquire may only be exercised in respect of acts or practices of the Commonwealth and the territories,475 although in respect of inquiries into discrimination in employment as defined under the Act the power also extends to acts or practices of the states.476 It is an offence under the Act to victimize an applicant for employment or an employee by reason that they have made a complaint or allegation under the Act.477 179. Non-discrimination provisions in the workplace protect against any trading off of a worker’s individual right to freedom against any costs of production or ultimate profit that such protection may affect.478 In Petroleum Refineries (Australia) Pty Ltd v. Marett, a maintenance worker refused to join a fund created by his union to assist striking members of another union based upon his religious belief that that charitable works and welfare support was the sole province of the church and not a function of a union.479 Instead, he offered to donate the amount to his church which would then pass it on to a people member who belonged to the union on strike. His fellow employees (all member of his union) refused the alternative and indicated to management that they would not work with him. To avoid any industrial action at the refinery which would have cost the refinery AUD 2 million per week, the employee was removed from his maintenance duties and placed in a hut without a desk, furniture, equipment or work, denying him not only of the society of his fellow workers but also the advantage of any overtime. When his fellow employees finally accepted his alternative plan of payment, the employee refused to follow through as to do so would have forced them complicit to go back on their word, a breach of an obligation to God. The Court found that the refinery had unlawfully discriminated against the employee as, although the refinery was re-acting to a threat of industrial action, there was an ‘inextricable nexus’ between his religious beliefs the reasons for him being placed in the hut, which explained why the discriminatory acts were undertaken. 180. Discrimination on the basis of religion can be either direct or indirect.480 Direct discrimination arises most often in religious organizations when workers fail to meet religious requirements, whilst indirect discrimination applies in secular organizations that seek to impose requirements that prohibit certain religious practices. Examples of direct discrimination include: – dismissal of the non-Catholic President of a lay Catholic charitable organization who had worked in the organization in that same capacity for a number of years after the organization introduced a new requirement that the President of the organization be a Catholic;481 – refusal of a Baptist community support agency to employ staff or engage volunteers that were not Baptists;482 – dismissal of a part-time receptionist in the Seventh-Day Adventist Church after it was found that she was having an intimate relationship with a man whilst separated from her husband but not divorced;483 – dismissal of a Catholic school teacher for being unmarried and in a de facto relationship after she became pregnant.484 181. There have been no successful claims of indirect discrimination on the basis of religion. Unsuccessful claims have included:

– refusal of an employer to permit a Catholic care worker to hold a prayer service for a recently deceased client which failed as not only did the employee’s faith not require her to hold prayer services for co-workers but also the employee was at no disadvantage since the workplace was a non-denominational one and no such religious worship had ever been conducted at the premises or would ever be permitted, and she was otherwise permitted to engage in activity in the workplace consistent with her religious belief such as contemplating the crucifix, reading the Bible and saying a prayer;485 – failure of a tertiary institution to provide an adequately sized prayer room to a Muslim lecturer which did not succeed as there was no evidence that a request from any other group (religious or otherwise) for such a space would have been treated differently, and because in any case such a space was all that could be provided given the heavy use of other more appropriate-sized rooms.486 182. Under some workplace relations and non-discrimination regimes as well as the AHRC legislation discriminatory conduct will be lawful where the conduct is a requirement of the particular position. The applicable test differs across the jurisdictions, with some requiring that it be an inherent requirement or that is inherent in the nature of the particular position,487 whilst others requiring that is a genuine occupational qualification or a genuine occupational requirement (the ‘inherent/occupational requirement’ test).488 Under Queensland non-discrimination legislation, a similar provision specifically applies to bodies established for religious purposes.489 In applying the inherent/occupational requirement, test courts and tribunals have asked themselves whether: – a particular requirement is necessary and indispensable to carrying out the position;490 – the position would be essentially the same if that requirement were dispensed with;491 – the reason given for the discriminatory conduct is validly based on the occupational requirements of the position;492 – the good standing of a religious body with its members generally, and in the broader community, would be preserved despite the religious body’s being seen as hypocritical in relation to the employment of its members.493 The court is not required to question the worth or wisdom of the religious doctrine underlying the religious body’s actions.494 183. The Commonwealth workplace relations legislation as well as the Australian Human Rights Commission Act 1986 provide a further exception for any action taken by an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, and is taken in good faith to avoid injury to the religious susceptibilities of an adherent of that religion or creed (the ‘religious susceptibilities test’).495 This exception is commonly found in non-discrimination legislation, although not always collocated with a requirement of good faith.496 184. In Griffin v. Catholic Education Office, the dismissal of a lesbian teacher who was the convenor of a Gay and Lesbian Teachers and Students Association from a Catholic school was held to be unlawful by the federal Human Rights and Equal Opportunity Commission (now the AHRC) under its founding legislation which prohibits discrimination and provides exemptions broadly similar to those under non-discrimination regimes.497 As the teacher’s acts were limited to providing support to those subjected to violence and vilification on the basis of their sexuality, her actions would not influence students contrary to Church teachings as the court had found that official Catholic teaching only prohibited homosexual activity and not homosexuality itself. On this basis, the Commission concluded that the inherent requirements test did not apply. It also concluded that religious sensitivities test did not apply as any injury arose out of an assumption in the minds of the adherents that because a teacher publicly acknowledged her homosexuality and was a public advocate against discrimination and violence against homosexuals she was also advocating and engaging in homosexual activity. No issue arose as to the religious nature of the body. 185. In Walsh v. St Vincent de Paul Society Queensland, a non-Catholic President of a lay Catholic charitable

organization was asked to become Catholic or leave the position.498 The tribunal member found that being Catholic war not a genuine occupational requirement (and so the discrimination was lawful) as the rules of the organization did not stipulate that the President be a Catholic and, although the position involved spiritual matters, there was a separate position of spiritual adviser which was primarily responsible for matters of Catholic doctrine. Further, the claimant had been President for a number of years and was known not to be Catholic at the time of her appointment notwithstanding which she was allowed to continue in her role. 186. In Hozack v. Church of Jesus Christ of Latter-Day Saints, a Church dismissed a part-time Church receptionist after it was found that she was having an intimate relationship with a man whilst separated from her husband but not divorced, which had rendered her un-Templeworthy.499 The Church failed to establish that it was a ‘requirement’ that employees exhibit religious standards and values that qualify them for Temple-worthiness as the Church had, where the need arose, taken on staff that were not members of the Church. Neither was any such requirement ‘operational’ as the work was not intrinsically religious in nature. However, as her behaviour was adulterous and her attitude unrepentant, which were both (in her Church’s view) grounds for a loss of Templeworthiness, the Church could rely on the religious susceptibilities test as Temple-worthiness was a matter of religious doctrine required of Church members employed by the Church. The outcome was despite the Church’s employment of lay members of staff who were not subjected to the same Temple-worthiness condition. 187. In Mornington Baptist Church Community Caring Inc., a Baptist community support agency that was to send coaches out into the community to foster social, economic and spiritual well-being in their client families sought an exemption from the application of the Victorian non-discrimination provisions to enable them to employ only Christians in this role.500 In considering and rejecting the agency’s reliance on the generally applicable religious sensitivities test, the tribunal held that it was not clear: that the agency was a religious body as its statement of purposes concentrated on community care rather than religious matters; that exclusion of non-Christians from employment at the agency conformed with Baptist doctrine; or that such an exclusion was even necessary to avoid injuring sensitivities of Baptists. 188. The AHRC, responsible for inquiring into complaints and allegations of discrimination in the workplace, has published the following checklist to assist those organizations wishing to lawfully discriminate on the basis of religion: When advertising a position or promotion, all employers should: – identify the inherent or essential requirements of every position in the organization. – ensure that job advertisements and other selection documents are designed in accordance with the inherent requirements of the particular job. Employers, including religious organisations, who regard membership of a particular religious group, evidence of church attendance or some other religious qualification as an inherent requirement of any position should: – only consider setting a religious criterion in the light of the requirements of individual positions and not as a blanket criterion for all positions. – ensure that the religious qualification is an inherent requirement of the position in that it is necessary in order for the individual to effectively discharge the duties of the position. To do this, employers should: – analyse why an individual needs to possess that particular religious qualification to be able to perform the duties of that particular position; for example by reference to the duty statement of that position, the expectations in the work culture or environment, the organisation’s Mission Statement, the interplay of the Mission Statement and management requirements, style and expectations. – evaluate whether an individual who is sympathetic to the values of the organisation and could demonstrate a capacity to operate in a manner consistent with them would be unable to perform the duties of that particular position.

Religious organisations employing staff and considering setting a religious criterion to avoid offending the religious susceptibilities of adherents should: – clearly identify the established doctrines and tenets of the religion on which the organisation is based; – consider whether these doctrines and tenets are central to the day to day work of the organisation; – ensure that the religious criterion is necessary to avoid offending the religious susceptibilities of adherents of that faith; and – ensure the criterion is set in good faith to avoid offending the religious susceptibilities of adherents of that faith.501 189. Although the inherent requirements test is commonly used by religious bodies in conjunction with other tests to maintain the religiosity of the body, it can also be used by secular organizations to keep religion out of the workplace. For example, in Coulson v. Austereo Pty Ltd the Queensland Anti-Discrimination Commissioner held that a radio station’s imposition of a requirement that a DJ work some Sundays despite his religious beliefs was reasonable given the seven-day, twenty-four-hour nature of the industry.502 190. Whilst the workplace relations legislation in New South Wales, Queensland and Western Australia refer back to their respective non-discrimination regimes and the exemptions contained therein, the South Australian and Tasmanian provisions refer to or mirror the language of Article 5(a) of the Termination of Employment Convention which provides no such exemptions for religious organizations. §2. RELIGIOUS WORSHIP IN THE WORKPLACE 191. In the Australian Capital Territory and Western Australia it is unlawful for an employer to refuse an employee permission, on the ground of religious conviction, to carry out a religious practice during work hours.503 The same protection is also found in the Northern Territory where it applies more broadly to ‘workers’, and also on the ground of religious activity.504 This protection is qualified by the requirement that for the refusal to be unlawful the religious practice must be of a kind recognized as necessary or desirable by people of that same religious conviction, its performance must be reasonable having regard to the circumstances of the employment, and it must not subject the employer to (in the Northern Territory and Western Australia) detriment or (in the Australian Capital Territory) unreasonable detriment. In the absence of such an express protection, the only recourse an employee has against employers for restricting worship in the workplace is via a claim for indirect discrimination.505 §3. TRADE UNION MEMBERSHIP 192. Under some workplace relations regimes, the relevant industrial authority may issue a person (whether an employer, employee or any other type of worker) with a certificate of conscientious objection where the person holds a genuine conscientious objection to membership to becoming a member of an industrial organization of employees.506 This requires consideration of the person’s religious beliefs, such as whether they are a practicing member of a religious society or order whose tenets or beliefs preclude members or any organization or body other than that society or order. As a consequence, trade unions will be prohibited from entering any premises for the purpose holding discussions with employees or an investigation if the employer is a person that holds a certificate of conscientious objection.507 §4. HOLIDAYS 193. Official public holidays exist in Australia for the Christian feasts of Good Friday, Easter Monday and Christmas Day.508 Because of their high Muslim populations, only the external territories of Christmas Island and Cocos (Keeling) Islands provide public holidays for non-Christian feasts, creating several public holidays for Muslim celebrations.509 Employees are entitled to be absent from work on public holidays, but must comply with a

reasonable request to work on a public holiday unless they provide a reasonable refusal.510 Given public holidays are secured by Australian law, the Christian majority has the freedom to celebrate the largest Christian holidays, while all other leaves for religious holidays or days of rest must be orchestrated through the normal operation of employee entitlements. As such, employees could take some of their four weeks of paid annual leave to celebrate a religious holiday,511 and employers may not unreasonably refuse such a request.512 An employee may also exchange a public holiday entitlement for another day if their award or enterprise agreement allows for it.513 As the holidays are prescribed by statute, a claim in discrimination on the basis of religion will fail owing to the defence of statutory authority.514 §5. INCOME TAXATION 194. Whilst religious institutions themselves are income-tax-exempt, lay people working within these institutions are not and are subject to all relevant taxation legislation. The only difference arises in respect of fringe benefits taxation for those employees who care for the elderly or the disadvantaged or who carry out domestic or personal services for religious practitioners and who live with them or on the same parcel of land. Such persons accrue no tax liability in relation to the accommodation, residential fuel expended, or meals or other food or drink consumed.515 Further, no liability arises in relation to food and drink provided to non-live-in employees of religious institutions which provide domestic services to religious practitioners.516

460. 461. 462. 463. 464. 465. 466. 467. 468. 469.

470.

471. 472. 473. 474. 475. 476. 477. 478. 479. 480. 481. 482. 483. 484. 485. 486. 487.

Fair Work Act 2009 (Cth) s. 351(1). Ibid. s. 342. Ibid. s. 351(2)(a). Anna Chapman, Reasonable Accommodation, Adverse Action and the Case of Deborah Schou, 33 Adelaide L. Rev. 39, 74–76 (2012). Ibid. Fair Work Act 2009 (Cth) ss 153(1), 194(a), 195(1), 578(c), 772(1)(f). Industrial Relations Act 1999 (Qld) s. 73(2)(m); Fair Work Act 1994 (SA) s. 108(2)(a), Sch. 7 Art. 5(d); Industrial Relations Act 1984 (Tas) s. 30(4). Industrial Relations Act 1996 (NSW) ss 6(2)(f), 19(3)(e), 35(1)(a); Industrial Relations Act 1999 (Qld) s. 140GD; Fair Work Act 1994 (SA) s. 79(2); Industrial Relations Act 1979 (WA) s. 40B(1)(c). Fair Work Act 1994 (SA) ss. 79(2), 114(1)(a). Racial Discrimination Act 1975 (Cth) s. 15; Sex Discrimination Act 1984 (Cth) ss 14–20; Disability Discrimination Act 1992 (Cth) ss 15–21; Age Discrimination Act 2004 (Cth) ss 18–24; Discrimination Act 1991 (ACT) ss 10–17; Anti-Discrimination Act 1977 (NSW) Pt 2 Div 2, s. 22B, Pt 3 Div 2, Pt 3A Div 2, Pt 4A Div 2, Pt 4B Div 2, Pt 4C Div 2, Pt 4E, Pt 4G Div 2; Anti-Discrimination Act (NT) ss 31–34, 48; Anti-Discrimination Act 1991 (Qld) ss 13–23, 54–57, 68–71; Equal Opportunity Act 1984 (SA) Pt 3 Div 2, Pt 4 Div 2, Pt 5 Div 2, Pt 5A Div 2, Pt 5B Div 2; Anti-Discrimination Act 1998 (Tas) s. 22(1)(a); Equal Opportunity Act 2010 (Vic) ss 6(c), 16–22, 30–33; Equal Opportunity Act (WA) ss Pt II Div 2, Pt IIAA Div 2, Pt IIA Div 2, Pt IIB Div 2, Pt III Div 2, Pt IV Div 2, Pt IVA Div 2, Pt IVB Div 2, Pt IVC Div 2. See, e.g., the definition of ‘employment’ which includes a contract for services: Racial Discrimination Act 1975 (Cth) s. 3(1); Sex Discrimination Act 1984 (Cth) s. 4(1); Disability Discrimination Act 1992 (Cth) s. 4(1); Age Discrimination Act 2004 (Cth) s. 5; Anti-Discrimination Act 1977 (NSW) s. 4(1); Equal Opportunity Act 2010 (Vic) s. 4(1). See, e.g., the definition of ‘work’ in Anti-Discrimination Act 1991 (Qld) Schedule. Australian Human Rights Commission Act 1986 (Cth) ss 20(1)(b), 31(1)(b). Discrimination (Employment and Occupation) Convention, opened for signature 25 Jun. 1958, 362 UNTS 31 (entered into force 15 Jun. 1960) Art. 1.3. Ibid. Art. 1.1(a); Australian Human Rights Commission Act 1986 (Cth) s. 3(1) (definition of ‘discrimination’). Australian Human Rights Commission Act 1986 (Cth) s. 3(1). Ibid. s. 30(1). Ibid. s. 26(2). Petroleum Refineries (Australia) Pty Ltd v. Marett [1989] VR 789, 793. [1989] VR 789. See, further, Pt VII, Ch. 7.1.1. Walsh v. St Vincent de Paul Society Queensland [2008] QADT 32. Mornington Baptist Church Community Caring Inc [2005] VCAT 2438. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441. Thompson v. Catholic College, Wodonga (1988) EOC ¶ 92-217. D’Urso v. Peninsula Support Service Inc [2005] VCAT 871. McIntosh, Ahmad v. TAFE Tasmania [2003] TASADT 14. Workplace relations: Fair Work Act 2009 (Cth) ss 153(2)(a), 195(2)(a), 351(2)(b), 772(2)(a); Industrial Relations Act 1984 (Tas) s. 30(4)(d). Nondiscrimination: Disability Discrimination Act 1992 (Cth) s. 21A; Age Discrimination Act 2004 (Cth) s. 18(4); Anti-Discrimination Act 1977 (NSW) ss 49D(1)(a), 49V(4)(a); Anti-Discrimination Act (NT) s. 35(1)(b)(ii). Australian Human Rights Commission inquiries: Australian Human Rights Commission Act 1986 (Cth) s. 3(1) (definition of ‘discrimination’); Discrimination (Employment and Occupation) Convention, opened for signature

25 Jun. 1958, 362 UNTS 31 (entered into force 15 Jun. 1960) Art. 1.2. 488. Non-discrimination: Sex Discrimination Act 1984 (Cth) s. 30; Discrimination Act 1991 (ACT) ss 34, 42, 48, 57A, Anti-Discrimination Act 1977 (NSW) ss 14, 31, 49ZYJ, Equal Opportunity Act 1984 (SA), ss 34(2), 56(2), 85F(2); Anti-Discrimination Act (NT) s. 35(1)(b)(i); Anti-Discrimination Act 1991 (Qld) s. 25; Anti-Discrimination Act 1998 (Tas) s. 51(1); Equal Opportunity Act 1984 (WA) ss 27, 50, 66S, 66ZQ; Equal Opportunity Act 2010 (Vic) ss 26. 489. Anti-Discrimination Act 1991 (Qld) s. 25. 490. Walsh v. St Vincent de Paul Society Queensland [2008] QADT 32, [123]. 491. Ibid. 492. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441. 493. Ibid. 494. Ibid. 495. Fair Work Act 2009 (Cth), s. 351(2)(c); Australian Human Rights Commission Act 1986 (Cth) s. 3(1) (definition of ‘discrimination’). 496. See Pt VII, Ch. 7.3.I. 497. (1998) EOC § 92-928. 498. [2008] QADT 32. 499. (1997) 79 FCR 441. 500. [2005] VCAT 2438. 501. Australian Hum. Rights Commn., The Human Rights and Equal Opportunity Commission Act 1986 (Cth): its application to religious freedom and the right to non-discrimination in employment (Information Paper, 2006). 502. Coulson v. Austereo Pty Ltd (2003) EOC ¶93-294. 503. Discrimination Act 1991 (ACT) s. 11; Equal Opportunity Act 1984 (WA) s. 54(3). 504. Anti-Discrimination Act (NT) s. 31(3). 505. See, Pt VI Ch. 3.1. 506. Fair Work (Registered Organizations) Act 2009 (Cth) s. 180; Industrial Relations Act 1996 (NSW) s. 212; Industrial Relations Act 1999 (Qld) ss 102, 111; Fair Work Act 1994 (SA) s. 118. 507. Industrial Relations Act 1996 (NSW) s. 296(2)(a). 508. Fair Work Act 2009 (Cth) s. 115(1)(a). 509. Public and Bank Holidays Act 1972 (WA) (CI) Sch. 2; Public and Bank Holidays Act 1972 (WA) (CKI) Sch. 2. 510. Fair Work Act 2009 (Cth) s. 114(1), (2). 511. Ibid. ss 86, 87. 512. Ibid. s. 88(2). 513. Fair Work Ombudsman, Government of Australia, Agreeing to a Different Public Holiday Date (14 Feb. 2014), http://www.fairwork.gov.au/Leave/public-holidays/Pages/agreeing-to-different-public-holiday-date. 514. See, e.g., McIntosch v. TAFE Tasmania [2003] TASADT 14. 515. Fringe Benefits Tax Assessment Act 1986 (Cth) ss 58, 58T. 516. Ibid. s. 58V.

Part VII. Religious Communities and Protections of the Individual Chapter 1. Protection of Privacy James Krumrey-Quinn

195. There is no broadly actionable statutory or common law right to privacy in Australia.517 Although there have been some judicial comments in favour of the recognition of a common law right518 and recommendations for the enactment of a statutory cause of action,519 data protection legislation remains the major protection for the majority individuals in Australia, with the Australian Capital Territory and Victoria also having a right to privacy under their statutory bills of rights. Additional protections exist for Aboriginal people in respect of sacred sites, objects and knowledge, although proving their sacredness existence has proved controversial, as discussed in further detail in Part IV Chapter 1.5. Religious confessions and some other confidential communications are also protected, although only in court proceedings, and are discussed under Part VII Chapter 5. §1. DATA PROTECTION 196. The Commonwealth’s Privacy Act 1988 regulates the handling of information about individuals in both the public and private sectors. Enacted under the foreign relations power of the Commonwealth Constitution, it is intended to satisfy Australia’s obligations under Article 17 of the ICCPR and the Organisation for Economic Cooperation and Development Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.520 The Act applies to ‘APP’ entities, which primarily includes Commonwealth government agencies, health service providers and private organizations with annual turnover of more than AUD 3 million.521 The Act also applies in respect of the public sector in the Australian Capital Territory.522 197. The Commonwealth legislation generally restricts the collection and use of ‘sensitive’ information as well as ‘personal information’. Whereas personal information is merely information that identifies the individual, sensitive information includes information or an opinion about an individual’s racial origin, political opinions, religious beliefs or affiliations, philosophical beliefs, membership of associations or unions, sexual preferences and health or genetic information.523 Personal information may be collected where reasonably necessary for one or more of an entity’s functions or activities.524 For sensitive information to be collected, not only must there be reasonable necessity, but also the individual must consent and it must fall within one of the number of prescribed situations.525 For example, sensitive information may be collected where the collector is a non-profit organization engaging in activities for religious purposes, but only where related to the activities of the organization and its members.526 Once sensitive information is collected, its use must be limited to purposes directly related to the primary purpose for which it is being held.527 198. Data protection legislative regimes exist in all other jurisdictions except South Australia and Western Australia.528 Most regimes have a narrower scope than under the Commonwealth regime, applying to a smaller pool of public sector organizations, and including fewer exceptions for when collection and use are allowed. Only in Tasmania is there an express exemption for personal information collected for a religious aim.529 199. Data protection provisions can also be found in other legislative regimes. For example, Queensland’s education legislation contains a requirement that religious instructors in public schools do not make a record of the

personal information they have gained or have access to in respect of a student, prospective student, former student, pre-preparatory age child, or person with a disability.530 §2. RIGHT TO PRIVACY 200. The Australian Capital Territory and Victorian legislatures’ statutory bills of rights provide a ‘right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily’.531 The bills of rights also include the right to freedom of religion, the content of which includes the freedom to demonstrate one’s faith either in public or in private.532 Although no court has been called upon to apply it in the context of a religious group, the right has been held to extend to the preservation of the ‘spiritual development’ of the individual.533 In a similar provision of the ICCPR, the term ‘family’ has been defined broadly to include cultural traditions.534 Although the right under the Australian bills of rights has been held to be of ‘considerable amplitude’, it is questionable whether ‘family’ would be given as broad a scope, given the word has been held, for example, not to support the right of a prisoner to have a family using in-vitro fertilization.535 §3. SACRED ABORIGINAL SITES, OBJECTS, LAWS AND CUSTOMS 201. Aboriginal people’s connection with the land is ‘primarily a spiritual affair’.536 Although it has never been the subject of dispute, Aboriginal spirituality has been described as falling within the definition of religion or as having a religious basis or including religious beliefs,537 with at least one judicial decision holding that disclosure of secret aspects of this spiritual connection as impacting on the freedom to hold and practise their religion.538 Protection against disclosure of knowledge of certain sacred sites, objects, laws and customs is found in a constellation of sources. Whilst land rights and heritage legislation chiefly protect access to Aboriginal land and sacred sites or objects, equitable rights and public interest immunity have been used to prevent disclosure of secret Aboriginal laws and customs. Additional protections arise under the statutory bills of rights and their protection of cultural rights and the rights of minorities, as well as under the common law rule of statutory construction that requires legislation to be read so as to avoid abrogating religious freedom. I.

Heritage Legislation

202. Heritage legislation across Australia protects Aboriginal sites and objects, many of which are sacred. Secrecy of sacred sites and objects is preserved in three ways. 203. First, a number of jurisdictions specifically prohibit the disclosure of information about sacred sites and objects. The scope of this prohibition differs from jurisdiction to jurisdiction: – In the Australian Capital Territory, the Heritage Council may declare particular information about the location or nature of a place or object (including in relation to Aboriginal site or object) to be restricted information, disclosure of which is an offence.539 It is not an offence where the disclosure is by a person with a traditional affiliation with the place or object, or where the disclosure is to another Aboriginal person, for the purpose of education about Aboriginal tradition, or where necessary and reasonable to avoid an imminent risk of damage to, or destruction of, an Aboriginal place or object.540 – In the Northern Territory, it is prohibited to make a record of, or communicate to a person, information of a secret nature according to Aboriginal tradition.541 Access to sacred sites is also specifically restricted.542 – In South Australia, all archived information relating to an Aboriginal site or object must be kept confidential unless approved by the traditional owners of the site or object disclosure of which results in a penalty.543 A penalty is also imposed for divulging information in relation to an Aboriginal site, object or remains contrary to Aboriginal tradition unless it is done with the authority of the Minister.544 – In Queensland, a person must not include information in a report, or document knowledge or information that is

of a secret or of a sacred nature without the agreement of the Aboriginal people from whom it was acquired.545 – In Western Australia, the exhibition or publication of an object of Aboriginal heritage is restricted.546 204. Second, in a number of jurisdictions the relevant minister has the power to make orders in respect of the protection of Aboriginal sites and objects. This includes restricting access to a site or remain.547 In determining whether to make such an order, secret knowledge about the site or object may have to be disclosed to certain individuals. For example, under the Commonwealth legislation the relevant minister has the power to make declarations for the protection of significant Aboriginal areas and objects, failure to comply with which is an offence.548 In deciding whether an area should be afforded protection, the relevant minister must receive a report dealing with a number of matters including the particular significance of the area to Aboriginal people which must be considered by the relevant minister.549 Any secret knowledge about sacred sites and objects contained in the report must be disclosed to: – the relevant minister as part of the requirement that they ‘consider’ this report in deciding whether to make a declaration.550 Where the information is gender-sensitive and the relevant Minister is not of the appropriate gender, the relevant minister might suggest that another minister of the appropriate gender consider the report and decide accordingly.551 – persons whose proprietary or pecuniary interests would be affected in order to fulfil the requirements of natural justice, subject to strict conditions designed to preserve confidentiality to the greatest extent possible in all the circumstances.552 – the public, but only to the extent that, for example, they permit the area of significance to be ascertained. Further disclosure of secret knowledge once court proceedings are on foot may be limited by conducting the hearing in camera.553 205. Third, in Queensland and Victoria secret or sacred objects which are in the custody of a state entity are deemed to be owned by Aboriginal people.554 II.

Cultural Rights

206. The Australian Capital Territory and Victorian statutory bills of rights protect people of a particular ethnic, religious or linguistic background by creating a right to ‘enjoy his or her culture, to declare and practise his or her religion, or to use his or her language’.555 The two provisions differ in two respects. First, the Victorian provision goes on to list a number of ‘distinct cultural rights’ specifically possessed by Aboriginal persons, which includes the maintenance of a ‘distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs’.556 Second, the Australian Capital Territory provision is expressed in terms of minorities. Neither of these provisions has ever been applied, but would confer an additional level of protection of the privacy. III.

Equitable Right over Information of Religious and Cultural Significance

207. There has been a limited recognition of an equitable right in Aboriginal people over information of deep religious and cultural significance where divulged to third parties in confidence.557 The right has been used: – to stop further publication of a book depicting tribal sites and objects known only to local male Aboriginal leaders collected by an anthropologist whilst living with a number of Aboriginal communities that if revealed to the uninitiated would may have further disrupted the communities’ social system;558 and – to stop the sale of photos of deceased Aboriginal people which undermined the tradition against depicting Aboriginal people after their death.559

The right extends not just to protect the person imparted with the information from distributing it, but also any person who comes across this information where they become aware that it was originally given in confidence.560 IV.

Public Interest Immunity

208. Public interest immunity is a statutory and common law protection relating to the rules of evidence that protects information from production in court where the public interest in non-disclosure outweighs the public interest in disclosure.561 Factors in deciding whether disclosure should be permitted that are relevant to the context of sacred Aboriginal sites and objects include: – the need of government authorities to be able to offer Aboriginal suppliers of information the assurance that the information supplied will be kept wholly or substantially confidential in order to perform its functions; – any reasonable expectation that sources of information will decrease or dry up if any assurances are breached; – the detriment suffered by any Aboriginal custodians who supplied information in being held accountable; – that Aboriginal peoples are people with whom the government has a special relationship with a protective element in it; – any cultural or spiritual risks to the person giving evidence; and – the interest of the court in showing respect for legitimate cultural and other differences between persons involved in the legal process.562 Production may also be granted subject to restrictions on the gender of the people who may see the document detailing the secret traditions.563 209. In Chapman v. Luminis Pty Ltd, production was sought of two sealed envelopes containing information about secret women’s business that were in the possession of the federal minister for Indigenous affairs in relation to a declaration previously made under Aboriginal heritage legislation.564 Despite acknowledging the affront and distress to the Ngarrindjeri women that production would bring, the judge granted production as, amongst other things, the information had been voluntarily provided to the minister to secure a declaration to stop construction of a bridge and so would not deter Aboriginal people from seeking protection of the legislation. It was also acknowledged that such information may subsequently be used for the purposes of witness examination. Production was made conditional on the evidence being received in camera, with each of the parties represented by one female legal practitioner, and on the condition that the evidence not be further disseminated without order of the Court. V.

Common Law Rule of Statutory Construction

210. Under the common law, ‘legislation affecting fundamental rights must be clear and unambiguous, and any ambiguity must be resolved in favour of the protection of those fundamental rights’.565 The rule has been applied in relation to the freedom of religion in Aboriginal Legal Rights Movement v. South Australia where a state government instituted a Royal Commission into the alleged fabrication of secret women’s business which threatened the construction of a bridge.566 The Court held that because the government was proposing merely to inquire into whether the asserted women’s business had been recently manufactured for the purposes of preventing the construction of the bridge as distinct from examining the truth or falsity of the belief or their consistency with other parts of Aboriginal customary law and tradition there was no impairment of the freedom of religion. 211. A further possible source of rights is Article 12(1) of the United Nations General Assembly’s Declaration on the Rights of Indigenous Peoples which provides that ‘Indigenous peoples have … the right to maintain, protect, and have access in privacy to their religious and cultural sites’.567 The right has not been invoked in Australia, and so it remains unclear whether the right is considered ‘fundamental’ and therefore in need of protection.

517. Victoria Park Racing & Recreation Grounds Co Ltd v. Taylor (1937) 58 CLR 479, 496. 518. Australian Broadcasting Corp v. Lenah Game Meats Pty Ltd (2001) 208 CLR 199, [107], [132], [187], [313]–[320]. 519. See, e.g., Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice Report 108 (2008) [74.112]–[74.139]; Victorian Law Reform Commission, Surveillance in Public Places, Report 18 (2010), Ch. 7, Recommendations 22–33. 520. Privacy Act 1988 (Cth) recitals. 521. Ibid. ss 6(1), 6C, 6D. 522. Australian Capital Territory Government Service (Consequential Provisions) Act 1994 (Cth). 523. Privacy Act 1988 (Cth) s. 6(1). 524. Ibid. Sch. 1, principles 3.1, 3.2. 525. Ibid. Sch. 1, principle 3.3(a). 526. Ibid. s. 6(1), Sch. 1, principle 3.4(e). 527. Ibid. Sch. 1, principle 6.2(a)(i). 528. Privacy and Personal Information Protection Act 1998 (NSW); Information Act (NT); Information Privacy Act 2009 (Qld); Personal Information Protection Act 2004 (Tas); Privacy and Data Protection Act 2014 (Vic). Although no legislation exists in South Australia, an executive instruction has been issued which addresses personal but not sensitive information: South Australia Department of the Premier and Cabinet, Information Privacy Principles (IPPs) Instruction, and Premier and Cabinet Circular 12, Cabinet Administrative Instruction No 1 of 1989 (reissued 5 Aug. 2013). 529. Personal Information Protection Act 2004 (Tas) s. 10(1)(d). 530. Education (General Provisions) Act 2006 (Qld) s. 426(1)(a)(iii). 531. Human Rights Act 2004 (ACT) s. 12; Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 13. 532. Ibid. 533. Director of Housing v. Sudi [2010] VCAT 328 [29]. Although the decision was successfully appealed, the cited reasoning was not found to be in error: Director of Housing v. Sudi (2011) 33 VR 559. 534. Hopu and Bessert v. France (1997) Communication No. 549/1993, U.N. Doc. CCPR/C/60/D/549/1993/Rev.1. 535. Castles v. Secretary, Department of Justice (2010) 28 VR 141. 536. Western Australia v. Ward (2002) 213 CLR 1, 64–65 [14], 246–247 [580]. 537. Church of the New Faith v. Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, 174 (‘Church of Scientology’ case); Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141, 167. 538. Aboriginal Legal Rights Movement Inc v. South Australia (1995) 64 SASR 551, 555. 539. Heritage Act 2004 (ACT) s. 55. 540. Heritage Act 2004 (ACT) s. 55. 541. Northern Territory Aboriginal Sacred Sites Act (NT) s. 38. 542. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s. 69; Northern Territory Aboriginal Sacred Sites Act (NT) s. 33. 543. Aboriginal Heritage Act 1988 (SA) s. 10. 544. Ibid. s. 35. 545. Aboriginal Cultural Heritage Act 2003 (Qld) s. 29. 546. Aboriginal Heritage Act 1972 (WA) ss 48, 49. 547. See, e.g., Aboriginal Heritage Act 1988 (SA) ss 24, 25. 548. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ss 10, 12. 549. Ibid. s. 10(1)(d), (4). 550. Tickner v. Chapman (1995) 57 FCR 451, 466, 476–479, 497. 551. Ibid. 479. 552. Minister for Aboriginal and Torres Strait Islander Affairs v. Western Australia (1996) 66 FCR 40, 58–59. 553. See, e.g., Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s. 27. 554. Aboriginal Cultural Heritage Act 2003 (Qld) s. 20; Aboriginal Heritage Act 2006 (Vic) ss 21–23. 555. Human Rights Act 2004 (ACT) s. 27; Charter of Human Rights and Responsibilities 2006 (Vic) s. 19(1). 556. Charter of Human Rights and Responsibilities 2006 (Vic) s. 19(2). 557. Foster v. Mountford (1976) 29 FLR 233; Pitjantjatjara Council Inc v. Lowe (unreported, VSC, Crockett J, 1796 of 1982, 26 Mar. 1982). 558. Foster v. Mountford (1976) 29 FLR 233. 559. Pitjantjatjara Council Inc v. Lowe (Unreported, Supreme Court of Victoria, Crockett J, 1796 of 1982, 26 Mar. 1982). 560. Foster v. Mountford (1976) 29 FLR 233, 237–238. 561. See, e.g., Evidence Act 1995 (Cth) s. 130; Aboriginal Sacred Sites Protection Authority v. Maurice; Re Warumungu Land Claim (1986) 10 FCR 104. 562. See: Aboriginal Sacred Sites Protection Authority v. Maurice; Re Warumungu Land Claim (1986) 10 FCR 104; Western Australia v. Ward (1997) 76 FCR 492, 500, 510; Western Australia v. Minister for Aboriginal and Torres Strait Islander Affairs (1994) 54 FCR 144, 149. 563. Western Australia v. Ward (1997) 76 FCR 492 (secret Aboriginal women’s business); Western Australia v. Minister for Aboriginal and Torres Strait Islander Affairs (1994) 54 FCR 144 (secret Aboriginal men’s business). 564. (2000) 100 FCR 229. 565. Attorney-General (NT) v. Emmerson (2014) 307 ALR 174, [86]. 566. (1995) 64 SASR 551. 567. GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 Sep. 2007).

Chapter 2. Freedom to Marry 212. Part X fully outlines the protection for freedom to marry in Australia.

