The Freedom to Discriminate: Problems with Justifying Religious Exemption Laws in Australia

Laura E Fox
20 min readAug 24, 2023
An activist carries a placard saying ‘God Is Gay’ during Katowice Pride Parade in Poland. (NurPhoto via Getty/ Artur Widak)

The debate of ‘Freedom of religion’ gained prominence following marriage equality in Australia; and continues today with conservative Christian bodies opposing changes to anti-discrimination laws. Currently religious exemptions contained in both the Age Discrimination Act and the Sex Discrimination Act, enable religious bodies to exercise discrimination against any individual that may injure religious sensitivities. Their principal argument is that any concessions to this absolute right would amount to a violation of their freedom to practice religion without interference from the law; a principle that is enshrined in section 116 of the Australian Commonwealth Constitution. Moreover, while these exemptions have practical implications for the fair treatment and equal opportunities of the LGBTQI+ community, the Constitutional provision that enables these exemptions requires closer scrutiny.

The concept of liberty as freedom remains central to this debate, wherein opposing rights are weighed against each other: on one side, there is the right to religious freedom which enables discriminatory practices; on the other, the right of LGBTQI+ individuals to fully participate in society with freedom from discrimination. Where freedom is the ability to act without restraint, liberty is the responsible use of freedom subject to the limitations of the law. To argue that freedom be given a greater right over liberty is to assert that the rule of law ought not to apply to specific individuals, a notion that is unfeasible in modern society. Through a lens of philosophical theories of justice, this essay will critique the justifiability of “freedom of belief” in the context of exemptions granted to Christian bodies and their constituents under anti-discrimination laws and section 116 of the Constitution when balanced against the rights of the LGBTQI community.

I. From ‘Balancing Rights’ to ‘Freedom of Religion’

According to Elenie Poulous, an academic who has extensively researched the subject of exemption laws and LGBTQI+ rights, the concept of ‘freedom of religion’ has evolved from its more non-partisan precursor of ‘balancing rights’, to a more aggressively right-wing stance. Through her research on submission papers from Christian lobby groups, Poulous has observed that where ‘balancing rights’ focused on bringing about a neutrality of the law, the latter aims at securing dominant rights that can be exercised over the LGBTQI+ community. Prior to the public debate of Christian interests, religious freedom in Australia revolved around supporting minority religious groups, such as Islam, which emerged due to increased migration in response to international conflicts, terrorism and political unrest in the Middle East during the early 2000s. During this period, followers of Islam and other minority religions experienced discrimination, vilification and prejudice from the Australian community.

However, the objective of protecting minority religious freedoms shifted when the concept of “balancing rights” gained traction from a growing political discomfort of Christian groups triggered by both government and societal acceptance of LGBTQI+ rights. Specifically, between 2014 and 2017, the introduction of marriage equality reform in Commonwealth law fuelled the political divide. While the majority of Australians support same-sex marriage, the notion challenged the foundational teachings of Christianity around traditional ideas of sex, marriage, and family. Consequently, this triggered a heated public debate about the impact of LGBTQI+ rights on Christian organisations.

Poulous identifies this shift in the 2011 paper titled Freedom of Religion & Belief in 21st Century Australia published by The Human Rights Commission; which hailed a substantial transition in discourses from ‘balancing rights’ to ‘religious freedom’ — with religious freedom framed not around the right to be protected from discrimination because of religion, but to the right to discriminate in the name of religion. It is the claim for religious freedom to exist as an absolute right. For this reason, this discourse no longer necessitates a simple balancing act of religious beliefs and community appetites for multiculturalism, but rather it demands a moral analysis that centres on justifying discriminatory exemptions in Australian law.

II. Founding Philosophical Principles: Liberty, Justice and Moral Personality

Liberty and freedom as it exists in society has been the bread and butter of political and legal philosophers. Locke’s social contract theory is informed by natural rights, encompassing liberty and the right to allow others to lead a virtuous life. Bentham expanded on Hume’s account of social utility by asserting that utilitarianism serves as a politically beneficial philosophy aimed at achieving the consequential good for the majority. Meanwhile, John Stuart Mill introduced the harm principle as a means of promoting justice and well-being. Last, Dworkin advocated for a moral interpretation of the Constitution, inferring obligations on judges to read the Constitution in its most morally attractive light. However, in justifying an abolishment to exemption laws, this essay will turn to Rawlsian principles of liberty, justice and moral personality.

