Laws that interfere with freedom of religion

5.66     Freedom of religion is infringed when a law prevents individuals from exercising their religion or requires them to engage in conduct which is prohibited by their religion.^[80] Alternatively, the freedom will also be infringed when a law mandates a particular religious practice. There are few, if any, Commonwealth laws that can be said to interfere with freedom of religion in these ways.^[81]

5.67     Such challenges to freedom of religion as do exist in Australia can been seen as falling outside liturgical and worship settings and involving ‘questions of freedom of conscience in a commercial or service provision setting, the integrity of religious education, and the manifestation of belief in other ways’.^[82]

5.68     Encroachments arise in ‘balancing religious freedom with other protected freedoms, such as freedom of speech’.^[83] Issues remain about ‘the balance to be struck between the rights of religious organisations to conduct their affairs in accordance with their own beliefs and values and general non-discrimination principles in the community’.^[84]

5.69     This chapter identifies provisions in Commonwealth laws that may be characterised as interfering with freedom of religion in the areas of:

• anti-discrimination law;

• workplace relations laws;

• solemnisation laws under the Marriage Act 1961 (Cth); and

• counter-terrorism legislation.

Anti-discrimination law

5.70     The following section discusses the potential for anti-discrimination laws to limit freedom of religion, the operation of exemptions for religious organisations, and whether exemptions should be replaced with a general limitations clause.

5.71     Commonwealth anti-discrimination law makes it unlawful to discriminate against a person on the basis of a person’s personal attributes, such as their sex or sexual orientation, in areas of public life including employment, education and the provision of goods, services and facilities.

5.72     For example, under the Sex Discrimination Act 1984 (Cth) (SDA), it is unlawful to discriminate against a person on the basis of a person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding, and family responsibilities.^[85]

5.73     Some religious organisations discriminate on these and other grounds, for example by only appointing male priests and ministers, by excommunicating people who have sexual relationships outside marriage, or employing only teachers who are religiously observant in their schools. In some cases, such conduct will be covered by exemptions to anti-discrimination laws, as discussed below.

5.74     In other cases, conduct considered as giving effect to religious beliefs may constitute unlawful discrimination. FamilyVoice Australia observed that some of the grounds on which discrimination is prohibited in the SDA, for example, ‘directly contradict moral values of the Christian faith and other faiths’. From this perspective:

Many parts of antidiscrimination laws represent a direct assault on religious freedom by prohibiting some conduct that may be required to give effect to religious beliefs. Religious beliefs generally make moral distinctions between right and wrong, between good and bad, whereas antidiscrimination laws may declare conduct giving effect to such moral distinctions to be unlawful.^[86]

5.75     Arguments have been raised that the practices of religious organisations—including in some areas of employment—lie outside the ‘commons’ or public sphere, and should generally be excluded from government interference, including in relation to eliminating discrimination.^[87] Essentially, this appears a political argument for lower anti-discrimination requirements in some areas of activity.

5.76     Dr Joel Harrison and Professor Patrick Parkinson have defined the ‘commons’ as ‘places or encounters where people who may be different from one another in all kinds of respects, including gender, sexual orientation, beliefs and values, can expect not to be excluded’. The commons is not simply whatever is ‘public’ rather than ‘private’, but is more focused on ‘particular spheres of official authority and potentially most commercial enterprises, where non-discrimination should be expected given the norms of the institution or affiliation involved’.^[88]

5.77     However, beyond these commons, there lies a range of associations—‘natural, educational, charitable, voluntary, or commercial’. These are said to be ‘voluntary associations of the like-minded, those who share opinions, interests, or a shared identity and are not engaged in profit-making’.^[89] They include religious institutions, but also everything from a book club to a political party.^[90] Beyond the commons, it is argued that there is less need for imposing anti-discrimination requirements.