Chapter 3. Freedom of Expression Paul Babie, Joshua Neoh, James Krumrey-Quinn 213. Whilst the common law provides a rule of statutory interpretation that legislation is presumed not to be inconsistent with the freedom of expression, only the statutory bills of rights in the Australian Capital Territory and Victoria provide a right to freedom of expression. Other protections can be found in the implied political freedom of political communication. Religious and racial vilification legislation provides the greatest limitation to freedom of expression, especially on religious matters, as well as (in theory) the scarcely prosecuted offences of blasphemy and blasphemous libel. §1. COMMON LAW RULE OF STATUTORY CONSTRUCTION 214. Freedom of expression is a long-established part of the common law’s catalogue of fundamental rights and freedoms.568 Despite this recognition, it creates no individual right and does not limit the legislative powers of the Commonwealth or the states or territories.569 Rather, it functions as part of a principle of statutory interpretation that requires courts in the absence of clear words or necessary implication to avoid abrogating these rights or freedoms.570 This principle of interpretation has been applied in at least two instances where freedom of religious expression has been concerned.571 215. In Evans and Another v. NSW, members of a group that opposed the social teachings of the Catholic Church planned a protest at World Youth Day (WYD), a major annual gathering of young Catholics that was to be held in Sydney.572 The proposed protest was to involve distributing t-shirts, leaflets, flyers, stickers, condoms and coathangers to participants to express their views on sexual tolerance, contraception and reproductive freedom. Leading up to the planned protest, the group’s members challenged Clause 7 of the WYD Regulation 2008 (NSW) which permitted authorized persons to direct a person to cease engaging in conduct that, among other things, caused ‘annoyance or inconvenience’ to participants in a WYD event. The Federal Court invalidated part of Clause 7 on the basis that restricting expression that caused mere ‘annoyance’ affected the freedom of speech recognized under the common law rule of statutory construction. The Court did not invalidate the other part of Clause 7 which prohibited conduct causing ‘inconvenience’ as that was susceptible to objective judgment. 216. In Attorney-General (SA) v. Corporation of the City of Adelaide, two members of religious organization, the Street Church, were convicted and fined for preaching without permission in Adelaide’s main shopping mall.573 The two members challenged paragraphs 2.3 and 2.4 of By-law No 4 – Roads, which prohibited preaching, canvassing and haranguing and the distribution of printed material without written permission on any road under the Council’s control. French CJ acknowledged the importance of the common law freedom of expression but held that because the legislation restricted the mode and not the content of communication, the challenged paragraphs involved the least interference with the freedom. The power to make the by-law and the by-law itself were valid. Heydon J also acknowledged the importance of the freedom but did not rely on it in resolving the issue of legality. §2. RIGHT TO FREEDOM OF EXPRESSION 217. The Australian Capital Territory and Victorian statutory bills of rights create individual rights to freedom of expression.574 The freedom encompasses the right to hold an opinion without interference and the freedom to seek, receive and impart information and ideas of all kinds regardless of borders whether orally, in writing, in print, by way of art or in any other medium chosen by him or her. The Human Rights Committee under the similarly worded ICCPR has held that opinions include those of a religious nature, and that expressions include religious discourse.575 218. In Victoria, the freedom has its own in-built limitation provision modelled on Article 19(3) of the ICCPR

which provides for lawful restriction of the freedom where reasonably necessary: to respect the rights and reputation of other persons; or for the protection of national security, public order, public health or public morality.576 Public policy has also been held to limit the scope of the freedom in Victoria as distinct from the limitation provision, which might include where a terrorist conveys a religious message about the heresies of another religion by blowing up the other religion’s places of worship.577 219. In the Australian Capital Territory, the freedom of expression is curtailed by the generally applicable limitation provision.578 Although there is no case law on the scope of the provision, the Human Rights Committee has held that restrictions on speech directed towards protecting religious communities from religious hatred will be lawful under a similar exception of the ICCPR.579 The Human Rights Committee has also held that limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.580 Thus, prohibitions on the display of a lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with a similar provision under the ICCPR.581 Although blasphemous libel (applicable to the written word) has been abolished in the Australian Capital Territory, blasphemy (applicable to the written word) ostensibly remains an offence.582 §3. IMPLIED CONSTITUTIONAL FREEDOM OF POLITICAL COMMUNICATION 220. The most entrenched form of protection of freedom of religion in Australia is the implied constitutional freedom of political communication.583 The implied freedom limits the legislative power of the Commonwealth, states and territories alike where a law burdens communication about government and political matters, and is not reasonably appropriate and adapted to serve a legitimate end compatible with this form of government. Although not protecting religious speech directly, religious speech may well be characterized as political communication, for example, where religious organizations engage in public debate on matters directly or indirectly relevant to politics or government.584 221. In Attorney-General (SA) v. Corporation of the City of Adelaide, the parties accepted that a by-law’s restriction on preaching and canvassing restricted methods of communication that traditionally involved religious precepts and beliefs, and that such speech may be characterized as political communication.585 Although the by-law burdened political communication, four judges nevertheless held that the freedom was not infringed because the legislation was directed at preventing the obstruction of roads, applied only to particular places and to unsolicited communications, and could not be applied on the basis of the content of the communication or to surveys or polls conducted or literature distributed during elections or referendums.586 The burden was reasonably appropriate and adapted and the law valid. §4. ANTI-VILIFICATION LEGISLATION 222. Anti-vilification provisions limit the freedom of expressions and religion by prohibiting a person from inciting hatred towards, serious contempt for, or severe ridicule of another person on a number of prescribed bases.587 Such provisions bring into conflict two competing rights: the right to freedom of expression; and the right to protection from vilification on the basis of religion or race. The Preamble of the Victorian legislation reflects the conflict: (1) The Parliament recognizes that freedom of expression is an essential component of a democratic society, and that this freedom should be limited only to the extent that can be justified by an open and democratic society. The right of all citizens to participate equally in society is also an important value of a democratic society. (2) However, some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to, or fully participate in all social, political, economic and cultural aspects of

society as equals, thus reducing the benefit that diversity brings to the community.588 In applying the test, it is irrelevant what ‘moves or actuates the conduct’ of the speaker or writer.589 The focus of the inquiry is instead on the perception of the audience and whether it incites the relevant emotion in them.590 The likely effect of the conduct on the audience will differ if the audience is made up of the readers of a general or of a targeted publication, or if the conduct takes place on talk-back radio as opposed to a discussion at a theological seminary.591 Reasonableness therefore plays no part in the test. For example, amongst a group of neo-Nazis it is the effect of anti-Semitic remarks on the ordinary and not the reasonable neo-Nazis that must be analysed to determine whether the remarks incite the relevant emotion.592 The question is whether the natural and ordinary effect of the conduct is to incite the relevant emotion in the circumstances of the case.593 Further, it is not necessary to show that anyone was actually stirred to hatred or ridicule of the class of persons, but rather, merely that it is likely to incite such feelings.594 223. Conduct that vilifies may generally be lawful where done for an academic, artistic or scientific purpose, where in the public interest or where part of a fair and accurate report of a public act. In Victoria and Western Australia, the exemptions extend to conduct engaged in ‘reasonably and in good faith’ for ‘a genuine religious purpose’,595 which, in Victoria, includes but is not limited to ‘conveying or teaching a religion or proselytizing’.596 The requirement of conduct undertaken reasonably is to be determined objectively by reference to the standards of an ‘open and just multicultural society’.597 This standard widens the exception because such a society is ‘one which insists upon the right of each of its members to seek to persuade others to his or her point of view, even if it is anathema to them’.598 Still, excessive proselytizing, in some circumstances, may cross the line into discrimination, and so be subject to a state’s or territory’s non-discrimination regime.599 As concerns the genuineness of religious purpose, it need only be the subjectively true objective for engaging in the impugned conduct.600 224. Actions are dealt with in ways similar to that found in relation to other discriminatory conduct. Complaints are made to a statutory body or executive officer, who may attempt to conciliate or may refer the matter directly to a tribunal designated by the relevant legislation.601 Unsuccessfully conciliated matters may also be referred to the tribunal for determination.602 An exception to this process is found in the Victorian legislation, which provides plaintiffs the opportunity to bring their case directly before a tribunal.603 If the unlawful conduct is made out, tribunals have the powers to make a wide range of civil orders, including injunctions, damages and public apologies.604 Criminal sanctions can also be found in the Queensland and Victorian legislation.605 I.

Religious Vilification

225. Although anti-vilification legislation can be found in most jurisdictions, vilification on the basis of religion is only prohibited in Queensland, Tasmania and Victoria.606 Federally, the 1998 report of the Human Rights and Equal Opportunity Commission (now the AHRC) recommended the enactment of anti-religious vilification laws, but to date none has been enacted.607 New South Wales and South Australia have both rejected proposals to introduce anti-religious vilification legislation.608 226. Religious vilification provisions have been invoked by members of religious groups in the context of speech directed against them: from members of other religious organizations; from lay persons; and from members within their own group. Whilst cases falling within the third context will fail due to limitation of the protection to vilification of members of ‘another person or class of persons’, cases falling within the first and second contexts require careful examination of the statutory provisions. A.

Vilification from Members of other Religious Organizations

227. Concerns exist among some religious communities in Australia that the vilification laws restrict the freedom to compare religions, to express religious opinions, and to rebut other religions in the context of

proselytizing, an integral part of which is criticism and rebuttal of other religions. The case law shows that religious discussion and proselytizing must be extreme to qualify as ‘vilification’; as such, robust comments about other religions seem permissible. 228. The leading authority on religious vilification is the case of Islamic Council of Victoria v. Catch the Fire Ministries Inc. where an evangelical Christian Church conducted a seminar, and made a number of publications which, broadly speaking, suggested that the Qur’an promotes violence, that Islam denies women equal value, that those we call terrorists are true Muslims, and that Muslims in Australia had doubled in population in seven years because they controlled the Immigration Department.609 Although the trial judge held that the statements incited religious hatred, contempt and ridicule, the Victorian Court of Appeal granted the appeal, holding that the trial judge had applied the wrong legal tests and misinterpreted the facts. The trial judge had, amongst other things, given too much consideration to whether the discussion of Muslim beliefs was balanced rather than whether it incited hatred.610 Justice Nettle held that the discussion was in any case balanced as, despite the imbalance of the assertions about Islam, the pastor’s exhortations to his audience to love and witness Muslims prevented his seminar as a whole from inciting hatred toward Muslims among non-Muslims.611 Justice Neave disagreed, holding that it was not inconsistent with a finding of vilification and that to allow otherwise would encourage those who incite hatred to combine egregious statements about a particular racial or religious group with expressions of feigned concern.612 Although the matter was remitted back to the trial judge for reconsideration, the case ended with a confidential settlement. 229. The Catch the Fire Ministries case highlighted three points concerning the application of anti-vilification legislation to religious rebuttal. First, the relevance or accuracy of statements made about other religions is not determinative,613 and that the theological accuracy of the statements was an improper investigation for a secular tribunal.614 Second, the religious vilification provisions target vilification of people on the basis of their beliefs and not of the beliefs themselves.615 This is an important distinction concerning religious freedom as it suggests there is leeway to criticize and rebut religious beliefs themselves, without suggesting that people who hold the beliefs should be hated or ridiculed. However, it is very easy for hatred or ridicule of certain religious beliefs to translate to hatred or ridicule of the people who hold them.616 There may therefore be situations where vilification of beliefs incites hatred against people. For example, the social context may be such that belonging to a particular religion is determinative of one’s identity, particularly relevant to religious minorities.617 Third, in general, religious vilification legislation nevertheless allows the right to evangelize: People are free to follow the religion of their choice, even if it is averse to other codes … Equally, people are free to attempt to persuade other people to adopt their point of view … Rightly or wrongly, that is the nature of religion, or at least it is the nature of some religions as they are understood, and in this country it is tolerated. Accordingly, s 8 goes no further in restricting freedom to criticise the religious beliefs of others than to prohibit criticism so extreme as to incite hatred or other relevant emotion of or towards those others. It is essential to keep the distinction between the hatred of beliefs and the hatred of their adherents steadily in view.618 230. A further example of vilification by one religious group against another is Fletcher v. Salvation Army Australia where the call in Christian texts for Christians to avoid witchcraft and for witches to repent and ‘burn their books’ was held not to constitute religious vilification as it was a means of explaining Christian thinking and persuading people to follow Christian ways.619 The Tribunal called the claim ‘preposterous’;620 ordinary people would not be inspired to hate Wiccans based on these assertions, but would instead find it ‘an arid and irrelevant theological debate’.621 The President of the Tribunal offered a very clear statement about the line between evangelism and vilification: Christians are entitled to say to a witch: ‘if you want to be a Christian, you must renounce witchcraft’. Likewise, a witch is entitled to say to a Christian: ‘if you want to be a witch, you must renounce Jesus Christ’. This is the stuff of evangelism and religious debate. It has nothing to do with the law of Victoria.622

B.

Vilification from Lay Persons

231. In Deen v. Lamb, a federal political candidate published a pamphlet containing quotations from the Qur’an that inferred that believers were compelled to disobey secular governments and to war against non-believers, that Osama Bin Laden was acting consistently with the teachings of the Qur’an, and that compared the Bible favourably against the Qur’an.623 Although the Tribunal held that the publication did incite hatred to and serious contempt for Muslims as a whole, it was not unlawful as it was held to have been done reasonably and in good faith in the public interest – there had been ‘no excess of zeal’, it was concise and was published only within electorate – and was therefore exempt from the operation of the legislation. 232. The only successful claim for religious vilification out of all three categories of vilification has been in Ordo Templi Orientis v. Devine, where an application was brought by members of the Thelema religion against respondents who stated on multiple websites that the organization was a paedophile group that kidnapped, tortured and killed children in pursuit of religious beliefs and demanded readers to take action.624 In fact, there was no evidence of the religious group engaging in such practices and so the respondents were convicted. 233. In Bennett v. Dingle, after becoming involved in an altercation, a passer-by walking his dog in a park called a Jewish man a ‘big fat Jewish slob’ and said that ‘Hitler was right about you bastards’.625 The Tribunal held that this did not constitute religious hatred as the Jewish man’s friend was the only person who heard the comments, and that even if there was a broader audience the ‘ordinary non-Jewish person’ would perceive such words as nothing more than venting and would not see them as ‘encouraging in them any of the relevant emotions’ to make out such a claim. C.

Vilification from within Religious Organizations

234. The only example of a case falling within the third context is Unthank v. Watchtower Bible and Tract Society of Australia where the assertion in a Jehovah’s Witness magazine that apostates (persons guilty of abandoning their religious faith) were ‘mentally diseased’ was held not to incite hatred against former members of the Jehovah’s Witness ‘despite being hurtful or even spiteful as there was not incitement to hatred amongst the casual reader that is not a member or former member of the Jehovah’s Witness’.626 II.

Racial Vilification

235. Vilification on the basis of race, like discrimination on the basis of race (both sharing the same definition of race), is prohibited in most jurisdictions.627 Drawing on New Zealand case law, Australian authority has interpreted race as extending to certain religious groups where there is ‘a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past’.628 For example, Judaism has been held to constitute a race,629 but a subset of Judaism (Orthodox Judaism) has been held to fall outside the definition.630 236. In New South Wales and Tasmania, vilification or discrimination on the basis of a person’s race includes such conduct undertaken on the basis of their ‘ethno-religious origin’.631 The term was included in the definition of race to protect ‘members of ethno-religious groups such as Jews, Muslims and Sikhs’ against vilification or discrimination, not on the basis of their religion, but on the basis of their ‘membership of a group which shares a historical identity in terms of their racial, national or ethnic origin’.632 Consequently, the cases have traditionally required a determination that there was a ‘strong association between a person’s or a group’s nationality or ethnicity, culture, history and his, her or its religious beliefs and practices’.633 Under this definition, it is not sufficient that the vilification or discrimination is on the basis of a person’s faith; there must be some additional connection with their nationality, ethnicity, culture and history. On the basis of this test, claims of ethno-religious vilification or discrimination have failed where on the basis that a complainant is Muslim,634 whilst succeeding where the

complainant is Lebanese Muslim,635 Middle-Eastern Muslim,636 or Jewish.637 For example, in Toll Pty Limited v. Abdulrahman, the Tribunal reasoned that it was ‘common knowledge that there is a strong association between persons of Lebanese origin or heritage and the Muslim religion’ and that ‘for historical reasons, the religious faith or identity of a Lebanese person is an integral part of his or her ethnic and cultural identity’ and so Lebanese Muslim constituted an ethno-religious background.638 237. More recent authority eschews any requirement of connection between nationality and ethnicity, and religion, instead affording the term ‘ethno-religious origin’ a ‘fluid and contextual’ meaning which necessitates looking to whether a ‘person or groups have a common religious origin and other characteristics that can fairly be seen as so closely akin to those of an ethnic group that it is reasonable to call the group one of ethno-religious origin’.639 The new test requires looking to ‘social factors’ and ‘current conditions’ affecting a group, in addition to its ‘innate characteristics’.640 Relevant factors a court or tribunal must ask itself include: – ‘To what extent if any are their collective identities marked by a supplementary orientation to ethnic or religious kin in other countries? … – Do its beliefs and attendant customs, such as dress, food taboos, times and manner of religious observance result in distinctive ways of life? … – Have external events involving co-religionists led to widespread serious condemnation of the group as a whole? – Has the name given to adherents of the religion come to have overtones of cultural, social or political, and not only religious, significance?’641 No claimant has yet succeeded using this new test. §5. BLASPHEMY AND BLASPHEMOUS LIBEL OFFENCES 238. Although blasphemy and blasphemous libel are still offences in a number of jurisdictions in Australia, they have rarely been prosecuted in Australia and so provide a limited restriction on the freedom of expression.642

568. 569. 570. 571. 572. 573. 574. 575. 576. 577. 578. 579. 580. 581. 582. 583. 584. 585. 586. 587.

588.

Attorney-General (SA) v. Corporation of the City of Adelaide (2013) 249 CLR 1, [43], [145]–[146], [151]–[152]. Ibid. [44]. Ibid. 30–31 [42], 67–68 [151]. Attorney-General (SA) v. Corporation of the City of Adelaide (2013) 249 CLR 1; Evans and Another v. New South Wales (2008) 168 FCR 576. (2008) 168 FCR 576. (2013) 249 CLR 1. Human Rights Act 2004 (ACT) s. 16(2); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 15(2). General Comment No 34 (UN Doc CCPR/C/GC/34, 12 Sep. 2011) [9], [13] (‘General Comment No 34’). Human Rights Act 2004 (ACT) s. 16 (3); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 15(3). Magee v. Delaney [2012] VSC 407 [88]. Human Rights Act 2004 (ACT) s. 28. Ross v. Canada (Communication No 736/97, views adopted 18 Oct. 2000) [11.5]; Faurisson v. France (Communication No 550/1993, views adopted 8 Nov. 1996); General Comment No 34, (UN Doc CCPR/C/GC/34 [28]. General Comment No 34, UN Doc CCPR/C/GC/34, [32]. Ibid. [48]. See, further, Pt VII, Ch. 8.3. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520. Attorney-General (SA) v. Corporation of the City of Adelaide (2013) 249 CLR 1, 212–213 [67]. (2013) 249 CLR 1, [45], [67]. See also Corporation of the City of Adelaide v. Corneloup (2011) 110 SASR 334, [9]–[10]. Attorney-General (SA) v. Corporation of the City of Adelaide (2013) 249 CLR 1, 44–45 [68], 64 [141], 88–90 [217]–[219], [221]. Discrimination Act 1994 (ACT) ss 66(a); 67; Anti-Discrimination Act 1977 (NSW) ss 20C, 20D; Anti-Discrimination Act 1991 (Qld) s. 124A; Racial Vilification Act 1996 (SA) s. 4; Anti-Discrimination Act 1998 (Tas) s. 19(a); Racial and Religious Tolerance Act 2001 (Vic) ss 7(1), 24; Criminal Code (WA) ss 76–80I. Cf. Racial Discrimination Act 1974 (Cth) s. 18C(1)(a) which provides that an act need only ‘offend, insult, humiliate or intimidate another’. Racial and Religious Tolerance Act 2001 (Vic).

589. 590. 591. 592. 593. 594. 595. 596. 597. 598. 599. 600. 601. 602. 603. 604. 605. 606. 607. 608. 609. 610. 611. 612. 613. 614. 615. 616. 617. 618. 619. 620. 621. 622. 623. 624. 625. 626. 627.

628. 629. 630. 631. 632. 633. 634. 635. 636. 637. 638. 639. 640. 641. 642.

Catch the Fire Ministries Inc v. Islamic Council of Victoria Inc (2006) 15 VR 207, [20]-[24]. Ibid. [15]–[19], [157]. Ibid. [17]. Ibid. [157]–[158]. See also [132]. Ibid. [19], [158]. Ibid. [12]–[14], [153]–[154]. Racial and Religious Tolerance Act 2001 (Vic) s. 11(1)(b)(i); Criminal Code (WA) s. 80G(1)(b)(i). Racial and Religious Tolerance Act 2001 (Vic) s. 11(2). Catch the Fire Ministries Inc v. Islamic Council of Victoria Inc (2006) 15 VR 207, [98]. Ibid. [96]. Ciciulla v. Curwen-Walker [1998] VADT 20 (8 Apr. 1998). Catch the Fire Ministries Inc v. Islamic Council of Victoria Inc (2006) 15 VR 207, [91]. Anti-Discrimination Act 1998 (Tas) pt 6; Anti-Discrimination Act 1991 (Qld) Ch. 7. Anti-Discrimination Act 1998 (Tas) s. 78; Anti-Discrimination Act 1991 (Qld) s. 164A. Racial and Religious Tolerance Act 2001 (Vic) s. 23. Anti-Discrimination Act 1998 (Tas) s. 89; Anti-Discrimination Act 1991 (Qld) s. 209; Racial and Religious Tolerance Act 2001 (Vic) s. 23C. See, further, Pt VII Ch. 8.3. Anti-Discrimination Act 1991 (Qld) s. 131A; Anti-Discrimination Act 1998 (Tas) s. 19; Racial and Religious Tolerance Act 2001 (Vic) s. 8(1). See also Criminal Code Act 1995 (Cth) ss 80.2A, 80.2AB (offence of urging violence against groups; includes religious groups). Australian Hum. Rights Commn., Human Rights Brief No. 3: Freedom of Religion and Belief, Recommendation 5, http://www.humanrights.gov.au/publications/human-rights-brief-no-3 (accessed 10 Dec. 2013). New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) Report No. 92 (1999); South Australian AttorneyGeneral’s Department, Discussion Paper: Proposal for a New Law Against Religious Discrimination and Vilification (2002). (2006) 15 VR 207. Islamic Council of Victoria v. Catch the Fire Ministries Inc (2006) 15 VR 207 [35]–[36]. Ibid. [79]. Ibid. [196]. Ibid. [36] (Nettle JA), [121] (Ashley JA), [178] (Neave JA). Ibid. Islamic Council of Victoria v. Catch the Fire Ministries Inc (2006) 15 VR 207, [33], [176]. Ibid. [176]–[177]. Ibid. [176]. Ibid. [34] (Nettle JA). [2005] VCAT 1523. Ibid. [1]. Ibid. [12]. Ibid. [15]. [2001] QADT 20. [2007] VCAT 1484. [2013] VCAT 1945. [2013] VCAT 1810. Racial Discrimination Act 1974 (Cth) s. 18C; Discrimination Act 1994 (ACT) ss 66(a), 67; Anti-Discrimination Act 1977 (NSW) ss 20C, 20D; AntiDiscrimination Act 1991 (Qld) s. 124A; Racial Vilification Act 1996 (SA) s. 4; Anti-Discrimination Act 1998 (Tas) s. 19(a); Racial and Religious Tolerance Act 2001 (Vic) ss 7(1), 24; Criminal Code (WA) ss 76–80I. Jones v. Scully (2002) 120 FCR 243, 272 [111] citing King-Ansell v. Police [1979] 2 NZLR 531, 543. See also Miller v. Wertheim [2002] FCAFC 156 [14]. Jones v. Scully (2002) 120 FCR 243, 271–273 [110]–[113]. Miller v. Wertheim [2001] FMCA 103 [18]; Goldberg v. G Korsunski Carmel School (2000) EOC¶93-074. Anti-Discrimination Act 1977 (NSW) ss 4(1) (race), 20C; Anti-Discrimination Act 1998 (Tas) ss 3 (race), 19(a). Unlike in New South Wales, Tasmania also prohibits vilification on the ground of religious belief or affiliation or religious activity: Anti-Discrimination Act 1998 (Tas) s. 19(d). Parliamentary Debates (NSW), Legislative Council, 4 May 1994, 1827. Khan v. Commissioner of Corrective Services [2002] NSWADT 131 [20]; Ekermawi v. Harbour Radio Pty Ltd [2010] NSWADT 145 [53]. See, e.g., Alchin v. Rail Corporation NSW [2012] NSWADT 142 [42]–[48]. Toll Pty Limited v. Abdulrahman [2007] NSWADTAP 70 [12]. See also Laalaa v. DG NSW Dept of Education and Training [2008] NSWADT 327 [36]. Haider v. Combined District Radio Cabs Pty Ltd [2008] NSWADT 123 [50]. Azriel v. NSW Land and Housing Corporation [2006] NSWCA 372 [47]; A obo V & A v. Department of School Education [1999] NSWADT 120 [15]. [2007] NSWADTAP 70. Jones and Harbour Radio Pty Ltd v. Trad (No 2) [2011] NSWADTAP 62 [38]. Ibid. [26]. Ibid. [36]. See, further, Pt VII Ch. 8.1 and Pt XI, Ch 1.

Chapter 4. Due Process Norms and Religious Groups James Krumrey-Quinn 239. This chapter addresses due process norms as they apply to courts, administrative decision-makers and religious organizations. Protections offered in respect of courts are concerned with the fairness of the trial and the making of oaths and affirmations during court proceedings. All other protections are offered in the form of judicial oversight of the decisions of administrative decision-makers and religious organizations. The protection of the right to a fair trial in the Australian Capital Territory and Victorian statutory bills of rights provide additional protection. §1. DUE PROCESS IN THE SECULAR COURTS 240. The right of an accused to a fair trial is a central pillar of Australia’s criminal justice system and is one of the few positive rights protected under the common law and impliedly under the Commonwealth Constitution.643 The precise content of the right has not been fully articulated by the courts, with courts preferring to articulate its content on the basis of the circumstances of the particular case. 241. The right has been used in connection with religion in two distinct ways. First, the right is commonly raised in relation to the impartiality of a jury where the accused is a member of a minority religious group. Jurors are presumed to bring an impartial mind to bear on their verdict and so cannot be excused at the request of the accused on the basis of the juror’s religious background.644 The situation may be different where there has been adverse publicity in relation to members of that particular religion. Although, in such circumstances an accused’s religious or ethnic background will not in itself constitute a serious enough risk that the accused will not receive a fair trial, where there is evidence of widespread prejudice in the Australian community against people of the accused’s religion and of its likely influence on jurors a court may order a trial by judge alone, a stay of the trial, or, where a jury has already been empanelled, for the jury to be discharged.645 242. The only case in which the right to a fair trial has been successfully invoked on the basis of religion was in Re K where a 17-year-old Muslim male of Lebanese origin was charged with sexual assault and was due to be tried shortly after ‘unprecedented publicity’ attending a series of trials and subsequent sentencing of a number of other youths of Lebanese origin for gang rapes.646 The Court granted a stay of the proceedings as, ‘in circumstances where there has been extensive ventilation in the media of the backgrounds of a number of persons convicted for gang rapes in Sydney’s west, (and so) a person of the same country of origin and the same religion charged with committing a like offence might, in the minds of a jury, be prejudiced’. 243. Other instances where the right to a fair trial has been invoked for perceived prejudice on the basis of their religious background have failed at the evidential stage.647 For example, in R v. Belghar, the accused was a Muslim charged with multiple violent offences committed against his wife’s sister after the accused found out that she had taken his wife to the beach.648 The accused applied for a trial by judge alone on the basis that his adherence to conservative Muslim values would, in the circumstances of the alleged offence, inevitably raise prejudice in the minds of jurors. The Court accepted that ‘from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians’. However it rejected the application on the basis that, even though ‘some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding “conservative” views about the place and role of women in marriage or in wider society’, the accused failed to produce objective evidence of these views and their impact on the jurors. 244. The second way in which the right to a fair trial has been invoked is by an accused person to require a

female Muslim witness who wore the niqab to show her face on the basis that it would give the jury the opportunity to assess the witness’ demeanour, notwithstanding that there was debate over the strength of the demeanour evidence.649 There are no other cases, legislation or statutory rules involving the wearing of religious headdress in the courtroom. 245. The statutory bills of rights in the Australian Capital Territory and Victoria also protect the right to a fair trial.650 §2. DUE PROCESS AND ADMINISTRATIVE DECISION-MAKERS 246. Although the first three clauses of section 116 of the Commonwealth Constitution prohibit the making and not the administration of laws, a law will be invalidated to the extent that it authorizes or permits administrative action that establishes a religion, imposes any religious observance or prohibits the free exercise of any religion.651 Not only must the administrative action in fact establish a religion, impose any religious observance or prohibit the free exercise of any religion, but also the legislation which authorizes the administrative act must be enacted for this same purpose.652 There is, however, no requirement that a decision-maker take into account the terms of section 116.653 247. In Kruger v. Commonwealth (the ‘Stolen Generation Case’), a number of adult Aboriginal people who were taken from their families and placed into state care from the 1920s to 1960s by the Chief Protector of Aboriginals in the Northern Territory pursuant to the Aboriginal Ordinance 1918 (NT) claimed compensation on a number of bases, including violation of section 116.654 Notwithstanding the effect of the removal of the claimants from their families was to deny them instruction in the religious beliefs of their community, a majority held that the relevant provision of the Ordinance was not invalid because it did not have the purpose of prohibiting the free exercise of religion. Only Gaudron J, although not deciding the point, found that the purpose though directed towards the removal of children from their communities, ‘necessarily extended to religious freedom’.655 248. In Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association, a religious association applied for a review of a decision to deport two Imams who had been brought to Australia for the purpose of ministering to the Lebanese Muslim community in Sydney.656 The decision to deport the two Imams was for the stated reason that they undeniably created division within the Lebanese community in Sydney which exacerbated deep-seated passions within the community. The Court held that, although the absence of the Imams would disrupt local worship, the decision to deport did not impede freedom of religion as it was not coupled with any intention or design to prohibit the members of the association from freely exercising their religion. The Court suggested that the repeated refusal to allow overseas ministers of a religion to enter or remain in Australia might in a different case amount to such a prohibition. §3. DUE PROCESS AND RELIGIOUS ORGANIZATIONS 249. A court may enquire into the procedure adopted by decision-making bodies within private organizations such as religious bodies where they have jurisdiction to do so.657 There are at least three possible sources of this jurisdiction.658 First, a statute may stipulate that the rules of the organization bind the association and all its members.659 A court will have jurisdiction to ensure the rules of the organization are enforced. Separate legislation is also enacted for the constitution of specific churches which may similarly be enforced by a court.660 Second, under the common law the rules of an organization form a consensual or social compact, which will be binding on its members and enforceable by a court where there is an intention to create legal relations and property rights are involved.661 Third, and more controversially, a decision that has the capacity to affect the reputation of the clergy of an organization may confer a court with jurisdiction.662 250. After jurisdiction is established, a court will ensure that a decision is in compliance with the rules of the organization. The task involves determining questions of construction. Courts have intervened to ensure compliance

with procedures set out in the rules in respect of the disciplining of ministers and any fair trial rights that accompany that procedure,663 and the ordination of female priests.664 Religious organizations may also choose to refer disputes to arbitration pursuant to a legislative arbitration regime which may impose its own procedural fairness requirements such as the arbiter be independent and impartial.665 251. Where the relevant decision is one of a disciplinary tribunal, a court will also have jurisdiction to ensure the accused was accorded procedural fairness.666 Depending upon the circumstances, procedural fairness may include a requirement that proper notice is given to the relevant member with sufficient particulars of any allegations, that there is sufficient time to prepare for a hearing, and that the hearing itself is fair. A fair hearing will generally mean that the adjudicator is disinterested and unbiased, and that privilege against self-incrimination is not infringed. 252. In Sturt v. Bishop of Newcastle, two priests discharged for alleged sexual misconduct occurring in the 1980s challenged the fairness of the disciplinary process adopted by the Anglican Church.667 The Court held that although there was a delay in making the complaints and that it had an impact on the evidence available, it was not sufficient to prejudice the applicants, especially given the public interest in investigating allegations of sexual exploitation. It also held that the process did not infringe the privilege against self-incrimination as it was entitled to take into consideration the applicants’ refusal to testify insomuch as it left the complainant’s testimony unchallenged, and that no actual bias arose from the fact that the disciplinary board heard one matter after the other, the circumstances where the two cases involved similar facts. 253. In Plenty v. Seventh-Day Adventist Church of Port Pirie, two Church members that were disfellowshipped for alleged misconduct challenged the fairness of the process adopted by the Church.668 The Court held that natural justice had been denied as they were not given adequate information of the charges brought against them, they were not advised of changes to the charges and that they were given no opportunity to make submissions on penalty after they were found guilty. The Court also found that despite participation at the disciplinary hearing of the same board members who had previously recommended that the name of the plaintiffs be removed from the Church roll there had been no evidence of bias. Although successful on appeal, the Court did not disturb the primary judges’ findings in respect of the requirements of procedural fairness. In agreeing with the primary judge’s refusal to impose a nonbias requirement, the Full Court held that such a requirement may be dispensed with where membership of the organization is small and it was inevitable that members initiating the proceedings would also be involved in adjudicating upon them.669 254. The additional protection of the right to a fair trial under the statutory bills of rights in the Australian Capital Territory and Victoria applies to civil proceedings.670 The scope of the protection in civil proceedings has yet to be considered but will be limited by the fact that the bills do not extend to courts or tribunals exercising judicial (as opposed to administrative) power.671 The Human Rights Committee has held in relation to the right to a fair trial under Article 14 of the ICCPR that it will extend to ‘courts based on customary law, or religious courts’ where ‘recognized’ in its legal order.672 In particular, where handing down ‘binding judgments recognized by the State’ the proceedings must be limited to minor civil and criminal matters, and must meet the basic requirements of fair trial and other relevant guarantees of the Covenant, and their judgments must be validated by state courts and be open to challenge by the parties concerned in a procedure meeting the requirements of Article 14 of the Covenant.673

Dietrich v. The Queen (1992) 177 CLR 292. R v. Woods [2010] NTSC 69 [62]. R v. Belghar [2012] NSWCCA 86 [107]. [2002] NSWCCA 374. R v. Elomar [No 29] [2009] NSWSC 1102 (accused charged with terrorism offences; trial on foot when news network ran programme on overseas terrorism trials); TVM v. Western Australia [2007] WASC 299 [34] (accused was a Jehovah’s Witness); R v. M (2003) 31 SR (WA) 305, 307 [18] (accused was a Muslim and trial to take place after Bali bombings and in context of war against terror and impending war against Iraq). 648. [2012] NSWCCA 86. 649. R v. Sayed (Unreported, Western Australia District Court, Deane DCJ, 19 Aug. 2010). 643. 644. 645. 646. 647.

650. Human Rights Act 2004 (ACT) ss 21, 22; Charter of Human Rights and Responsibilities 2001 (Vic) ss 24, 25. 651. Attorney-General (Vic) (Ex rel Black) v. Commonwealth (1981) 146 CLR 559, 580–581; Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (1987) 17 FCR 373, 379. 652. Ibid. 653. Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association (1987) 17 FCR 373, 379. 654. (1997) 190 CLR 1. 655. Ibid. 133. 656. (1987) 17 FCR 373, 388. 657. Harrington v. Coote [2013] SASCFC 154 [8]–[26], [120]–[140]. 658. See, further, Pt III, Ch 1.1 and Ch 2.2. 659. See, e.g., Associations Incorporation Act 1985 (SA) s. 23(1). 660. See, e.g., Anglican Church of Australia Constitution Act 1961 (NSW) s. 2. 661. Harrington v. Coote [2013] SASCFC 154, [8]–[13], [23]–[25], [133]–[140]; Scandrett v. Dowling (1992) 27 NSWLR 482, 503–505, 554. See further Pt III, Ch 2.2. 662. Sturt v. Bishop of Newcastle [2012] NSWSC 400, [147]–[163]; Plenty v. Seventh-Day Adventist Church of Port Pirie [2009] SASC 10 [68]. Cf. Harrington v. Coote [2013] SASCFC 154, [18]–[20]. 663. Harrington v. Coote [2013] SASCFC 154; MacQueen v. Frackleton (1909) 8 CLR 673. 664. Scandrett v. Dowling (1992) 27 NSWLR 482. 665. Mond v. Berger (2004) 10 VR 534. 666. Harrington v. Coote [2013] SASCFC 154 [83]; Plenty v. Seventh Day Adventist Church of Port Pirie [2002] SASC 68 [93]; MacQueen v. Frackleton (1909) 8 CLR 673, 690–691, 700–701. 667. [2012] NSWSC 400. 668. [2002] SASC 68. 669. Plenty v. Seventh-Day Adventist Church of Port Pirie [2009] SASC 10 [34]. 670. Human Rights Act 2004 (ACT) s. 21; Charter of Human Rights and Responsibilities 2001 (Vic), s. 24. 671. Human Rights Act 2004 (ACT) s. 40(2)(b); Charter of Human Rights and Responsibilities 2001 (Vic), s. 4(1)(j). 672. Human Rights Committee, General Comment No. 32, Art. 14: Right to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (2007) [24]. 673. Ibid.

Chapter 5. Professional Secrecy James Krumrey-Quinn 255. It is generally accepted that there is no protection of communications involving professional secrecy of religious organizations at common law.674 Following the enactment of a privilege against disclosure of religious confessions under the Commonwealth’s Evidence Act in 1995,675 a majority of jurisdictions have come to provide religious organizations with a measured protection of professional secrecy, at least in respect of court proceedings. The enactment of a specific privilege in respect of religious confessions was contrary to the recommendations of the Australian Law Reform Commission in 1987 that a broader confidential relationships privilege be enacted,676 a recommendation which has subsequently been adopted by a number of jurisdictions. 256. Professional secrecy in religious organizations has mostly been considered in the context of child sexual abuse. Mandatory reporting obligations are in force in all states and territories but does not, except in South Australia, specifically extend to religious organizations. A 2013 Victorian Parliament Inquiry recommended extending mandatory reporting to religious personnel in that state as well as criminalizing the failure to report a serious crime involving the sexual abuse of a child.677 In January 2013, the Commonwealth Government launched a Royal Commission into Institutional Responses to Child Sexual Abuse. The terms of reference contemplate the calling of evidence as to individual cases of abuse, raising the prospect of ministers of religion being called to give evidence about communications arising out of religious confessions. The privilege has yet to be invoked before the Royal Commission. 257. The importance of protecting the secrecy of religious confessions has been questioned given there have never been an instance in Australia where a religious minister has been requested to disclose the contents of a religious confession and that in any case it would be unusual for a party in litigation to find out about such a communication.678 Opposition to disclosure of religious confessions in cases of child sexual abuse may also be waning from religious organizations themselves. In mid-2014, the General Synod of the Anglican Church of Australia voted to amend its canons to permit priests to break the confessional seal in instances where serious crime is disclosed.679 §1. RELIGIOUS CONFESSIONS 258. Commonwealth, Australian Capital Territory, New South Wales, Northern Territory, Tasmanian and Victorian evidence statutes provide that a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or to divulge the contents of a religious confession made, to the person when a member of the clergy.680 The confession must be made to the clergy member in their professional capacity according to the ritual of the church or religious denomination concerned and does not apply if the communication involved was made for a criminal purpose. The privilege applies even if a statute provides: that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground. 259. In respect of non-judicial bodies, whether the privileges applicable under the evidence statutes apply will depend on the legislation establishing the relevant body. For example, the legislation establishing the New South Wales Crimes Commission specifically sets out a privilege of religious confession.681 The Commonwealth’s royal commissions legislation only protects legal professional privilege and the privilege against self-incrimination.682 Although the legislation confers on commission members the power to compel witnesses to attend court and give evidence failure to comply with which is an offence, there is a defence of reasonable excuse, where reasonable excuse is defined as ‘an excuse which would excuse an act or omission of a similar nature by a witness before a

court of law’.683 Every witness summoned to attend before a royal commission must be afforded the ‘same protection … as a witness in any case tried in the High Court’.684 Whether either of these provisions would allow a witness to rely on a statutory religious confession privilege is unclear.685 260. In South Australia, the only statutory protection against disclosure of communications arising out of religious confessions operates in the form of a defence to the requirement on the part of individuals who suspect on reasonable grounds during the course of their work that a child has been or is being abused or neglected; a priest or other minister of religion is excused from making such a notification where it would require them to divulge information communicated in the course of a confession made in accordance with the rules and usages of the relevant religion.686 261. There is only one reported decision in which the statutory religious confession privilege has been employed. In R v. Lynch, a priest of the Church of England was called to the house of the accused to assist in obtaining the permission of the victim’s father for the accused to marry his daughter.687 During the course of the priest’s visit, the accused confessed to having had sex with the girl he proposed to marry who was under the age of 18. The accused objected to the prosecution calling the priest as a witness pursuant to an old, differently worded, iteration of the statutory religious confession privilege.688 The judge overruled the objection on the basis that the confession was not made for any spiritual purpose; intercession for the purposes of getting approval to a marriage was not ‘unequivocally referable to his priestly character’. 262. In the remaining jurisdictions, Queensland, South Australia (when outside the context of suspected child sex abuse) and Western Australia,689 there appears to be no religious confession privilege. Although there are no reported cases in Australia in which privilege of religious confession has been invoked at common law, in discussing privilege against disclosure more generally a number of cases exclude religious confessions from the protection of the law of privilege on the basis that it is not recognized at common law in Australia or England,690 that the public interest does not require its protection,691 or that it is not required for the proper functioning of the legal system.692 263. Requiring the disclosure of religious confessions in the context of child sexual abuse has been held not to violate the constitutional protection of religious freedom. In SDW v. Church of Latter-Day Saints, a civil claim was brought against a church for failing to report a known case of sexual assault against the complainant.693 The Church claimed that any imposition of a duty of care which required the disclosure of the content of a religious confession would be inconsistent with section 116 of the Constitution. The Court held that a law overriding the confidentiality of religious confessions is ‘[o]n no view’ a law prohibiting the free exercise of religion as, ‘[i]f that were not so, religions … would be free to make their own rules, however inconsistent with the laws of states, territories or the Commonwealth, and any attempt to override them would be unconstitutional’.694 By way of example, the court pointed to the laws against bigamy as laws that would be rendered unconstitutional, should the overriding of religious confessions be invalid. §2. ECCLESIASTICAL CENSURE 264. At least three judges of the High Court have held as ‘well settled’ the existence of the privilege at English common that ‘a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure’.695 The application of this principle to Australia was severely doubted by another member of the High Court as there is no established church in Australia and, by corollary, the decisions of religious tribunals do not have the force of law and so the privilege is irrelevant.696 The privilege against ecclesiastical censure has never been applied in Australia. §3. OTHER PROFESSIONAL CONFIDENTIAL COMMUNICATIONS 265. Legislation in the Australian Capital Territory, New South Wales, Tasmania and Western Australia gives

courts a discretion to direct that evidence not be presented in a proceeding if presenting it would disclose a protected confidence, the contents of a document recording a protected confidence, or protected identity information.697 A protected confidence has a broad meaning and is defined as a communication made by a person in confidence to someone else in the course of a relationship in which the confidant was acting in a professional capacity, and when the confidant was under an express or implied obligation not to disclose its contents whether or not the obligation arises under law or can be inferred from the nature of the relationship. Factors to consider in determining whether to exclude the evidence include the public interest in preserving the confidentiality of the protected confidence or identity. The privilege may be lost where the protected confider consents or where a communication is made or a document prepared in furtherance of a fraud or a criminal or civil offence. A direction to exclude evidence of a protected confidence must be given where a court is satisfied that it is likely that harm would be or might be caused to a protected confider if the evidence is presented, and the nature and extent of the harm outweighs the desirability of the evidence being presented. Harm is defined broadly to include not just physical harm, but also financial loss, stress or shock, damage to reputation or emotional or psychological harm. The legislation gives the example of shame, humiliation and fear as falling within the operation of the legislation. Although not expressly extending to religious ministers or members of religious organizations, communications between such individuals may be protected when in a professional context. §4. MANDATORY REPORTING OF CHILD SEXUAL ABUSE 266. Each jurisdiction requires that certain categories of people must report cases of child abuse and neglect to the relevant authorities. Whilst in South Australia the requirement expressly extends to ministers of religion, though not where it would require the divulging of information communicated in the course of a confession,698 in other jurisdictions the categories include teachers and other people working in schools,699 or, in the Northern Territory,700 to any person, and so are likely to apply to religious ministers or other members or staff of religious organizations. Whilst failing to comply with the mandatory reporting requirements may lead to the imposition of a fine, the Victorian legislature has recently introduced criminal sanctions for the failure of a person in authority, which includes persons working within religious bodies, to protect a child from a sexual offence, and for the failure of any person with a reasonable belief that a sexual offence has been committed against a child under 16 to disclose that information to police.701 Although these offences are unlikely to apply in respect of information disclosed in religious confessions owing to the religious confession privilege under the Victorian evidence legislation, they will extend to any other form of confidential religious communication.