When liberty is enshrined in law, it signifies a collective societal commitment to principles of equity, fairness and justice.

A. The Right to Liberty

Liberalism at its heart, starts with the premise that political authority and the law must be fundamentally justified, with the onus of proof for justification resting with those who oppose it. Christian advocates often argue that Article 4, paragraph 2 of the ICCPR, holds that liberty to freedom of thought, conscience and religion is an inherent non-derogable right. Nonetheless, Article 18, paragraph 3 provides:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals, or the fundamental rights and freedoms of others.

This paragraph highlights the significance of respecting the fundamental rights of others when considering the authoritative weight given to unrestrained religious freedom. Although arguments against religious exemptions can be supported by health and moral considerations, the right to liberty plays a crucial role in shaping legal framework. It in essence, a Kantian value of self-autonomy that supports liberty as a state of being free to determine one’s virtues within a society to the exclusion of oppressive restrictions imposed by authorities. Liberty, when featured in a just society, is the practice of a government supporting the self-determination of its citizens by enabling the pursuit of opportunities. A government founded in libertarianism recognise that through fostering human dignity and the intrinsic value of every individual, liberty amounts to not only the fulfilment of a person’s true potential but further adds to the richness, progression and development of society. In essence, the nature of liberty extends beyond individual benefit — it is the cornerstone of a just society and is vital to fostering social progress.

This principle, which is upheld by the International Covenant on Civil and Political Rights (ICCPR), our Constitution and anti-discrimination laws, is reflected in numerous policies that regulate the economic, societal and political opportunities available to members of society. These measures are intended to safeguard individuals and groups like the LGBTQI community from arbitrary use of power and oppression. When liberty is enshrined in law, it signifies a collective societal commitment to principles of equity, fairness and justice. To argue that the liberty of others ought to be overridden requires a substantially sound justification to be put forth by Christian bodies.

B. Justice and Natural Law Principles

A significant portion of philosophy is dedicated to natural law principles which are concerned with issues of justice and morality in regards to public policy. These discussions have influenced the development of democratic societies and constitutional law in both the United States and Australia. Natural law principles have three foundational tenants:

(i) Laws can and do create moral obligations;

(ii) That this legal-moral obligation can only be defeated by a serious afront to immorality and injustice; and

(iii) That judicial and legal deliberation, reasoning and judgement includes both natural (moral) law and positive (pure) law.

Natural law principles of justice in society underscores the importance of addressing disadvantages faced by marginalised individuals or groups; as well as supporting the moral argument for distributive justice which involves rectifying social injustices even at the expense of those who hold societal and political privileges. In applying natural law principles, the following argument emerges :

(i) Anti-Discrimination laws create moral obligations;

(ii) A serious immoral or injustice to Christian bodies must exist to override these obligations; and

(iii) Moral and legal principles must be considered in rationalising any exemption to these obligations.

C. Moral Personality

Rawls’ theory of moral personality emerges when a society is effectively regulated and well-ordered; and deep and pervasive differences of public discourses such as religion, philosophy or ethics arise and an agreement cannot be reached. Moral personality serves as the criterion for determining an individual’s ability to comprehend the concept of what is good — and by extension, what is just. It is those who meet the requirements of moral personality who can be considered rational beings capable of applying principles of fairness to social cooperation and political justice. To be a person of moral personality one must harbour two moral powers:

(i) The capacity for a sense of justice, where such capacity is to understand, apply and act from (and not merely in accordance with) the principles of political justice; and

(ii) The capacity for the conception of the good, which entails having, revising and rationally pursuing a conception of good whereby the ‘good’ is aligned with the value in human life and the pursuit of a fully worthwhile life.

These two principles are regarded as the guiding principles for individuals who are at liberty to pursue their own ends within a just and well-ordered society. Rawls’ provides that the concept of the rational person is one who does not accept limitations on liberty unless it is justified. Additionally, a rational person is one who is not ready to accept a loss to themselves if others are experiencing social inequalities. To Rawls, the rational person is a moral person, and these two principles are entwined with pursuing a good that aligns with principles of liberty and justice.