5.78     In contrast, the Human Rights Law Centre maintained that a line dividing public and private remains relevant because ‘it marks the point at which the religious beliefs of one person or group impact upon other people and society generally’. That is, when ‘religious practice affects those who do not subscribe to the religion, the Government’s regulatory capacity and responsibilities are increased’.^[91]

Exemptions for religious organisations

5.79     The accommodation or ‘special treatment’ in anti-discrimination law of those who observe religious beliefs is a point of tension.^[92] In Australia, debate in this area has crystallised around the exemptions for religious organisations in anti-discrimination legislation. Where exemptions do not apply, or are not broad enough, anti-discrimination law may be considered to encroach on freedom of religion.

5.80     Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:

• s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;

• s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’; and

• s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.

5.81     The effect of these exemptions is that a religious school, for instance, may lawfully choose not to employ a pregnant, unmarried teacher, in circumstances where this would be discriminatory conduct for a non-religious organisation (unless it would breach state or territory law).

Previous inquiries

5.82     There have been a number of parliamentary and other inquiries into the exemptions in the SDA.

5.83     In 2008, the Senate Standing Committee on Legal and Constitutional Affairs (Legal and Constitutional Affairs Committee) inquired into the effectiveness of the SDA in eliminating discrimination and gender inequality and recommended reform of the exemptions.^[93]

5.84     In 2011, the Australian Human Rights Commission’s report, Addressing Sexual Orientation and Sex and/or Gender Identity Discrimination, noted a divergence in opinions about the appropriateness of exemptions for religious organisations, and that most stakeholders who commented on the issue opposed the existing exemptions.^[94]

5.85     In 2013, the Legal and Constitutional Affairs Committee conducted an inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This inquiry also noted the range of opinions on the existence and operation of the exemptions in the SDA.^[95]

5.86     The Legal and Constitutional Affairs Committee recommended that the religious organisation exemptions in the SDA not apply to discrimination on the grounds of sexual orientation, gender identity and intersex status with respect to the provision of aged care accommodation.^[96]

5.87     This recommendation was reflected in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth), and was justified on the basis that ‘when such services are provided with tax payer dollars, it is not appropriate for providers to discriminate in the provision of those services’.^[97]

5.88     The Attorney-General’s Department undertook a public consultation process from 2011 to 2013 on a proposed consolidation of Commonwealth anti-discrimination laws. The Department’s Discussion Paper raised various models of exemptions in anti-discrimination law—including a general limitations clause—without settling on a preferred model.^[98] The consolidation process resulted in an exposure draft Human Rights and Anti-Discrimination Bill 2012, which was the subject of an inquiry by the Legal and Constitutional Affairs Committee.

5.89     Despite being primarily a consolidation exercise, the draft Bill contained several proposed changes to existing Commonwealth anti-discrimination law. These included a ‘streamlined approach’ to exemptions, incorporating a new general exception for justifiable conduct, and the preservation of religious exemptions with some limitations applying to Commonwealth-funded aged care services provided by religious organisations.^[99]

5.90     The Legal and Constitutional Affairs Committee recommended additional changes to exemptions including the removal of exemptions allowing religious organisations to discriminate against individuals in the provision of services, where that discrimination would otherwise be unlawful.^[100]

Views on the exemptions

5.91     As in these previous inquiries, submissions in this Inquiry reflected divergent views about the existence and form of the religious organisation exemptions in the SDA, and about exemptions to anti-discrimination laws generally. These included:

• arguments that the existing exemptions are too narrow, and that anti-discrimination laws therefore unjustifiably limit freedom of religion; and

• arguments that the existing exemptions are too broad, and undermine the effectiveness of anti-discrimination legislation; and

• objections, in principle, to the use of exemptions to generally applicable anti-discrimination laws as a way of defining freedom of religion.