674. 675. 676. 677. 678. 679. 680. 681. 682. 683. 684. 685. 686. 687. 688. 689.

Baker v. Campbell (1983) 153 CLR 52, 65–66, 75. The legislation was intended to act as a model for subsequent adoption in other states and territories. Australian Law Reform Commission, Evidence, Report No 38 (1987) [210]. Fam. & Community Dev. Comm.(Vic), Betrayal of Trust: Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organizations Vol 2, 487–502 (November 2013). Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2006) [15.88]; Law Reform Commission, Evidence, Report No 38 (1987) [210]. George Conger, Australia lifts the Seal of Confession Anglican Ink (online) (17 Jul. 2014). Evidence Act 1995 (Cth) s. 127; Evidence Act 2011 (ACT) s. 127; Evidence Act 1995 (NSW) s. 127; Evidence (National Uniform Legislation) Act (NT) s. 127; Evidence Act 2001 (Tas) s. 127; Evidence Act 2008 (Vic) s. 127. Crimes Commission Act 2012 (NSW) s. 40. Royal Commission Act 1902 (Cth) ss 6AA, 6A. Ibid. ss 1B (definition of ‘reasonable excuse’), 3. Ibid. s. 7(2). Australian Law Reform Commission, Making Inquiries, Report NO 111 (2009) Pt 7. Children’s Protection Act 1993 (SA) s. 11(4). [1954] Tas SR 47. Evidence Act 1910 (Tas) s. 96(1) (repealed): ‘No clergyman of any church or religious denomination shall divulge in any proceeding any confession made to him in his professional character, except with the consent of the person who made such confession.’ Although there is no legislative protection in Western Australia for religious confessions, the protected confidence privilege (see Ch. 5.3) provides that it does not affect ‘the law relating to evidence of a confessional made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned’: Evidence Act 1906 (WA) s. 20B(5).

690. McGuiness v. Attorney-General (Vic) (1940) 63 CLR 73, 102–103; R v. Young (1999) 46 NSWLR 681, 699 [88]; Suzanne B McNicol, Law of Privilege (1992) 328. Cf. A Keith Thompson, Religious Confession Privilege and the Common Law (2011) Ch. 7. 691. Baker v. Campbell (1983) 153 CLR 52, 65–66, 75. Cf. Mercantile Mutual Custodians Pty Ltd v. Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, 287 [25]. 692. Baker v. Campbell (1983) 153 CLR 52, 128. 693. [2008] NSWSC 1249. 694. Ibid. [75]. 695. Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328, 335 citing Redfern v. Redfern [1891] P 139, 147. 696. Pyneboard Pty Ltd v. Trade Practices Commission (1983) 152 CLR 328, 345; LexisNexis, Halsbury’s Laws of Australia, online edition (at 20 Jan. 2010) 365 Religion, ‘8 Privileged Communications and Religion’ [365-620]. 697. Evidence Act 2011 (ACT) ss 126A–126E; Evidence Act 1995 (NSW) ss 126A–126E; Evidence Act 2001 (Tas) ss 126A–126E; Evidence Act 1906 (WA) ss 20A–20E. 698. Children’s Protection Act 1993 (SA) s. 11. 699. Children and Young People Act 2008 (ACT) s. 356; Children and Young Persons (Care and Protection) Act 1998 (NSW) s. 27; Child Protection Act 1999 (Qld) ss 13a, 13b; Education (General Provisions) Act 2006 (Qld) ss 366, 366A; Children’s Protection Act 1993 (SA) s 11; Children, Young Persons and Their Families Act 1997 (Tas) s. 14; Children, Youth and Families Act 2005 (Vic) s 184; Children and Community Services Act 2004 (WA) s. 124B. 700. Care and Protection of Children Act 2007 (NT) s. 26. 701. Crimes Act 1958 (Vic) ss 49C, 327.

Chapter 6. Medical Deontology James Krumrey-Quinn 267. This chapter focuses on the role of religion in the client-patient relationship, particularly the patient’s refusal to consent to treatment and the medical practitioner’s refusal to treat, before briefly looking at ethics in medical research. §1. REFUSAL OF TREATMENT 268. Under the common law, adult patients generally have the power to refuse medical treatment regardless of what others may think is in their best interests.702 The refusal may be on any basis, including religious, social or moral values.703 Statute books in most jurisdictions specifically allow for individuals to indicate in advance any medical treatment they do or do not wish to have,704 or to appoint another party to act on their behalf for when they lose the capacity to consent.705 Where medical staff proceed regardless of the refusal of the patient or their appointed representative the medical staff will be liable to a criminal prosecution for assault or a civil action for trespass against the person.706 Only in cases of emergency or necessity where no advance directive has been left and there has been no party appointed, medical staff may proceed with a medical procedure without the patient’s consent.707 In the case of a child who lacks the capacity to consent, a parent or guardian may refuse treatment on their behalf.708 A court may override a parent’s refusal where it deems that treatment is in the best interests of the child.709 In cases of emergency, some jurisdictions specifically provide that consent is not required.710 I.

Blood Transfusions

269. Refusal of treatment on religious grounds has mostly arisen in the context of blood transfusions involving child members of the Jehovah’s Witness faith.711 The courts have the power to grant a blood transfusion to a child under its inherent parens patriae jurisdiction712 and under specific statutory powers.713 At its core, a court is required to balance two fundamental principles: the preservation of life; and the preservation of individual autonomy.714 With respect to the latter, courts have been at pains to give weight to the child’s minority religious beliefs – even where these beliefs are deemed irrational by the broader community – as well as to the strength of this belief and whether the distress arising from overriding this belief is such as to diminish the effectiveness of the treatment.715 But religious belief will not be determinative.716 And so where a child may die or suffer some form of disability if treatment is not performed, courts almost always make orders that a transfusion be administered.717 II.

Abortion

270. Where a couple are married and expecting a child but a dispute arises regarding whether the child should be aborted, the court has the power to injunct the mother from aborting on the basis of the marriage agreement.718 It is unlikely that an injunction will ever be granted as an application would inevitably arise in circumstances where the marriage has broken down, forcing the mother to have a child that she does not want and interfering with her personal liberty and privacy.719 A court will not grant an injunction to prevent an abortion in pursuit of a father’s moral or religious aims.720 III.

Parentage Testing

271. Legislation in the Australian Capital Territory, New South Wales and the Northern Territory provides that a court can order a test be carried out to determine a child’s parents but only after taking into account any objection on religious grounds.721

§2. REFUSAL TO TREAT 272. Medical practitioners and other medical staff are generally not able to refuse treatment on the basis of their own personal beliefs. A refusal to treat on religious grounds may constitute unlawful discrimination. For example, Victorian legislation expressly prohibits discrimination in the administration of artificial insemination or assisted reproductive treatment.722 Otherwise, non-discrimination legislation in all jurisdictions prohibits discrimination in the provision of services which would include the provision of medical services.723 I.

Abortion

273. All jurisdictions provide medical practitioners and some other medical staff a right to conscientious objection to participating in an abortion. The right is absolute in the Australian Capital Territory, New South Wales, the Northern Territory and Western Australia,724 but is subject to an exception in South Australia, Tasmania and Victoria where in circumstances of immediate danger to the life or health of the woman an abortion must be performed.725 In New South Wales, Tasmania and Victoria, the right is further limited by the requirement that the conscientious objector refer the woman to another medical practitioner who does not conscientiously object. The right to life under the Australia Capital Territory’s bill of rights,726 as well as tort, contract and non-discrimination law may further limit the right to conscientiously object. II.

Assisted Reproductive Therapy

274. Western Australia is the only jurisdiction that imposes a marital or heterosexual relationship requirement for the provision of assisted reproductive technology.727 Victoria is by contrast the only jurisdiction to provide that persons seeking to undergo assisted reproductive treatment procedures must not be discriminated against, with discrimination prohibited on the basis of sexual orientation, marital status, race and religion.728 Western Australia is also the only jurisdiction to provide a right to conscientious objection, although limited only to the use of excess assisted reproductive therapy embryos.729 III.

Withdrawal of Life-Sustaining Treatment

275. A medical practitioner may also refuse to treat a patient where their clinical experience suggests further treatment is unnecessary despite the wishes of the family which may be motivated by religious belief. In In the application of Herrington; re King, the relatives of a patient challenged an application by the doctors to withdraw life-sustaining support from a patient in a persistent vegetative state on the basis of that their Aboriginal culture dictated that a sick person should be cared for and not left to die.730 In the exercise of its inherent parens patriae jurisdiction, the Court overrode the wishes of the family and held that it would not be in the patient’s best interests to continue treatment as on the evidence it served no therapeutic purpose. §3. MEDICAL RESEARCH 276. Religious representatives in Australia play a role in setting standards and overseeing medical research. The board of the Australian Health Ethics Committee which provides advice on ethical matters to Australia’s peak medical research body, the National Health and Medical Research Council (NHMRC), must contain a person who has expertise in religion.731 Pursuant to NHMRC guidelines, all institutions and organizations engaging in human research must also establish Human Research Ethics Committees to provide ethical oversight of all research. These committees must comprise ‘at least one person who performs a pastoral care role in the community such as a minister of religion or an Aboriginal elder’.732

702. Marion’s Case (1992) 175 CLR 218, 309–310. 703. Hunter and New England Area Health Service v. A by his Tutor T (2009) 74 NSWLR 88, 92 [14], 94 [28], [30], 98 [40].

704. Medical Treatment (Health Directions) Act 2006 (ACT); Natural Death Act 1988 (NT); Powers of Attorney Act 1998 (Qld) Ch. 3 Pt 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s. 7; Medical Treatment Act 1988 (Vic) s. 5; Guardianship and Administration Act 1990 (WA) Pt 9B. See, also, Department of Health (NSW), Using Advanced Care Directives (1993); National Advance Care Directives Working Group, A National Framework for Advance Care Directives (Australian Health Ministers’ Advisory Council, 2011). 705. Powers of Attorney Act 2006 (ACT); Guardianship Act 1987 (NSW); Natural Death Act 1988 (NT); Powers of Attorney Act 1998 (Qld); Guardianship and Administration Act 1993 (SA); Consent to Medical Treatment and Palliative Care Act 1995 (SA) Pt 2 Div 3; Guardianship and Administration Act 1995 (Tas); Guardianship and Administration Act 1986 (Vic); Medical Treatment Act 1988 (Vic) s. 5A; Guardianship and Administration Act 1990 (WA) Pt 9A. 706. Marion’s Case (1992) 175 CLR 218, 310. 707. Rogers v. Whitaker (1992) 175 CLR 479, 489. 708. Family Law Act 1975 (Cth) ss 61B, 61C; Marion’s Case (1992) 175 CLR 218. 709. Marion’s Case (1992) 175 CLR 218, 283; Family Law Act 1975 (Cth) s. 67ZC. 710. Children and Young Persons (Care and Protection) Act 1998 (NSW) s. 174; Emergency Medical Operations Act 1973 (NT) s. 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s. 13(4). 711. Cf. Qumsieh v. Guardianship and Administration Board (Vic) (1998) 14 VAR 46 where the husband of an adult Jehovah’s Witness patient successfully sought an urgent order appointing him as temporary medical guardian so as to consent to a life-saving transfusion. 712. See, e.g., Children, Youth and Women’s Health Services Inc v. YJL (2010) 107 SASR 343 [30]; Re Paul [2008] NSWSC 960 [2]–[3]. 713. Transplantation and Anatomy Act 1978 (ACT) s. 23; Children and Young Persons (Care and Protection) Act 1998 (NSW) s. 174; Emergency Medical Operations Act 1973 (NT) s. 3(1), (4); Transplantation and Anatomy Act 1979 (Qld) s. 20; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s. 13(1), (5); Human Tissue Act 1985 (Tas) s. 21; Human Tissue Act 1982 (Vic) s. 24; Human Tissue and Transplant Act 1982 (WA) s. 21. 714. X v. The Sydney Children’s Hospitals Network (2013) 304 ALR 517, 530 [59]. 715. Ibid. 531 [63]–[65]. 716. Ibid. 531 [65]. 717. See, e.g., X v. The Sydney Children’s Hospitals Network (2013) 304 ALR 517; Children, Youth and Women’s Health Services Inc v. YJL (2010) 107 SASR 343; Re Paul [2008] NSWSC 960; Royal Alexandra Hospital for Children (t/as Children’s Hospital at Westmead) v. J (2005) 33 Fam LR 448; Director of Community Services - re ‘Matthew’ [2005] NSWSC 132; Minister for Health v. AS (2004) 29 WAR 517; Director General of the Department of Community Services v. ‘BB’ (1999) NSWSC 1169. 718. In Marriage of F (1989) 96 FLR 118, 125. No such power exists where the couple are not married: Talbot v. Norman (2012) 46 Fam LR 530, 533 [23]. 719. In Marriage of F (1989) 96 FLR 118, 127; Attorney-General (Qld) (Ex rel Kerr) v. T (1983) 46 ALR 275, 277–278. 720. Attorney-General (Qld) (Ex rel Kerr) v. T (1983) 46 ALR 275, 277–278. 721. Parentage Act 2004 (ACT) s. 34(4); Status of Children Act 1996 (NSW) ss 26(4), 27(4); Status of Children Act (NT) s. 14(2)(a). 722. Assisted Reproductive Treatment Act 2008 (Vic) s. 5(e). 723. See Pt VII, Ch. 7. 724. Health Act 1993 (ACT) s. 84; Department of Health (NSW), Pregnancy – Framework for Terminations in New South Wales Public Health Organizations, Policy Directive PD2005_587 (25 May 2005) (only applicable to public sector staff); Medical Services Act 1982 (NT) s.11(6); Health Act 1911 (WA) s. 334(2). 725. Criminal Law Consolidation Act 1935 (SA) s. 82A(5), (6); Reproductive Health (Access to Terminations) Act 2013 (Tas) s. 6(3), (4); Abortion Law Reform Act 2008 (Vic) s. 8. 726. Human Rights Act 2004 (ACT) s. 9. The Charter of Human Rights and Responsibilities 2006 (Vic) is unlikely to affect the right as s. 48 states that nothing in the Charter affects any law applicable to abortion or child destruction. 727. Human Reproductive Technology Act 1991 (WA) s. 23(1)(c). 728. Assisted Reproductive Treatment Act 2008 (Vic) s. 5(e). 729. Human Reproductive Technology Act 1991 (WA) s. 53ZVA. 730. [2007] VSC 151. 731. National Health and Medical Research Council Act 1992 (Cth) s. 36(1)(e). 732. National Health and Medical Research Council, Australian Research Council and Australian Vice-Chancellors’ Committee, National Statement on Ethical Conduct in Human Research (NHMRC, 2007) Guideline 5.1.30(d).

Chapter 7. Non-discrimination James Krumrey-Quinn 277. In the absence of common law protections against discrimination, nondiscrimination legislation was progressively enacted in each state and territory and at the Commonwealth level from the 1960s onwards.733 The legislation was modelled on civil rights legislation enacted in the United States and the United Kingdom in 1964 and 1965 and was initially limited to protection against racial discrimination before further protections were introduced in the 1970s against sex discrimination, and against discrimination on the basis of disability and a number of other bases which were introduced throughout the 1980s and 1990s.734 Although exemptions for religious ministers and religious bodies loosely based on United Kingdom sexdiscrimination legislation were introduced in New South Wales and Victoria in 1977,735 there was no prohibition of discrimination on the basis of religion in Australia until 1984 when Western Australia prohibited discrimination on the ground of religious or political conviction.736 Although all jurisdictions now provide for religious freedom either in the form of prohibitions or exemptions (or, in many cases, a combination of both), recent legislative attempts to narrow the scope of exemptions for religious bodies suggest political interest in religious freedom is on the wane.737 A similar observation can be made about the judicial approach to interpretation of the religious exemptions with the Victorian Court of Appeal in its recent decision of Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd – the most authoritative treatment of religious exemptions to date – favouring a narrow reading of the exemptions in line with the confining of religious freedom under international and regional human rights jurisprudence to the private sphere.738 Although the bulk of non-discrimination provisions can be found in purpose-built non-discrimination legislation in each,.739 non-discrimination is also addressed in area-specific legislation such as employment740 and education741 legislation, and the legislative bills of rights enacted in the Australian Capital Territory and Victoria, and fall under the powers of inquiry of the AHRC. The different sources of nondiscrimination provisions provide individuals with multiple avenues for redress that largely overlap. §1. NON-DISCRIMINATION LEGISLATION I.

Prohibition of Discrimination

278. Under the non-discrimination legislative regimes discrimination may be either direct or indirect. Although the scope of the prohibitions depends upon the specific wording of the provision, direct (or disparate treatment) discrimination can be described as ‘where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration [such as religious belief]’.742 On the other hand, indirect (or disparate impact) discrimination occurs ‘where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourable than the latter’.743 Indirect discrimination is commonly subject to the limitation that ‘reasonable’ requirements and conditions will not constitute indirect discrimination even if they disproportionately impact people holding a protected attribute. The test of reasonableness is objective and is less than necessity but more than convenience,744 based upon all of the circumstances of the case.745 The fact that a reasonable alternative to the condition exists does not in itself make the condition unreasonable.746 In other words, there will be no indirect discrimination where the persons holding the protected attribute ‘can in practice’ or ‘can consistently with the customs and cultural conditions of the racial group’ (or the religious group) comply with a requirement or condition.747 The distinction between direct and indirect discrimination is demonstrated by the case of Queensland v. Mohammed where a Muslim prisoner challenged the prison’s refusal to provide him with fresh Halal meat.748 Although initially provided with only regular prison food which included meat that was not Halal, after complaining

he was put on a vegetarian diet before eventually being provided with small portions of tinned Halal meat that was however salty, fatty and unacceptable. The judge upheld the decision of the Tribunal that the prisoner was treated differentially and less favourably when the prison authorities provided him with vegetarian and later tinned Halal food and so was directly discriminated against on the basis of his faith. It also found that by initially serving him regular prison meals he was indirectly discriminated against him by effectively requiring him to eat non-Halal meat, in circumstances where Halal food could have been supplied by the prison. A further example of indirect discrimination, although on the basis of ethnoreligious background, is Azriel v. NSW Land & Housing Corporation where the Court considered how far to take into account religious requirements when trying to find public housing for an Orthodox Jew.749 Mr Azriel required housing within walking distance from his Synagogue and preferably with a yard for his ritual hut during the Jewish Festival of Tabernacles. The Court found that the non-legislation required the Land and Housing Corporation genuinely and seriously to take Mr Azriel’s religious requirements into account, and not to treat a refusal of housing based upon those requirements as an unreasonable refusal.750 279. Most non-discrimination legislative regimes prohibit discrimination on a number of bases, including race, sex, disability, sexual orientation and religion. The prohibition on the basis of religion is variously expressed across the jurisdictions in terms of a religious ‘belief’, ‘activity’, ‘conviction’ and ‘affiliation’, as well as ‘Aboriginal spiritual belief or activity’. No such prohibition exists under Commonwealth or New South Wales law. In South Australia, discrimination is only prohibited on the basis of religious appearance or dress.751 In Victoria, discrimination on the basis of a characteristic of a person’s religion is also prohibited.752 In some jurisdictions discrimination on the basis of religion is defined to include its obverse: not holding a religious belief or view; or not engaging in or refusing to engage in religious activity.753 Where no such legislation exists the outcome turns on the specific wording of the statute as to whether or not the obverse of the basis of the prohibition is also protected. Where discrimination is against someone that is religious but on the basis of their lack of a particular form of religious belief, the prohibition of discrimination on the basis of religion will apply.754 For example, a Baptist family support service’s refusal to employ an Anglican on the basis that she was not a worshipper in a Baptist Church constituted discrimination on the basis of a particular religious belief as it discriminated against her as a Christian who was not a Baptist.755 Where the discrimination is directed against someone without a religious belief (e.g., an atheist), despite non-binding authority reasoning to the contrary,756 the only cases involving claims of discrimination on the basis of a lack of religious belief have failed on the basis that they lack a ‘basis founded in religion’.757 For example, discrimination claims have failed where a non-religious school complained against the Australian Capital Territory’s Education Department on the basis that the Department gave Catholic schools more favourable funding arrangements,758 and where two individuals were escorted from a Jewish food fair allegedly on the basis that they were not Jewish (though it was expressed that the situation may have been different if the alleged discrimination had been on the basis that they were Catholic).759 The legislation in Queensland and Victoria applies only to ‘lawful’ religious activity.760 Thus, where a religious activities is prohibited pursuant to some law no claim in discrimination can be made. In Victoria, the limitation extends to religious belief, which appears contrary to the right to have or adopt a belief under the statutory bill of rights that exists in that state.761 Never in Australia’s history has a belief in something per se been outlawed. At the Commonwealth level and in New South Wales, where there is no prohibition of religious discrimination, claims have been brought under racial discrimination provisions, with race defined in New South Wales (as well as in Tasmania) as including a person’s ‘ethno-religious background’.762 280. Discrimination is prohibited across a range of prescribed areas. In addition to covering discrimination in the workplace and educational institutions,763 nondiscrimination legislative regimes generally prohibit discrimination in the provision of accommodation, in the provision of goods and services, in the granting of membership to or the conduct of clubs, associations and voluntary bodies, and in the administration of government programmes. The prohibition on the discrimination in the provision of services includes religious matters.764

281. Under Commonwealth racial discrimination legislation discrimination prohibited on the basis of race also extends to acts that have the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life … of a kind referred to in Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination]’.765 This includes protection against impairment of the right to freedom of religion. For example, in Iliafi v. The Church of Jesus Christ of Latter-Day Saints Australia, a claim was brought against a Church by its members after the Church decided to cease services in the Samoan language and imposed a requirement that only English be used in their public worship.766 Drawing upon international, regional and foreign domestic jurisprudence, the Court held that the right to freedom of religion had not been impaired as the affected members were able to leave the Church should they wish in order to keep worshipping in their own language, and that there was otherwise no right to publicly worship as a group in one’s native language; the right to religious freedom of the religious community or Church trumped the right of the dissenting group. II.

Specific Exemptions

282. Non-discrimination legislation in every jurisdiction sets out exemptions for religious orders, religious observances and practices and for religious bodies. Some jurisdictions also have a number of other religious exemptions. Collectively, these exemptions represent a legislative balancing of the right to freedom from discrimination and the freedom of religion.767 Whilst some judicial authority supports a court itself balancing these competing rights in the application of these exemptions due to their ostensibly uncertain scope,768 other authority suggests that the text itself sufficiently identifies the ambit and limit of each right.769 A.

Religious Orders

283. The exemptions operate to their fullest effect in respect of discrimination in religious orders. Discrimination is permitted on any basis in the ordination or appointment of priests, ministers of religion or members of such orders.770 ‘Appointment’ means appointment ‘to a particular position or to exercise a particular function in particular circumstances, rather than a general clothing with authority to act when called upon’.771 It implies the filling of an ‘office’ in the sense of a position existing independent of its current holder either within the religious body itself or outside of the religious body but involving activities carried out on behalf of it.772 The statutory power held by a Christian foster care agency to authorize individuals as foster carers does not fall within the definition of appointment as it would require extending the definition of appointment to include ‘engagement, authorization, conferral of power, or accreditation’ which is not the purpose of such provision.773 B.

Religious Observance or Practice Exemption

284. Discrimination will be permitted in the selection or appointment of people to perform functions in relation to any religious observance or practice.774 ‘Functions’ will not involve ‘religious observance or practice’ where they contain a mix of both spiritual and practical aspects.775 The exemption has otherwise been broadly construed as not requiring that the selection or appointment be of the person whose conduct is the subject of the complaint.776 Thus the exemption can be invoked by parishioners complaining about their priest’s refusal to endorse a proposed religious celebration.777 In South Australia, the exemption is broader and applies in relation to the administration of a body established for religious purposes in accordance with the precepts of that religion.778 C.

Religious Bodies Exemption

285. The most litigated and broadest of exemptions operates only to the benefit of religious bodies.779 In determining whether the religious body exemption applies, it is necessary to look at:

– – – –

whether the body is a religious body; whether the exemption operates in respect of the act or practice alleged to be discriminatory; whether the exemption operates to exempt the basis on which the practice has been found discriminatory; and whether the applicable test is satisfied.

286. A religious body is generally defined as a body established for a religious purpose. In New South Wales, a religious body is defined as a body established to propagate religion,780 in Victoria religious body is also defined as an entity that establishes, directs, controls or administers an educational or other charitable entity that is intended to be and is conducted in accordance with religious doctrine, beliefs or principles,781 and in Tasmania no definition is provided.782 In determining whether the body was established for a religious purpose a court must ask whether the purpose is ‘directly and immediately religious’.783 An activity or pursuit ‘in itself’ secular is not a religious purpose even if it is ‘actuated or inspired by a religious motive’: ‘the purpose must involve the spread or strengthening of spiritual teaching within a wide sense, the maintenance of the doctrines upon which it rests, the observances that promote and manifest it.’784 For example, a resort established and run by members of a Church will not have a religious purpose where the services are offered for profit and to anyone regardless of faith, a characterization that is likely to change once a requirement is imposed that the resort be used purely for religious instruction, discussion or inquiry.785 Similarly, a society of lay faithful closely associated with a Church that provides charity to the poor and whose primary objectives are spiritual is not a religious body.786 It is also necessary to identify the relevant denomination of the religion or any further subcategories of the body said to have been established for a religious purpose.787 This is a matter of fact to be determined in the circumstances of the case. It will usually be a body established by a church or other religious body. It is not sufficient to identify some lowest common denominator of a particular religion (e.g., Christianity). 287. The religious body exemptions are generally expressed as applying to any act or practice. Although the scope of any such act or practice will depend upon the text of the specific legislation, two general approaches have emerged. The first approach requires the act or practice to have a connection with the religious purpose of the body, limiting the exemption to ‘any act or omission by the body in the course of its pursuit of the religious purposes for which it was established’, or that has an intrinsic religious character.788 The approach limits the applicability of the exemption to where an individual is compelled to refrain from conduct which is required by it (e.g., participating in religious ceremonies or observance of dietary laws) or is compelled to actively participate in an act prohibited by their religion (e.g., celebrating a marriage between a same-sex couple).789 This, it is said, represents the appropriate balance between religious freedom and freedom from discrimination as it avoids the imposition of one’s religious beliefs on others in order to maintain these beliefs.790 The second approach requires no connection with the religious body and permits any act or practice to be directed to the commercial sphere as the area of activity to which the exemption applies.791 The approach finds justification in the fact that most of the conduct prohibited under non-discrimination legislation is directed to the commercial sphere, including work, employment, education and the provision of goods and services, rather than being limited to conduct carried out in the private or personal domain, and that each of the major world religions rejects the notion of confining religious duty to the private sphere.792 288. The religious body (as well as the religious order) exemptions generally permit discrimination on any of the otherwise prohibited bases. The exceptions are: South Australia, where the exemptions only justify discrimination on the basis of sex, chosen gender or sexuality;793 Tasmania, where discrimination is only justified on the basis of gender, religious belief, affiliation or activity;794 and (in the context of the religious body exception only) Victoria, where they are limited to discrimination on the basis of religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.795 289. In order to engage lawfully in discriminatory conduct, a religious body must establish that the discriminatory conduct either: conforms to or with the doctrines, tenets or beliefs of that religion (the ‘conformity

test’); or that it is necessary to avoid injury to the religious susceptibilities or sensitivities of the people or adherents of that religion (the ‘religious susceptibilities test’). Whilst most jurisdictions require one or other of the tests be satisfied,796 some require satisfaction of both before the exemption can be invoked.797 Further still, in the Northern Territory all acts done as part of any religious observance are exempt,798 and in Tasmania, where discrimination is on the basis of gender, acts required by the doctrines of the religion of the institution are exempt.799 290. The conformity test first requires determination of the doctrines, tenets or beliefs of the relevant religion. In some jurisdictions, reference is only made to doctrines,800 in others to ‘doctrines, beliefs and principles’,801 and in others again to the ‘precepts’ of the particular religion under consideration.802 Although religious beliefs and principles have been distinguished from doctrine,803 ‘doctrine’ is the only term to have been given any significant consideration. Doctrine has been defined as ‘a creed or body of teachings … proclaimed by ecclesiastical authorities as true’.804 As to which creed or body of teachings constitute doctrine, this is a question of fact to usually be determined having regard to the hierarchical structures or definitions of authoritative statements of the relevant religion.805 For example, in the Wesley Mission, doctrines are made by way of determinations from the Assembly of the Uniting Church in the absence of which the Mission itself may propagate its own doctrines by way of teaching or other means.806 At least one authority suggests that subjective interpretations of doctrines, principles or beliefs from members of the relevant faith should be taken into account where there is no guidance or direction as to how to apply a specific doctrine, principle or belief.807 This would appear to conflict with the absolute nature and hierarchical approach to the creation of doctrine just described, as well as other authority that draws a distinction between doctrine and its application.808 Whether the discriminatory acts conform with or to the doctrines, tenets or beliefs of the relevant religion turns on consideration of whether the relevant doctrine, tenet or belief gave the person no alternative but to act (or refrain from acting) in the particular discriminatory way.809 The relevant point in time at which a court is required to undertake this analysis is usually the point at which the act or practice occurs; any changes, amplifications or evolutions in the doctrines, beliefs or principles that may have been set out at the body’s establishment must be taken into account.810 291. The religious susceptibilities test is complementary to the conformity test as ‘any inhibition on religious institutions acting in accordance with doctrine would be likely to offend the susceptibilities of members of the religion’.811 A discriminatory act will be ‘necessary’ where there is no alternative to engaging in the conduct if injury to religious susceptibilities is to be avoided.812 No actual injury needs to be proved.813 Injury will be found where obedience to the prohibition on discrimination could be seen to have a real and direct impact on the religious susceptibilities of the members of the relevant religion.814 ‘Mere offence to the presumed social mores of church members, or of alarm to a faction not clearly amounting to “injury”’ will not suffice.815 In other words, ‘it would need to be shown that for the body to be required to act in a non-discriminatory fashion – by not doing the act in question – would be an affront to the reasonable expectation of adherents that the body be able to conduct itself in accordance with the doctrines of which they subscribe and the belief which they held’.816 There is no quantity or number of adherents that must be injured before the exemption can be said to arise – it is sufficient that a ‘significant proportion of the group’ are injured.817 292. The common law rule of interpretation – that where a statute is ambiguous the courts should favour a construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party818 – was considered in Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd in the context of the religious body exemption as well as an exemption for religious individuals.819 Three different approaches were taken. Maxwell P held that as the religious exemptions gave effect to the freedom of religion, and so mirroring the restrictions on religious freedom under the ICCPR, the provisions of the nondiscrimination legislation were already in conformity with Australia’s obligations.820 Further, as the ICCPR is silent as to how to balance freedom of religion and freedom from discrimination, state parties are afforded a large margin of appreciation in how they achieve the relevant balance.821 The rule of interpretation was therefore unnecessary.

Similarly, Redlich JA held that the rule of interpretation was unhelpful for reason that the legislature had already weighed the competing interests of religion and non-discrimination and made a judgment about the correct balance in the formulation of the religious exemptions themselves.822 By contrast, Neave JA, without elaboration, held that she was entitled to have regard to international jurisprudence on the right to freedom of religion for the purposes of striking a balance between competing rights,823 and so drew upon English, European Court of Human Rights, ICCPR and Canadian cases to assist in determining how to apply the religious exemption for individuals.824 293. Authority favours an objective approach to determining whether discrimination is ‘necessary’ on the basis that an objective approach would be consistent with the use of the phrase elsewhere in the legislation, and with the case law on the scope of the right to freedom of religion under the ICCPR and European Convention where an objective approach has been adopted to provide a necessary filter to limit those manifestations of religious belief that are motivated or inspired by religious belief.825 Strong dissenting authority suggests that the exemption requires consideration of the individual’s perceived religious obligations.826 This subjective approach was said to be supported by the fact that the content of a specific doctrine, principle or belief of any given religion does not commonly include guidance or direction as to how it is to be applied in practice, and that even where there are teachings or interpretations offered individual believers may vary widely in the degree to which they implement them – individual believers are merely required to behave in a manner consistent with religious principles.827 Coupled with the fact that religions vary widely in the degree to which they prescribe certain behaviours, the vigour with which such prescriptions are enforced, the consequences which are supposed to flow from the believer’s failure to comply with the religious precepts, as well as the non-legal and metaphysical nature of the consequences of such a failure to comply, courts are ill-placed to deal with such matters and so must give some consideration to the subjective nature of the individual believer’s beliefs.828 294. In making out either the conformity or religious susceptibilities tests, a religious body need not be entirely consistent in its practices – ‘[m]istakes, slips, compromises, failures of comprehension, even occasional infractions or the toleration of them, in relation to values and doctrines, hardly indicate that the values and doctrines are not truly held’.829 Whether inconsistency in the conduct of a religious body is a mere mistake will of course turn upon consideration of the facts. 295. The nature of the conformity and religious susceptibilities tests necessitates that evidence be led from religious experts about the doctrines, tenets and beliefs of the relevant religion, which will usually aid in determining the religious susceptibilities of its adherents. Such experts have usually consisted of ministers and scholars from within the relevant religion. Where expert opinions diverge the court is placed in the challenging position of taking sides on matters of often vigorous and controversial religious debate. A court must approach such a task as one of ‘arid characterization’, making no assessment of the utility, intellectual quality or essential truth or worth of the tenets of the relevant religion.830 It is not the court’s role ‘to pass upon the basis or the nature of the faith practiced by or within a church, or to comment on the cogency of a church’s doctrines’.831 If a court were to choose which religious beliefs are entitled to protection, ‘the road to Salem or, at least, to serious communal disharmony, may be a short one’.832 296. The religious bodies exemptions have been considered in a number of cases. In Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd, a resort established and operated by members of the Christian Brethren Church refused to accept a booking from a youth suicide prevention organization which had sought to hold a camp for same-sex oriented young people living in country areas during which it would provide support in dealing with the effects of homophobia.833 The Court upheld the decision of the Tribunal below that the refusal constituted discrimination on the basis of sexual orientation and that none of the religious exemptions applied. On the question of whether the resort was a religious body the Court held that as the purpose of the resort was to provide campsite accommodation to the public for hire, which was a secular activity, and that it had done so in a commercial way, opening the accommodation to all comers regardless of faith, it was not a religious body.834 That the objects of the resort required the facilities to be conducted in accordance with the fundamental beliefs and doctrines of the

Christian Brethren and in a way that would create an atmosphere throughout the facilities that was obviously Christian did not convert this secular purposes into a religious one as they were aspirational and merely sought to make users aware that the facilities were a place where God was honoured.835 The Court acknowledged that the result may have been different if the resort only allowed camps and conferences that were for the purposes of religious instruction, discussion or inquiry.836 The Court in Cobaw nevertheless went on to consider the conformity and religious susceptibilities tests. Putting to one side the question of whether the exemptions extended to include acts or practices of a commercial nature (on which the Court split),837 on the question of the conformity test the Court upheld the finding of fact by the Tribunal that the relevant doctrine was that of plenary inspiration – that the words of the Bible are divinely inspired and ought to be literally and strictly interpreted. The belief held by the operators of the resort that homosexual activity is contrary to God’s was held to be merely applications of this more fundamental doctrine as references to marriage, sexual relationships and homosexuality were absent from the Church’s foundational document, and there continued to exist a diversity amongst the members of the Church as to exactly which parts of the Bible were to be interpreted literally.838 The Court held that even if the relevant doctrine was one prohibiting homosexual activity, it was a matter of private morality that did not call for active conduct on the part of its members such as by way of interfering with, obstructing or discouraging the expression of other persons of their sexual preferences.839 This was bolstered by the lack of any rules, procedures or warnings prohibiting homosexual sexual activity at the site.840 Finally, the Court in Cobaw held that the religious susceptibilities test did not apply as: there was held to be no connection between the Christian Brethren religion and the activities of the resort (the resort was not a place of religious observance); the accommodation business was not in any sense a religious activity; the resort failed to take any steps to prevent people engaging in homosexual sexual activity at the site; and the evidence demonstrated that those in charge of the resort never conceived of the camps as either ‘needing to be governed by the kinds of strictures which individual adherents apply to their own personal lives’ or as ‘having any bearing on the freedom of adherents to hold or manifest their religious beliefs’.841 297. In OW & OV v. Members of the Board of the Wesley Mission Council, a Christian foster agency refused to authorize a same-sex couple’s application to become foster carers on the basis of their homosexuality.842 The Tribunal held that although the refusal constituted discrimination on the basis of sexual orientation, the discriminatory conduct was justified under both the conformity and religious susceptibilities tests. After finding that the relevant doctrine of the agency was that monogamous heterosexual partnership within marriage is the norm and ideal, the Tribunal concluded that the conformity test was fulfilled, noting that it was a ‘singularly undemanding’ test that required no finding that the doctrine have been affirmatively breached.843 The Tribunal also accepted the evidence of the Superintendent and Chief Executive Officer of the agency that should the agency be required to appoint homosexual foster carers it would make their provision of foster care services unacceptable to those who support the Wesleyan ethos which satisfied the religious susceptibilities test.844 That the agency accepted public funds for providing foster services pursuant to an agreement that prohibited discrimination on the basis of sexual preference in its performance did not address the question of conformity and so was held not to be relevant to their enquiry.845 298. In Hozack v. Church of Jesus Christ of Latter-Day Saints, a Church dismissed a part-time receptionist and member of the Church who worked in its main office because she had lost her Temple-worthiness after engaging in an extra-marital affair.846 The Federal Court held that the religious discrimination was justified under the religious susceptibilities test of the old Commonwealth workplace relations legislation (similarly worded to the religious bodies exemption) on the basis of its findings that: the receptionist had been adulterous; in the Church’s view adultery was a ground for loss of Temple-worthiness; and Temple-worthiness was required of Church members as a matter of religious doctrine.847 That the Church also employed non-members who were not required to be Templeworthy was irrelevant as the applicant was herself a member, the Temple-worthiness requirement applied to all member employees, and because she knew the implications of the Temple-worthiness requirement.848 The Court however held that the operational requirements exception did not apply.849

299. In Jubber v. Revival Centres International, a church pastor made it clear to the son and his father after the pastor saw the son wear an earring in Church that if the son came back to Church again wearing the earring he would not be allowed in as the wearing of earrings by boys in Church was contrary to the Church’s Code of Conduct for young people.850 The Tribunal held that the pastor’s acts constituted discrimination on the basis of sex but that the discrimination was permitted under an old iteration of the Victorian conformity test as: the code of conduct specifically prohibited the wearing of earrings for males; the code contained precepts designed to encourage the Church to conform to their religious doctrines; and the pastor’s actions were done in order to implement that code. The religious sensitivities test did not however apply as the evidence that the code, including the provision as to the wearing of earrings, was prepared by one of the Church’s pastors without any objection from members of the Church was insufficient proof of the necessity of the ban to avoid injury to the Church’s members. D.

