Freedom of Religion in Australia

Abstract

This paper evaluates the legal protection of freedom of religion in Australia by examining legislation and key cases in the light of international human rights standards. A focus of the paper is to examine how conflicts between religious freedom and other rights are resolved and to unpack the underlying conception of religion evident in both legislation and relevant cases. While at face value freedom of religion is afforded significant protection in Australian law, the legislation and cases demonstrate that there are significant pressures on religion, stemming in particular from situations where religious freedom conflicts with other rights. The legislation and cases reveal an underlying conception of religion and its relation to other rights which will likely lead to further incursions on religious freedom unless legislative changes are made to address the issue. In light of the well understood principle that there is no hierarchy of rights, it is argued that there should be greater acknowledgment in Australian law that the right to freedom of religion is of equal importance to other rights, with implications for the way in which religion is defined, conscience is protected, and the manner in which the harm principle is deployed in resolving conflicts between rights. The crucial task facing courts and policymakers is to develop a principled basis upon which to resolve conflicts of rights. In undertaking that exercise a more balanced and accurate understanding of international human rights is needed, including recognition that all rights are of equal importance and that limitations on the free exercise of religion are the exception and not the rule, and may only be imposed where strictly necessary, in a proportionate manner.