5.92     Concerns were raised about the limited scope of the exemption in s 38 of the SDA.^[101] The Presbyterian Church of Queensland observed that the exemption ‘requires courts to weigh the nature of religious truth’, whereas the courts should instead ‘adopt an approach that permits the religious institution and religiously convicted individual the maximum scope to define their own doctrine’.^[102] FamilyVoice favoured a general exemption, like that in s 61A of the Defence Act 1903 (Cth), which exempts certain groups of people such as ministers of religion and others, from military service.^[103]

5.93     The ACL expressed concern about the interpretation given to the phrase ‘injury to the religious susceptibilities’ of adherents of a religion. In Griffin v The Catholic Education Office,^[104] ‘injury to the religious susceptibilities’ was found not to protect the Catholic Education Office from a negative finding where a ‘lesbian activist’ had applied to the Catholic Education Office to be classified as a teacher. The woman was suitably qualified, but her application was declined and she claimed discrimination on the grounds of sexual preference.

5.94     The Human Rights and Equal Opportunity Commission found that the exception from the definition of discrimination in s 3(1) of the (now repealed) Human Rights and Equal Opportunity Commission Act 1986 (Cth) did not apply, stating that:

If the employment of Ms Griffin would injure the religious susceptibilities of these students and their parents, the injury would be founded on a misconception. Indeed it would be not an injury to their religious susceptibilities but an injury to their prejudices. These injuries do not come within the terms of exception and are not a permissible reason for discriminating on the ground of sexual preference.^[105]

5.95     Given this interpretation, and the similar wording of the exemption in s 38 of the SDA^[106] and s 153(2)(b)(ii) of the Fair Work Act 2009 (Cth), the ACL stated that the existing exemptions for religious organisations ‘do not provide a high level of confidence for religious bodies that desire to ensure the integrity and ethos of their organisations can be maintained without legal disputes’.^[107]

5.96     In relation to exemptions for educational institutions, stakeholders noted that religious observance occurs in all facets of a student’s school experience and is not restricted to specific religious ceremonies, necessitating broader exemptions.^[108] Christian Schools Australia Ltd explained that religion is ‘not simply taught as a stand-alone subject’ but ‘permeates all that takes place and is lived out in the daily lives of the community of the school’. Religion is concerned with ‘all manner of conduct—the use of appropriate language, the conduct of relationships, attitudes, values and expression of matters of sexuality’.^[109]

5.97     In contrast, the Law Council of Australia submitted that ss 37 and 38 of the SDA reflect a reasonable balance between religious freedom and measures promoting non-discrimination.^[110] Other stakeholders opposed the exemptions for religious organisations entirely, or argue that they should be wound back^[111]—considering that the general application of anti-discrimination law is considered to be a justifiable interference with religious freedom.

5.98     Some stakeholders were concerned that exemptions undermine the effectiveness of anti-discrimination legislation.^[112] For example, it was suggested that the employment practices of some religious educational institutions ‘have a significant impact on the ability of people, including women, gay and lesbian persons, to find and remain in work and it is unacceptable that they not be subject to the same laws as other significant employers’.^[113]

5.99     There are also arguments that exemptions for religious schools give the message to children that ‘discrimination is relatively minor in comparison to other forms of harm against which the law protects and from which most religious schools have no exemptions’ and that ‘equality is a goal of limited value’.^[114]

5.100  The possible negative effects on lesbian, gay, bisexual and transgender (LGBT) Australians were highlighted by a number of stakeholders.^[115] The Victorian Gay and Lesbian Rights Lobby and NSW Gay and Lesbian Rights Lobby (Vic/NSW Gay and Lesbian Rights Lobby) submitted that blanket exemptions for religious exemptions fail to balance the human right of freedom of religion with freedom from discrimination.

Indeed, such wide-ranging exemptions give priority to religious freedom at the expense of the freedoms of LGBT Australians and allow LGBT people to be discriminated against as they seek to obtain an education and access healthcare, themselves fundamental human rights.^[116]

5.101  The Public Interest Advocacy Centre (PIAC) accepted that a religious group may need to discriminate ‘on occasions to ensure ongoing manifestation of the core tenets of its faith’, but recommended that current religious exemptions be amended to require that religious organisations justify discrimination in the specific circumstances of each proposed act.^[117]

Exemptions and public funding

5.102  Some stakeholders questioned exemptions from anti-discrimination legislation for religious organisations that receive public funding or perform public services,^[118] which may include, for example, aged care, education, adoption, employment assistance and child welfare.