Other Religious Exemptions 300. Further religious exemptions can be found throughout the nine jurisdictions:

– In respect of the provision of accommodation, whilst the Commonwealth, the Australian Capital Territory and Western Australia provide religious bodies with a blanket exemption (although only in respect of sex discrimination at the Commonwealth level except in respect of Commonwealth-funded aged care),851 in the Northern Territory and Queensland bodies under the direction and control of a body established for religious purposes are exempt where a version of the conformity and religious susceptibilities tests are both satisfied.852 Blanket exemptions can also be found in: Victoria for hostels or similar institutions established wholly or mainly for persons of a particular religious belief;853 in Western Australia in respect of any rule or practice of aged persons accommodation where the institution providing the accommodation restricts admission to applicants of particular religious convictions;854 and in other jurisdictions in respect of religious educational institutions.855 – In respect of cultural or religious sites, in the Northern Territory and Queensland a person may restrict people who are not of a particular sex, age, race or religion from access to land or to a building or place of cultural or religious significance where a version of the conformity and religious susceptibilities tests are satisfied.856 In Tasmania, although the same two tests must be fulfilled, the exception applies only to discrimination on the ground of race and applies, more broadly, ‘in relation to’ places of cultural or religious significance.857 A further exemption exists in Queensland in respect of the disposition of an interest in land or a building of cultural or religious significance where the same two tests are fulfilled.858 – In respect of adoption services, in New South Wales faith-based adoption agencies are permitted to discriminate in the provision of adoption services on the basis of trans-gender sexuality or homosexuality.859 – In respect of discrimination generally, in Victoria it is lawful for ‘a person’ to discriminate on a number of bases where it is reasonably necessary for the first person to comply with the doctrines, beliefs or principles of their religion.860 The weight of judicial authority suggests that the exception does not apply to corporations because corporations cannot have a conscious state of mind amounting to a religious belief or principle, and the exemption conspicuously omits any reference to religious bodies.861 There is, however, strong reasoning to the contrary, which relies on the following: the mental element of a crime can be imputed to a corporation, suggesting a corporation does have the capacity to make moral, ethical, environmental and other judgments in the public square; European Courts permit entities and associations to possess and exercise the right to freedom of religion; the religious body exemptions and the present exemption are directed at persons and circumstances different to those covered under this exemption; and to deny corporations operating in the commercial sphere that do not have a religious purpose the benefit of the exemption is to create differing levels of protection of religious freedom dependent upon whether a corporation is incorporated or not.862 The weight of judicial authority favours the limiting of the exemption to application in the commercial sphere, and that the test of necessity requires objective rather than subjective assessment.863 In Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd, two members of the Court of Appeal held that the belief of a manager of a Christian-run resort that he refrain from homosexual activity because it was a sin was a rule of private morality that did not compel him to

try to convince others to adopt the same rule and so the necessity test was not fulfilled.864 In a strong dissent, the third judge expressly disavowed any approach that required determination of the place of a particular belief or principle in a religion or the extent to which it dictated their response, or any inquiry into whether the resort properly interpreted the belief or principle said to compel them to refuse the booking or whether the compliance was unreasonable.865 His Honour accepted that once the resort knew the use to which their facilities were to be put – being the discussing and encouraging of views amongst the attendees and in the community repugnant to the religious beliefs of the faith with which the resort was aligned – by providing a forum for the facilitation of such purposes the resort could be perceived as condoning or encouraging that message, making them morally complicit in its dissemination.866 That the resort did not advertise their religious beliefs or restrictions on who may make a booking was not relevant as once they became aware of its proposed use, a legal, moral and ethical obligation to refuse the booking arose.867 The necessity test was therefore fulfilled and the discrimination held to be lawful. – In respect of an applicant for membership or a member of an association, in South Australia an association administered in accordance with the precepts of a particular religion may discriminate on the ground of chosen gender or sexuality or against same-sex domestic partners on the ground of marital or domestic partnership status where the discrimination is founded on the precepts of that religion.868 – In respect of religious appearance or dress, in South Australia any discrimination on the ground of religious appearance or dress will be justified where it arises as a consequence of a person refusing to reveal his or her face in circumstances where the person has been requested to do so for the purpose of verifying their identity, and where the request was reasonable.869 III.

Special Measures

301. Although the wording of the legislative provisions differ markedly from one another, each jurisdiction makes special provision for discriminatory conduct that aims to overcome disadvantage by allowing positive discrimination that meets the special needs of certain segments of society.870 A number of factors must be considered before a special measure is granted. For example, under the Victorian non-discrimination legislation these factors include whether the measure is: in good faith for achieving the purpose of promoting or realizing substantive equality for members of a group with a particular attribute; reasonably likely to achieve the purpose; a proportionate means of achieving this purpose; and justified because the members of the group have a particular need for advancement or assistance.871 302. The statutory bills of rights in the Australian Capital Territory and Victoria affect the exercise of this power not only through imposing a requirement that the legislation so far as possible consistently with its purpose interpret the special measures provisions in a manner compatible with human rights,872 but also by requiring that the power to grant a special exemption, an exercise of administrative power that renders it conduct of a public authority,873 be exercised in a way that is compatible with or that gives consideration to a relevant human right.874 In the Victorian bill, a special measures provision also exists under the right to equality itself.875 303. Special measures provisions have been applied in relation to a number of successful applications by local councils in Victoria to allow them to open recreational swimming pools for a portion of the day to women and young children only.876 The applications to allow them to discriminate on the basis of sex were intended to allow broader participation in aquatic activities when women might not otherwise be able to do so in the presence of males due to religious, cultural or other personal reasons. The discrimination has also extended to the all-female staffing of the pools during these periods. In South Australia, the ability of Muslim women to exercise in the absence of men as well as the resemblance of the exemption sought with other exemptions provided for under the South Australian legislation (e.g., the religious susceptibilities test) were relevant considerations in the Court’s grant of an exemption to a female-only gym.877 304. In considering whether to grant an exemption, a relevant factor is whether the discrimination would be

exempt under an existing exemption. In Mornington Baptist Community Caring Inc., an organization that conducted outreach care programmes and was affiliated with the Baptist Church sought an exemption to allow it only employ staff or engage volunteers ‘who have publically confessed Jesus Christ as both saviour and lord of their lives, have been baptised as believers in obedience to Christ’s command and are walking in daily fellowship with Jesus and his people’.878 The programmes included provision of community mentoring in partnership with the local council and were aimed at fostering social, economic and spiritual well-being in the client families. The Tribunal held that the religious body exemption under an old iteration of the Victorian non-discrimination legislation did not apply as the organization, whose statement of purposes concentrated on community care rather than religious matters, was possibly not a religious body, and that it was not clear that the exclusion of non-Christians conformed with Baptist doctrine, was necessary to avoid injury to religious sensitivities of Baptists, or was necessary for its members to comply with the Baptist beliefs or principles.879 The Tribunal then turned to whether or not to grant a special measure but dismissed the application on the basis that: a diversity of beliefs amongst those who provide the services of the organization would be beneficial for those receiving the services, and would reflect the diversity of the community in which the services were provided; a client of a particular background may feel more comfortable in approaching an employee of the organization of the same faith background; and because by refusing to grant the exemption the organization would have a larger choice of employees which would provide a greater and more skilled employee pool to draw from.880 The Tribunal noted that the situation would have been different if the organization remained part of the Baptist Church itself. It also stated that it would have been willing to grant a more limited exemption that permitted the organization to ask employees to agree that they would not in the course of their employment criticize the Baptist faith, that they would explain to clients the role of the organization and its links to the Baptist Church and that they would refer clients, where requested by the client, to someone in the organization or Church who could advise the client as to matters of the Christian faith.881 IV.

Defence of Statutory Authority

305. A defence of statutory authority exists across all jurisdictions except South Australia.882 Generally, the defence permits discriminatory conduct that is required by statute. The defence has been invoked on at least two occasions. In Twining v. Lay, it was held that an official Grooming Standard applicable to all male police officers that required a Buddhist police officer to cut his ponytail which he grew for religious reasons was permissible religious discrimination as the standard was made pursuant to section 5(2) of the Police Regulation Act 1958 (Vic).883 In McIntosh, Ahmad v. TAFE Tasmania, a technical institute’s policy that did not allow for a Muslim lecturer to take leave as of right to celebrate Muslim religious festivals was permissible discrimination as the Easter and Christmas holidays that were said to give rise to the discrimination were public holidays under the Statutory Holidays Act 2000 (Tas).884 Other un-litigated examples of discrimination authorized by statute include the voiding of any court process that is served on ‘a Sunday on which Christmas Day falls’,885 and restrictions on the access to land or building of ‘cultural or religious significance by people who are not of a particular sex, age, race or religion’.886 §2. VICTIMIZATION 306. Victimization provisions exist in each jurisdiction.887 They appear in a variety of different forms but generally arise where A subjects B to detriment because of something that B has done or intends to do under the non-discrimination legislation. In Laalaa v. DG NSW Dept of Education and Training, a Tribunal held that contacting another person to obtain a reference in relation to the complainant about the university’s refusal to employ the complainant allegedly on the basis of his ethnoreligious background was not victimization as the contact was not a detriment but merely a means of assessing the complainant’s teaching performance.888 §3. RIGHT TO EQUALITY

307. In the Australian Capital Territory and Victoria, statutory bills of rights provide everyone with a right to enjoy his or her human rights without discrimination or, in the Australian Capital Territory, distinction.889 They also provide that everyone is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.890 This protection has two components: equality before the law; and equal protection of the law.891 Whilst equality before the law provides for equality that is merely formal or procedural in character (i.e., in the administration of the law), equality of protection expresses the fundamental value of substantive equality (i.e., in the content and operation of the law).892 Equality of protection requires positive action be taken to redress historical or entrenched disadvantage suffered by some people and groups in what is commonly referred to as affirmative action.893 Although both bills refer to discrimination, only the Victorian bill links with nondiscrimination legislation by defining discrimination in terms of the nondiscrimination legislation. 308. In Victoria, a religious exemption similar to that found under nondiscrimination legislation can be found in respect of certain acts and decisions of public authorities.894 In particular, it provides that public authorities are not required to ‘act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates’.895 ‘Religious body’ is defined as a body established for a religious purpose, or an entity that establishes or directs, controls or administers an educational or other charitable entity that is intended to be and is conducted in accordance with religious doctrines, beliefs or principles.896 309. Similar to the ‘special measures’ provisions under non-discrimination legislation, the Victorian statutory bill of rights provides that discriminatory measures may be taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination.897 The provision is remedial in nature and is ‘consubstantial’ with the right to equal protection of the law in that they have the same purpose of substantial equality, this provision being the method of achieving the protection.898 The statutory bills of rights, although referring to the concept of discrimination, differ from non-discrimination legislative regimes in a number of ways. First, the right or protection in the bills is positive in nature, being couched in the language of equality. Second, the protection in the bills extends to actions taken in respect of all laws and so there are no limits to the areas in which the provision will operate. Third, the bills do not protect against private discriminatory acts that are not regulated by law. For example, in the absence of non-discrimination legislation the bills would provide no protection against the refusal of a private school to accept a student on the basis of their race. §4. INQUIRIES BY AHRC 310. The AHRC has the power to inquire into any act or practice that may be inconsistent with or contrary to any human rights, including the rights and freedoms set out in the ICCPR and the Declaration on the Elimination of All forms of Intolerance and of Discrimination Based on Religion or Belief 1981 or that may constitute discrimination as defined under the Australian Human Rights Commission Act 1986.899 Discrimination is defined under the Act as ‘any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’. Two exemptions are specified, one analogous to the inherent requirements test, the other to the religious body test, which reads: ‘in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed’.900

733. The first non-discrimination legislation was enacted in Australia by the South Australian Parliament in 1966: Prohibition of Discrimination Act 1966 (SA).

734. 735. 736. 737.

738. 739.

740. 741. 742. 743. 744. 745. 746. 747. 748. 749. 750. 751. 752. 753. 754. 755. 756.

757. 758. 759. 760. 761. 762. 763. 764. 765. 766. 767. 768. 769. 770.

771. 772. 773. 774.

775. 776. 777. 778. 779.

780. 781. 782. 783. 784.

Neil Rees, Simon Rice & Dominique Allen, Australian Anti-Discrimination Law 17–26 (2d ed, Fedn. Press 2014). Anti-Discrimination Act 1977 (NSW) s. 56; Equal Opportunity Act 1977 (Vic) s. 32 (repealed); Sex Discrimination Act 1975 (UK) ss 19, 35(1)(b). Equal Opportunity Act 1984 (WA) ss 53–66. At the Commonwealth level, s. 23(3A) of the Sex Discrimination Act (Cth) was inserted in 2013 to deny the application of a religious body exemption in connection with the provision of Commonwealth-funded aged cares. In Victoria, ss 82(3), (4), 83(3), (4) of the Equal Opportunity Act 2010 (Vic) were enacted in 2010 under a Labour Government to limit the applicability of the religious exemption in the employment context before being repealed in 2011 after a change to a Coalition government. (2014) 308 ALR 615. Racial Discrimination Act 1974 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth); Discrimination Act 1991 (ACT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act (NT); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (SA); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act (WA). See further Pt VI, Chs 2.1 and 3.1. See further Pt IX Chs 1.4 and 2.4. Waters v. Public Transport Corporation (1991) 173 CLR 349, 392. Ibid. 392. Ibid. 395–396. Ibid. Commonwealth Bank of Australia v. Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 88. Mandla v. Dowell Lee [1983] 2 AC 458, 565 applied in Azriel v. NSW Land & Housing Corporation [2006] NSWCA 372 [54]. [2007] QSC 18. [2006] NSWCA 372. Ibid. [55]. Equal Opportunity Act 1984 (SA) s. 85T(1)(f), (7). Equal Opportunity Act 2010 (Vic) s. 7(2)(b), (c) discussed in Kapoor v. Monash University (2001) 4 VR 483. Anti-Discrimination Act (Qld) Dictionary; Anti-Discrimination Act (Tas) s. 3; Equal Opportunity Act 2010 (Vic) s. 4(1); Equal Opportunity Act (WA) s. 4(3). Dixon v. Anti-Discrimination Commissioner of Queensland [2005] 1 Qd R 33, 39 [22]. Ibid. 38 [21]. Ibid. 38 [20]. On the extension of the concept of religion to include a lack of religion see, although in the context of the scope of s. 116 of the Commonwealth Constitution, Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 67 CLR 116, 123; Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health (1995) 56 FCR 50, 85. Best Practice Education Group Ltd T/as Blue Gum School v. Department of Education & Community Services [2002] ACTDT 1 [24]. Best Practice Education Group Ltd T/as Blue Gum School v. Department of Education & Community Services [2002] ACTDT 1. Kloska v. National Jewish Association [2009] ACAT 8. Equal Opportunity Act 2010 (Vic) s. 4(1) (definition of ‘religious belief or activity’); Anti-Discrimination Act 1991 (QLD) Sch. 1 (definition of ‘religious activity’). Charter of Rights and Responsibilities 2006 (Vic) s 14(1)(a). See, further, Pt VII, Ch. 3.3.IV. See, further, Pt VI, Chs 2.1 and 3.1 (work) and Pt IX, Chs 1.4 and 2.4 (education). Tassone v. Hickey [2001] VCAT 47 [25]. See also Trkulja v. Dobrijevic [2013] VCAT 925 where the respondent Serbian Orthodox Church accepted that by banning one of its members from the Church it discriminated against the Church member on the basis of religious belief. Racial Discrimination Act 1975 (Cth) s. 9(1). [2014] FCAFC 26. IW v. City of Perth (1997) 191 CLR 1, 14–15; Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [9], [511]. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [197], [410]. Ibid. [511], [513]–[514]. Sex Discrimination Act 1984 (Cth) s. 37(1)(a); Discrimination Act 1991 (ACT) s. 32(a); Anti-Discrimination Act 1977 (NSW) s. 56(a); AntiDiscrimination Act (NT) s. 51(a); Anti-Discrimination Act 1991 (Qld) s. 109(1)(a); Equal Opportunity Act 1984 (SA) ss 50(1)(a), 85ZM(a); Equal Opportunity Act 2010 (Vic) s. 82(1)(a); Equal Opportunity Act 1984 (WA) s. 72(a). OV v. Members of the Board of the Wesley Mission Council (2010) 270 ALR 542 [69]. Ibid. [70], [71]. Ibid. [72]. Sex Discrimination Act 1984 (Cth) s. 37(1)(c); Discrimination Act 1991 (ACT) s. 32(c); Anti-Discrimination Act 1977 (NSW) s. 56(c); AntiDiscrimination Act (NT) s. 51(c); Anti-Discrimination Act 1991 (Qld) s. 109(1)(c); Equal Opportunity Act 2010 (Vic) s. 82(1)(c); Equal Opportunity Act 1984 (WA) s. 72(b). Walsh v. St Vincent de Paul Society Queensland [2008] QADT 32 [77]. Tassone v. Hickey [2001] VCAT 47 [42]. Tassone v. Hickey [2001] VCAT 47. Equal Opportunity Act 1984 (SA) s. 50(1)(ba). Sex Discrimination Act 1984 (Cth) s. 37(1)(d); Age Discrimination Act (Cth) s. 35; Discrimination Act 1991 (ACT) s. 32(d); Anti-Discrimination Act (NT) s. 51(d); Anti-Discrimination Act 1991 (Qld) s. 109(1)(d); Equal Opportunity Act 1984 (SA) s. 50(1)(c); Equal Opportunity Act 2010 (Vic) s. 82; Equal Opportunity Act (WA) s. 72(d). Anti-Discrimination Act 1977 (NSW) s. 56. Equal Opportunity Act 2010 (Vic) s. 81(b). Anti-Discrimination Act 1998 (Tas) s. 52. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615 [231] accepting and citing Roman Catholic Archbishop of Melbourne v. Lawlor (1934) 51 CLR 1, 32. Ibid.

785. 786. 787. 788.

789. 790. 791. 792. 793. 794. 795. 796. 797. 798. 799. 800. 801. 802. 803. 804. 805. 806. 807. 808. 809.

810. 811. 812. 813. 814. 815. 816. 817. 818. 819. 820. 821. 822. 823. 824. 825. 826. 827. 828. 829. 830. 831. 832. 833. 834. 835. 836. 837. 838. 839. 840. 841. 842. 843. 844. 845. 846.

Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615 [243]-[252]. Walsh v. St Vincent de Paul Society Queensland [2008] QADT 32 [76]. OV v. Members of the Board of the Wesley Mission Council (2010) 270 ALR 542, [33]. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615 [262], [264] (although the case concerned a religious exemption for individuals found only in Victoria, it similarly applies in respect of the same protected areas and so will likely attract the same approach); Jubber v. Revival Centres International [1998] VADT 62 (7 Apr. 1998); Burke v. Tralaggan (1986) EOC ¶92-161. Cf. OV v. Members of the board of the Wesley Mission Council (2010) 270 ALR 542, 546 [14], 558 [62] where this limited approach was doubted. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615 [432]. Ibid. [432]. Ibid. [532], [548]–[549], [553]. Ibid. [547], [561]. Equal Opportunity Act 1984 (SA) s. 50. Anti-Discrimination Act 1998 (Tas) ss 27(1)(a), 52. Equal Opportunity Act 2010 (Vic) s. 82(2). Sex Discrimination Act 1984 (Cth) s. 37(1)(d); Age Discrimination Act (Cth) s. 35; Anti-Discrimination Act 1977 (NSW) s. 56(d); Equal Opportunity Act 1984 (SA) s. 50(1)(c); Equal Opportunity Act 2010 (Vic) s. 82(2); Equal Opportunity Act (WA) s. 72(d). Discrimination Act 1991 (ACT) s. 32(d); Anti-Discrimination Act 1991 (Qld) s. 109(1)(d); Discrimination Act 1998 (Tas) s. 52(1)(d). Anti-Discrimination Act (NT) s. 51. Discrimination Act 1998 (Tas) s. 27(1)(a). Anti-Discrimination Act 1977 (NSW) s. 56(d). Equal Opportunity Act 2010 (Vic) s. 82(2). Equal Opportunity Act 1984 (SA) s. 50(1)(c). Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [485]. OV v. Members of the Board of the Wesley Mission Council (2010) 270 ALR 542, [44]. Ibid. [33], [45], [57]. [2010] NSWADT 293, [33]. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [524]. Ibid. [275], [278]. Ibid. [286], [287]. Cf. OW v. Members of the Board of the Wesley Mission Council [2010] NSWADT 293 [35] where the conformity test was described as ‘singularly undemanding’ as it merely requires that an act or practice be in conformity with, rather than in breach of, the doctrines of the relevant faith. OV v. Members of the board of the Wesley Mission Council (2010) 270 ALR 542, [36]. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [263]. Ibid. [290]. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441, 444. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [300]. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441, 444. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [300]. OV v. Members of the board of the Wesley Mission Council (2010) 270 ALR 542, 546 [12]. Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273, 287. (2014) 308 ALR 615. Ibid. [193]–[194]. Ibid. [195]. Ibid. [545]–[546]. Ibid. [409]–[410]. Ibid. [408]–[435]. Ibid. [291], [328], [422]–[424], [426]–[427]. Ibid. [525]. Ibid. [518], [521], [522]. Ibid. [520]–[521], [523]–[524]. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441, 445. Church of the New Faith v. Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120, 174. Hozack v. Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441, 444. Ibid. 445. (2014) 308 ALR 615. In relation to the individual religious exemption see below under this same section. Ibid. [245], [249]. Ibid. [247], [252]. Ibid. [248]. See discussion in text supra. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [275], [278]. Ibid. [283]. Ibid. [289]. Ibid. [303]–[306]. [2010] NSWADT 293. [2010] NSWADT 293, [34], [35]. Ibid. [34]. Ibid. [24], [35]. (1997) 79 FCR 441.

847. 848. 849. 850. 851. 852. 853. 854. 855. 856. 857. 858. 859. 860. 861. 862. 863. 864. 865. 866. 867. 868. 869. 870.

871. 872. 873. 874. 875. 876.

877. 878. 879. 880. 881. 882.

883. 884. 885. 886. 887.

888. 889. 890. 891. 892. 893. 894. 895. 896. 897. 898. 899. 900.

Ibid. 445. Ibid. 446. See, further, Pt VI, Ch. 3.1. [1998] VADT 62 (7 Apr. 1998). Sex Discrimination Act 1984 (Cth) s. 23(3)(b), (3A); Discrimination Act 1991 (ACT) s. 26(1)(b); Equal Opportunity Act 1984 (WA) s. 21(3)(b). Anti-Discrimination Act (NT) s. 40(3); Anti-Discrimination Act 1991 (Qld) s. 90. Equal Opportunity Act 2010 (Vic) s. 60. Equal Opportunity Act 1984 (WA) s. 74(2)(a). See Pt IX, Ch. 2.4. Anti-Discrimination Act (NT) s. 43; Anti-Discrimination Act 1991 (Qld) s. 48. Anti-Discrimination Act (Tas) s. 42. Anti-Discrimination Act 1991 (Qld) s. 80. Anti-Discrimination Act 1977 (NSW) s. 59A. Equal Opportunity Act 2010 (Vic) s. 84. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [308]–[322], [411]–[420]. Ibid. [474], [478], [485], [488]. See discussion above on the application of the religious body exemption to the commercial sphere. Christian Youth Camps Ltd v. Cobaw Community Health Services Ltd (2014) 308 ALR 615, [328]–[329], [433]. Ibid. [564]. Ibid. [565], [568]. Ibid. [565], [567]. Equal Opportunity Act 1984 (SA) ss 35(2b), 85ZB(3). Ibid. s. 85ZN. Racial Discrimination Act 1975 (Cth) s. 8; Sex Discrimination Act 1984 (Cth) s. 7D; Disability Discrimination Act 1992 (Cth), s. 45; Age Discrimination Act 2004 (Cth), s. 33; Anti-Discrimination Act 1977 (NSW) ss 21, 49ZYR, 126A; Equal Opportunity Act 1984 (SA), ss 47, 65, 82, 85P, 85ZK; Equal Opportunity Act 1984 (WA); Equal Opportunity Act 2010 (Vic), s. 12; Anti-Discrimination Act (Qld) s. 105; Anti-Discrimination Act (Tas), ss 25, 26; Discrimination Act (ACT), s. 27; Anti-Discrimination Act (NT) s. 57. Equal Opportunity Act 2010 (Vic) s. 12. Human Rights Act 2004 (ACT) s. 30; Charter of Human Rights and Responsibilities 2006 (Vic) s. 32(1). Lifestyle Communities Ltd (No 3) [2009] VCAT 1869, [33]–[47]. Human Rights Act 2004 (ACT) s. 40B(1)(b); Charter of Human Rights and Responsibilities 2006 (Vic) s. 38(1). See Ch. 7.3 below. City of Casey – Casey Aquatic & Recreation Centre (Anti-Discrimination) [2012] VCAT 893; Casey City Council & YMCA [2008] VCAT 2265; Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198; YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765; Equal Opportunity Act 2010 (Vic) s. 12, Example 2. Diamond Weightloss Centre and Leisure Co Pty Ltd [2006] SADC 35 [12], [16], [22]. [2005] VCAT 2438. Ibid. [30]–[34]. Ibid. [36]. Ibid. [37], [39]. Sex Discrimination Act (Cth) s. 40; Disability Discrimination Act (Cth), ss 47, 51; Age Discrimination Act (Cth), ss 39, 40, 41; Discrimination Act (ACT), s. 30; Anti-Discrimination Act (NSW), s. 54(1); Anti-Discrimination Act (NT), s. 53; Anti-Discrimination Act (Qld), s. 106; AntiDiscrimination Act (Tas), s. 24; Equal Opportunity Act (Vic) s. 75; Equal Opportunity Act (WA) ss 66ZS, 69. [2013] VCAT 1977. See also Kuyken v. Lay (Human Rights) [2013] VCAT 1972. McIntosh, Ahmad v. TAFE Tasmania [2003] TASADT 14, [37]. Similar legislation exists in other jurisdictions: see, e.g., Sunday Entertainments Act 1979 (WA). Sunday (Service of Process) Act 1984 (NSW) s. 3. Anti-Discrimination Act 1991 (Qld), s. 48. Racial Discrimination Act 1975 (Cth) s. 27; Sex Discrimination Act 1984 (Cth) s. 94; Disability Discrimination Act 1992 (Cth) s. 42; Age Discrimination Act 2004 (Cth) s. 51; Australian Human Rights Commission Act 1986 (Cth) s. 26; Discrimination Act 1991 (ACT) s. 68; AntiDiscrimination Act 1977 (NSW) s. 52; Anti-Discrimination Act (NT) s. 23; Anti-Discrimination Act 1991 (Qld) ss 129, 130; Equal Opportunity Act 1984 (SA) s. 86; Anti-Discrimination Act 1998 (Tas) s. 18; Equal Opportunity Act 2010 (Vic) ss 103, 104; Equal Opportunity Act 1984 (WA) s. 67. [2008] NSWADT 327 [92]–[95]. Human Rights Act 2004 (ACT) s. 8(2); Charter of Human Rights and Responsibilities 2006 (Vic) s. 8(2). Human Rights Act 2004 (ACT) s. 8(3); Charter of Human Rights and Responsibilities 2006 (Vic) s. 8(3). Lifestyle Communities Ltd (No 3) [2009] VCAT 1869 [284]. Ibid. [285]–[288]. Ibid. [290]. Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 38. Ibid. s. 38(4). Ibid. s. 38(5). Ibid. s. 8(4). Lifestyle Communities Ltd (No 3) [2009] VCAT 1869 [259]. Australian Human Rights Commission Act 1986 (Cth) ss 20(1)(b), 31(1)(b). See further Pt IV, Ch 1.3. Ibid. s. 3(1) (definition of ‘discrimination’).

Chapter 8. Penal Law and Religion James Krumrey-Quinn 311. Australia’s penal or criminal justice system was inherited from the British upon white settlement. The inherited justice system operates to the exclusion of traditional punishment under Aboriginal customary law – the law of Australia’s first people.901 This exclusivity has not stopped courts, and to a lesser extent, legislatures recognizing the importance of customary law to Aboriginal offenders especially at the sentencing stage, with a number of state and territory public authorities authoring reports that recommend an even greater legislative recognition of its role in Australia’s justice system.902 The body of criminal laws received from Britain included a number of common law and statutory offences concerning religion. Although only the common law offence of blasphemy and blasphemous libel has any direct application in Australia today, a number of state statutory offences, including offences of sacrilege, disturbing religious worship and assaulting a person lawfully officiating at religious worship, are similar to old British offences in substance and in form. Every jurisdiction in Australia has enacted criminal legislation that touches on religion in different ways. A number of offences have been enacted which prohibit conduct that violates certain religious beliefs (e.g., blasphemy), prohibit certain religious practices (e.g., female genital mutilation), protect the free practice of religion and religious individuals themselves (e.g., serious religious vilification), and involve offending by religious ministers (e.g., sex crimes committed by religious ministers). Religious belief and practice is also relevant in the defence of certain criminal conduct and as a factor in sentencing. §1. RELIGIOUS OFFENCES 312. Blasphemy and blasphemous libel are common law offences that evolved out of the fusion of Church and state in England.903 Both were punishable by fine or imprisonment but differed in that blasphemy applied to the spoken word and blasphemous libel to the written word. Although the lack of an established Church in Australia and the existence of section 116 of the Constitution prohibiting such an establishment has led some to suggest that common law blasphemy ‘never survived transportation to the colonies’,904 the weight of authority supports the proposition that the two offences were received into Australia’s common law at settlement.905 Despite the codification of the criminal law in Queensland and Western Australia (and therefore likely abolition of both offences in those jurisdictions),906 the abolition of blasphemous libel in the Australian Capital Territory907 and calls for the abolition of the offences in a number of other jurisdictions,908 blasphemy and blasphemous libel remain offences under the common law in New South Wales, the Northern Territory,909 South Australia and Victoria.910 The offence of blasphemy has been enacted in the Tasmanian Criminal Code, although it extends to both the spoken and written word.911 313. Although there are no Australian cases in which the elements of the offences of blasphemy or blasphemous libel have been clearly set out, the elements have been described as the publication of ‘words concerning the Christian religion which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feeling of any sympathiser with or believer in Christianity’.912 They have also been described as involving the publication of ‘matter calculated to outrage the feelings of Christians (by wanton and unnecessary profanity)’.913 It is not however an offence to deny the existence of God or to propagate doctrines hostile to the Christian faith.914 Instead, ‘the matter complained of must raise the risk of a breach of the peace, perhaps general civil unrest’.915 The offences are limited in application to vilification of the Christian religion,916 although it has been suggested that they extend to protect other faiths as well.917 Legislation in a number of jurisdictions modifies the common law to differing extents:

– In the Australian Capital Territory and New South Wales, criminal statues require that, in respect of prosecutions for blasphemy, no person shall be liable to prosecution in respect of any publication that is by way of ‘argument’ or ‘statement’, and is ‘not for the purpose of scoffing or reviling, [or] of violating public decency, [or] in any way tending to a breach of the peace’.918 – In South Australia, no offence of blasphemy is committed where a person produces or takes part in a theatrical performance with a view to the performance being classified or where the performance has already been classified by the relevant classification authority,919 or where a person produces, takes part in the production of, publishes, distributes, sells, exhibits, displays, delivers or otherwise deals with or is associated with a publication, film or computer game that is classified.920 – The offence of blasphemy under the Tasmanian Criminal Code, although stating that the question of whether any published matter is blasphemous is a question of fact, provides that it is not an offence ‘to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject’.921 It is also an offence in Tasmania to use blasphemous language in a public place.922 – Although not a criminal offence, under Commonwealth law blasphemous ship names will not be registered.923 – Once a person is convicted for publishing a blasphemous libel in Victoria, a court may order the seizure and destruction of any documents containing such libel.924 314. Blasphemy has been considered in Australia in only a handful of cases.925 The only successful prosecution was in R v. Jones in 1871, which involved a ‘wicked and evil disposed’ man who in a speech in front of a couple of hundred people declared, amongst other things, that the Bible was immoral, a lie, corrupt and unfit for women to read.926 The only other reported case is Archbishop of Melbourne v. Council of Trustees of National Gallery (Vic) where a Catholic Archbishop brought an application to injunct the exhibition of a photograph which purportedly depicted a crucifix immersed in urine.927 The application was dismissed on the basis that there was no evidence that ‘an unrest of any kind’ would follow the showing of the photograph. 315. Profanity offences under English and later British statutes were received into Australian law on white settlement. The profanity offences were similar to blasphemy and blasphemous libel in that they prohibited vilification of God or Christianity but differed in that they were based in statute, usually only required proof of ‘irreverence’ rather than scurrilous or offensive behaviour, and received milder penalties.928 The English and British statutes of the 1600s and 1700s do not have application in Australia today as they have been superseded by enactment of public order legislation. In a number of jurisdictions, offences of using profane language in a public place have been created.929 In the absence of statutory definition, it is likely the term ‘profane’ retains its ordinary meaning: ‘desecrating what is holy or sacred’.930 The prohibitions under some public order legislation of the use of ‘insulting terms’ has been held to extend to insults to one’s religious convictions.931 316. Other criminal prohibitions, whilst no expressly protecting a religious practice, reflect religious values in Australian criminal law: – Abortion is criminalized in a majority of states and territories for the procurer (whether the mother or some other person) and the person supplying the means of abortion,932 except where necessary to preserve the woman from a serious danger to her life or her physical or mental health.933 In the Australian Capital Territory, Tasmania and Victoria abortion has been decriminalized and is allowed on any ground, although it remains a crime where the procurer is not qualified.934 In Western Australia, abortion remains criminalized but is permitted where carried out by a medical practitioner and justified on prescribed bases.935 – Euthanasia is unlawful in all jurisdictions and constitutes the offence of murder or manslaughter,936 or assisted suicide.937 Where treatment by medical practitioners had the impact of hastening death, the position is more complicated.938 In 1996, the Northern Territory enacted legislation which gave people over the age of 18 who were terminally ill the right to request a physician to assist them in dying.939 Although held to be constitutionally

valid,940 the Commonwealth Parliament quickly enacted overriding legislation prohibiting euthanasia laws in the Australian Capital Territory, Northern Territory and Norfolk Island.941 – Although suicide itself is not illegal,942 it is lawful to use force to prevent another from attempting suicide.943 Providing information on how to commit suicide by phone, fax, internet or email is an offence under Commonwealth law.944 – Bigamy is an offence under Commonwealth law and prohibits a person who is married from going through a form or ceremony of marriage with any person.945 It is a defence to the offence of bigamy where a person believes their spouse is dead or has reasonable grounds for presuming that their spouse is dead.946 It is also an offence for a person to go through a form or ceremony of marriage with a person who is married, knowing or having reasonable grounds to believe they are married.947 These provisions operate to the exclusion of state and territory offences against bigamy.948 §2. OFFENCES PROHIBITING CERTAIN RELIGIOUS CONDUCT 317. It is an offence in all states and territories to perform female genital mutilation or to take a person from the jurisdiction with the intention of having it performed.949 Although generally permitted for medical necessity or surgical reassignment surgery, a female cannot otherwise consent to female genital mutilation even where it forms part of a cultural, religious or other social custom.950 There is no prohibition on the performance of male circumcision for which government funding is available to males of any age including where for non-therapeutic reasons.951 Although in the case of children parental consent will usually suffice for medical practitioners to proceed and lawfully carry out the medical procedure, there is judicial authority suggesting that performance of a clitoridectomy (a form of female genital mutilation) is a ‘special case’ in which parental consent is insufficient, thus giving rise to a court’s supervisory parens patriae jurisdiction.952 Of relevance in determining whether a clitoridectomy is a special case requiring a court’s intervention is the non-therapeutic nature of the procedure and its long-lasting and irreversible consequences;953 factors which might equally be said to apply to male circumcision. Even if a court were to intervene in relation to a male circumcision procedure, it would be required to then objectively assess whether the procedure is in the welfare or best interests of the child.954 Whilst the religious and cultural identity of the child would be a relevant factor, the weight attached to such factors would likely be low.955 318. The Commonwealth Criminal Code creates a number of terrorism-related offences which are directed at prohibiting violent religious extremism.956 For example, it is an offence to engage in a terrorist act which is defined as an action or threat of action that is done with the intention of ‘advancing a political, religious or ideological cause’.957 It is also an offence to associate with terrorist organizations, where terrorist organizations include those organizations specified by regulation.958 The Commonwealth Parliament has specified a number of Islamic organizations as terrorist organizations, including Al-Qaida and Al Shabaab.959 §3. OFFENCES PROTECTING RELIGIOUS GROUPS 319. It is an offence in most jurisdictions to obstruct by way of threats or violence a minister of religion from discharging their duties in a place of religious worship or from performing a lawful burial or cremation.960 It is also an offence in most jurisdictions to wilfully and without lawful justification or excuse disturb a group of people assembled for religious worship, or to assault a person lawfully officiating at any such meeting.961 In Macrae v. Jolifee, a woman who threw papers in the air and shouted loudly at an open-air meeting in a public park by a Christian Evangelist who spoke and led the audience in song and prayer was charged with disturbing a religious worship.962 The woman was acquitted as, amongst other things, the meeting did not constitute public worship: there was no indication whether the evangelist and the religious song and prayer were the main part of the show; and at any rate people were drinking at the event. 320. In South Australia, it is an offence to obstruct or disturb: a religious service or a wedding or funeral

(whether secular or religious); or persons proceeding to or from such a religious service, wedding or funeral in a way that is calculated to be offensive and is related in some way to their attendance, or intention to attend, the religious service, wedding or funeral.963 Religious service is defined to mean a lawful assembly of the adherents of any religion for the purpose of prayer or any other form of religious observance.964 321. The Commonwealth Criminal Code creates offences of genocide, war crimes and crimes against humanity,965 each of which protects religious groups in a number of ways. The genocide offences prohibit, amongst other things, the killing, physical and mental harming of, deliberate inflicting of conditions of life calculated to bring about physical destruction of, the imposition of measures intended to prevent births of people belonging to, and the forcible transfer of children belonging to, a particular religious group with the intention of destroying that group.966 The crimes against humanity offences prohibit forced pregnancy of women with the intention of destroying a religious group, and severely depriving one or more persons of their right to freedom of religion under the ICCPR on the basis of their political, racial, national, ethnic, cultural, religious, gender or other background.967 Finally, the war crimes offences include prohibitions of attacks on religious buildings,968 forced pregnancy with the intention of destroying a religious group,969 and using religious personnel as shields.970 War crimes committed against persons not taking an active part in hostilities constitute grave breaches of the Geneva Conventions and of Protocol I to the First Geneva Convention (an additional class of offence) and are defined as including war crimes committed on religious personnel.971 322. A number of protections for Aboriginal spiritual sites or objects are found in Aboriginal heritage legislation. Most jurisdictions make it an offence to damage or destroy, excavate, sell, take out of the jurisdiction or to fail to take reasonable measures to protect Aboriginal places or objects.972 They also make it an offence to fail to report the discovery of such a place or object.973 Some jurisdictions empower the relevant authorities to make declarations or orders for the protection and preservation of Aboriginal places and objects failure to comply with which is an offence,974 and prohibit entering or remaining on land that is an Aboriginal sacred site,975 possessing Aboriginal Cultural Heritage or Aboriginal objects976 and divulging information regarding an Aboriginal site, object, remain or tradition.977 Although statutes do not always expressly extend the scope of the protections to Aboriginal religious property, most statutes do define Aboriginal tradition as including Aboriginal beliefs.978 323. Protections against religious property (also referred to as sacrilege offences) more generally can be found in Queensland, South Australia and Victoria.979 In Queensland, it is unlawful to interfere with or wilfully damage property at a place of religious worship.980 In South Australia, a person who ‘breaks and enters’ or ‘breaks out’ of a ‘place of divine worship’ and commits an offence of theft, or an offence involving interference with, damage to, or destruction of property is guilty of sacrilege and liable to life imprisonment.981 In Victoria, it is an indictable offence for ‘[w]hosoever is one of any persons riotously and tumultuously assembled together to the disturbance of the public peace who unlawfully and with force demolish or pull down or destroy or begin to demolish pull down or destroy any church chapel meeting-house or other place of divine worship’.982 Although sacrilege invites ‘strong public condemnation’, the fact that the conduct was a mere theft and did not relate to church buildings, religious ornaments, fittings, arrangements or literature or have any anti-religious or sectarian motivation counts against the imposition of a severe sentence.983 324. In Queensland and Victoria, serious religious vilification is a criminal offence. The offences are distinct from the civil prohibition on religious vilification in that they require that the conduct threatens harm towards the person or a group of people or their property, or incites others to threaten such harm.984 In Victoria, it is irrelevant that a person made an incorrect assumption about the race or religious belief or activity of another person or class of people.985 325. Under Commonwealth law, there is a similar offence of urging violence against groups or members of groups, where the targeted group is distinguished by, amongst other things, religion.986

§4. OFFENCES BY RELIGIOUS MINISTERS 326. A long history of child sexual abuse within a number of religious and other public institutions has led to the enactment of child sex crimes specifically where committed by a person in a position of trust or authority, which is defined to include where the offender was a minister of religion and/or provided religious instruction.987 Most jurisdictions have also created child sex offender registers that record information about an offender’s employment, which specifically apply to offenders who work as ministers of religion or have religious vocations or who carry out child-related employment in religious organizations.988 Similarly, in most jurisdictions it is an offence to fail to apply for a clearance when working with children, where such work is defined to include the provision of religious services and a worker includes a religious minister.989 327. In January 2013, the Commonwealth government launched a Royal Commission into Institutional Responses to Child Sexual Abuse to inquire into allegations of child sexual abuse especially in Churches and other religious organizations and to provide recommendations on how to better protect children in institutional contexts, how to encourage reporting of abuse and how to address the impacts of abuse on victims.990 Although, the Royal Commission has no powers to prosecute individual cases, it does have the power to compel people to give evidence, which may later lead to separate criminal proceedings. §5. RELIGIOUS BELIEF OR PRACTICE AS A DEFENCE 328. In determining whether a person accused with murder can rely on the defence of provocation courts may have regard to the ethnicity of the accused in order to put the provocation in context as something which might not be insulting or hurtful to some but is extremely so to another on account of, for example, their ethnicity.991 For example, in R v. Yasso, the jury was entitled to take into consideration that the accused was part of the Chaldean Christian tradition in which martial fidelity was of paramount importance and that the act of a wife spitting at her husband was an act of almost unthinkable insult.992 Ethnicity and religion are not however relevant to the question of whether the accused lost self-control as a consequence of such provocations – that is an objective test that requires consideration of whether it would cause the ordinary person to lose self-control.993 329. Although Australian criminal law does not accommodate an alternative body of law operating alongside it,994 some courts have held that acting pursuant to Aboriginal customary law and consenting to the infliction of traditional punishment will justify some otherwise unlawful conduct where it falls within a defence recognized under the criminal law. For example, the defence of duress might apply where the will of the accused is overborne by the threat of the infliction upon them of serious harm by members of their community if the accused does not carry out the unlawful conduct pursuant to their customary law.995 The statutory defence of authorization by law has also been held to justify acts which are lawful according to Aboriginal customary law,996 though the reasoning in that case may be doubted given courts should not condone the commission of offences or the pursuit of vendettas as they affront and challenge the administration of justice.997 330. Under the Commonwealth Criminal Code, offences for associating with terrorist organizations, and for associating in support of serious organized criminal activity expressly state that they do not apply where ‘the association is in a place being used for public religious worship and takes place in the course of practising a religion’.998 331. Other instances where religious belief or practice can be invoked to justify otherwise criminal conduct includes: – possession of a knife in public place or school where necessary or reasonable for religious purposes;999 – sex with a child under 16 years of age where the accused is married to the child;1000 and – serious animal cruelty where it occurs ‘in the course of or for the purposes of … recognised religious

practices’.1001 §6. RELIGION IN SENTENCING 332. In setting the sentence of a person convicted of a crime, a court may generally have regard to material facts which arise only by way of the person’s membership of an ‘ethnic or other group’.1002 The weight to be given to these factors must not ‘lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’.1003 The offending of a person belonging to a group of a particular ethnic, social, cultural (or presumably religious) background will not however be treated as systematically less serious than offending by persons of another group.1004 The position is different under Commonwealth and Northern Territory law.1005 Under the Commonwealth’s Crimes Act 1914, when passing sentence in relation to a Commonwealth or Northern Territory offence courts must not take into account any form of customary law or cultural practice as a reason for mitigating or aggravating the offence.1006 Exceptions exist in respect of offences against, for example, Aboriginal heritage listed land, sacred sites or Aboriginal land recognized under statute. The effect of these provisions is to ‘preclude an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or case considered individually on the basis of all relevant facts[,] … distort[ing] well established sentencing principle of proportionality’.1007 333. Conduct explicable by an offenders’ membership of a religious group is commonly used to mitigate sentence. In R v. Shannon, an Aboriginal man became distressed and irrational after an argument with his father in the course of which his father threatened punishment at the hands of the kadaitcha men – a mythical group of men who imposed a magical form of retribution and punishment in the offender’s Aboriginal community.1008 The Court held that this put the offender in fear for his life and was a factor that mitigated his sentence for his subsequent conduct which included the lighting of fires and wounding of a police officer.1009 Religious convictions, ethnic background or cultural background have also been considered in mitigation of sentence where offenders have been sentenced for murder or for causing grievous bodily harm to their wife’s or partner’s lover on the basis of provocation,1010 and where an Aboriginal offender was sentenced for setting fire to his house in the belief that it would free the spirit of his friend who had died in the house.1011 334. Religious freedom cannot however be used as a cloak for criminal conduct. In R v. Fletcher, religion was unsuccessfully used to justify a man’s unlawful sexual relationship with and prostitution of two 15-year-old girls as well as his attempts to prevent them from giving evidence by actively trying to have a ritual performed on the victims that had the possibility of death.1012 335. The religious backdrop of criminal conduct has on occasions been used to justify a higher sentence. In R v. Pesnak, two members of Breatharianism were sentenced for manslaughter following subjection of a third member to a twenty-one-day spiritual cleansing programme in which the third member was given no food and minimal fluids until they eventually died. The Court held that the conduct warranted a large term of imprisonment as a deterrent to those who engage in irrational and dangerous conduct in the name of spirituality or religion.1013 Similar reasoning was adopted in R v. Vollmer1014 and Mika,1015 both of which involved the sentencing of offenders for their role in exorcisms that resulted in death. 336. In New South Wales, where an offender is motivated by hatred for or prejudice against a group of people, including a religious group, to which the offender believed the victim belonged, the motivation is an aggravating factor that may be taken into account in the setting of an appropriate sentence.1016 337. Conduct unlawful under the criminal law but justified by Aboriginal customary law will not be taken into account in sentencing.1017 In Bulmer, the Court in sentencing a number of Aboriginal offenders treated their claims that their actions in inflicting wounds on women and children constituted a disciplinary measure sanctioned by

Aboriginal custom as a factor that the court must be ‘vigilant to discourage’.1018 In Hales v. Jamilmira, an Aboriginal offender was sentenced for unlawful sexual intercourse with a 15-year-old girl who had been sent to live with him as his proposed wife in accordance with the custom of the community.1019 Two judges of the Court held that, despite the offender having participated in a culturally encouraged practice, the value placed by the wider community on protection of girls under the age of 16 was to prevail over the practices of this segment of the Aboriginal community.1020 The third member of the Court dissented and held that pressure placed on the offender by his cultural beliefs was significant, given the importance of arranged marriages to the religious beliefs of the Burarra people, and should accordingly have reduced his culpability.1021 338. Where an Aboriginal offender has been subjected to or is liable to be subjected to traditional punishment for conduct which is unlawful under both the criminal law and Aboriginal customary law, the courts have tended to take the traditional punishment into consideration in mitigation of the offender’s sentence as it forms part of ‘facts which exist only by reason of that offender’s membership of a particular group’.1022 Traditional punishment can be seen as not only ‘a healing process’ but can also form part of a ‘solemn and sacred obligation to avenge the wrong inflicted on the victim’.1023 It has been distinguished from vendetta at least where it ‘can be shown to be of positive benefit to the peace and welfare of a particular community’.1024 It is also justified on the basis that it avoids double punishment.1025 There must however be ‘positive evidence that a particular group of Aboriginals follow particular customs in particular circumstances’.1026 This approach of treating as relevant the infliction or prospect of infliction of traditional punishment on an offender has been called into question by the High Court in Munda v. Western Australia.1027 Although not called upon to decide the issue, the High Court favoured the view that an offender’s willingness to submit to traditional punishment is not a material consideration as punishment for crime is meted out by the state – offenders do not have a choice as to the mode of their punishment –, and courts should not condone the commission of an offence or the pursuit of vendettas.1028 339. In sentencing an Aboriginal offender, courts will often have regard to the views of the Aboriginal community. Where regard is had to such views, they do not prevail over what might otherwise be seen to be a ‘proper sentence’ and do not ‘simply substitute a method of punishment known to and accepted by Aboriginal communities in lieu of a more conventional sentence’.1029 Legislation in New South Wales, Queensland, South Australia and Victoria provides for involvement of the representatives of an Aboriginal offender’s community where the offender pleaded guilty and consents to such community involvement.1030 Whilst this raises the possibility for spirituality playing a greater role in the sentencing process, the community representatives provide only a consultative function, with the magistrate or judge retaining control over the ultimate sentence to be handed down. In the Northern Territory, there is provision for courts to receive information on Aboriginal customary law and community views before it passes sentence on an offender where the prosecution consents.1031 Although Commonwealth legislation does not permit a court to use this information to determine the gravity of objective seriousness of a crime, it may still be used to establish whether the offender had the predisposition to commit the crime, is of good character, and is likely to reoffend or be rehabilitated.1032

901. Warren (1996) 88 A Crim R 78, 81. 902. Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No. 31 (1986), [1007]; New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000), [3.79]–[3.89]; Northern Territory Law Reform Committee, Report on Aboriginal Customary Law (2003) Ch. 10; Law Reform Commission of Western Australia, Aboriginal Customary Laws, Report No 94 (2006) 67–74. 903. Taylor’s case, 1 Vent. 293 (‘Christianity is parcel of the laws of England; and therefore to reproach the Christian religion, is to speak in subversion of the law’). See also Whitehouse v. Lemon; R v. Lemon [1979] AC 617, 633–634, 647. 904. Archbishop of Melbourne v. Council of Trustees of National Gallery (Vic) [1998] 2 VR 391, 393–394. 905. Australian Courts Act 1828 (Imp), s. 24; Ogle v. Strickland (1987) 13 FCR 306, 317, 320 (Lockhart J, with whom Fisher J agreed); Northern Coast Environment Council Inc v. Minister for Resources (1994) 55 FCR 492, 509; New South Wales Law Reform Commission, Blasphemy, Report No 74 (1994) [2.10]–[2.13] (on the reception of the offences into New South Wales). 906. Criminal Code Act 1899 (Qld) s. 5; Criminal Code Act 1913 (WA) s. 4. 907. Law Reform (Abolitions and Repeals) Act 1996 (ACT) s. 4 (now repealed).

908. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992), [7.59]; New South Wales Law Reform Commission, Blasphemy, Report No 74 (1994) [4.81]; South Australia, Criminal Law and Penal Methods Reform Committee of South Australia. Fourth Report: The Substantive Criminal Law 248 (1977). 909. Like in Queensland and Western Australia, the criminal code in the Northern Territory has been codified but without a provision excluding all other pre-existing criminal offences. 910. Specific references are made to the offences at s 4(1) of the Wrongs Act 1958 (Vic) (no action is maintainable in relation to a faithful and accurate report of the proceedings in any court, or any coronial inquest or investigation provided that it is not, amongst other things, of a blasphemous nature). 911. Criminal Code (Tas) s. 119(1), which provides: ‘[a]ny person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime’. 912. Ogle v. Strickland (1987) 13 FCR 306, 317. 913. Gypsy Fire v. Truth Newspapers Pty Ltd (1987) 9 NSWLR 382, 383–384. 914. Ogle v. Strickland (1987) 13 FCR 306, 317. 915. Archbishop of Melbourne v. Council of Trustees of National Gallery (Vic) [1998] 2 VR 391, 395. 916. Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health (1995) 56 FCR 50, 86; Gypsy Fire v. Truth Newspapers Pty Ltd (1987) 9 NSWLR 382, 383. 917. Ogle v. Strickland (1987) 13 FCR 306, 317; Archbishop of Melbourne v. Council of Trustees of National Gallery (Vic) [1998] 2 VR 391, 393–394. 918. Crimes Act 1900 (ACT) s. 440; Crimes Act 1900 (NSW) s. 574. 919. Classification of Theatrical Performances Act 1978 (SA) s. 19. 920. Classification (Publications, Films and Computer Games) Act 1995 (SA) s. 84. 921. Criminal Code (Tas) s. 119(3). 922. Police Offences Act 1935 (Tas) s. 12(1)(c), 12(1A). 923. Shipping Registration Act 1981 (Cth) s. 27(3); Shipping Registration Regulations 1981 (Cth) reg. 21(2)(d). 924. Crimes Act 1958 (Vic) s. 469AA. 925. See also discussions at Pt XI, Chs 1 and 2. 926. R v. Jones (unreported, Quarter Sessions (NSW), Simpson J, 18 Feb. 1871) summarized in Sydney Morning Herald, 20 Feb. 1871 and extracted in New South Wales Law Reform Commission, Blasphemy, Report No 74 (1994), Appendix A. 927. [1998] 2 VR 391. 928. LexisNexis, Halsbury’s Laws of Australia, online edition (20 Jan. 2010) 365 Religion, ‘9 Offences’, [365-740]–[365-750]. 929. Summary Offences Act (NT) s. 53(1)(a)(i); Summary Offences Act 1953 (SA) s. 22; Police Offences Act 1935 (Tas) s. 12(1); Summary Offences Act 1966 (Vic) s. 17(1)(c). 930. Oxford English Dictionary (3d ed., Oxford U. Press 2007). 931. Coleman v. Power (2004) 220 CLR 1, 108 [286]. 932. Crimes Act 1900 (NSW) ss 82-84; Criminal Code (NT) ss 208B, 208C (not an offence for the mother); Criminal Code (Qld) ss 224 – 226; Criminal Law Consolidation Act 1935 (SA) ss 81–82A. 933. R v. Davidson [1969] VR 667, 671; R v. Wald (1971) 3 DCR (NSW) 25, 29. 934. Health Act 1993 (ACT) s. 81; Crimes Act 1958 (Vic) ss 65, 66. 935. Criminal Code (WA) s. 199(1); Health Act 1911 (WA) s. 334(3)(a) and (b). 936. Criminal Law Consolidation Act 1935 (SA) s. 13A(3), (4); Crimes Act 1958 (Vic) s. 6B(1). See, also, Justins v. The Queen (2010) 79 NSWLR 544. 937. Crimes Act 1900 (ACT) s. 17; Crimes Act 1900 (NSW) s. 31C; Criminal Code (NT) s. 168; Criminal Code (Qld) s. 311; Criminal Law Consolidation Act 1935 (SA) s. 13A(5), (7); Criminal Code (Tas) s. 163; Crimes Act 1958 (Vic) s. 6B(2); Criminal Code (WA) s. 288. 938. See, e.g., Consent to Medical Treatment and Palliative Care Act 1995 (SA) s. 17(1) (where such treatment is in certain circumstances lawful); Criminal Code (Qld) s. 296 (where such treatment is generally unlawful). 939. Rights of the Terminally Ill Act 1995 (NT). 940. Wake v. Northern Territory (1996) 109 NTR 1. 941. Euthanasia Laws Act 1997 (Cth). 942. Crimes Act 1900 (ACT) s. 16; Crimes Act 1900 (NSW) s. 31A; Criminal Law Consolidation Act 1935 (SA) s. 13A(1); Crimes Act 1958 (Vic) s. 6A. 943. Crimes Act 1900 (ACT) s. 18; Criminal Law Consolidation Act 1935 (SA) s. 13A(2); Crimes Act 1958 (Vic) s. 463B. 944. Criminal Code (Cth) ss 474.29A, 474.29B. 945. Marriage Act 1961 (Cth) s. 94(1). See, e.g., Crimes Act 1958 (Vic) s. 64. 946. Marriage Act 1961 (Cth) s. 94(2). 947. Marriage Act 1961 (Cth) s. 94(4). 948. Marriage Act 1961 (Cth) s. 94(8). See: Crimes Act 1900 (NSW) s. 92; Criminal Code (Qld) s. 360; Criminal Law Consolidation Act 1935 (SA) s. 78; Crimes Act 1958 (Vic) s. 64. 949. Crimes Act 1900 (ACT) ss 73–77; Crimes Act 1900 (NSW) ss 45, 45A; Criminal Code (NT) ss 186A–186D; Criminal Code (Qld) ss 323A–323B; Criminal Law Consolidation Act 1935 (SA) ss 33-33B; Criminal Code (Tas) ss 178A–178C; Crimes Act 1958 (Vic) ss 32-34A; Criminal Code (WA) s. 306. 950. Crimes Act 1900 (ACT) s. 76(3); Criminal Code (NT) ss 186B(4); Criminal Code (Tas) ss 178C(2); Crimes Act 1958 (Vic) s. 33. 951. Australian Government Department of Heath, Medicare Benefits Schedule Book: Operating from 1 Apr. 2014 (Commonwealth of Australia, 2013), 346 (Operations: 30653; 30656; 30659 G; 30660 S). 952. Marion’s’ Case (1992) 175 CLR 218, 297. 953. Ibid. 252–253. 954. See, e.g., ibid 240 and 259. 955. See, further, Pt VI, Ch. 6.1.I. 956. Criminal Code Act 1995 (Cth) ss 102.2–102.8. Legislation also exists in the States which provides for enhanced police powers: Terrorism (Police Powers) Act 2002 (NSW); Police Powers Responsibilities Act 2000 (Qld), ss 211–220; Terrorism (Preventative Detention) Act 2005 (Qld). 957. Criminal Code Act 1995 (Cth) s. 100.1(1). See also, Terrorism (Police Powers) Act 2002 (NSW) s. 3(1)(c)(i); Police Powers Responsibilities Act 2000 (Qld) s. 211(1)(b). 958. Criminal Code Act 1995 (Cth) ss 102.1(1) (definition of ‘terrorist organization’).

959. Criminal Code (Terrorist Organization—Al-Qa’ida) Regulation 2013 (Cth); Criminal Code Regulations 2002 (Cth) reg. 4X. 960. Crimes Act 1900 (NSW) s. 56; Criminal Code Act (NT) s. 125; Summary Offences Act (NT) s. 46C(b); Criminal Code Act 1899 (Qld) s. 206; Criminal Code Act 1924 (Tas) s. 120. 961. Imperial Acts Application Act 1969 (NSW) s. 39; Summary Offences Act (NT) s. 46C; Criminal Code Act 1899 (Qld) s. 207; Criminal Code Act 1924 (Tas) s. 121; Summary Offences Act 1966 (Vic) s. 21. 962. [1970] VR 61. 963. Summary Offences Act 1953 (SA) s. 7A(1). 964. Ibid. s. 7A(2). 965. Criminal Code (Cth) Ch. 8. 966. Ibid. ss 268.3–268.7. 967. Ibid. ss 268.17, 268.20. 968. Ibid. ss 268.46, 268.80(1)(b)(i). 969. Ibid. ss 268.62, 268.85. 970. Ibid. s. 268.65. 971. Ibid. ss 268.70(2)(b), 268.72(3)(b), 268.73(2)(b), 268.74(3)(a)(ii), 268.74(3)(b)(ii), 268.76(4)(b). 972. Heritage Act 2004 (ACT) s. 75; Heritage Act (NT) ss 111–113; Aboriginal Cultural Heritage Act 2003 (Qld) ss 23–25; Aboriginal Heritage Act 1988 (SA) ss 21, 23, 26, 28, 29; Aboriginal Relics Act 1975 (Tas), s. 14(1); Aboriginal Heritage Act 1972 (WA) ss 17, 54; Aboriginal Heritage Act 2006 (Vic) ss 27–29, 34. 973. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s. 22(3); Heritage Act 2004 (ACT) s. 51; Heritage Act 1977 (NSW) ss 146, 146A; Heritage Act (NT) s. 114; Aboriginal Heritage Act 1988 (SA) s. 20; Aboriginal Relics Act 1975 (Tas) s. 10; Aboriginal Heritage Act 2006 (Vic) s. 24. 974. See, e.g., Aboriginal Heritage Protection Act 1984 (Cth) s. 22(1)(2); Heritage Act 1977 (NSW) s. 156; Aboriginal Heritage Act 2006 (Vic) ss 95, 102, 108. 975. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 69, 70. 976. Aboriginal Cultural Heritage Act 2003 (Qld), s. 26; Aboriginal Heritage Act 2006 (Vic) s. 33. 977. Aboriginal Heritage Act 1988 (SA) s. 35. See also Part VII, Ch. 5.2. 978. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s. 3(1) (Aboriginal tradition); Heritage Act 2004 (ACT) Dictionary (Aboriginal tradition); Aboriginal Cultural Heritage Act 2003 (Qld) ss 9, 10 (Aboriginal tradition); Aboriginal Heritage Act 1988 (SA) s. 3 (Aboriginal tradition); Aboriginal Heritage Act 1972 (WA) ss 5, 6; Aboriginal Heritage Act 2006 (Vic) s. 4(1) (Aboriginal cultural heritage). 979. The heading to Div 4 of Pt 4 of the Crimes Act 1900 (NSW) includes the term ‘sacrilege’ but all sacrilege offences falling under that division have been repealed. 980. Summary Offences Act 2005 (Qld) s. 26A(1)(c); Criminal Code Act 1899 (Qld) s. 469, cl 11(1)(c). 981. Criminal Law Consolidation Act 1935 (SA) s. 167. See, e.g., R v. Ho [2004] SADC 130 where a mentally incompetent man was convicted of sacrilege and for lighting fires in a Buddhist temple. 982. Crimes Act 1958 (Vic) s. 206(1). 983. Murrel v. The Queen (1985) 58 ALR 203, 207 (where a man was convicted under the offence of sacrilege in New South Wales – now repealed – for breaking into a number of churches and stealing money and property). 984. Anti-Discrimination Act 1991 (Qld) s. 131A(1); Racial and Religious Tolerance Act 2001 (Vic) s. 25(1), (2). 985. Racial and Religious Tolerance Act 2001 (Vic) s. 26. 986. Criminal Code (Cth) s. 80.2A(1)(c), 80.2AB(1)(d). 987. Criminal Code (Cth) s. 272.3(1)(d); Crimes Act 1900 (ACT) ss 55A(2)(c), 61A(2)(c); Crimes Act 1900 (NSW) s. 73(3)(c); Criminal Code Act (NT) s. 125(3)(c); Criminal Law Consolidation Act 1935 (SA) ss 49(5A)(c), 50(8)(c), 57(4)(c), 63B(6)(c); Crimes Act 1958 (Vic) ss 48(4)(d), 49(4)(d), 49B(3)(d), 58(6)(d). 988. Crimes (Child Sex Offenders) Act 2005 (ACT) ss 61(1)(e), 123, 124(1); Child Sex Offenders Registration Act 2006 (SA) s. 13(3)(c), 64(1); Sex Offenders Registration Act 2004 (Vic) ss 14(3), 67(1). 989. See Pt VI Ch. 2.4. 990. Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Terms of Reference (11 Jan. 2013). 991. Masciantonio v. The Queen (1995) 183 CLR 58, 67. 992. [2004] VSCA 127. See also R v. Abebe (2000) 1 VR 429 (where it was relevant to consider the impact of the victim’s infidelity in light of Ethiopian custom). The defence of provocation has since been abolished in Victoria. 993. Masciantonio v. The Queen (1995) 183 CLR 58, 66–67; R v. Kumar (2002) 5 VR 193, [112]. 994. Walker v. New South Wales (1994) 182 CLR 45, 50. 995. Warren (1996) 88 A Crim R 78, 81. 996. Director of Public Prosecution’s Reference (No. 1 of 1999) (2000) 10 NTLR 1. 997. Munda v. Western Australia (2013) 302 ALR 207, [63]. 998. Criminal Code (Cth) ss 102.8(4)(b), 390.3(6)(b). 999. Crimes Act 1900 (ACT) s. 382(2)(a)(vii); Summary Offences Act 1988 (NSW) s. 11C(2)(a)(vii); Summary Offences Act 1953 (SA) Sch. 2, s. 7. 1000. See, e.g., Crimes Act 1958 (Vic) ss 56, 58. 1001. Prevention of Cruelty to Animals Act 1979 (NSW) s. 24(1)(c)(i); Crimes Act 1900 (NSW) s. 530(2)(b). 1002. Neal v. R (1982) 149 CLR 305, 326 cited with approval in Munda v. Western Australia (2013) 302 ALR 207, [50]; Western Australia v. Richards (2008) 37 WAR 229, [7]. See also, for example, Crimes Sentencing Act 2005 (ACT) s. 33(1)(m). 1003. Veen v. R (No 2) (1988) 164 CLR 465, 477. 1004. Munda v. Western Australia (2013) 302 ALR 207, [53]; Kanj (2000) 118 A Crim R 329, [19]. 1005. See, also, Penalties and Sentences Act 1992 (Qld) ss 15(2)(b), 57(1B)(b), (2A)(b). 1006. Crimes Act 1914 (Cth) ss 15AB, 16A(2A), 16AA, 19B(1A). These restrictions also apply in respect of decision whether or not to release an accused on bail. Cf. Sentencing Act (NT) s. 104A, which still provides for courts to receive information on Aboriginal customary law and community views before it passes sentence on an offender. 1007. R v. Wunungmurra (2009) 196 A Crim R 166, [25] in the context of the Northern Territory provision under the Northern Territory National

Emergency Response Act 2007 (Cth) s. 91 which has since been repealed and incorporated and re-enacted as Crimes Act 1914 (Cth) s. 16AA. 1008. (1991) 57 SASR 14. See also R v. Davey (1980) 50 FLR 57, 60-61 where the court took into consideration an Aboriginal offender’s tribal customs and traditions in sentencing him for killing a man who intervened in a fight with his wife. 1009. (1991) 57 SASR 14, 16 and 20. 1010. R v. Khan (1996) 86 A Crim 552, 557–558; R v. Chiol [2010] VSC 512, [15], [31]. 1011. R v. Goldsmith (1995) 65 SASR 373, 374–376. 1012. (Unreported, Supreme Court of Victoria, 4 Mar. 1998, Harper J). 1013. [2000] QCA 245, [25], [27]. 1014. [1996] 1 VR 95, 174. 1015. (2000) 116 A Crim R 31, [21]. 1016. Crimes (Sentencing Procedure) Act 1999 (NSW) s. 21A(2)(h). 1017. Walker v. New South Wales (1994) 182 CLR 45, 50. 1018. (1986) 25 A Crim R 155, 158. 1019. (2003) 13 NTLR 14. 1020. Ibid. [27], [29], [88]. 1021. Ibid. [52]. 1022. R v. Minor (1992) 2 NTLR 183, 184–186, 190, 193–197; Jadurin v. The Queen (1982) 44 ALR 424, 429. 1023. R v. Minor (1992) 2 NTLR 183, 185. 1024. Ibid. 184. 1025. Ibid. 194–195. 1026. Ibid. 185. See also Mamarika v. The Queen (1982) 63 FLR 202, 206. 1027. (2013) 302 ALR 207. 1028. Ibid. [61], [63]. 1029. Mamarika v. The Queen (1982) 63 FLR 202, 208. 1030. Criminal Procedure Regulation 2010 (NSW) Pt 6; Criminal Law (Sentencing) Act 1988 (SA) s. 9C; Penalties and Sentences Act 1992 (Qld) s. 9(2) (o); Youth Justice Act 1992 (Qld) s. 150(1)(g); Supreme Court Practice Direction 4 of 2014, Criminal Jurisdiction: Supreme Court (17 Feb. 2014), [24]–[28]; County Court Act 1958 (Vic) ss 4A–4G; Magistrates’ Court Act 1989 (Vic) ss 4D–4G. 1031. Sentencing Act 1995 (NT) s. 104A. 1032. R v. Wunungmurra (2009) 196 A Crim R 166 [3], [29].

Part VIII. Church Financing in Australia Chong Tsang

340. In Australia, funding for religious organizations can come from a variety of sources. A local Christian group, for example, may receive contributions from its followers at a church service, income from operating a second-hand clothing store and also benefit from taxation concessions conferred by legislation. While the sources of funding may be as different as one religion is to another, a likely common source for many religions is through the conferral of taxation advantages. An organization will only be able to access the range of available Commonwealth taxation concessions if it meets the statutory definition of a charity. The two main requirements for an organization to meet the definition are that it has charitable purposes and those purposes benefit the public. As one might suspect determining whether an entity fulfils the definition of a ‘charity’ can be difficult and requires careful consideration of the applicable circumstances. The newly created regulator, the ACNC, will determine whether an organization meets the statutory definition of a charity. The newly elected federal government aims to abolish the ACNC and return certain functions to the Australian Taxation Office and Australian Securities and Investments Commission.1033 The governing bodies of religious groups will often adopt the legal form of either a trust for purposes, incorporated association or corporation limited by guarantee. These structures overcome the legal issues associated with property ownership and the receipt of funds where a group is an informal collection of individuals. Further, they also all meet the definition of an ‘entity’1034 in the Australian Charities and Not-for-profits Commission Act 2012 (Cth) which is one essential element to establishing the statutory definition of charity.

1033. The Australian Charities and Not-for-profits Commission (Repeal) (No 1.) Bill 2014 (Cth); National Press Club, ‘Not-for-profit Sector Forum’, National Press Club, 23 Aug. 2013 (Kevin Andrews) http://kevinandrews.com.au/media/transcript/national-press-club-not-for-profit-sector-forum; Department of Social Services, Options Paper –Australia’s Charities and Not-for-profits: Options for Replacement Arrangements following the abolition of the Australian Charities and Not-for-profits Commission (Jul. 2014) https://www.dss.gov.au/sites/default/files/documents/07_ 2014/options_paper_-_australian_charities_and_not-for-profits.pdf. 1034. Australian Charities and Not-for-profits Commission Act 2012 (Cth) s. 205-5.

Chapter 1. Funding from the Public §1. DISPOSITIONS BY GIFT AND TRUST 341. By far the most well-known source of religious funding is contributions from members of the public of money or property. Dispositions of property or money can be divided into those made during a person’s lifetime (‘inter vivos dispositions’) and those made on a person’s death (‘testamentary dispositions’). Dispositions can be made by way of gift or by trust with each having certain consequences:1035 – Gifts are a complete transfer of the rights in money or property from one person, the donor, to another, the donee. As such, a religious group who receives a gift is ordinarily not bound or subject in any way, other than morally, to the wishes of the donor. – Trusts for purposes allocate the legal ownership of the property to a trustee who distributes its benefits in accordance with the instructions or purposes set out by the donor (who is also the ‘settlor’ of the trust). Trusts for purposes are generally preferred to dispositions by way of gift because they give the donor some control over the way in which property or money is disposed of.1036 A gift may well be suitable if the donor wishes to provide the donee group the flexibility to decide how to deal with the money or property. Another advantage that the trust form has is that it can be enforced by the Attorney-General and is excluded from the rule against perpetuities if its purposes are charitable.1037 §2. UNDUE INFLUENCE AND OTHER DOCTRINES 342. Large dispositions of money and property from members of the public to religious groups often invite attention. In some circumstances, these transactions may be rescinded for undue influence or otherwise attract other equitable doctrines.1038 A disposition will be rescinded where a court finds that the transaction was affected by the undue influence of the religious group over the donor. The two types of undue influence, presumed and actual, are both applicable to such transactions. The latter applies where the particular characteristics of the relationship establish the existence of an undue influence over the transaction. The former, presumed undue influence, applies a presumption of undue influence over the transaction where it occurs between priest and penitent (or spiritual adviser and flock). While the ‘priest-penitent’ relationship is not precisely the same as a ‘religious group-follower’ relationship, there is little to suggest a court would distinguish between the two, especially where the negotiation on the part of the religious group is undertaken by a religious official. undue influence in the context of religion was discussed in Allcard v. Skinner (1887) 36 Ch D 145 at 183, where Lindley LJ stated: But the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there had been no proof of the actual exercise of such influence; and the Courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible. Other legal doctrines that may affect a transfer of property from a follower to a religious organization include unconscionable dealings,1039 probate undue influence1040 and legislation such as the Australian Consumer Law1041 and family provision legislation.1042 §3. CHARITABLE STATUS 343. Religious groups that meet the statutory definition of ‘charity’ enjoy a number of Commonwealth taxation

advantages which include exemptions from income tax and fringe benefits tax. These statutory privileges are a significant source of indirect funding and are the primary way in which the government fiscally supports religions in Australia. I.

Reforms

344. Until very recently, all legislation dealing with concessions from taxation for religious groups adopted the common law definition of charity. Over a number of years, several reviews and inquiries recommended the introduction of a statutory definition for charity.1043 The common law on charities was widely viewed as complicated, outdated and unclear. The common law definition of charity still applies to state and territory legislation. To address the criticisms directed to the common law definition, Australia has now introduced a statutory definition which, unless otherwise stated, applies to all laws of the Commonwealth including those in respect of taxation.1044 It restates in clearer terms the common law definition of charity and expands the categories of charitable purpose. As well as providing certainty and clarity, the statutory definition will allow future Parliaments the flexibility to amend it to suit changing needs and circumstances.1045 The new statutory definition has operated since 1 January 2014.1046 II.

Definition of a Charity 345. A religious organization is charitable under the Charities Act 2013 (Cth) (‘Charities Act’) if:1047

– it is a not-for-profit entity; – all of its purposes are charitable or its charitable purposes are aided or furthered by its other purposes which are incidental or ancillary; – its charitable purposes are for the public benefit; – it does not have a disqualifying purpose; and – is not an individual, political party or government entity. Whether an organization meets the statutory definition of charity is determined by the ACNC. This newly created, and possibly soon to be abolished, statutory agency is also responsible for administering the registration of charities, reviewing existing registrations over time1048 and maintaining a public database of information about charities. Once registered as a charity, other government agencies including the Australian Taxation Office will accept this classification for their purposes. III.

Not-for-Profit Entity

346. For a religious organization to be considered charitable, it must be ‘not-for profit’. As the phrase ‘not-for profit’ would suggest, the entity cannot be carried on for the profit of its owners or members. Religious groups that make a profit from their activities can still meet the ‘not-for profit’ requirement as long as any profits are applied towards their charitable purposes. This position was made clear in Federal Commissioner of Taxation v. Word Investments Ltd (2008) 236 CLR 204, where the High Court considered the position of a company which raised funds by commercial means and applied its profits to a separate company which conducted charitable activities overseas. A majority of the Court noted that the former company’s activities to raise funds were not intrinsically charitable but were charitable in the circumstances because they were carried out in furtherance of a charitable purpose.1049 IV.