5.103  On the other hand, regardless of public funding, there is an argument that, for example, the existence of religious schools that have some degree of autonomy from state control, is an important part of a diverse and plural society.^[119]

5.104  Religious bodies raised a number of arguments against using public funding as a reason to remove exemptions. The Presbyterian Church of Queensland submitted that the ‘mere receipt of funding does not alter or limit the legitimacy of the rationale for the separate treatment of the organisation’—that is, the protection of religious freedom. Further:

There is also a danger in limiting religious freedom to only those religious entities that do not engage in the commercial sphere. The right to religious freedom (both as classically understood and under contemporary international instruments) is not limited to religious institutions, it applies to all.^[120]

5.105  The ACL suggested that placing restrictions on religious organisations that receive public funding ‘would itself be a form of discrimination against those organisations, as [would be] a refusal to grant funds to certain bodies on the basis of their religious beliefs’.^[121] It submitted:

Religious organisations receiving taxpayer funds should be able to determine their own identity without government interference. It is not the role of government to interfere in a religious organisation’s mission or vision.^[122]

5.106  These stakeholders also observed that funding restrictions could lead to the withdrawal of religious organisations from the provision of services, with detrimental effects on the autonomy and choice of the recipients of services.^[123] Religious service providers were seen as contributing to ‘the common good of society’, and public support, rather than endorsing a particular religious ‘worldview’, is instead an acknowledgment that a ‘pluralistic society sees charitable and social engagements operating in diverse ways for the collective good’.^[124]

5.107  A particular concern was that ‘forcing religious charities and bodies to adhere to laws that prevent them from eliminating job applicants who don’t share in their worldview is likely to change the ethos and vision of the organisation’, and make it less likely that people who are motivated by religious values and principles would make themselves available for such work.^[125] Parkinson submitted that religious organisations should have a right to ‘select staff who fit with the values and mission of the organisation, just as political parties, environmental groups and LGBT organisations do’ and that to select on the basis of ‘mission fit’ is not discrimination.^[126]

A general limitations clause?

5.108  Some stakeholders favoured the introduction of a ‘general limitations clause’ as an alternative to the current religious organisation exemptions.^[127] Such a clause would clarify that conduct which is necessary to achieve a legitimate objective, including freedom of religion, and is a proportionate means of achieving that objective, is not discrimination.^[128]

5.109  Some stakeholders objected to the model of the current exemptions, arguing against the practice of defining religious freedom by way of exemptions from generally applicable laws.^[129] Parkinson and Aroney have observed that anti-discrimination laws may diminish freedom of religion if ‘freedom of religion is respected only grudgingly and at the margins of anti-discrimination law as a concessionary “exception” to general prohibitions on discrimination’.^[130]

5.110  The ACL argued that ‘religious freedom should not be considered as a concession to more fundamental freedoms from non-discrimination’.^[131] It summarised objections to the current exemptions model as follows:

The language of exemptions sends a message of ‘special pleading’ or preferential treatment towards religious bodies. Rather than being the rule, or the assumption, freedom of religion is relegated to being the exception, or the special accommodation. This is a reversal of the place of fundamental freedoms in a free society such as Australia. If the narrative promoted by the relevant legislation clearly articulated the limits of discrimination law and the assumption of freedom, such resentment or confusion could be ameliorated.^[132]

5.111  Parkinson and Aroney have proposed a general limitations clause that redefines discrimination to include limitations on freedom of religion where ‘necessary’.^[133] The proposed definition is comprehensive and combines direct and indirect discrimination. The definition includes a proportionality test and what is not discrimination—due to religious beliefs—within the definitional section itself, rather than expressing it as a limitation, exception or exemption:

1.   A distinction, exclusion, restriction or condition does not constitute discrimination if:

      a.   it is reasonably capable of being considered appropriate and adapted to achieve a legitimate objective; or

      b.   it is made because of the inherent requirements of the particular position concerned; or

      c.   it is not unlawful under any anti-discrimination law of any state or territory in the place where it occurs; or

      d.   it is a special measure that is reasonably intended to help achieve substantive equality between a person with a protected attribute and other persons.