Charitable Purposes

347. To qualify as a charity, a religious group must also have charitable purposes. This requirement will be satisfied if either:1050 – all of the entity’s purposes are charitable; or

– some of the entity’s purposes are charitable and its other purposes further or aid and are incidental or ancillary to its charitable purposes. Notably, an entity cannot have an independent purpose which is not charitable and is either an end in itself or has substance in its own right.1051 For example, an entity which has as a purpose the generation of profits as an end cannot be a charity. The following are relevantly stated as charitable purposes in the Charities Act:1052 – – – –

the purpose of advancing health; the purpose of advancing education; the purpose of advancing social or public welfare; and the purpose of advancing religion.

The purposes listed in the Charities Act codify, with some modifications and additions, the charitable purposes defined in the common law. 348. At common law, there are four traditional heads of charitable purpose: the advancement of religion, the advancement of education, the relief of poverty and other purposes beneficial to the community not falling within those aforementioned heads.1053 A religious entity may therefore have charitable status on the basis that its purposes advance health, education or social welfare. There is no restriction or limitation that requires a religious group to advance religion for it to have charitable purposes. Whether an entity has charitable purposes will depend on the substance and reality of its purposes. This inquiry will be informed by, among other things, its governing rules and actual activities.1054 It goes without saying that an entity’s activities must further the charitable purposes outlined in its formation documents for it to have charitable status. As such, a corporation which seeks to make profit for its members will not be able to mask itself as a charity merely because its constitution provides that it has charitable purposes. V.

Advancement of Religion

349. A religious entity will meet the charitable purposes requirement by showing its purposes are directed toward the advancement of a religion.1055 Advancing religion involves promoting spiritual teaching and the observances that serve to promote and manifest it.1056 The word ‘advancing’ is defined quite broadly in the Charities Act to include ‘protecting, maintaining, supporting, researching and improving’.1057 The Charities Act does not define the term ‘religion’ and so one must turn to its common law meaning.1058 An entity that claims to have purposes which advance religion must necessarily have purposes that are directly or immediately religious. Usually these purposes are evident in such activities as providing and maintaining facilities for worship, supporting religious clergy or engaging in missionary work.1059 An example of a purpose which is not directly or immediately religious is the advancement of sport where members are limited to followers of a particular religion. VI.

Public Benefit

350. A significant hurdle to many claims to charitable status is the requirement that an entity’s purposes confer a public benefit.1060 Accordingly, the entity’s purposes must not only benefit those in a private group.1061 A.

Advancing Religion

351. The public benefit test is additional to the requirement that an entity has charitable purposes. Where an entity has established that its purposes are to advance religion, there is a rebuttable presumption that those purposes meet the public benefit test.1062 The presumption is drawn, with slight modification, from the

common law and is subject to contrary evidence. If contrary evidence exists to rebut the presumption, the entity will need to positively show that its purposes are indeed for the public benefit. Such evidence is likely to include evidence that the organization’s activities are harmful to its members and the broader public.1063 The presumption can apply in a wide set of circumstances and has been applied to make a gift for distributing the religious works of ‘a foolish, ignorant woman’ charitable.1064 The law has also recognized that certain religious groups which undertake prayer should be excluded from having to show public benefit. Closed or contemplative religious orders which regularly undertake ‘prayerful intervention at the request of members of the general public’ have been carved out of the orthodox public benefit regime.1065 This reflects the position at common law that private prayer can satisfy the public benefit test.1066 B.

Generally 352. A purpose will be for the public benefit if:1067

– the achievement of the purpose would be of public benefit; and – the benefit from the purpose is available to the general public or a sufficient section of the general public. When addressing the first limb of the test, all tangible and intangible benefits must be considered and balanced against any detriment. A benefit must be identifiable and not vague, uncertain or ambiguous.1068 The spiritual benefits attained from active participation within a religious group are an example of an intangible benefit. If the achievement of a particular purpose causes an identifiable detriment to the general public or a section thereof, it will need to be considered when assessing whether the purpose is for the public benefit on balance.1069 Ordinarily this would include circumstances where the carrying out of a purpose causes damage to mental or physical health, encourages violence or hatred to others, damages community harmony or restricts personal freedom.1070 353. The second limb of the public benefit test concerns the availability of the benefit. Benefits which accrue to founders, owners, members, trustees, employees, officers, donors to or associates of the entity but do not accrue to members of the public or a sufficient section thereof will be considered.1071 Limiting beneficiaries to groups with particular characteristics can be consistent with a publicly available benefit so long as the limitation is just and reasonable with regard to the nature of the purpose and the benefit. One such example is where only followers of a particular religion, to which anyone can join, benefit.1072 Nevertheless, where there are private benefits to associated persons this tends to counter the existence of a widely available benefit to the public.1073 As a further matter, the relationships between the bodies to whose benefit the entity’s purpose is directed must also be considered.1074 To determine whether a sufficient section of the public benefits from the relevant purpose, a comparison must be made between the numerical size of that section of the general public and the numerical size of the section to whom the purpose is relevant.1075 A sufficient section of the public may even be a limited number of persons where the section itself is small.1076 C.

Disqualifying Purposes

354. Even if an entity meets all other requirements, it will be barred from having charitable status if it has a ‘disqualifying purpose’. An entity that has a purpose of engaging in or promoting activities that are unlawful or contrary to public policy will be disqualified.1077 A purpose will be contrary to public policy if it is contrary to the rule of law, constitutional system of government, safety of the general public or national security.1078 Organizations that advocate violence or hatred towards others will ordinarily be disqualified on this basis or are otherwise likely to fail the public benefit test. A religious entity will be disqualified from having charitable status if it has the purpose of promoting or opposing

a political party or a candidate for political office.1079

1035. 1036. 1037. 1038. 1039. 1040. 1041. 1042.

1043.

1044. 1045. 1046. 1047. 1048. 1049. 1050. 1051. 1052. 1053. 1054. 1055. 1056. 1057. 1058. 1059. 1060. 1061. 1062. 1063. 1064. 1065. 1066. 1067. 1068. 1069. 1070. 1071. 1072. 1073. 1074. 1075. 1076. 1077. 1078. 1079.

Pauline Ridge, Legal Regulation of Religious Giving 157 Law & Justice 17, 18–19 (2006). Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531. The rule against perpetuities prohibits a property owner from imposing their purposes on an interest in property indefinitely. Johnson v. Buttress (1936) 56 CLR 113, 119; Luffram v. Australian and New Zealand Banking Group Ltd (1986) ASC 55-483; McCullogh v. Fern [2001] NSWSC 406; Hartigan v. International Society for Krishna Consciousness Inc [2002] NSWSC 810. McCullogh v. Fern [2001] NSWSC 406. In re Breen [1927] VLR 164. Competition and Consumer Act 2010 (Cth) Sch. 2. see Pauline Ridge, Moral Duty, Religious Faith and the Regulation of Testation 28 U. New South Wales L.J. 720 (2005); in Victoria a court can order provision ‘for the proper maintenance and support of a person for whom the deceased had responsibility to make provision’: Administration and Probate Act 1958 (Vic) s. 91(1). Review Panel, Australia’s Future Tax System Report to the Treasurer (2010); Productivity Commission, Contribution of the Non-for-profit Sector (2010) XLV; Senate Economics Legislation Committee, Parliament of Australia, Tax Laws Amendment (Public Benefit Test) Bill 2010 (2010) 3; Treasury, Final Report Scoping Study for a National Not-for-profit Regulator (2011) 4, 36. Acts Interpretation Act 1901 (Cth) s. 2B. Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 6 [1.9]. Charities Act 2013 (Cth) s. 2. Ibid. s. 5. Treasury, Introducing a Statutory Definition of ‘Charity’ (Media Release, 28 Oct. 2011) http://www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/2011/A%20Definition%20of%20Charity/Key%20Documents/PDF/charity_definition_fact_s Federal Commissioner of Taxation v. Word Investments Ltd (2008) 236 CLR 204, 221. Charities Act 2013 (Cth) s. 5(b). Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 11 [1.25]. Charities Act 2013 (Cth) s. 12. Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531. Charities Act 2013 (Cth) s. 5(b) Note 1; Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 11–2 [1.27] – [1.28]. Charities Act 2013 (Cth) s. 12(1)(d). Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 26 [1.131]. Charities Act 2013 (Cth) s. 3(1). See, further, Pt II, Ch 1. Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 26 [1.131]; Church of the New Faith v. Commissioner of Pay-roll Tax (Victoria) (1983) 154 CLR 120, 135. Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 15 [1.56]. Oppenheim v. Tobacco Securities Trust Co Ltd [1951] AC 297. Charities Act 2013 (Cth) s. 7(e); Re Hetherington (deceased) [1990] Ch. 1, 12; Public Trustee v. Attorney-General (NSW) (1997) 42 NSWLR 600, 604. see Treasury, A Definition of Charity Consultation Paper (2011) 14 [89]–[90]. Thornton v. Howe (1862) 31 Beav 14. Charities Act 2013 (Cth) s. 10(2). Crowther v. Brophy [1992] VR 97, 100. Charities Act 2013 (Cth) s. 6(1). Ibid. s. 6(2)(a); Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 15 [1.58] – [1.59]. Charities Act 2013 (Cth) s. 6(2)(b). Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 16 [1.62]. Charities Act 2013 (Cth) s. 6(3). Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 16 [1.65]. Ibid. 17 [1.67]. Charities Act 2013 (Cth) s. 6(3)(b). Ibid. s. 6(4). Explanatory Memorandum, Charities Bill 2013 and Charities (Consequential Amendments and Transitional Provisions) Bill 2013 (Cth) 16 [1.64]. Charities Act 2013 (Cth) s. 11(a). Ibid. s. 11(a) Example. Ibid. s. 11(b).

Chapter 2. Taxation Benefits 355. Taxation concessions and exemptions are a significant form of indirect financing to religious organizations in Australia. Both Commonwealth and state governments in Australia recognize the worthy causes advanced by many religious groups and provide assistance by way of favourable taxation treatment. §1. COMMONWEALTH TAXES I.

Income Tax1080

356. A religious organization that has charitable status and is registered as such may be endorsed as income tax exempt.1081 Pursuant to the Income Tax Assessment Act 1997 (Cth) if a registered charity has a physical presence in Australia and incurs its expenditure and pursues its objectives principally in Australia it will be exempt from income tax.1082 The exemption from income tax applies to both ordinary income and statutory income.1083 Ordinary income includes income received from business or investment activity such as proceeds from selling second-hand items, interest on a deposit and rent from leasing property. Statutory income is essentially other receipts defined by legislation as assessable. One example of statutory income is capital gains made when an appreciating asset such as real property is sold. Capital gains tax is then applied to any net gain made on the asset, subject to exceptions. The exemption from statutory income means a religious organization is also exempt from capital gains tax. An entity that does not qualify for the income tax exemption will pay the tax rate relevant to their organizational structure. An incorporated religious entity that finds itself in such a situation will be subject to the standard corporate tax rate which is currently set at 30% but may be subject to change. II.

Fringe Benefits Tax1084

357. Religious entities may also be eligible for various favourable concessions from fringe benefits tax. Fringe benefits tax is a tax on certain benefits an employer provides to an employee ‘in respect of employment’. Examples of fringe benefits include the provision of a car to an employee or accommodation at a reduced rent. Religious entities that are registered charities1085 and endorsed under section 123E of the Fringe Benefits Tax Assessment Act 1986 (Cth) are eligible for a rebate on fringe benefits tax.1086 Benefits provided to employee religious practitioners of registered religious institutions in respect of duties directly related to the practice, study, teaching or propagation of religious beliefs are specifically exempt from fringe benefits tax.1087 There are also other benefits that are exempt from the fringe benefits tax regime relevant to religious employers.1088 III.

Goods and Services Tax (GST)

358. Religious entities in some instances may also be exempt from the GST. The GST is a 10% tax added to certain service and goods transactions. Where a religious group is a ‘non-profit body’ and has a turnover of less than AUD 150,000, it will not be required to register for the GST (compared to AUD 75,000 for other entities).1089 For many groups this will reduce the administrative costs that would otherwise have been incurred had reporting and accounting for GST been required. In addition to the higher reporting threshold, there are numerous other concessions made to religious groups qualifying as charities.1090 For example, the supply of a service by a registered religious institution integral to the practice of that religion is a GST-free supply, which means it will be exempt from GST.1091 For example, were a religious group to sell Bibles to the general public, the group will not have to charge GST on the supply nor remit an amount of GST to the Australian Taxation Office. Naturally this also means that the group will not be entitled to input tax credits. IV.

Deductible Gift Recipients

359. Due to the narrow categories listed in Division 30 of the Income Tax Assessment Act 1997 it is unlikely a religious entity will satisfy the requirements to be considered a deductible gift recipient body.1092 Taxpayers who make a donation over AUD 2 to a deductible gift recipient can deduct the amount of their donation from their taxable income. This provides taxpayers an incentive to donate their money to such organizations. §2. STATE AND TERRITORY TAXES 360. The following discussion of state and territory taxes has been limited to South Australia, Victoria and New South Wales. While the taxation regimes are generally similar across all Australian state and territories, one should always consult the particular jurisdiction’s legislation. It should be noted that the statutory definition of a charity from the Charities Act does not apply to state and territory legislation which continues to use the common law definition of charity. I.

Payroll Tax

361. Religious entities are also often exempt from paying payroll tax on wages they pay to their employees. Payroll tax is a state and territory tax that is paid by employers based on the wages paid to their employees. In New South Wales, Victoria and South Australia, a religious institution will be exempt from paying payroll tax for wages to a person engaged exclusively in work for the institution that is religious in nature.1093 A similar exemption exists for charitable organizations.1094 II.

Land Tax

362. In New South Wales, land is exempt from land tax if it is owned by a not-for-profit religious society carried on solely for religious, charitable or educational purposes.1095 There is a similar exemption in South Australia for land owned by an association established for charitable or religious purposes and declared exempt by the Commissioner.1096 In Victoria, land is exempt from land tax if the Commissioner determines that it is used by a charitable institution exclusively for charitable purposes.1097 III.

Stamp Duty

363. Religious entities that qualify as charitable bodies are also able to benefit from stamp duty exemptions. For example, the sale or transfer of interests in property will be exempt from stamp duty.1098 IV.

Rates

364. Religious entities are also exempt from paying certain rates on land, where that land is being engaged for a charitable purpose.1099

1080. 1081. 1082. 1083. 1084. 1085. 1086. 1087. 1088. 1089. 1090. 1091. 1092. 1093.

With respect to the income tax payable by individuals in religious organisations see Pt. VI, Chs 2.2 and 3.5. Income Tax Assessment Act 1997 (Cth) ss 50-52, 50-110. Ibid. s. 50-50(a). Ibid. ss 50-1, 6-5, 6-10. With respect to the fringe benefits tax payable by individuals in religious organisations see Pt. VI, Ch 2.3. Fringe Benefits Tax Assessment Act 1986 (Cth) s. 136; Australian Charities and Not-for-profits Commission Act 2012 (Cth) s. 25–5(5). Fringe Benefits Tax Assessment Act 1986 (Cth) s. 65J. Ibid. s. 57. Ibid. ss 58, 58T, 58V. A New Tax System (Goods and Services Tax) Act 1999 (Cth) s. 23-15; A New Tax System (Goods and Services Tax) Regulations 1999 (Cth) regs 2315.01, 23-15.02. A New Tax System (Goods and Services Tax) Act 1999 (Cth) Div 49, ss 40-160, 38-250, 38-255, 38-270. Ibid. s. 38-220; applies to particular entities registered under Australian Charities and Not-for-profits Commission Act 2012 (Cth) s. 25–5(5). Income Tax Assessment Act 1997 (Cth) div 30. Payroll Tax Act 2007 (NSW) s. 48; Payroll Tax Act 2009 (SA) s. 48; Payroll Tax Act 2007 (Vic) s. 48.

1094. 1095. 1096. 1097. 1098. 1099.

Ibid. Land Tax Management Act 1956 (NSW) s. 10(1)(e), see also Land Tax Management Act 1956 (NSW) ss 10(1)(d), 10(1)(g)(iv). Land Tax Act 1936 (SA) s. 4(1)(j). Land Tax Act 2005 (Vic) s. 74(1). Duties Act 1997 (NSW) s. 275; Stamp Duties Act 1923 (SA) s 71(5)(j); Duties Act 2000 (Vic) s. 45. Local Government Act 1993 (NSW) s. 556(1)(h); Local Government Act 1999 (SA) s. 162; Local Government Act 1989 (Vic) s. 154(2)(c).

Chapter 3. Prohibiting or Facilitating Financing by Legislation 365. In exceptionally rare circumstances, Parliament may introduce legislation which directly and negatively affects funding to a religious group.1100 For example, where legislation declares a particular religious group illegal, any funding to that group will be prohibited.1101 One would imagine this would only occur where the group’s activities or particular sources of funding are illegal or pose a threat to community safety. 366. Legislation which affects the financing of a religious group is unlikely to infringe the freedom of religion in section 116 of the Constitution at least where it serves a legitimate interest. In Adelaide Company of Jehovah’s Witnesses Inc. v. Commonwealth (1943) 67 CLR 116, the High Court considered legislation which confiscated the property of an incorporated association of Jehovah’s witnesses which was dissolved by the Governor-General and declared illegal. While the Court found the legislation invalid on other grounds, it held that the free exercise of religion provided in the Constitution had to give way to other legitimate interests.1102 Legislation that facilitates funding to a religion is also unlikely to run afoul of the constitutional freedom of religion so long as provides ‘aid … or encouragement of religion’ and does not establish a religion.1103 367. Ridge has noted that in Victoria and the Australian Capital Territory any legislation that prohibits or limits financing to a religious group is likely to contravene the statutory bills of rights in those jurisdictions.1104

1100. Cf Pt X, Ch 2.3 (funding of religious schools). 1101. Pauline Ridge, The Financing of Religion: Guidelines for Legal Regulation, 30 Adelaide L. Rev. 85, 88 (2009); Criminal Code Act 1995 (Cth) s. 102.3 (membership of a terrorist organization), Div 103 (financing terrorism). 1102. Adelaide Company of Jehovah’s Witnesses Inc v. Commonwealth (1943) 67 CLR 116, 131. 1103. Attorney-General; Ex rel Black v. Commonwealth (1981) 146 CLR 559, 582 (Barwick CJ), 616 (Mason J). 1104. Pauline Ridge, The Financing of Religion: Guidelines for Legal Regulation, 30 Adelaide L. Rev. 85, 95–99 (2009).

Chapter 4. State Fundraising Legislation 368. In most Australian jurisdictions, fundraising from the public is unlawful without a license, authority or registration. Religious organizations, however, in most jurisdictions are exempt from the requirements imposed on other organizations that wish to raise funds from the public. 369. In New South Wales, a person commits an offence if they conduct a fundraising appeal without an authority.1105 A ‘fundraising appeal’ is defined as including the soliciting or receiving of money, property or benefit where a representation is made that its purpose is or includes a charitable purpose.1106 ‘Charitable purpose’ includes ‘any benevolent, philanthropic or patriotic purpose’.1107 Most religious organizations will be exempt from the operation of the Charitable Fundraising Act 1991 (NSW) by section 7(1)(a) which excludes religious bodies and organizations, or denominations thereof, in respect of which a proclamation is in force under section 26 of the Marriage Act 1961 (Cth). The relevant proclamation, the Marriage (Recognised Denominations) Proclamation 2007 (Cth), lists many recognized religious organizations including the Uniting Church of Australia, Roman Catholic Church and Presbyterian Church of Australia. As such, most religious organizations will not be subject to the statutory regime set out in the Act. 370. In Victoria, a person must not conduct a fundraising appeal unless registered as a fundraiser by the Director.1108 A ‘fundraising appeal’ is defined as when a person solicits or receives money or a benefit on the basis of a representation that it is not solely for their profit or commercial benefit.1109 As is the case in New South Wales, the relevant registration regime in the Victorian legislation does not apply to a ‘religious organization’.1110 A ‘religious organization’ is again defined as an organization in respect of which a proclamation is in force under section 26 of the Marriage Act 1961 (Cth).1111 371. In South Australia, the Collections for Charitable Purposes Act 1939 (SA) similarly requires a collector1112 to hold, or be authorized by a holder of, a license.1113 As ‘charitable purpose’ is defined narrowly as affording relief to ‘diseased, disabled, sick, infirm, incurable, poor, destitute, helpless, or unemployed persons [or to their dependents]’1114 religious entities seeking donations to further their purely religious activities may find themselves falling outside this legislative regime.

1105. 1106. 1107. 1108. 1109. 1110. 1111. 1112. 1113. 1114.

Charitable Fundraising Act 1991 (NSW) s. 9(1). Ibid. s. 5(1). Ibid. s. 4(1). Fundraising Act 1998 (Vic) s. 17A. Ibid. s. 5(1). Ibid. s. 16(d). Ibid. s. 3. Collections for Charitable Purposes Act 1939 (SA) s. 4. Ibid. s. 6(1). Ibid. s. 4.

Part IX.

Education

James Krumrey-Quinn

372. Education is within the legislative power of the states. This has not stopped the Commonwealth exercising a large degree of influence over education policy through its exclusive constitutional power to tax income and to distribute these funds accordingly. Its intervention has not been without controversy. In the 1960s, the Commonwealth commenced providing funding to religious schools which was unsuccessfully challenged as a violation of the establishment clause under section 116 of the Commonwealth Constitution. Today, the battleground has shifted away from religious schools towards government schools in the form of the introduction of an Australian National Curriculum and the funding of a schools chaplaincy programme. §1. THE AUSTRALIAN NATIONAL CURRICULUM 373. For more than thirty-five years, the Commonwealth Government has attempted to develop a national curriculum.1115 The most recent efforts began with the creation of the Australian Curriculum Assessment and Reporting Authority in 2008 and the signing of the National Education Agreement by the Commonwealth and the states in 2011. A ‘rudimentary’ national curriculum has now been developed, making Australia the first federal country to have a comprehensive national curriculum which includes knowledge as content as well as standards and capabilities.1116 374. Under the national curriculum, general capabilities to be developed include intercultural understanding, which includes developing an appreciation of Australia’s religious diversity.1117 It also includes: identifying, observing, describing and analysing characteristics of one’s own cultural identities and those of others, including religious beliefs; and explaining the significance of a range of religious and cultural holidays and celebrations.1118 Another capability is ethical understanding, which involves: reflecting on and interrogating core ethical issues and concepts such as justice, right and wrong, freedom, truth, identity, empathy, goodness and abuse; and investigating reasons for clashes of beliefs in issues of personal, social and global importance.1119 In an August 2014 Government review of the curriculum, it was found that the aims and values of the curriculum were not clear, especially as to the moral and spiritual values, and that ‘the place of religion, belief systems, and values is not being addressed’ and that ‘there is a sizeable degree of support for the greater inclusion and emphasis of this content’.1120 375. The Australian National Curriculum does not displace state and territory powers to provide religious education in government schools and to regulate the registration and operation of non-government schools.1121 Indeed, implementation of the curriculum differs widely across the country, with many schools adapting the curriculum or ‘picking and choosing’ from it.1122 §2. NATIONAL SCHOOL CHAPLAINCY PROGRAMME 376. The Commonwealth’s National School Chaplaincy and Student Welfare Programme was enacted in 2006 to provide direct funding ‘to assist school communities to provide pastoral care and general spiritual, social and emotional comfort to all students, irrespective of their faith or beliefs.’ Services and actions which a school chaplain was intended to provide included:

– ‘supporting students who express a desire to explore their spirituality. This may include providing guidance about spirituality, values and ethical matters and/or appropriate referral of questions of faith/spirituality’; and – ‘providing services with a spiritual content (excluding religious education) including facilitating discussion groups and lunch time clubs if approval and consent for the activities … have been obtained’.1123 The programme expressly stated that it did not seek to provide religious education or attempt to ‘convert students to a religion or set of beliefs through proselytizing/evangelizing’.1124 Participation in the programme by school communities was voluntary, and it was not compulsory for individual students to participate.1125 To qualify as a school chaplain, a person must be recognized ‘through formal ordination, commissioning, recognized religious qualifications or endorsement by a recognized or accepted religious institution or a state/territory government approved chaplaincy service’.1126 377. The programme has been challenged twice in the High Court. On both occasions, the Court invalidated the legislative provisions that provided the funding structure for the programme. In Williams v. Commonwealth (No 1), the High Court held that the provisions dealing with the appropriation of moneys do not ground a ‘substantive spending power’. Rather, ‘the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes under it’.1127 Nor could it be justified under the executive power.1128 In Williams (No 2), the Commonwealth tried to remedy this situation by arguing, amongst other things, that the relevant appropriations legislation was a law with respect to ‘the provision of … benefits to students’.1129 The High Court held that the benefits power could not be invoked as the programme ‘does not provide material aid to provide for the human wants of students’.1130 Rather, the Court reasoned that the support for the wellbeing of students that the programme sought to promote – including through ‘strengthening values, providing pastoral care and enhancing engagement with the broader community’ – were desirable ends but were otherwise too vague to be considered ‘benefits to students’.1131 378. A further argument against the programme that was advanced but rejected by the High Court in Williams (No 1) was that it violated the prohibition on the imposition of a religious test under section 116 of the Commonwealth Constitution. The test requires that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. A majority of the High Court rejected the argument on the basis that a school chaplain was not an ‘office … under the Commonwealth’ as chaplains are engaged by the school and do not enter into any contractual or other arrangement with the Commonwealth.1132 The only connection between the Commonwealth and the school chaplain was the source of funding.1133 Heydon J held separately that the programme did not impose a religious test in that ‘neither the [program] nor the qualification for “chaplains” had much to do with religion in any specific or sectarian sense. The work described could have been done by persons who met a religious test. It could equally have been done by persons who did not’.1134 He went on to reason that the word ‘chaplain’, which ordinarily connotes a ‘priest, clergyman or minister of a chapel; or a clergyman who conduct religious services in the private chapel or an institution or household’, was inaccurate as here the duties did not pertain to a chapel or involve religious services.1135 Rather, ‘[s]ome vaguer expression, more pleasing to twenty-first century ears, like “mentor” or “adviser” or “comforter” or “counsellor” or even “consultant”, might have had an emollient effect’.1136 The result of Williams (No 1) and Williams (No 2) is that funding will no longer be provided directly to schools but to state governments who will now administer the programme.1137 The only difference is that the aim of the programme has been watered down and is now directed at supporting the ‘emotional wellbeing’ of Australian school students by, amongst other things, providing pastoral care services, albeit still through chaplains who are recognized through ‘formal ordination, commissioning or recognized religious qualifications’.1138

1115. Australian Government, Review of Australian Curriculum: Final Report (Aug 2014) 52-55. 1116. Ibid. 233. 1117. Australian Curriculum, Assessment and Reporting Authority, General Capabilities in the Australian Curriculum 134 (January 2013).

1118. 1119. 1120. 1121. 1122. 1123. 1124. 1125. 1126. 1127. 1128. 1129. 1130. 1131. 1132. 1133. 1134. 1135. 1136. 1137. 1138.

Ibid. 139, 143. Ibid. 122, 129. Australian Government, Review of Australian Curriculum: Final Report 237 (Aug 2014). See also 155–162. See Pt IX, Ch. 1.1. Australian Government, Review of Australian Curriculum: Final Report 237 (Aug 2014). National School Chaplaincy and Student Welfare Program Guidelines (2012) 7. Ibid. 11. Ibid. 6. Ibid. 8. Williams v. Commonwealth (No 2) (2014) 209 ALR 41, 48 [25] (‘Williams (No 2)’) (summarizing Williams v. Commonwealth (2012) 248 CLR 156 (‘Williams No 1’)). Williams (No 2) (2012) 248 CLR 156, 48 [24]. Commonwealth Constitution, s. 51(xxiiiA). Williams (No 2), [47]. Ibid. [47]. Williams (No 1), [109]. Ibid. [110]. Ibid. [306]. Ibid. [307]. Ibid. [307]. Project Agreement for the National School Chaplaincy Programme (2014). Ibid. cll 7, 9(c) and 30(a).

Chapter 1. Religious Education in Government Schools and Universities §1. GOVERNMENT SCHOOLS 379. Legislation in many jurisdictions states that government schools are ‘secular’, ‘non-sectarian’, or that they are not to promote any particular religious practice, denomination or sect.1139 This does not preclude the study of different religions (‘general religious education’).1140 For example, in New South Wales the curriculum for Years 7– 11 provides that general religious education includes the study of ancient, medieval and early modern religion.1141 In South Australia, each school is required to establish a religious education committee, consisting of teachers, parents and local clergy, to advise and assist in religious education in the school.1142 South Australia is the only jurisdiction which expressly provides that teachers may object to teaching general religious education.1143 380. General religious education is distinct from education in the doctrines, tenets or beliefs of a ‘particular religion’ (‘special religious education’).1144 State and territory legislation allows for special religious education during school hours.1145 New South Wales is the only jurisdiction where every school must allow for special religious education.1146 In other jurisdictions, schools are not required to provide special religious education and it is only to be offered at the request of the parents,1147 a religious minister,1148 or at the initiative of the head of the education department or the school’s principal.1149 In South Australia, where religious seminars or gatherings are to be held at the request of the local clergy, the head teacher is required to provide the clergy, upon request, of the names of the children who are eligible to attend their seminar or gathering.1150 381. In terms of the religions or religious denominations in which education is to be given, only New South Wales provides a right to receive instruction in one’s own religious ‘persuasion’, although qualified by the requirement that religious persuasions first receive the approval of the education minister.1151 In the Australian Capital Territory, although the principles of the education legislation recognize the religious needs of all students, schools are only obliged to ensure reasonable time is allowed for the special religious education to take place.1152 Responsibility for organizing a religious body to provide the religious education in the particular religion that a parent requests is instead placed with the parent themselves.1153 In the Northern Territory, religious education is to be provided in the particular religion requested by a parent where it is practicable to do so.1154 In Western Australia, special provision is made for a principal to request from either the parent or student themselves advice on the religious denomination or group to which students belong, although there is no obligation on the parent or child to provide this advice.1155 A principal is then under an obligation to ensure appropriate arrangements are in place to provide for a student at the school to participate in special religious education.1156 Other jurisdictions provide that students are only to be instructed in the religious denomination to which they belong.1157 382. The statutory bill of rights in the Australian Capital Territory and Victoria provide no further protection. The right to freedom of religion protects only the ‘freedom to demonstrate his or her religion or belief in … teaching, either individually or as part of a community, in public or in private’.1158 The Australian Capital Territory bill of rights also contains the right to education, which requires that every child have access to education appropriate to his or her needs without discrimination.1159 Jurisprudence relating to a similar provision under the ICCPR suggests that the right requires the provision of general religious instruction in government schools.1160 The Australian Capital Territory right has a limited scope as under the Territory’s education legislation parents are given responsibility for requesting special religious education in a particular religion and for then organizing a religious body to provide the instruction, leaving the school an obligation merely to provide reasonable time for the special religious education to take place. 383. In most jurisdictions, instructors of special religious education must be a religious minister or an approved representative of a religious body,1161 whilst in others they must be a teacher,1162 an accredited representative of a religious body with the approval of the education minister,1163 or any person authorized by the education minister to

do so.1164 384. The content of the special religious education must usually be authorized and developed by the religious body to which the religious instructor belongs.1165 Some oversight by the principal is nevertheless required, in the Australian Capital Territory, to ensure its suitability for presentation,1166 and, in Tasmania and Victoria, to ensure that it does not contradict the school’s values, curriculum or any other applicable law.1167 In South Australia, the religious education committee of each school is given the power to advise on the nature and content of religious seminars.1168 The Northern Territory and Tasmanian legislation set out a number of principles, including that the instruction must recognize and respect the diversity of individuals’ beliefs, that the special religious education programmes must be non-discriminatory, and that, whilst providers of religious instruction programmes may convey personal beliefs, they must not proselytize.1169 In Queensland, instruction in primary and special schools must not include any teaching in the distinctive tenets or doctrines of any religious denomination, society or sect, and a separate reading book must be provided for the classes.1170 In the Australian Capital Territory, all necessary materials and resources must be provided by the religious body.1171 385. Although special religious education across most jurisdictions will take place in the form of lessons, in South Australia, it is taught in the form of seminars or gatherings,1172 and, in Victoria, where the education minister so authorizes, it may be taught through preparation for or the conduct of pageants, special events or festival celebrations.1173 386. The distribution of religious materials in public schools is regulated in two jurisdictions. In Queensland, a person other than a minister of religion or accredited representative is not permitted to bring onto or use on a government school any denominational or society publication, and a minister of religion or accredited representative must not leave at the school any denominational or society publication used for religious instruction.1174 In Victoria, a religious instructor is not permitted to distribute material that has the effect of promoting any particular religious practice, denomination or sect unless part of special religious education.1175 This does not prevent students from distributing such materials or displaying religious materials on their person or personal belongings.1176 387. Whilst for a child to attend a special religious education class in the Australian Capital Territory, the Northern Territory, Tasmania and Victoria a parent must opt-in,1177 in New South Wales, Queensland and Western Australia parents are required to opt-out should they wish for their child not to attend.1178 In Tasmania and Victoria, although it is not compulsory for a student to attend a class of religious instruction, a principal must receive some notification from the parents of the child either way.1179 In Victoria, in the absence of any notification, a parent is taken not to have opted-in.1180 In New South Wales, students are enrolled in the class of the religious persuasion indicated at the time of enrolment, in the absence of which a student attends alternative activities.1181 Religious providers in Victoria are expressly restricted from enticing, rewarding or providing any other benefit to students for attendance at special religious education.1182 The previously opt-out nature of special religious education in Victoria was challenged under Victorian nondiscrimination legislation.1183 The Tribunal held that the legislative requirement that those not wishing to take part in special religious education opt-out of the programme did not result in direct discrimination as, amongst other things, separation from the rest of the class did not constitute a detriment and there was no evidence of the children being adversely affected through, for example, being teased for not attending special religious education class.1184 388. For those students who do not receive special religious education, all jurisdictions, except South Australia, require that alternative activities or instruction be provided.1185 The alternative activity or instruction must usually be provided in a location separate from the special religious education.1186 The alternatives available contrast markedly across the jurisdictions. In the Australian Capital Territory, alternative instruction must be in the secular education programme,1187 whilst in Victoria instruction must be educationally valuable but must not be in the Australian Curriculum.1188 In New South Wales, alternative activities must be meaningful and may include, where it is reasonably practicable to do so and a parent consents, ethics instruction, or otherwise activities such as reading,

private study or completing homework.1189 In the Northern Territory, the alternative must not educationally disadvantage the students attending special religious education.1190 389. The amount of religious instruction provided at government schools is different across the jurisdictions: in the Australian Capital Territory, ‘reasonable time’, which means no more than forty minutes per one lesson or seven hours per school term;1191 in New South Wales and Tasmania, the total number of hours of instruction in a year must not to exceed the number of school weeks in the year, which in New South Wales, means between thirty and sixty minutes a week;1192 in the Northern Territory and Victoria, not less than thirty minutes a week;1193 in Queensland, not more than sixty minutes a week or thirty minutes a week for primary school or special school students;1194 in South Australia, one-half day a term;1195 and in Western Australia, not more than forty hours in a school year.1196 §2. CONSCIENTIOUS OBJECTION TO ATTENDANCE AT PARTICULAR CLASSES 390. In New South Wales, Northern Territory and Western Australia, a child may be exempt from attending particular classes where their parent(s) conscientiously object on religious grounds to their child being taught a particular part of a course of study.1197 In South Australia, although the exemption is not limited to conscientious objection on any particular basis, attendance will only be exempted in respect of general religious education classes.1198 §3. RELIGIOUS WORSHIP AND OBSERVANCES 391. Government schools are permitted to host religious worship and observances in two jurisdictions. In New South Wales, schools may use or write school prayers, which can be inter-denominational Christian or multi-faith, as well as hold events containing religious elements such as school commemorations, religious observances and multi-faith services.1199 In Western Australia, prayers, songs and other material based on religious, spiritual or moral values may be used in a school activity.1200 Specific provision is made in both jurisdictions for parents to object to their children taking part in these activities, and, in New South Wales, alternatives must be provided to those who do not participate.1201 392. Individual government school students may be granted exemptions from attendance at Australian Capital Territory and Victorian government schools on the basis of their religious or cultural identity in order to, for example, attend a religious event or obligation.1202 In Western Australia, the education minister must have previously prescribed a day as a day recognized as having religious or cultural significance before a student can be exempt from attendance.1203 393. In respect of individual universities, certain South Australian, Victorian and West Australian legislation provides that any secondary legislation of specified universities that is passed must not affect the religious observances or regulations of an affiliated college or educational establishment.1204 §4. NON-DISCRIMINATION 394. Non-discrimination legislation in every jurisdiction prohibits an educational authority or institution from discriminating against a student or potential student in respect of any application for admission, terms or conditions of admission, access to any benefits, suffering of any detriment, or expulsion from the school.1205 The prohibition extends to discrimination on the basis of religion except in New South Wales and at the Commonwealth level, and in South Australia where more limited protections apply.1206 An educational authority is defined in most jurisdictions as a person or body administering an educational institution, and an educational institution as a school, college, university or other institution at which education or training is provided.1207 Other non-discrimination provisions under non-discrimination and workplace relations legislative regimes also apply to the engagement of staff or contractors in government schools and universities.1208

395. Education legislation in some jurisdictions makes specific provision against discrimination. In New South Wales, discrimination in the admission of students to government schools is specifically prohibited,1209 and in New South Wales and Victoria the objects section of the legislation contains general and aspirational protections against discrimination in the provision of education in government schools.1210 396. Exceptions are generally made in respect of the imposition of government school dress codes. In Victoria, dress standards must be reasonable which requires that the views of the school community be taken into account in setting the standard.1211 In Western Australia, a student may be granted an exemption from complying with any requirements of the school’s dress code on the ground of, for example, religious belief of the student or student’s family.1212 397. In most legislation founding legislation of universities across Australia, specific reference is made either to a requirement of non-discrimination on the basis of religious or political affiliations, views or beliefs,1213 or to a requirement that no religious test be imposed.1214 Both provisions generally apply in respect of the admission of a student, the holding of any office, graduation, or enjoying any advantage, benefit or privilege.