2.   The protection, advancement or exercise of another human right protected by the International Covenant on Civil and Political Rights is a legitimate objective within the meaning of subsection 2(a).^[134]

5.112  In 2008, the Legal and Constitutional Affairs Committee recommended that the exemptions in s 30 and ss 34–43 of the SDA—including those for religious organisations—be replaced by a general limitations clause.^[135] In making this recommendation, the Committee wrote that such a clause would permit discriminatory conduct within reasonable limits and allow a case-by-case consideration of discriminatory conduct. This would allow for a more ‘flexible’ and ‘nuanced’ approach to balancing competing rights.^[136]

5.113  The Vic/NSW Gay and Lesbian Rights Lobby submitted that broad permanent exemptions for educational institutions and religious bodies should be removed and replaced with a general justification defence or general limitations clause. Such a clause, it said, should set out criteria for evaluating circumstances in which religious rights and interests should take precedence over the right to freedom from discrimination, and how these competing rights should be balanced.^[137]

5.114  In this context, PIAC observed that the 2011–13 process directed towards consolidation of Commonwealth anti-discrimination laws may have represented ‘a missed opportunity to recast the current broad exemptions’—including the exemptions for religious organisations under the SDA—so as to comply better with ‘orthodox principles of international human rights law’.^[138]

Conscience clauses

5.115  Others argued for more explicit carve-outs from anti-discrimination law for religious organisations or individuals. The Wilberforce Foundation proposed a model exemption based on a so-called ‘conscience clause’—arguing that the SDA should provide that discrimination is only unlawful and actionable if the service which has been denied is not reasonably obtainable elsewhere.^[139]

5.116  FamilyVoice submitted that ss 37 and 38 of the SDA should be replaced with ‘a simple provision for exemption from the Act for persons, natural or corporate, whose conscientious beliefs do not allow them to comply with the Act, or with particular provisions of the Act’.^[140]

5.117  Suggestions have been made that, if legislation is enacted to provide for same-sex marriage, wedding service providers should be able to conscientiously object to providing associated services. This issue is discussed further below, in relation to the Marriage Act.

Workplace relations laws

5.118  Workplace relations laws contain provisions that prohibit employers from discriminating against an employee on the basis of a protected characteristic. This may be considered as interfering with freedom of religion as it may affect the employment practices of religious organisations that may wish to select staff who conform to the beliefs of that organisation.^[141]

5.119  For instance, in some circumstances, a religious organisation or body may seek to exclude a potential employee where the person does not adhere to the teachings of that religious organisation.

5.120  The Fair Work Act 2009 (Cth)provisions include the following:

• s 153, which provides that a modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

• s 351(1), which relates to the General Protections division of the Act and provides that any adverse action taken against an employee on the basis of a protected attribute or characteristic is prohibited; and

• s 772(1)(f), which provides that a person’s employment may not be terminated on the basis of a protected attribute, subject to exceptions in s 772(2)(b).

5.121  Freedom 4 Faith proposed several changes to the Fair Work Act including imposing a duty on employers to make reasonable adjustment for an employee who has a conscientious objection to performing a particular duty.^[142] FamilyVoice also considered that the Act should include an exemption for persons whose conscientious beliefs do not allow them to comply with it.^[143]

5.122  In general, the Fair Work Act provisions did not attract much adverse comment. The anti-discrimination provisions of s 351 contain broad exceptions, including where the adverse action is taken by a religious institution ‘to avoid injury to the religious susceptibilities of adherents of that religion or creed’.^[144] Further, these provisions do not apply to action that is not unlawful under the relevant state and territory anti-discrimination law.^[145]

Conclusion–anti-discrimination laws

5.123  While there is no obvious evidence that Commonwealth anti-discrimination laws significantly encroach on freedom of religion in Australia, there is nevertheless a degree of community concern, as evidenced by the 2015 religious freedom roundtables convened by the Australian Human Rights Commission (AHRC).^[146]

5.124  Any concerns about freedom of religion should be considered in future initiatives directed towards the consolidation of Commonwealth anti-discrimination laws. In particular, further consideration should be given to whether freedom of religion should be protected through a general limitations clause rather than exemptions.