1139. Education Act 2004 (ACT) s. 28; Education Act 1990 (NSW) s. 30; Education Act 1994 (Tas) s. 33(1); Education and Training Reform Act 2006 (Vic) ss 1.2.1(a)(iv), 1.2.2(2)(a)(i), 2.2.10(1); School Education Act 1999 (WA) s. 68(1)(a). 1140. Education Act 1990 (NSW) s. 30; Department of Education and Children’s Services, ‘Religious Activities in Government Schools’ (last updated April 2013) (SA) cl 2; Education and Training Reform Act 2006 (Vic) s. 2.2.10(4); School Education Act 1999 (WA) ss 66, 68(1). 1141. Board of Studies Teaching & Educational Standards NSW, Years 7-10: Syllabus Court Description 19 (February 2014). 1142. Education Regulations 2012 (SA) reg. 88. 1143. Ibid. reg. 90(1), (2). 1144. Education Act 2004 (ACT) s. 29; Education Act 1990 (NSW) s. 30; Department of Education and Training – Religious Instruction Policy (2011) (NT) cl 3; Department of Education – Religious Instruction in State Schools Guidelines (Tas) cl 2; Education and Training Reform Act 2006 (Vic) s. 2.2.11(5); School Education Act 1999 (WA) ss 66, 68(2)(a), 69(1). 1145. Education Act 2004 (ACT) s. 29; Education Act 1990 (NSW) s. 32(1), (4); Education Act (NT) s. 73(1); Education (General Provisions) Act 2006 (Qld) s. 76(1); Education Act 1972 (SA) s. 102(1); Education Act 1994 (Tas) s. 34(1); Education and Training Reform Act 2006 (Vic) s. 2.2.11(1); Education Act 1999 (WA) s. 69(1). 1146. Education Act 1990 (NSW) s. 32(1). 1147. Education Act 2004 (ACT) s. 29(1); Education Act (NT) s. 73(2). 1148. Education (General Provisions) Act 2006 (Qld) s. 76(1); Education Regulations 2012 (SA) reg. 91(2); Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (Jul. 2014), cl 6(1). 1149. Education Act (NT) s. 73(1); Department of Education and Training - Religious Instruction Policy (2011) (NT) cl 1; Education Act 1994 (Tas) s. 34(1); School Education Act 1999 (WA) s. 69(2). 1150. Education Regulations 2012 (SA) reg. 91(2). 1151. Education Act 1990 (NSW) s. 32(1); Department of Education and Communities (NSW), Religious Education Implementation Procedures (updated 2013), 3–4; Department of Education and Communities (NSW), Organization approved to provide Special Religious Education and Special Education in Ethics in NSW Government Schools. 1152. Education Act 2004 (ACT) ss 7(2)(b)(v), 29(1). 1153. Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cl 4.1. 1154. Education Act (NT) s. 73(2); Department of Education and Training (NT), Religious Instruction Policy (2011) cl 1. 1155. School Education Regulations 2000 (WA) reg. 47(1), (2). 1156. Ibid. reg. 47(3). 1157. Education (General Provisions) Act 2006 (Qld) s. 76(1); Education (General Pro-visions) Regulation 2006 (Qld) reg. 29; Education Regulations 2012 (SA) reg. 91(2); Education Act 1994 (Tas) s. 34(3)(a). 1158. Human Rights Act 2004 (ACT) s. 14(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 14(1). 1159. Human Rights Act 2004 (ACT) s. 27A(3)(a). 1160. Human Rights Committee, General Comment 22, Art. 18 (Forty-eighth session, 1993), UN Doc. HRI/GEN/1/Rev.1 at 35 (1994) [6]; Concluding Observations on Costa Rica (1994) UN Doc CCPR /C/79/Add.31, [13]. Cf. Delgado P? v. Colombia, Communication No. 195/1985, UN Doc. CCPR/C/39/D/195/1985 (1990), [5.7]. 1161. Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cl 3; Education Act (NT) s. 73(2); Education Act 1990 (NSW) s. 32(2); Education (General Provisions) Act 2006 (Qld) s. 76(1); Education Act 1994 (Tas) s. 34(1)(3)(a); Education and Training Reform Act 2006 (Vic) s. 2.2.11(2)(a). 1162. Education Regulations 2012 (SA) reg. 90. 1163. Education and Training Reform Act 2006 (Vic) s. 2.2.11(2)(a). 1164. School Education Regulations 2000 (WA) reg. 48(1). 1165. Education Act 2004 (ACT) s. 29(3); Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cll 4.2.4, 4.2.5; Education Act 1990 (NSW) s. 32(3); Department of Education & Communities (NSW), Religious Education Implementation Procedures 8; Education (General

1166. 1167. 1168. 1169. 1170. 1171. 1172. 1173. 1174. 1175. 1176. 1177. 1178.

1179. 1180. 1181. 1182. 1183. 1184. 1185.

1186. 1187. 1188. 1189. 1190. 1191. 1192. 1193. 1194. 1195. 1196. 1197. 1198. 1199. 1200. 1201. 1202. 1203. 1204. 1205.

1206. 1207.

1208. 1209. 1210. 1211. 1212. 1213.

Provisions) Regulation 2006 (Qld) reg. 27; Department of Education, Training and Employment (Qld), Religious instruction policy statement (undated); Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014), cl 8(1). Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cll 4.2.4, 4.2.5, 4.3.3. Department of Education (Tas), Religious Instruction in State Schools Guidelines (2013) cl 4(b); Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014), cl 10(1). Department of Education and Children Services (SA), Administrative Instructions and Guidelines cl 2. Department of Education and Training (NT), Religious Instruction Guidelines (2011) cl 2; Department of Education (Tas), Religious Instruction in State Schools Guidelines (2013) cl 3. Education (General Provisions) Act 2006 (Qld) s. 76(3), (4). Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cl 4.2.4. Education Regulations 2012 (SA) reg. 91(2). Education and Training Reform Act 2006 (Vic) s. 2.2.11(2)(b)(ii). Education (General Provisions) Regulation 2006 (Qld) reg. 30. Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (Jul. 2014), cl 9(1). Ibid. cl 9(2). Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cl 4.3.6; Department of Education and Training (NT), Policy: Religious Instruction (DOC2011/00514) 1; Education Act 1992 (Tas) s. 34(4); Education and Training Reform Act 2006 (Vic) s. 2.2.11(2)(c). Education Act 1990 (NSW) s. 33; Education (General Provisions) Act 2006 (Qld) s. 76(5); School Education Act 1999 (WA), s. 71(1)(a). Although the South Australian guidance states special religious education is opt-in, the regulations suggest attendance is mandatory: Department of Education and Children’s Services (SA), ‘Religious Activities in Government Schools’ (last updated April 2013) cl 2; Education Regulations 2012 (SA) reg. 91(2). Education Act 1994 (Tas) s. 34(5). Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014), cl 11(7). Department of Education and Communities, Religious (NSW), Education Implementation Procedure 5. Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014), cl 10(2). Aitken v. Victoria [2012] VCAT 1547. Ibid. [424]–[425]. Education Act 2004 (ACT) s. 29(2); Department of Education and Communities (NSW), Religious Education Policy (1 Jul. 2013), [1.2]; Department of Education and Training (NT), Policy: Religious Instruction (D0C2011/00514) 1; Education (General Provisions) Regulation 2006 (Qld) reg. 31; Department of Education, Religious Instruction in State Schools Guidelines (Tas) p 3; Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014) cl 12; School Education Regulations 2000 (WA) reg. 47(3)(b). Education Act 2004 (ACT) s. 29(4); Education Act 1990 (NSW) s. 32(5); Education (General Provisions) Regulation 2006 (Qld) r 31; Department of Education and Training (NT), Religious Instruction Policy (2011) cl 4. Education Act 2004 (ACT) s. 29(2). Ministerial Direction MD141 – Special Religious Instruction in Government Schools (Vic) (July 2014), cll 12(1), (2). Education Act 1990 (NSW) s. 33A; Department of Education and Communities (NSW), Religious Education Implementation Procedures 5 (updated 2013). Department of Education and Training (NT), Religious Instruction Policy (2011) cl 3. Education Act 2004 (ACT) s. 29(1); Religious Education in ACT Government Schools Policy Statement (2008) (ACT) cl 4.3.9. Education Act 1990 (NSW) s. 32(1); Department of Education and Communities (NSW), Religious Education Implementation Procedures (updated 2013), 4; Education Act 1994 (Tas) s. 34(2). Education Act (NT) s. 73(2); Ministerial Direction MD141– Special Religious Instruction in Government Schools (Vic) (18 May 2014) cl 6(4)(d). Education (General Provisions) Act 2006 (Qld) s. 76(1); Education (General Provisions) Regulation 2006 (Qld) reg. 33. Education Regulations 2012 (SA) reg. 91(2). School Education Act 1999 (WA) s. 69(2). Education Act 1990 (NSW) s. 26; Education Act (NT) s. 20G; School Education Act 1999 (WA) s. 72. Education Act 1972 (SA) s. 102(2); Education Regulations 2012 (SA) reg. 92. Department of Education and Communities (NSW), Religious Education Implementation Procedures 10–11 (updated 2013). School Education Act 1999 (WA) s. 68(2)(b). Department of Education and Communities (NSW), Religious Education Implementation Procedures (updated 2013), 10; School Education Act 1999 (WA) s. 71(1)(b). Education Act 2004 (ACT) s. 12A(2)(c); Education and Training Reform Act 2006 (Vic) s. 2.1.3(f). School Education Act 1999 (WA) ss 30(1), 31. Flinders University of South Australia Act 1966 (SA) s. 20(1)(l); University of Melbourne Act 2009 (Vic) s. 29(4); University of Western Australia Act 1911 (WA) s. 34(2). Sex Discrimination Act 1984 (Cth) s. 21; Discrimination Act 1991 (ACT) s. 18; Anti-Discrimination Act 1977 (NSW) ss 17, 31A, 38K, 46A, 49L, 49ZO, 49ZYL; Anti-Discrimination Act (NT) s. 29; Anti-Discrimination Act 1991 (Qld) ss 38-9; Equal Opportunity Act 1984 (SA) ss 37, 85ZE; AntiDiscrimination Act 1998 (Tas) s. 2(1)(b); Equal Opportunity Act 2010 (Vic) s. 38; Equal Opportunity Act 1984 (WA) s. 22(1)(b). See further Pt VII Ch. 7.1.I. Sex Discrimination Act 1984 (Cth) s. 4(1); Discrimination Act 1991 (ACT) Dictionary; Anti-Discrimination Act 1977 (NSW) s. 4(1); AntiDiscrimination Act (NT) s. 4(1); Anti-Discrimination Act 1991 (Qld) Dictionary; Equal Opportunity Act 1984 (SA) s. 5(1); Anti-Discrimination Act 1998 (Tas) s. 3; Equal Opportunity Act 2010 (Vic) s. 4(1); Equal Opportunity Act 1984 (WA) s. 4(1). See Pt VI, Ch. 3.1 (work); Pt VII, Ch. 7 (non-discrimination legislation). Education Act 1990 (NSW) s. 34(5). Education Act 1990 (NSW) s. 6(1)(b); Education and Training Reform Act 2006 (Vic) s. 1.2.2(2)(a). Equal Opportunity Act 2010 (Vic) s. 42(1). School Education Regulations 2000 (WA) reg. 35(2)(c). Bond University Act 1987 (Qld) s. 6(2); Charles Sturt University Act 1989 (NSW) s. 27; Macquarie University Act 1989 (NSW) s. 24; Southern Cross

University Act 1993 (NSW) s. 25; University of New England 1993 (NSW) s. 24; University of New South Wales Act 1989 (NSW) s. 23; University of Newcastle 1989 (NSW) s. 24; University of Sydney Act 1989 (NSW) s. 31; University of Technology, Sydney, Act 1989 (NSW) s. 24; University of Western Sydney 1997 (NSW) s. 35; University of Wollongong Act 1989 (NSW) s. 24. 1214. Australian National University Act 1991 (Cth) s. 40; Bond University Act 1987 (Qld) s. 6(1); Curtain University of Technology Act 1966 (WA) s. 28; Edith Cowan University Act 1984 (WA) s. 44; Murdoch University Act 1973 (WA) s. 7(2); University of Melbourne Act 2009 (Vic) preamble; University of Western Australia Act 1911 (WA) s. 39.

Chapter 2. Religious Schools, Universities and Theological Colleges 398. There are a number of religious schools, universities and theological colleges in Australia. Around a third of all schools in Australia are non-government owned and operated.1215 Of these schools, 63% are Catholic schools and 37% Independent Schools, which refers to Anglican schools and other schools which have associations with religious or secular bodies or which are entirely independent.1216 of the forty-one universities in Australia, three are affiliated with a particular faith.1217 A number of the forty-one universities also have affiliations with religious accommodation providers, some of which have been independently established by statute.1218 A number of theological colleges have also been registered under Commonwealth or state or territory legislation. §1. ESTABLISHMENT AND OPERATION 399. The statutory bills of rights in the Australian Capital Territory and Victoria specifically protect the ‘freedom to demonstrate his or her religion or belief in … teaching, either individually or as part of a community, in public or in private’.1219 The bills also require that a person must not be coerced or restrained in a way that limits this freedom.1220 In comments issued by the Human Rights Committee on a similar provision under the ICCPR, this provision was held to extend to ‘freedom to establish seminaries or religious schools’.1221 In the Australian Capital Territory, access to religious schools is also protected through the inclusion of the right to education which specifically provides: to ‘ensure the religious and moral education of a child in conformity with the convictions of the child’s parent or guardian, the parent or guardian may choose schooling for the child (other than schooling provided by the government) that conforms to the minimum educational standards required under law’.1222 400. In establishing and operating a non-government school, there are a number of generic requirements with which non-government schools must comply, including educational, governance and student welfare standards. Some jurisdictions specifically deal with religious non-government schools: – In New South Wales, a non-government school may conscientiously object to registration on religious grounds.1223 The proprietor of a non-government may also apply to the Education Board to modify any part of its primary or secondary education (up until year 10) syllabus to enable it to teach any part of a course of study in a key learning area compatibly with that educational philosophy or religious outlook.1224 – In the Northern Territory, the philosophy and objects of a non-government school and the school’s education programmes must be consistent with a number of principles including the freedom of religion, and there should be tolerance of diverse religious and cultural beliefs and practice to the extent to which they are consistent with civilized values.1225 – In South Australia, in registering a non-government school the schools registration board may have consideration as to the nature and content of the instruction offered, or to be offered, at the school and whether it deems it satisfactory.1226 This would appear to include religious instruction. The board may also impose conditions restricting the kind of education services that are provided by the school, although this may not include any condition as to ‘lessons or coaching in, or providing for participation in [amongst other things] religious … activity’.1227 – In Victoria, in applying for registration, the religious or other affiliation of a nongovernment school must be stated.1228 The programmes and teaching must support and promote the principles and practice of Australian democracy, including a commitment to freedom of religion, which also applies in respect of the provision of individual senior secondary courses.1229 A school must notify any change of religious or other affiliation of the school.1230 – In a number of jurisdictions, religious schools have been specifically established by enactment of their own piece of legislation.1231 401. Universities in Australia are established pursuant to legislation in the state or territory where they are based. Quality and standards are regulated through the Tertiary Education Quality and Standards Agency (TEQSA) and the

Australia Qualifications Framework.1232 They impose no requirements or no direct impediment as regards religion. There are three religious universities in Australia: Australian Catholic University; University of Divinity (formerly, the Melbourne College of Divinity); University of Notre Dame.1233 Whilst the Australian Catholic University and the University of Notre Dame offer secular instruction in a Catholic environment, the University of Divinity offers purely religious instruction across a number of Christian denominations. 402. Theological colleges must also register as ‘higher education providers’ under TEQSA and are required to comply with similar quality and standards requirements. Whilst universities may self-accredit courses that are offered at their institutions, higher education providers must apply to TEQSA for accreditation where they have not been afforded the authority to self-accredit.1234 The National Register contains a list of all TEQSA-accredited courses, which include courses in theology, Christian studies and faith community nursing. The majority of these theological colleges are established under Commonwealth corporations legislation or the associations legislation in the respective state or territory where they are based.1235 §2. HOME-SCHOOLING 403. Parents may also decide to home school their child out of religious conviction.1236 A registration regime exists in each jurisdiction for a parent to home school their children, although in New South Wales a parent may conscientiously object to registration on religious grounds.1237 Although the religious content of home-schooling is generally not prescribed, in Victoria the instruction received at home must be consistent with the principles and practice of Australian democracy, including freedom of religion.1238 Where children who are home-schooled suffer some disadvantage as compared with students who attend school the action may constitute indirect discrimination. For example, a claim was successfully brought against the Public Transport Corporation in Victoria for refusing to provide home-schooled children with student concession cards where parents had not requested from the education minister an assessment of the home-schooling provided in circumstances where there was evidence that at least one parent objected on religious grounds to requesting such an assessment.1239 §3. PUBLIC FUNDING 404. In the early days of colonization, religious schools and churches across different denominations were funded largely by the respective colonial government.1240 Towards the end of the 1800s, the political mood shifted towards a greater separation of church and state, with legislation passed in many of the colonies abolishing this financial aid, although some assistance continued to be provided to religious schools after this date in the form of, for example, scholarships and funding for teacher training.1241 By the 1960s, there was strong pressure from Catholic schools for state aid to be re-instated, with Catholic schools in the New South Wales town of Goulburn shutting their doors for a week in protest at the lack of funding.1242 Their demands were finally met in 1963 when the Coalition Government lead by Robert Menzies, ostensibly in an attempt to win over the Catholic vote from the Labour party, introduced Commonwealth aid for all independent schools.1243 Today, the Commonwealth provides recurrent funding for non-government schools, as well as funding for capital projects and other special circumstances.1244 The major requirements for funding are that the schools be incorporated, not-for-profit, financially viable, and fit and proper, which includes compliance with the laws of the relevant jurisdiction relating to the provision of school education.1245 Similar requirements are made for universities and other higher education providers.1246 405. The Commonwealth’s power to grant funding to non-government schools was unsuccessfully challenged in Attorney-General for the State of Victoria (In the relation of Black) v. Commonwealth (the ‘DOGS Case’).1247 Commonwealth legislation similar to that which is currently in force was argued to violate the establishment clause under section 116 of the Commonwealth Constitution, which reads: ‘The Commonwealth shall not make any law for establishing any religion.’ A majority of the Court held that a law providing for financial aid to the educational

activities of church schools did not violate the clause because establishment was to be narrowly interpreted to mean conferral of a particular religion as an institution of state or the state religion.1248 The provision neither imposed any broader obligation not to prefer religion nor create any separation between Church and state. The clause merely preserved religious equality or equality between religions.1249 Despite the First Amendment to the United States Constitution acting as a source of inspiration at the time of the Australian Constitution’s drafting, the difference in the wording of the United States’ provision made United States jurisprudence largely irrelevant.1250 In any case, the Court held that the laws were applicable to government and non-government schools and so, despite the high number of Roman Catholic schools benefiting from the legislation (83% of the non-government schools were Roman Catholic at the time1251), it did not establish the Roman Catholic Church,1252 nor was the primary effect of the legislation even to advance religion as the amount of time devoted to secular education in religious schools was necessarily substantial.1253 Despite the strong and sincere views held by some members of the public on this issue, Gibbs J noted that the resolution of the differences of opinion were best left to the democratic processes under the Constitution rather than section 116.1254 The disproportionate funding allocated by the Australian Capital Territory government to Catholic schools was challenged under the Australian Capital Territory non-discrimination legislation but failed as, amongst other things, the alleged discriminatory conduct (the grant of financial assistance) did not constitute the provision of a service as defined under that legislation.1255 406. The states and territories also provide funding to religious schools. In Queensland, the funding criteria for non-government schools applying to open or that are already in operation include consideration of ‘the extent of religious, philosophical, or educational delivery, choice’ that current or prospective students residing in the school’s catchment area have.1256 407. The freedom of religion provisions in the Australian Capital Territory and Victorian statutory bills of rights do not contain any establishment clause. Nor is it likely that any such right can be derived from the freedom to adopt a religion or to demonstrate one’s religion, with the Human Rights Committee commenting on a similar provision under the ICCPR that the recognition of a religion as a state religion or its establishment as official or traditional does not impair the enjoyment of this freedom.1257 The impact of the bill of rights is also significantly reduced in Victoria where it is specifically provided that public authorities are not required to ‘act in a way, or make a decision, that has the effect of impeding or preventing a religious body (including itself in the case of a public authority that is a religious body) from acting in conformity with the religious doctrines, beliefs or principles in accordance with which the religious body operates’.1258 Any act or decision of government to provide funding to religious schools will therefore be subject to this religious body exemption. §4. NON-DISCRIMINATION 408. Religious schools, universities and theological colleges are generally subject to the same non-discrimination legislation as their government counterparts.1259 Additional protections are found in certain universities’ founding legislation in the form of a religious non-discrimination provision or a prohibition on the imposition of a religious test, which apply in respect of admission as a student, graduation, enjoyment of any benefit, advantage or privilege,1260 and acceptance as a candidate for any examination, being an examiner or holding any office or employment.1261 409. The most common exemption relating to all educational providers is for discrimination on any basis in relation to the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order (the ‘religious order exemption’).1262 In Tasmania, this exemption is limited to discrimination on the basis of religious belief, affiliation or activity.1263 410. Each jurisdiction also contains specific exemptions under nondiscrimination legislation for religious education authorities or institutions (the ‘religious institution exemption’). In most jurisdictions, the educational

institution must be conducted in accordance with the doctrine, tenets, beliefs or teachings of a particular religion or creed to be exempt from the non-discrimination regime.1264 In some jurisdictions, the exemption applies to the educational authority which operates or proposes to operate an educational institution rather than to the institution itself,1265 whilst in Victoria the exemption applies to either the educational authority or the institution.1266 In New South Wales, the exemption applies simply to private educational authorities, which, in essence, is defined as any college, university or other institution that is not established under any legislation.1267 Thus, the exemption will apply to religious schools and theological colleges but not religious universities. In Queensland, the institution or authority must be ‘wholly or mainly for the study of, amongst other things, a particular religion’,1268 in the Australian Capital Territory it must be ‘conducted solely for students having a religious conviction other than that of the applicant’,1269 whilst in South Australia it must be ‘administered in accordance with the precepts of a particular religion’.1270 411. Most jurisdictions have multiple religious institution exemptions operating across a range of distinct areas. The exemption normally applies to employment as a member of staff, a position as a contract worker that involves doing work in the educational institution, and the provision of education or training.1271 In the Australian Capital Territory a separate exemption is made for discrimination on the ground of religious conviction in relation to the application for admission.1272 In New South Wales and Victoria, the exemption is not limited to any particular area, although in Victoria there is an additional requirement that the act be done ‘in the course of establishing, directing, controlling or administering the educational institution’, and an additional exemption for religious educational authorities that exclude students who are not of that particular religion.1273 In Queensland and Tasmania, the exemption applies only to the exclusion of applicants not of a particular religion or to employment more generally,1274 and in South Australia to employment or engagement for the purposes of the institution, discrimination against any person in the performance of a particular activity as well as to an act of discrimination against any student or potential student.1275 In the Northern Territory, Queensland and Victoria, there is an exemption for the provision of accommodation wholly or mainly for people of the particular religion or religious belief of the institution or authority.1276 412. The religious institution exemptions in most jurisdictions permit discrimination on each of the prohibited bases.1277 In New South Wales, discrimination on the basis of race, which is defined to include ethno-religious background, is not permitted except in the area of provision of education and training where the educational authority has been prescribed and in relation to such circumstances may be prescribed.1278 In the Australian Capital Territory, discrimination in the admission of an applicant to an educational institution conducted solely for students having religious conviction other than that of the applicant can only be on the ground of religious conviction.1279 In the Northern Territory, discrimination in the area of work is limited to where it is on the grounds of religious belief or activity or sexuality.1280 In South Australia, discrimination in employment is only permitted where on the ground of chosen gender or sexuality, discrimination in the performance of a particular activity is permitted only on the ground of religious appearance and dress, and discrimination against a student or potential student where because they appear or dress or wish to appear or dress in a manner required by or symbolic of a different religion is permitted on any basis.1281 In Tasmania, the exemption is limited to where on the ground of religious belief or affiliation or religious activity.1282 In Victoria, the exemption only applies to discrimination on the basis of religious belief or act, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity.1283 413. For a religious institution, exemption to apply most jurisdictions require that the conduct be in good faith in order to avoid injury to the religious susceptibilities or sensitivities of the adherent of the religion or creed.1284 In Victoria, there is no requirement of good faith and either the religious sensitivities test must be fulfilled or the discrimination must conform with the doctrines, beliefs or principles of the religion.1285 No test is required in New South Wales in respect of discrimination in any of the prohibited areas, whilst a number of other jurisdictions provide no test in respect of discrimination in the admission or exclusion of students,1286 or in the provision of accommodation.1287 In South Australia, for a religious educational institution to discriminate in the employment or

engagement for the purposes of the institution the discrimination must be founded on the precepts of the religion, the authority must have a written policy stating its position, a copy of the policy must be given to any person being interviewed, and a copy provided on request.1288 In respect of discrimination in the participation in a particular activity, the South Australian legislation requires that the person, by reason of their appearance or dress, is unable to perform the activity adequately and without endangering themselves or other persons, or is unable to respond adequately to situations of emergency that should reasonably be anticipated in connection with the activity.1289 No test applies in respect of the South Australian exemption permitting discrimination against a student or potential student because of their religious dress.1290 In Tasmania, discrimination is only permitted where it is in order to enable or better enable the educational institution to be conducted in accordance with its tenets, beliefs, teachings, principles or practices.1291 414. In Tasmania, a school or school system conducted in accordance with tenets, beliefs, teachings, principles or practices of a particular religion may also apply for an exemption from the provisions of the Tasmanian nondiscrimination legislation in relation to the admission of any student to that school for any years where the school is oversubscribed and where the proposed discrimination is on the basis of religious affiliation and the test for religious affiliation of the student or their parents or grandparents is objectively assessed.1292

1215. 1216. 1217. 1218.

1219. 1220. 1221. 1222. 1223. 1224. 1225. 1226. 1227. 1228. 1229. 1230. 1231. 1232. 1233. 1234. 1235. 1236. 1237. 1238. 1239. 1240. 1241. 1242. 1243. 1244. 1245. 1246. 1247. 1248. 1249. 1250. 1251. 1252.

Australian Bureau of Statistics, Schools, Australia (cat no 4221.0) (20 Mar. 2014) 14. Ibid. 47. Australian Catholic University; University of Divinity; University of Notre Dame. See, e.g., Saint Andrew’s College Act 1998 (NSW); Saint John’s College Act 1857 (Private Act) (NSW); Saint Paul’s College Act (1854) (Private Act) (NSW); Sancta Sophia College Incorporation Act 1929 (NSW); Wesley College Incorporation Act 1910 (Private Act) (NSW); Trinity College Act 1979 (Vic). Human Rights Act 2004 (ACT) s. 14(1); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 14(1). Human Rights Act 2004 (ACT) s. 14(2); Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 14(2). Human Rights Committee, General Comment 22, Art. 18 (Forty-eighth session, 1993), UN Doc. HRI/GEN/1/Rev.1 at 35 (1994) [4]. Human Rights Act 2004 (ACT) s. 27A. Education Act 1990 (NSW) s. 75(a),(b). Ibid. ss 8(3), 10(3). Education Act (NT) ss 61B, 63B(1)(b). Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) s. 43(1). Ibid. s. 44; Education and Early Childhood Services (Registration and Standards) Regulations 2011 (SA) reg. 35(a). Education and Training Reform Regulations 2007 (Vic) Sch. 3, cl 9. Ibid. Sch. 2, cl 1(1)(d), Sch. 7, cl 2(1)(d). Ibid. reg. 63(c). See, e.g., Christ College Act 1926 (Tas); Prince Alfred College Incorporation Act 1878 (SA). Tertiary Education Quality and Standards Agency Act 2011 (Cth); Higher Education Standards Framework (Threshold Standards) 2011 (Cth); Australian Qualifications Framework Council, Australian Qualifications Framework (2d ed, January 2013). Australian Catholic University Act 1990 (NSW); Australian Catholic University (Queensland) Act 2007 (Qld); Australian Catholic University (Victoria) Act 1991 (Vic); Melbourne College of Divinity Act 1910 (Vic); University of Notre Dame Australia Act 1989 (WA). Tertiary Education Quality and Standards Agency Act 2011 (Cth) Pt 4. See, e.g., Perth Bible College Inc, Sydney College of Divinity Ltd, Tabor College (Victoria) Ltd, Christian Heritage College Ltd. See, e.g., Education Act 2004 (ACT) s. 128(b). Education Act 1990 (NSW) s. 75. Education and Training Reform Regulations 2007 (Vic) reg. 68(b)(iv). The Christian Family School Association of Australia v. Public Transport Corporation (1990) EOB (Vic). See, e.g., A-G (Vic) ex rel Black v. Commonwealth (1981) 146 CLR 559, 607–608 (Stephen J). McLeish, supra n. 103, at 207, 213–217 (1992); Thompson, supra n. 48, at 18–21. John Warhurst, 50 Years since Australia’s ‘Most Poisonous Debate’ (Eureka St. 8 Jul. 2012). Michael Hogan, Public versus Private Schools: Funding and Directions in Australia (Penguin Australia 1984). Australian Education Act 2013 (Cth) Pts 3, 5. Ibid. ss 75, 84, 92; Australian Education Regulation 2013 (Cth), regs 26–28. Higher Education Support Act 2003 (Cth). (1981) 146 CLR 559. Ibid. 582, 603–604, 610, 612, 635, 653. Ibid. 613, 616. The establishment clause of the First Amendment to the US Constitution reads: ‘Congress shall make no law respecting an establishment of religion’. DOGS Case (1981) 146 CLR 559, 644. Ibid. 618.

1253. 1254. 1255. 1256. 1257. 1258. 1259. 1260. 1261. 1262.

1263. 1264. 1265. 1266. 1267. 1268. 1269. 1270. 1271. 1272. 1273. 1274. 1275. 1276. 1277.

1278. 1279. 1280. 1281. 1282. 1283. 1284. 1285. 1286. 1287. 1288. 1289. 1290. 1291. 1292.

Ibid. 656. Ibid. 604. Best Practice Education Group Ltd v. Department of Education & Community Services [2002] ACTDT 1. Education (Accreditation of Non-State Schools) Act 2001 (Qld) ss 85(3)(b), 85(4)(b). Human Rights Committee, General Comment 22, Art. 18 (Forty-eighth session, 1993), UN Doc. HRI/GEN/1/Rev.1 at 35 (1994), [9]. Charter of Human Rights and Responsibilities Act 2006 (Vic) s. 38(4). See Pt IX, Ch. 1.4. Australian Catholic University (Victoria) Act 1991 (Vic) s. 7; Australian Catholic University Act 1990 (NSW) s. 7. Melbourne College of Divinity Act 1910 (Vic) s. 27. Sex Discrimination Act 1984 (Cth) s. 37(1)(b); Discrimination Act 1991 (ACT) s. 32(b); Anti-Discrimination Act 1977 (NSW) s. 56(b); AntiDiscrimination Act (NT) s. 51(b); Anti-Discrimination Act 1991 (Qld) s. 109(1)(b); Equal Opportunity Act 1984 (SA) s. 50(1)(b); Equal Opportunity Act 2010 (Vic) s. 82(1)(b); Equal Opportunity Act 1984 (WA) s. 72(b). Anti-Discrimination Act 1998 (Tas) ss 3, 52(b). Sex Discrimination Act 1984 (Cth) s. 38; Discrimination Act 1991 (ACT) s. 33; Anti-Discrimination Act 1998 (Tas) s. 52(1); Equal Opportunity Act 1984 (WA) s. 73. Anti-Discrimination Act (NT) ss 30, 37A, 40(2A); Anti-Discrimination Act 1991 (Qld) ss 41, 89; Equal Opportunity Act 1984 (SA) s. 85ZE(5); Equal Opportunity Act 2010 (Vic) ss 39, 61. Equal Opportunity Act 2010 (Vic) s. 83. Anti-Discrimination Act 1977 (NSW) s. 4(1). Anti-Discrimination Act 1991 (Qld) s. 41. Discrimination Act 1991 (ACT) s. 46. Equal Opportunity Act 1984 (SA) s. 34. Sex Discrimination Act 1984 (Cth) s. 38; Discrimination Act 1991 (ACT) s. 33; Anti-Discrimination Act (NT) ss 30, 37A; Equal Opportunity Act 1984 (WA) s. 73. Discrimination Act 1991 (ACT) s. 46. Anti-Discrimination Act 1977 (NSW) ss 25(3)(c), 31A(3)(a), 38C(3)(c), 38K(3), 40(3)(c), 46A(3), 49D(3)(c), 49L(3)(a), 49ZH(3)(c), 49ZO(3), 49ZYL(3)(b); Equal Opportunity Act 2010 (Vic) ss 39, 83(2). Anti-Discrimination Act 1991 (Qld) s. 41; Anti-Discrimination Act 1998 (Tas) s. 51(2). Equal Opportunity Act 1984 (SA) ss 34, 85ZE(4), (5). Anti-Discrimination Act (NT) s. 40(2A); Anti-Discrimination Act 1991 (Qld) s. 89; Equal Opportunity Act 2010 (Vic) s. 61. Sex Discrimination Act 1984 (Cth) s. 38; Discrimination Act 1991 (ACT) s. 33; Anti-Discrimination Act 1977 (NSW) ss 25(3)(c), 31A(3)(a), 38C(3) (c), 38K(3), 40(3)(c), 46A(3), 49D(3)(c), 49L(3)(a), 49ZH(3)(c), 49Z0(3), 49ZYL(3)(b); Anti-Discrimination Act (NT) ss 30, 40(2A); AntiDiscrimination Act 1991 (Qld) ss 41, 89; Equal Opportunity Act 2010 (Vic) s. 61; Equal Opportunity Act 1984 (WA) s. 73. Anti-Discrimination Act 1977 (NSW) s. 17(3). Discrimination Act 1991 (ACT) s. 46. Anti-Discrimination Act (NT) s. 37A. Equal Opportunity Act 1984 (SA) ss 34, 85ZE(4), (5). Anti-Discrimination Act 1998 (Tas) s. 51(2). Equal Opportunity Act 2010 (Vic) s. 83. Sex Discrimination Act 1984 (Cth) s. 38; Discrimination Act 1991 (ACT) s. 33; Anti-Discrimination Act (NT) s. 37A; Equal Opportunity Act 1984 (WA) s. 73. Equal Opportunity Act 2010 (Vic) s. 83. Discrimination Act 1991 (ACT) s. 46; Anti-Discrimination Act (NT) s. 30; Anti-Discrimination Act 1991 (Qld) s. 41; Equal Opportunity Act 2010 (Vic) s. 39. Anti-Discrimination Act (NT) s. 40(2A); Anti-Discrimination Act 1991 (Qld) s. 89; Equal Opportunity Act 2010 (Vic) s. 61. Equal Opportunity Act 1984 (SA) s. 34. Ibid. s. 85ZE(4). Ibid. s. 85ZE(5). Anti-Discrimination Act 1998 (Tas) s. 51(2). Ibid. ss 55A, 55B.

Part X.

Matrimonial and Family Law

Paul Babie

Chapter 1. Legal Position of Religious Marriage §1. MINISTERS OF RELIGION PERFORMING MARRIAGES 415. The Commonwealth of Australia exercises legislative authority in respect of marriage, and it has utilized this power to establish a uniform system for the recognition of all marriages. An exhaustive statement of the way in which civil marriages may be formed in Australia,1293 the Marriage Act 1961 (Cth) and the Family Law Act 1975 (Cth) establish that a legal marriage requires a union created by an authorized celebrant, of which the legislation recognizes two types.1294 First, individuals may be accredited as civil celebrants, or marriage celebrants;1295 marriages performed by marriage celebrants have the same legal effect as those performed by ministers of religion, which constitute the second form of authorized celebrant.1296 416. In circumstances prescribed by the legislation, Australian ministers of religion may become authorized celebrants, and ceremonies celebrated by such ministers create marriages recognized by Australian law, although the rights and obligations of marriage arise by virtue of the civil, secular law – any terms and obligations undertaken by the religious marriage bind only according to the religious law. The Marriage Act 1961 (Cth) defines a ‘Minister of Religion’ as (a) a person recognized by a religious body or a religious organization as having authority to solemnize marriages in accordance with the rites or customs of the body or organization; or (b) in relation to a religious body or a religious organization in respect of which paragraph (a) is not applicable, a person nominated by: (i) the head, or the governing authority, in a state or territory, of that body or organization; or (ii) such other person or authority acting on behalf of that body or organization as is prescribed; to be an authorized celebrant for the purposes of this Act.1297 417. Only those ministers of religion who gain registration pursuant to Part IV, Division 1, Subdivision A of the Marriage Act 1961 (Cth), may perform civil marriages. The most significant prerequisite to such registration is being a minister of a recognized denomination,1298 which are religious bodies or organizations recognized by the Governor-General in proclamation. While the Governor-General retains discretion in the recognition of denominations for this purpose,1299 the decision is informed by policy guidelines.1300 This results in some minority religions being denied such status, and this is noteworthy in the case of Pagans, humanists or other organized secular groups. over 30,000 Australians identify as Pagans, for example, but they cannot register their leaders as Ministers of religion.1301 As of 2014, though, the Marriage (Recognised Denominations) Proclamation 2007 (Cth) declares 123 recognized denominations. 418. Ministers of religion of non-recognized denominations, however, may nonetheless be registered as a civil celebrant, although this provides slightly less freedom to perform the ceremony in accordance with the rites of the religion. Civil ceremonies must follow a prescribed set of vows and a speech on the nature of marriage.1302 Moreover, civil celebrants must also complete compulsory training and professional development prescribed by the

Commonwealth, and are subject to performance reviews and a code of practice.1303 Registered ministers of religion, however, undertake only that professional development required by their registered religious denomination; the legislation establishes no governmental regulation or supervision in this regard. 419. Provided a religion is registered, then, as a recognized denomination, a Minister ordinarily resident in Australia and over 21 years old may be nominated by their denomination to be registered as an authorized celebrant.1304 Still, a minister may not be registered if there already exist sufficient registered Ministers of that denomination, or if the minister is not a fit and proper person to solemnize marriages, or if the minister is unlikely to devote a substantial amount of time to the performance of functions associated with being a minister of religion.1305 In Nelson v. Fish, the High Priest of an obscure religious group unable to have his group registered as a recognized denomination, brought a claim alleging that the system breached section 116 of the Commonwealth Constitution by establishing a state religion and prohibiting the free exercise of religion. The Federal Court of Australia dismissed the claim on the basis that a system for the recognition of marriages was required under the constitutional marriage power and in light of this the recognition of denominations to perform marriages could not amount to the ‘establishment’ of any one of the recognized denominations.1306 While it would be beyond the scope of the marriage power and a breach section 116 if Parliament were to create a monopoly in religious marriages in favour of one denomination, this was not the case before the Federal Court.1307 420. In a 1992, the AHRC considered the possibility of abolishing the option to have a legal marriage conducted by a religious minister. In its report, the AHRC found both a lack of public support for such a move and ‘compelling’ arguments in favour of retaining choice about form of ceremony.1308 In 2004, the Department of Immigration and Multicultural and Indigenous Affairs found the situation not much changed from 1992.1309 §2. FORM OF CEREMONY 421. Religious ministers enjoy considerable religious freedom in relation to the performance of marriages. While they must conform to the same formalities and witness requirements as marriage celebrants, different requirements exist as concerns the form of the ceremony: a minister of religion may solemnize a marriage ‘according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister’.1310 Moreover, ministers of religion are not bound to solemnize any marriage, meaning that they are free to refuse any couple which they consider should not be married according to the rites of their religion.1311 And, they may also impose additional conditions and notice requirements.1312 422. A later declaration of nullity pursuant to religious law – such as a Catholic annulment – fails to void the civil marriage. Rather, while religious law may sometimes be taken into account, a civil marriage is null only upon compliance with sections 23 or 23B of the Marriage Act 1961 (Cth). Thus, for instance, marriages may be declared void if the consent of one or both parties was obtained by duress,1313 and the concept of duress in this context may include serious religious pressure or conviction.1314 §3. NON-LEGAL RELIGIOUS CEREMONIES 423. While a married couple may not go through another form or ceremony of marriage to one another,1315 purely religious marriage ceremonies are exempted from this rule. As such, couples may renew their vows, or have a religious ceremony following a civil ceremony, or marry according to the rites of two different religious traditions. In such cases, the celebrant must not issue a certificate of marriage, and the couple must provide their existing marriage certificate and sign a declaration stating their understanding of the non-legal nature of the ceremony and their existing legal marriage to one another.1316 Authorized celebrants, including ministers of religion, may conduct non-legal commitment ceremonies; these do not constitute marriage and the ceremony must not purport to be a marriage.1317

§4. POLYGAMY 424. Australian law makes no provision for the formation of polygamous marriages. Marriage is the union of a man and a woman to the exclusion of all others,1318 and a marriage performed at a time when one or both or that parties is already married is void.1319 For a person already married to attempt a legal ceremony of marriage with any other person constitutes the criminal offence of bigamy and is punishable by five years’ imprisonment.1320 425. A non-legal, religious polygamous marriage, however, is not a crime. Thus, in some cases, parties may wish to undertake a religious ceremony to solemnize their polygamous marriage, with awareness and acknowledgement of the fact that doing so will not create a legal marriage. English precedent suggests this will not be enough to qualify as a marriage ceremony for the purposes of bigamy and other related offences.1321 Rather, a ceremony must be one which prima facie could create a valid marriage for it to be considered a ceremony or form of ceremony of marriage.1322 As such, provided that a couple does not use the legal vows or sign a certificate of marriage, they and their celebrant may not be purporting to solemnize a marriage for the purposes of bigamy offences. Nonetheless, there are very few prosecutions of such conduct in Australia. 426. For members of religions which recognize plural marriages, such as Islam, Australian law provides spouses two express protections. First, polygamous marriages performed outside of Australia will be recognized as marriages in Australia if they were conducted in countries which recognize polygamy in their civil law.1323 This means that polygamous spouses can be eligible for divorce proceedings and property settlements under the Family Law Act 1975 (Cth). Second, the Family Law Act 1975 (Cth) provides for the concept of de facto marriages, relationships between parties not married to each other who live together on a genuine domestic basis in all the circumstances.1324 The breakdown of a de facto relationship opens up identical property settlement rights to those enjoyed by couples seeking a divorce within the context of legal marriage.1325 Notably for polygamous families, section 4AA(5)(b) of the Family Law Act 1975 (Cth) provides that a de facto relationship may exist when one of the parties is married to someone else or is in another de facto relationship. It is not known whether this provision applies to multiple relationships in the polygamous sense, as opposed to a separated married person cohabiting with a new partner while remaining legally married.1326 §5. ARRANGED MARRIAGE 427. There is no prohibition on arranged marriages in Australia so long as both parties consent. In In the Marriage of S, a 15-year-old female member of the Egyptian Coptic Church followed through with an arranged marriage despite her repeated protestations to her family.1327 The Court found that she went on with the wedding because she was caught in a ‘psychological prison of family loyalty, parental concern, sibling responsibility, religious commitment and a culture that demanded filial obedience’. An application for a decree of nullity of the marriage was granted on the ground that the circumstances of the case were sufficient to create an oppression in her mind that, although falling short of fear or terror was so overbearing that any consent was not voluntary. In Nagri v. Chapal, the court granted a decree of nullity for a 25-year-old Hindu man’s arranged marriage on the basis that he was subject to strong feelings of family loyalty, was subject to religious and cultural beliefs and had felt that his uncle (the arranger of the marriage and a man who stood in loco parentis with the applicant) was entitled to demand his obedience to such an extent that his free will was overborne.1328 §6. UNDERAGE MARRIAGE 428. A marriage will be void where either of the parties is underage.1329 It is a criminal offence for a person to marry a person who is not of marriage age (defined as 18 years of age) unless the latter person have previously been married or the written consent of both the parties to the marriage has been given.1330 Underage marriages require the authorization of a judge or magistrate who must enquire into the relevant facts and circumstances to determine that the underage person is at least 16 years of age and that the ‘circumstances of the case are so exceptional and unusual

as to justify the making of (an) order’.1331 §7. SAME-SEX MARRIAGE 429. Same-sex marriage is not permitted in Australia as ‘marriage’ is narrowly defined as the ‘union of a man and a woman’.1332 Same-sex unions solemnized in a foreign country are also prohibited from recognition in Australia.1333 Multiple attempts have been made by Commonwealth, state and territory legislatures to enact legislation permitting same-sex marriage.1334 In October 2013, the Australian Capital Territory became the first jurisdiction to enact same-sex marriage legislation, enacting the Marriage Equality (Same Sex) Act 2013. Within a month, the legislation was struck down by the High Court following a challenge to the validity of the legislation on the basis that the Commonwealth had sole legislative power with respect to marriage, that marriage referred not just to the union between a man and a woman but between ‘natural persons’, and that the Commonwealth in exercising its power had decided to confine marriage to a union between a man and a woman.1335 430. The Australian Capital Territory is the only jurisdiction where same-sex civil unions are permitted. Though different from ‘marriage’, it is a legally recognized relationship that is to be treated under Australian Capital Territory law in the same way as marriage.1336 431. In New South Wales, Queensland, Victoria and Tasmania, same-sex couples are permitted to register their relationship under domestic relationships legislation.1337

1293. 1294. 1295. 1296. 1297. 1298. 1299. 1300. 1301. 1302. 1303. 1304. 1305. 1306. 1307. 1308. 1309. 1310. 1311. 1312. 1313. 1314. 1315. 1316. 1317. 1318. 1319. 1320. 1321. 1322. 1323. 1324. 1325. 1326.

Commonwealth v. Australian Capital Territory (2013) 250 CLR 441, [57]–[60]. Marriage Act 1961 (Cth) s. 41. Ibid. Part IV, div 1, sub-div C. Ibid. ss 32, 39F. Ibid. s. 5. Ibid. s. 29(a). Ibid. s. 26. Attorney-General’s Department (Cth), Information Sheet – Recognized Denominations, http://www.ag.gov.au/FamiliesAndMarriage/Marriage/Documents/Information%20Sheet%20Recognised%20Denominations.pdf. Bouma et al., Freedom of Religion and Belief in 21st Century Australia 69 (Australian Hum. Rights Commn., 2011) 69. Marriage Act 1961 (Cth) ss 45–46. Ibid. ss 39G(b), 39H. Ibid. s. 29. Ibid. ss 30–31. Nelson v. Fish (1990) 92 ALR 187, 191. Ibid. Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992) 5.12–5.14. Cahill et al, Religion, Cultural Diversity and Safeguarding Australia (National Capital Printing, 2004) 107. Marriage Act 1961 (Cth) s. 45. Ibid. s. 47(a). Ibid. s. 47(b). Ibid. ss 23(1)(d)(i), 23B(1)(d)(i). In the Marriage of S (1980) 5 Fam LR 831, 838 (Watson J); Nagri v. Chapal [2012] FamCA 464 [27] (Collier J). Marriage Act 1961 (Cth) s. 113(1). Ibid. s. 113(5)–(6). Attorney-General’s Department (Cth), Guidelines on the Marriage Act 1961 for Marriage Celebrants (2012) 89–90. Marriage Act 1961 (Cth) s. 5 (definition of ‘marriage’). Ibid. ss 23(1)(a), 23B (1)(a). Ibid. s. 94. R v. Bham [1966] 1 QB 159. Ibid. 168. Family Law Act 1975 (Cth) s. 6. Ibid. s. 4AA. Ibid. s. 90SM. Esmaeili Hossein & Jenny Richards, The Position of Australian Muslim Women in Polygamous Relationships Under the Family Law Act 1975 (Cth):

1327. 1328. 1329. 1330. 1331. 1332. 1333. 1334. 1335. 1336. 1337.

Still’Taking Multiculturalism Seriously’? 26 Australian J. Family L. 142 (2012). [1980] 42 FLR 94. [2012] FamCA 464 [27]–[28]. See also Tirta v. Lim [2012] FamCA 63; Hallas v. Kefalos [2012] FamCA 860. Marriage Act 1961 (Cth) s. 23B(1)(e). Ibid. ss 11 and 95. Ibid. s. 12(2). Ibid. s 5. Ibid. s 88EA. L Taylor, Getting over it? The future of same-sex marriage in Australia. 27 Australian J. Family L. 26, 30-7 (2013). Commonwealth v. Australian Capital Territory (2013) 250 CLR 441. Civil Unions Act 2012 (ACT) ss 6 and 7. Relationships Register Act 2010 (NSW); Civil Partnerships Act 2011 (Qld); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic).

Chapter 2. Legal Position of Religious Family Law §1. DIVORCE 432. Australian law does not recognize religious marriages per se; rather it accepts a religious marriage ceremony as sufficient to create a civil marriage if attended by the requisite civil formalities. The lack of any equivalent recognition of religious divorces or other religious family law makes this point clear. The only means of obtaining a civil divorce in Australia is through the secular courts, regardless of whether the marriage was performed by a religious or a civil celebrant. And the only ground of divorce is irretrievable breakdown of the marriage as evidenced by one years’ separation.1338 A religious divorce or annulment does not give rise to a ground for a civil divorce or nullity order. 433. In 2012, over 70% of Australian marriages were conducted by a civil celebrant. Thus, while the nonrecognition of religious divorce is not an issue for a majority of couples marrying in Australia, for the Jewish, Muslim and Catholic communities, which do not recognize civil divorces, the current system can leave couples divorced in the eyes of the law but married in the eyes of their religious community. In these cases, spouses – typically the female partner – may be held in religious marriages against their will.1339 This stands in stark contrast to the Australian system of no-fault divorce, which can be initiated and completed by either party without the agreement of the other.1340 In religious systems where lack of consent by one party can halt a divorce, that party has ‘the power to withhold a cultural or religious divorce against another spouse’s will, sometimes utilising such things as contact with children and financial arrangements as bargaining tools to barter for the religious divorce’.1341 434. Australian Family Court judges have no power to remedy these anomalies; simply, if the ground of divorce is made out, the divorce must be granted and, provided the exception concerning provision for children does not apply, will take effect in one month.1342 In some instances, Courts have made creative use of their existing powers, especially the power to grant injunctive relief, in an attempt to assist a spouse unable to gain a religious divorce.1343 Thus, for instance the power to grant an injunction may be used to order the appearance of a spouse before a Jewish Rabbinical tribunal to execute a gett (Jewish bill of divorcement).1344 435. The case of In Marriage of Shulsinger involved an undertaking of a Jewish husband before the Court to take all steps to secure a gett in exchange for his wife waiving the right to seek spousal maintenance.1345 The undertaking was treated as equivalent to a positive injunction, the breaking of which could be treated as contempt of court.1346 On appeal, the Court dismissed the argument that such an injunction could not validly be issued by a secular court in light of section 116 of the Commonwealth Constitution: ‘It is clear that the undertaking sought by his Honour did not involve any infringement of section 116 as that section is properly understood.’1347 Rather, it was within the scope of the Court’s injunctive power given the interests of ‘justice’.1348 436. Another approach used by the Family Law Court, and arguably more consistent with the operation of the Family Law Act 1975 (Cth), is an order for higher spousal maintenance from a spouse who refuses to provide a cultural-religious divorce.1349 437. Civil intervention has been periodically proposed. In 1992, the Australian Law Reform Commission recommended amending the Family Law Act 1975 (Cth) to allow family courts to withhold final civil divorce orders in circumstances where a party can grant a divorce under religious law but refuses to do so.1350 The Family Law Council made similar recommendations in 2001.1351 And it has also been suggested that there could be a way forward within the existing law of contract; thus, if a husband and wife contract to provide and accept a gett upon civil dissolution of their marriage, the court may enforce such an agreement as a common law contract.1352 §2. PROPERTY SETTLEMENT

438. Religious family law as concerns property may also be enforced by the Family Court through prior contractual agreement. Part VIIIA of the Family Law Act 1975 (Cth) provides for the recognition and enforcement of property and financial agreements in the event of a marital breakdown. And Part VIIIAB contains similar provisions relating to de facto relationships. The parties to a religious marriage, whether a legal marriage or a de facto relationship, may, then, incorporate the terms of their religious family law into such an agreement, in accordance with stringent validity requirements. If these requirements are met and the agreement is found binding under section 90G and under the common law of contract, the religious family law may effectively be enforced by a civil court under the law of contract.1353 Mohamed v. Mohamed involved this approach.1354 439. In Mohamed, an Islamic couple who had already married pursuant to Sharia law intended to marry pursuant to Australian law. The parties entered a financial agreement for the payment of a AUD 50,000 Islamic Moackar Sadak (similar to a dowry) to the wife upon the husband initiating separation or divorce. The parties never married according to Australian law but were separated and then divorced under Sharia. Their financial agreement was enforced under the common law of contract.1355 The Court acknowledged its lack of prior experience in such cases: As this appeal raises the current issue of the way agreements based on religious or cultural tradition should be dealt with in our society, and it appears that there is not Australian case law on this topic, I shall refer this question to both the Australian Law Reform Commission and the NSW Law Reform Commission for their consideration as to whether this topic is suitable as the subject of a term of reference.1356 440. While religious family law cannot be applied by way of arbitration pursuant to the Family Law Act 1975 (Cth), property and spousal maintenance matters can, with the consent of the parties, be referred to arbitration by the court, or such arbitration can be privately arranged.1357 Awards made through this process can be registered by the parties and treated as a decree of the court for enforcement purposes.1358 Only legal practitioners specializing in family law, however, are qualified to be arbitrators.1359 §3. CHILDREN 441. No mechanism exists in Australian law for taking account of religious law when determining parenting orders. Rather, the Family Court considers matters relating to children in accordance with ‘the best interests of the child’.1360 Thus, while a religious system may practise a custom of awarding the mother custody of a child, this cannot influence the court’s decision concerning a parenting order unless it is shown that in the circumstances it would detrimentally affect the child to ignore the cultural-religious system.

1338. 1339. 1340. 1341. 1342. 1343. 1344. 1345. 1346. 1347. 1348. 1349. 1350. 1351. 1352. 1353. 1354. 1355.

Family Law Act 1975 (Cth) s. 48. Family Law Council, Cultural Community Divorce and the Family Law Act 1975: A Proposal to Clarify the Law 3 (2001). Family Law Act 1975 (Cth) s. 44(1A). Amanda Williamson, An Examination of Jewish Divorce Under the Family Law Act 1975 (Cth), 11 James Cook U. L. Rev. 132, 132 (2004). Family Law Act 1975 (Cth) s. 48(2), 55. Ibid. s. 114(1), (3). In Marriage of Shulsinger (1977) 2 Fam LR 11611; In the Marriage of Gwiazda (Unreported, Family Court, 23 Feb. 1983); In the Marriage of Frey (Unreported, Family Court, 12 Nov. 1983). In Marriage of Shulsinger (1977) 2 Fam LR 11611. Ibid. 11617. Ibid. Ibid. 11614. In re Marriage of Steinmetz (1980) 6 Fam LR 554, 556 (Evatt CJ). Australian Law Reform Commission, supra n. 1405. Family Law Council, supra n. 1425, at 37. Andrew Strum, Jewish Divorce in Australian Family Law: The Enforceability of Jewish Nuptial and Prenuptial Contracts, 17 Monash U. L. Rev. 183 (1991). Family Law Act 1975 (Cth) s. 90KA. Mohamed v. Mohamed and Another (2012) 47 Fam LR 683. Ibid. 690–693, 696.

1356. 1357. 1358. 1359. 1360.

Ibid. 704. Family Law Act 1975 (Cth) s. 10L. Ibid. s. 13H. Family Law Regulations 1984 (Cth) reg. 67B. Family Law Act 1975 (Cth) s. 60CA.

Part XI.

Religion and Culture

Joshua Neoh

442. Law, religion and culture intersect in the production and distribution of art as well as in the regulation of the media. They also intersect in civil society, specifically in attempts to balance the freedom of expression and the protection against religious vilification. Some Australian jurisdictions have introduced religious vilification legislation, while in other jurisdictions, a number of religious groups may fall within the ambit of racial vilification legislation. The connection between religion and culture is also seen in public debates involving a range of religious and ethnic groups, including right-wing Christian organizations, indigenous groups and the Muslim minority.

Chapter 1. Religion and Art 443. The interaction between law, religion and art is most pronounced in the area of blasphemy law.1361 It might come as a surprise to some that blasphemy law still exists in Australia under both common law and statute.1362 However, it has fallen into a state of disuse in Australia: the last successful prosecution of blasphemy was in 1871.1363 In 1998, an action for blasphemy was brought in the Supreme Court of Victoria by the Archbishop of the Catholic Archdiocese of Melbourne in the case of Pell v. The Council of Trustees of the National Gallery of Victoria.1364 444. The case involved an artwork by an international photographer, Andres Serrano. His artwork, titled ‘Piss Christ’, which depicted a crucifix immersed in urine, was to be part of a public art exhibition at the National Gallery of Victoria. The Archbishop sought an injunction to restrain the National Gallery of Victoria from publicly exhibiting the photograph on the basis that the public display of the work would constitute ‘the common law misdemeanour of publishing a blasphemous libel by reason of the fact that the photograph is so offensive, scurrilous and insulting to the Christian religion that it is beyond the decent limits of legitimate difference of opinion and is calculated to outrage the feelings of sympathisers with or believers in the Christian religion’.1365 445. To begin with, the preceding judge, Harper J, questioned whether the common law offence of blasphemy was actually transplanted from England to the colony of Victoria, given that Victoria never recognized an established church. Even if the common law offence of blasphemy was transplanted to Victoria, Harper J then questioned whether the law might have lapsed through desuetude. Even if the law had not lapsed through desuetude, Harper J found that the facts of the case did not satisfy what was an essential element of the offence: the risk of a breach of the peace. Ultimately, the case was dismissed without the Court making a ruling on whether the common law offence of blasphemy still existed – or had ever existed – in Australia. Given the rarity of blasphemy cases in Australia, it was unfortunate that the court did not seize the opportunity to clarify the status of blasphemy at common law.1366

1361. See, further, Pt VII, Ch 8.1. 1362. Crimes Act 1900 (NSW) s. 572; Crimes Act 1958 (Vic) s. 469AA; Criminal Code Act 1924 (Tas) s. 199. 1363. The last successful prosecution of blasphemy in Australia was the conviction of William Lorando Jones in 1871: R v. Jones (Unreported, New South Wales Supreme Court Quarter Sessions, Simpson J, 18 Feb. 1871) in Butterworths, Halsbury’s Laws of Australia, vol 23 (at 16 Jun. 1996) 365 Religion,’Status’ [365-695]. See also Helen Pringle, Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws, 34 U. New South Wales L.J. 316, 319 (2011). 1364. [1998] 2 Victorian Reports 391. 1365. Pell [1998] 2 VR 391, 392. See also the definition of blasphemy provided in Ogle v. Strickland (1987) 13 FCR 306, 317: ‘The essence of the crime of blasphemy is to publish words concerning the Christian religion which are so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with or believer in Christianity.’ 1366. Bede Harris, Case Note: Pell v. Council of Trustees of the National Gallery of Victoria, 22 Melb. U. L. Rev. 217, 229 (1998).

Chapter 2. Religion and Media 446. In the Broadcasting Act 1948 (Cth), the Australian Broadcasting Control Board had the responsibility ‘to ensure that divine worship or other matter of a religious nature is broadcast for adequate periods and at appropriate times’.1367 The Act went through several amendments in the subsequent decades. In its current form, the Broadcasting Services Act 1992 (Cth) continued to allow for the inclusion of religion as a condition of license, but in a more limited way. In Schedule 2, Part 3, Clause 7 of the Act, there is the provision that ‘each commercial television broadcasting licence is also subject to the following conditions:… the licensee will broadcast matter of a religious nature during such periods as the ACMA [the Australian Communications and Media Authority] determines and, if the ACMA so directs, will do so without charge’. ACMA has not made such a direction on the amount of religious material that is to be broadcasted, but by this time, most of the major churches that contributed to the provision of programmes for broadcasting were facing serious resource crises; by the end of the 1990s, most of these major religious production agencies had closed or become only minimally active.1368 447. Previously, the Federal Government had the power to prevent the import of blasphemous materials into the country under the Customs (Cinematograph Films) Regulations 1979 (Cth), made under the Customs Act 1901 (Cth), which regulated the importation of cinematograph films, video tapes and video discs.1369 The regulations were the subject of litigation in the case of Ogle v. Strickland.1370 In that case, the Censorship Board granted a license to a company to import a film called Je Vous Salue Marie (Hail Mary). Regulation 13, as it stood at that time, provided that a film shall not be registered if, in the opinion of the Board, the film is blasphemous, indecent or obscene. The appellants, who were priests of the Anglican and Roman Catholic Churches in Australia, sought judicial review of the decisions on the ground, inter alia, that the film was blasphemous. On appeal, the Federal Court ruled that the appellants had standing to sue: the priests were persons aggrieved because ‘to repel blasphemy is a necessary incident of their vocation’ – ‘to deny them standing would deny an important class in the community an effective means and procedure for challenging decisions of the kind involved in this case’.1371 While the ratio about the standing of religious ministers is still good law, the specific provisions against the importation of blasphemous cinematographic materials have been repealed. The Classification (Publications, Films and Computer Games) Act 1995 (Cth) repealed the previous Customs (Cinematograph Films) Regulations 1979 (Cth). Section 118 of the Broadcasting Act 1942 (Cth), prohibiting the broadcast of blasphemous material, was similarly repealed by the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 (Cth).1372

1367. Broadcasting Act 1948 (Cth) s. 6K(2)(b)(ii). 1368. Peter Horsfield, Down the Tube: Religion on Australian Commercial Television, 121 Media Intl. Austrl. 136–148 (2006). 1369. Customs (Cinematograph Films) Regulations 1979 (Cth), regs 2A, 4, 9,11, 12, 13 and 39. See Reid Mortensen, Blasphemy in a Secular State: A Pardonable Sin?, 17 U. New South Wales L.J. 409, 418 (1994). 1370. (1987) 71 ALR 41. 1371. Ibid. 53. 1372. Robert C. Blitt, Should an Australian Bill of Rights Address Emerging International Human Rights Norms? The Challenge of ‘Defamation of Religion’, in Freedom of Religion under Bills of Rights 86, 95 (Paul Babie & Neville Rochow eds, U. Adelaide Press 2012).

Chapter 3. Religion and Civil Society 448. To build a thriving and vibrant civil society that is founded on mutual respect, people need to be protected from being vilified on the basis of their race or religion – they need to be protected from hate speech. There is, however, a strong countervailing consideration: to build a politically engaged and democratic civil society, we also need to guarantee the freedom of expression. The question of how the state should balance these two competing demands – the freedom from vilification and the freedom of expression – has the source of legal and political controversy in Australia in recent times and is discussed in detail in Chapter 3.3 of Part IV.

Chapter 4. Religion and Public Debate 449. Religion features in public debates in Australia in different forms. At the most general level, there is the question of the role that religion – any religion – should play in the public arena: is it acceptable for religious arguments to be proffered as a public policy justification in the public sphere? This issue is brought to the fore in the same-sex marriage debate, which is as yet unresolved, and which is unlikely to be resolved anytime soon. The rise of right-wing Christian organizations adds fuel to the flame (§1). At a more specific level, two particular communities pose unique challenges to the current legal system as an impartial arbiter between competing religious demands: the indigenous peoples (§2) and the Muslim minority (§3). §1. RIGHT-WING CHRISTIAN ORGANIZATIONS 450. Right-wing Christian organizations are a ‘political and ideological movement’, which promotes ‘certain conservative views associated with Christianity’ under the rubric of ‘family values’.1373 Their vocal insistence on bringing their religious views into the public sphere – sometimes literally – has led them to clash with the state. An example of that is the case of Attorney-General (SA) v. Corporation of the City of Adelaide.1374 The case concerned two brothers, Caleb and Samuel Corneloup, who were members of ‘Street Church’, and whose fire and brimstone sermons were regular occurrences on Friday evenings on the streets of Adelaide’s central business district.1375 Their aggressive evangelism often involved heated condemnation of homosexuality. A by-law made by the Corporation of the City of Adelaide prohibited them from preaching and distributing printed materials to bystanders or passers-by without permission. They brought their case to the High Court of Australia and argued that the by-law infringed their implied freedom of political communication under the Australian Constitution. The High Court rejected their constitutional argument by ruling that the by-law was constitutionally valid as it was ‘reasonably adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’.1376 §2. INDIGENOUS PEOPLES 451. ‘When Australian law intersects with Aboriginal religion, the outcome is a massive collision … between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians’.1377 One of the scenes of the public collision is in the protection of sacred sites, the most dramatic of which is the Hindmarsh Island case. ‘A group of Njarringdjeri women at the mouth of the Murray River opposed a bridge to nearby Hindmarsh Island “for reasons that belonged to a secret body of knowledge”’ – the term ‘secret women’s business’ became one of the most hackneyed jokes when referring to this case.1378 The controversy lasted from 1993 to 2001, including a Royal Commission and a High Court challenge. ‘At the time the Royal Commission into the Hindmarsh Island case was debated in the Australian Parliament, the Left Labor front-bencher Anthony Albanese taunted conservative members by questioning their reaction if the inquiry were to be “into your beliefs; into whether you can prove the Holy Trinity exists”’.1379 There is, however, a significant difference between indigenous religious beliefs and other religions, which lies in ‘the secret nature’ of some indigenous religious beliefs – public debate in this area has revolved around how, and whether, the state should accommodate this ‘difference’.1380 §3. MUSLIM MINORITY 452. During the early years of Australia’s European settlement, the minority Irish-Catholic population was the ‘suspicious’ religious minority. When the first public Catholic Mass was celebrated in 1803, military officers were in attendance to ensure that the Irish did not use the religious service as a foil for sedition and conspiracy.1381 Today, the ‘suspicious’ religious minority is no longer Irish-Catholics, but Middle-Eastern Muslims. In this respect, two areas of law are subject to recurrent media scrutiny and public debate. The first area is the possibility of legal

pluralism, particularly the viability of the operation of sharia law in Australia. The second area of public controversy is town planning law. In 2002, a Muslim group submitted a planning application for an Islamic prayer centre in Annangrove; and in 2008, another Muslim group submitted a planning application for an Islamic school in Camden. Both locations are suburbs in the outskirts of Sydney. Both applications provoked significant public opposition from the location population, who were accused of Islamophobia.

1373. Nadirsyah Hosen & Richard Mohr, Introduction: Da Capo: Law and Religion from the Top Down, in Law and Religion in Public Life: The Contemporary Debate 3 (Nadirsyah Hosen & Richard Mohr eds, Routledge 2011). 1374. (2013) (2013) 249 CLR 1. 1375. Mike Sexton, Evangelist Preaching Ban Heads to High Court, 3 Oct. 2012, http://www.abc.net.au/news/2012-10-02/evangelists-fight-council-banon-preaching/4292164 (accessed 22 Dec. 2013). 1376. Attorney-General (SA) v. Corporation of the City of Adelaide (2013) 249 CLR 1. 1377. Ernst Willheim, Australian Legal Procedures and the Protection of Secret Aboriginal Spiritual Beliefs: A Fundamental Conflict in Law and Religion in Theoretical and Historical Context 214 (Peter Cane, Carolyn Evans & Zoe Robinson eds, Cambridge U. Press 2008). 1378. Hosen and Mohr, supra n. 1471, at 3. 1379. Ibid. 3. 1380. Willheim, supra n. 1475, at 236. 1381. Frank Brennan, Religion, Multiculturalism and Legal Pluralism, in Law and Religion in Public Life: The Contemporary Debate 71 (Nadirsyah Hosen & Richard Mohr eds, Routledge 2011).

Selected Bibliography

Australian Curriculum, Assessment and Reporting Authority (ACARA), General Capabilities in the Australian Curriculum (January 2013). P. Babie & Rochow N. (eds). Religious Freedom under Bills of Rights (University of Adelaide Press, 2012). P. Babie & Rochow N. ‘Feels like D? Vu: An Australian Bill of Rights and Religious Freedom’, Brigham Young University Law Review 3 (2010): 821. L. Beck. ‘The Constitutional Prohibition on Religious Tests’. Melbourne University Law Review 35, no. 2 (2011): 323. L. Beck, ‘Clear and Emphatic: the Separation of Church and State under the Australian Constitution’, University of Tasmania Law Review 27 (2008): 161, 169. T. Blackshield & Williams G. Australian Constitutional Law and Theory: Commentary and Materials, 5th ed. (Federation Press, 1996). G. Bouma. Australian Soul: Religion and Spirituality in the Twenty-First Century (Cambridge University Press, 2006). G. Bouma et al. Freedom of Religion and Belief in 21st Century Australia (Australian Human Rights Commission, 2011). P. Cane, E. Carolyn & Robinson Z. (eds). Law and Religion in Theoretical and Historical Context (Cambridge University Press, 2008). M. Clark. Short History of Australia. 2nd ed. (Macmillan Company, 1963). C. M. Evans. Legal Protection of Religious Freedom in Australia (Federation Press, 2012). M.A. Glendon, ‘Introduction’. In Universal Rights in a World of Diversity: The Case of Religious Freedom, edited by The Pontifical Academy of Social Sciences (Pontificia Academia Scientiarvm Socialivm, 2010), 3 www.vatican.va/roman_curia/pontifical_academies/acdscien/2011/passbooklet40.pdf. J.S. Gregory. Church and State (Cassel Australia, 1973). N. Hosen & Mohr R. (eds). Law and Religion in Public Life: The Contemporary Debate (Routledge, 2011). Human Rights and Equal Opportunity Commission. Article 18: Freedom of Religion and Belief (J.S. McMillan, 1998). Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia. Conviction with Compassion: A Report on Freedom of Religion and Belief (2000). D. Kathleen Ray (ed.), Theology That Matters: Ecology, Economy, and God (Fortress Press, 2006). L. Krieg & Babie, P. ‘The Space for Religion in Australian Society: An Assessment of the Impact of Australian Anti-Discrimination Legislation on Religious Freedom’. In Child Sexual Abuse, Society and the Future of the Church, edited by Hilary Regan (ATF Press, 2013), 83, 95. LexisNexis. Halsbury’s Laws of Australia. J. Micklethwait & Wooldridge A. God Is Back: How the Global Rise of Faith Is Changing the World (Penguin, 2009). S. McLeish. ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’. Monash University Law Review 18, no. 2 (1992): 207. New South Wales Law Reform Commission. Blasphemy, Report No 74 (1994). J. Puls. ‘The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees’. Federal Law Review 26 (1998): 139.

P. Ridge. ‘The Financing of Religion: Guidelines for Legal Regulation’. Adelaide Law Review 30 (2009): 85. J. Silver. ‘Understanding Freedom of Religion in a Religious Industry: Kosher Slaughter (Shechita) and Animal Welfare’. Victoria University of Wellington Law Review 42, no. 4 (2011): 671. R.C. Thompson. Religion in Australia: A History. 2nd ed. (Oxford University Press, 2002). J. Warhurst, ‘50 Years since Australia’s “Most Poisonous Debate”’. Eureka Street, 8 July 2012). J. Warhurst. ‘Religion and Politics in the Howard Decade’. Australian Journal of Political Science 42 (2007): 19.

Index The numbers here refer to paragraph numbers.

Aboriginal customary law, 210, 311, 329, 337–339 Aboriginal religion. See Indigenous religious beliefs Aboriginal sacred sites and objects, 322 Abortion, 103, 152, 153, 270, 273, 316 Anglican Church, 23, 24, 26, 28, 115, 124, 170, 252, 257 Art, 217, 443–445 Assisted Reproductive Treatment, 272, 274 Associations, 29, 44, 106, 107, 115–121, 124, 125, 159, 161, 184, 197, 236, 248, 249, 280, 300, 330, 340, 362, 366, 398, 402 Australian Christian Lobby, 142 Australian Human Rights Commission, 183, 310 Autonomy of religious communities, 122–125, 269 Baptists, 180, 187, 304 Bigamy. See Polygamy Blasphemy and blasphemous libel, 213, 219, 238, 311–315, 443, 445, 447 Blood transfusion, 269 Broadcasting, 446, 447 Burqua, 67 Catholicism and Catholics, 14, 15, 24, 215, 452 Chaplaincy, 167, 372, 376–378 Charitable status, 117, 343–354, 356 Charter of Human Rights and Responsibilities 2006 (Vic), 44–47, 136, 161 Children, 28, 32, 51–60, 87, 109, 123, 134, 137, 145, 146, 165, 171–172, 232, 247, 303, 317, 321, 326, 327, 337, 380, 387, 391, 403, 433, 434, 441–442 Child sexual abuse, 123, 145–146, 256, 257, 263, 266, 326, 327 Church of England. See Anglican Church Circumcision, 317 Civil society, 442, 448 Clothes and appearance, 51, 66–68 Collective freedom, 106–114 Commercial activities, 117, 300, 346 Confessions, 123, 145, 195, 255–263, 266 Conscientious objection, 51, 73–75, 103, 192, 272, 273, 390 Constitution (s116), 35–39, 62, 70, 73, 77, 78, 83–91, 108, 122, 137, 140, 145, 151, 246, 263, 312, 366, 372, 378, 405, 419, 435 Criminal law, 311, 312, 316, 329, 337

Cultural rights, 201, 206 Culture, 19, 32, 44, 50, 81, 87, 153, 161, 188, 206, 237, 275, 427, 442–452 Data protection, 195–199 Declaration on the Rights of Indigenous Peoples, 133, 211 Definition of religion, 91–99, 103, 201 Direct financing, 51, 366 Divorce, 426, 432–437, 439 Due process, 51, 124, 239–254 Ecclesiastical censure, 264 Education, 25, 27, 29, 51, 57, 59, 80, 184, 199, 203, 277, 279, 280, 286, 287, 300, 306, 308, 347, 348, 362, 372–397, 399–406, 409–413 Employment. See Labour Equality, 47, 76, 80, 152, 175, 301, 302, 307–310, 405, 429 Establishment clause, 37, 79, 88, 372, 405, 407 Ethnicity, 150, 236, 237, 328 Ethno-religious background, 236, 237, 279, 412 Euthanasia, 152, 153, 316 Expression, 4, 9, 22, 44, 51, 70, 102, 116, 121, 124, 132, 167, 170, 171, 177, 191, 198, 206, 213–238, 265, 266, 272, 279, 287, 296, 300, 307, 313, 316, 322, 330, 376, 378, 379, 387, 426, 442, 448 Fair trial, 239–245, 250, 254 Family law, 51–53, 57, 58, 60, 415–441 Financing, 340–371 Food export, 64–65 Food labelling, 63 Freedom of expression, 44, 51, 213–238, 442, 448 Genital mutilation, 311, 317 Health, 111, 196, 197, 218, 273, 276, 277, 292, 296, 300, 316, 347, 348, 352 Hinduism, 93 Holidays, 162, 172, 193, 305, 374 Home-schooling, 403 Homosexuality, 184, 296, 297, 300, 450 Human Rights Act 2004 (ACT) (HRA), 44, 45, 136 Immigration, 17, 33, 248, 420 Implied constitutional freedom of political communication. See Freedom of expression Income tax, 103, 154, 165, 167, 172, 194, 343, 356, 359, 372 Incorporation, 115–120, 125, 129 Indigenous peoples, 2, 21, 23, 32, 105, 130, 133, 134, 147–149, 211, 449, 451 Indigenous religious beliefs, 133–135, 147–149, 451 Indirect financing, 355 Integration of Muslims, 150 International Covenant on Civil and Political Rights (ICCPR), 40, 49, 106, 130–136, 196, 200, 217–219, 254, 292, 293, 310, 321, 399, 407 International Covenant on Economic, Social and Cultural Rights (ICESCR), 130, 131, 134 International law, 11, 128–134 Islam, 61, 63, 150, 228, 243, 318, 426, 439, 452

Islamic Council, 143 Jehovah’s Witnesses, 39, 77, 91, 92, 99, 100, 104, 105, 110, 234, 269, 366 Jews, 26, 29, 75, 116, 236 Labour, 154–194 Land tax, 362 Latter-day Saints, Church of Jesus Christ of, 16, 186, 281, 298 Marriage, 25, 59, 142, 152, 153, 243, 261, 270, 287, 296, 297, 316, 337, 369, 415–431, 433, 435, 438, 449 Media, 51, 144, 145, 242, 442, 446–447, 452 Medical deontology, 51, 267–279 Membership of religious groups, 122, 188, 226, 236, 241, 333 Minorities, 91, 133, 201, 229 Mormons. See Latter-day Saints, Church of Jesus Christ of Muslims, 150, 228, 231, 236, 452 National School Chaplaincy Programme, 376–378 Native title, 2, 32, 134, 137, 148, 149 Neutrality, 21, 79, 89 Niqab, 67, 244 Non-discrimination, 51, 103, 111, 113, 114, 122, 154, 165, 166, 172–177, 179, 182–184, 187, 190, 223, 272, 273, 277–310, 387, 394–397, 405, 408–410, 414 Oaths and affirmations, 69–72, 239 Organizational freedom, 106–114 Parents’ rights, 52 Penal law, 311–339 Politics, 137–144, 152, 153, 220 Polygamy, 424–426 Population, 1, 13–15, 26, 153, 228, 452 Prayer in Parliament, 137, 140 Prisoners, 200, 278, 279 Privacy, 44, 51, 67, 130, 195–211, 270 Procedural fairness, 250, 251, 253 Profanity offences, 315 Professional secrecy, 255–256 Property, 110, 116, 121, 124, 168, 249, 322–324, 340–342, 356, 363, 366, 369, 426, 438–440 Protestant, 24, 30, 140 Registration, 115, 345, 368, 370, 375, 400, 403, 417 Religious freedom, 36, 39, 40, 48, 60, 73, 74, 76, 77, 82–114, 127, 128, 131, 201, 229, 247, 263, 277, 281, 287, 292, 300, 334, 421 Religious observance (s 116), 35, 37, 39, 70, 77, 84, 100, 151, 246 Religious test (s 116), 35, 37, 84, 151, 378 Ritual slaughter, 61–63 Roman Catholic Church. See Catholicism Sacred sites and objects. See Aboriginal sacred sites and objects Secularity, 76, 81 Sentencing, 242, 311, 332–339

Sharia law, 143, 439, 452 Sikhs, 66, 236 Statistics, 394 Suicide, 296, 316 Symbols, 151, 412 Taxation, 51, 54, 165, 167–169, 172, 194, 340, 343–345, 355–358, 360, 364 Terrorism, 150, 318 Tolerance, 19, 21, 49, 81, 215, 400 Trade unions, 124, 172, 192 Undue influence, 342–343 Vilification, 222–224 Worship, 106, 112, 124, 130, 172, 181, 191, 218, 248, 279, 281, 311, 319, 323, 330, 349, 391–393, 446