5.125  Other opportunities to review concerns about freedom of religion and anti-discrimination law may arise in future initiatives directed towards the harmonisation of Commonwealth, state and territory anti-discrimination laws. At present all states, except New South Wales and South Australia, and both territories, have legislation making it unlawful to discriminate on the grounds of religious belief. The definitions of religious discrimination and the scope of exemptions differ.^[147] Commonwealth law does not make discrimination on the basis of religion unlawful, although the President of the AHRC has the power to endeavour, by conciliation, to effect a settlement of a complaint.^[148]

Marriage Act

5.126  The policy justifications for government regulation of marriage (and other relationships) include ensuring that people who enter into marriage do so with full consent, preventing polygamy and incest, and maintaining government records for taxation and other regulatory purposes.

5.127  Marriage, under the Marriage Act, has some important legal consequences, including in relation to taxation, entitlement to health and welfare benefits and the succession to property on death. Other forms of marital or marriage-like relationship, including those recognised by religions, may or may not have similar legal consequences.^[149]

5.128  The Marriage Act gives direct legal effect to marriages solemnised by authorised religious celebrants. In other jurisdictions, as in some European countries, the civil ceremony creates the legal marriage, while the religious ceremony has no legal effect.^[150]

5.129  The Act establishes three categories of celebrants authorised to solemnise marriages:

• ministers of religion of a recognised denomination, proclaimed under s 26 of the Act, who are nominated by their denomination and registered and regulated by state and territory registries of births, deaths and marriages;

• state and territory officers who are authorised to perform marriages as part of their duties and are regulated by state and territory registries of births, deaths and marriages; and

• Commonwealth-registered marriage celebrants who are authorised under pt IV, div 1, subdiv C of the Act to perform marriages, and regulated through the Marriage Celebrants Program operated by the Attorney-General’s Department.^[151]

5.130  The solemnisation provisions in the Marriage Act may have some implications for freedom of religion and, in particular, s 101, which states:

A person shall not solemnise a marriage, or purport to solemnise a marriage, at a place in Australia or under Part V unless the person is authorised by or under this Act to solemnise marriages at that place or under that Part.^[152]

5.131  Section 113 deals with second marriage ceremonies and, among other things, provides that ‘a person who is not an authorised celebrant does not commit an offence against section 101 by reason only of his or her having performed a religious ceremony of marriage’ between parties who have complied with s 113(5).^[153] Section 113(5) allows a second marriage ceremony between two persons who are already legally married to each other under Australian law, provided certain formalities are followed ensuring that all parties involved in the religious ceremony are aware that it has no legal standing under the Marriage Act.

5.132  In Nelson v Fish, the Federal Court held that the statutory scheme for regulating the class of persons who may solemnise marriages ‘does not disclose any basis upon which it could be argued that it interferes with religious freedom in a way that conflicts with s 116’ of the Constitution.^[154] The Court also observed that the provisions of s 113(5) ‘preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister’.^[155]

5.133  Parkinson and Krayem argued that the provisions of the Marriage Act are a ‘fetter on religious freedoms’, as they ‘operate as restraints upon conducting religious wedding ceremonies other than in accordance with the Act, and indeed s 101 makes doing so a criminal offence’.^[156] They suggested that s 101, read along with s 113 make it unlawful to conduct a religious wedding unless it occurs after a civil marriage, and is conducted by an authorised celebrant.

5.134  Criminal sanctions for conducting marriages other than in compliance with these provisions of the Marriage Act may be seen as an unjustifiable burden on an important form of religious expression, particularly as there may be some religious leaders who are unaware of the offences. Parkinson and Krayem submitted that the criminal sanctions have the potential to produce more major issues if the Marriage Act were to be amended to permit same-sex marriages, because some faith organisations, or individual ministers, may choose to conduct weddings as a purely religious ceremony or sacrament.^[157]

5.135  On the other hand, the Marriage Act may be interpreted as regulating legal marriages, and not purely religious ceremonies. On this view, the criminal sanctions in s 101 only cover situations where an unauthorised person solemnises or purports to solemnise a ‘legal’ marriage under the Marriage Act.^[158] Section 101 would not preclude an unauthorised minister of religion from conducting a purely religious ceremony of marriage, where it is not intended or purported to have legal effect, or preclude an authorised minister from conducting a purely religious ceremony of marriage. The Marriage Act would not make it unlawful to conduct a religious wedding unless it occurs after a civil marriage, nor require that a purely religious wedding be conducted by an authorised celebrant.

5.136  Parkinson and Krayem propose that to avoid interference with freedom of religion, the law should be amended to allow couples to ‘choose the religious celebrant of their choice and be able to register their own marriages if they choose to go through a religious ceremony with someone who is not an authorised celebrant’ (provided that it is made clear that the religious ceremony has no legal effect).^[159]

5.137  This outcome may already be possible under the Marriage Act—in that, following a religious ceremony, a couple may undergo a civil ceremony. However, reforms to clarify the position, or to more clearly separate the civil act from the religious act of solemnising the marriage may be desirable. Religious celebrants could cease to be, in this sense, agents of the state, and able to dedicate themselves to religious rites unburdened by state imposed administrative duties—fully separating church and state.

Same-sex marriage

5.138  A number of stakeholders raised concerns about possible implications for freedom of religion, if the Commonwealth were to legislate to permit same-sex marriage.^[160] These include that celebrants may face legal consequences under anti-discrimination law for refusing to solemnise or register marriages; and, more broadly, that wedding service providers should be able to conscientiously object to providing associated services.

5.139  Section 47 of the Marriage Act provides that nothing in the solemnisation provisions imposes an obligation on an authorised celebrant, being a minister of religion, to solemnise any marriage. However, this provision does not protect other celebrants, including religious celebrants who are not part of a recognised denomination.

5.140  It has been suggested that, in the event that the Marriage Act is amended to provide for same-sex marriage, consideration should be given to whether celebrants who have a genuine religious or conscientious objection to solemnising a marriage of persons of the same sex should be able to refuse to solemnise a marriage of persons of the same sex.

5.141  Provision could be made, for example, for authorised celebrants to register a genuine religious or conscientious objection with registrars of marriage celebrants. Such provisions, protecting a right to ‘conscientiously object’, have been advocated by the Australian Human Rights Commissioner, Tim Wilson.^[161]

5.142  In the United Kingdom, the Marriage (Same Sex Couples) Act 2013 (UK) includes a ‘religious protection’ clause, which provides that a person ‘may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)’ to conduct or otherwise participate in a same-sex marriage.^[162]

5.143  The Vic/NSW Gay and Lesbian Rights Lobby agreed that provisions to make it clear that religious celebrants cannot be compelled to marry same-sex couples would ‘strike an appropriate balance’. However, in their view, permitting civil celebrants, as distinct from religious celebrants, to discriminate on the basis of sexual orientation would be unjustifiable.^[163] Another stakeholder stated that allowing civil celebrants to refuse to solemnise same-sex marriages ‘set a concerning precedent whereby individuals would be able to discriminate in service delivery on the basis of their personal religious beliefs’.^[164]

5.144  The Parliamentary Joint Committee on Human Rights (Human Rights Committee) considered the obligations of civil celebrants in its review of the private members’ Marriage Legislation Amendment Bill 2015 (Cth).^[165] The effect of the Bill would be that civil celebrants (who are not ministers of religion) would be prohibited from refusing to solemnise same-sex marriages on the ground that the couple are of the same sex. This would apply even if the civil celebrant had a religious objection to the marriage of same-sex couples.^[166] The majority of the Human Rights Committee concluded that any limitation on the right to freedom of religion was proportionate to the objective of promoting equality and non-discrimination. However, a number of Committee members considered that ‘this limitation is not justified as the bill does not provide civil celebrants with the option to refuse to solemnise marriages that are contrary to their religious beliefs’.^[167]

5.145  There have also been suggestions that the law should also permit individuals to conscientiously object to providing goods, services and facilities in relation to the solemnisation of a same-sex marriage.^[168]

5.146  Parliament has made it unlawful to discriminate in the provision of goods, services and facilities on the grounds of sexual orientation (with some limited exemptions for religious organisations, but not otherwise for individuals). As Lady Hale, the Deputy President of the Supreme Court of the United Kingdom has observed:

Denying some people a service which you are prepared to offer others is deeply harmful to them. It is reminiscent of the days when women were not allowed to order their own drinks at the bar in certain establishments and landlords were allowed to say ‘no blacks here’. It is a denial of their equal dignity as human beings.^[169]

5.147  It is not clear that freedom to manifest religion or belief should extend to refusing to provide, for example, a wedding cake for a same-sex couple.^[170] Protecting individuals from discrimination in ordinary trade and commerce seems a proportionate limitation on freedom of religion.

Counter-terrorism legislation

5.148  Some offences in the Criminal Code (Cth) may be characterised as indirectly interfering with freedom of religion, as they may restrict religious expression. These laws include:

• Section 80.2C, which creates the offence of ‘advocating terrorism’. This may be seen to limit religious expression by limiting the capacity of individuals to express religious views which might be radical and controversial.

• Section 102.1(2), which provides that an organisation may be specified as a terrorist organisation, making it an offence to be a member of that organisation, to provide resources or support to that organisation, or to train with that organisation. Some argued that this provision risks criminalising individuals for expressing radical, religious beliefs.^[171]

• Section 102.8, which makes it an offence to associate with a terrorist organisation. There may be interference with religious freedom where a person is seen to associate with a member of a terrorist organisation who attends the same place of worship or prayer group. While there is a defence in s 102.8(4)(b) where the association ‘is in a place being used for public religious worship and takes place in the course of practising a religion’, this may place a significant burden on defendants to prove that their association arose in the course of practising their religion.

Advocating terrorism offence

5.149  The Gilbert and Tobin Centre for Public Law raised concerns about the effect of s 80.2C of the Criminal Code on freedom of religion, arguing that it limits the capacity of individuals to express religious views which might be radical and controversial.^[172] Section 80.2C was introduced into the Criminal Code by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

5.150  The Gilbert and Tobin Centre argued that the offence is likely to have a ‘significant chilling effect’ on religious expression, as individuals may refrain from discussing their religious views and current events overseas out of fear they will be prosecuted.^[173]

5.151  The Human Rights Committee noted that this provision engaged the right to freedom of expression in art 19.3 of the ICCPR. The Committee sought further information from the relevant Minister about the necessity for this provision, writing that a number of existing provisions in the Criminal Code may apply to speech that incites violence:

such incitement offences may capture a range of speech acts, including ‘urging’, ‘stimulating’, ‘commanding’, ‘advising’ or ‘encouraging’ a person to commit an unlawful act.^[174]

5.152  The Human Rights Committee concluded that the provision was ‘likely to be incompatible with the human right of opinion and expression’.^[175] The Committee’s comments were primarily related to restrictions on free speech and are discussed in Chapter 4.

5.153  It is difficult to regard the advocacy of terrorist acts, as defined in div 101 of the Criminal Code as being an exercise of religious freedom, unless the advocacy of terrorism is part of a religious creed. If it were, exercise of the freedom would be likely to directly harm the adherents of other religions (or of none), and limitations would be justified.