III. Debates on Section 116 of the Constitution

Understanding the application of section 116 in contemporary arguments for religious freedoms requires discerning its original intent through a historical analysis of its drafting and its appropriation by Christian organisations in supporting claims for religious exemptions.

A. The historical context of section 116

Australia’s colonial ties to England, along with the connections England had with the Catholic Church of England dating back to the sixteenth century, played a significant role in the religious discourse during the drafting of the Constitution. Specifically, public deliberation centred around the nature of church-state relations and the role of religion in shaping Australia’s future. As a new colony, Australia saw an opportunity to distance itself from the beliefs and practices of a state-entrenched dominant religion, where such ties were viewed as a limitation on the exercise of independent power. Instead, the goal was to forge a modern political framework that was not as strictly bound by influential religious institutions — such as the Church of England — and establish a culture of secularism where the Church, while concessionally acknowledged in the Constitution, would no longer be embedded within government affairs. However, this transition towards separation recognised that this would hinder the establishment of Christianity in Australia and disenfranchise members of minority religions. The solution involved a concession for temporary government funding aimed at establishing diverse Christian communities throughout the Commonwealth. With this diversification of theology, the Church of England, while not wholly usurped of its power, was disestablished as a dominant political-religious body in Australia.

It is this historical context of protecting minority religions which informs the principle of religious freedom that is entrenched in section 116 of the Constitution. In essence, s 116 was not developed in the context that it exists today — where Christianity operates as the majority religious power in Australia, but rather it was the solution towards striking a balance between secularism and toleration of religious diversity. When considering this context, the language of this section implicitly promotes these two principles:

Section 116: 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.

B. Section 116 and Christian arguments

According to Christian advocates, the language in section 116 provides an almost impenetrable defence for religious liberty, enabling Christian organisations to assert their right to discriminate against individuals who identify as LGBTQI+ as an integral part of their religious observance. It suggests that any attempt by the Commonwealth to infringe on this freedom would be fundamentally unconstitutional. In practical terms, the exemptions granted for anti-discrimination laws are outlined as:

An 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 sensitivities or adherents of that religion.

For the indoctrinated, the removal of exemption laws amounts to a violation of human rights that goes against the ICCPR and is viewed as political interference that imposes restrictions on the religious autonomy to teach and uphold Christian beliefs of sexuality, gender, marriage and family. The argument for Christian bodies is twofold: First, that non-discrimination rights should not supersede recognised human rights related to religious freedom; second, that any interference by the Commonwealth would operate against the primary principle outlined in section 116. However, to argue that the religious belief ought to be given greater right over liberty of others is to assert two claims:

1. That the rule of law ought not to apply to specific individuals, a notion that is unfeasible in modern society; and

2. That religion in Australia harbours Constitutional powers greater than what it already has.

It is worth mentioning that not all constitutional rights are immune from state interference. For instance, the right to privacy is one that is often overridden for national security purposes. And in Victoria, legislation has been enacted to limit political expression by prohibiting any depiction of a swastika. This highlights that while interference with Constitutional rights ought to be prohibited, exceptions are made to align with community standards of morality and justice. Religious freedom is subject to the same limitations, and when analysed through a lens of philosophical jurisprudence, the rationale for institutional protection from anti-discrimination obligations lacks convincing strength. This raises the a challenge to Christian bodies’ arguments for protection — does mere belief enable rights over others?

IV. Applying principles of liberty and justice to exemption arguments

In addressing this question, keep in mind the following principles:

(i) Limitations on liberty that encroach on the rights of others must be justified;

(ii) Laws create moral obligations and only a serious injustice can overturn these obligations; and

(iii) A moral person is a person who will not accept the inequities of others unless adequately justified.

Yet, history paints us a different picture — one where Christianity has benefited enormously from the systematic and social oppression of others. It is unsurprising then, that contemporary Christian groups cry human rights violations and advocate for the freedom to engage in discriminatory practices; not at the expense of the self, but at the detriment of marginalised members of society.

A. Religious freedom is not absolute

Christian advocates assert that their privileges and rights ought to take precedence over the rights of others. However, the historical context in which the Constitution was developed — with a focus on secularism and providing temporary financial aid to religious bodies — supports the notion that elevating religious freedom above all others; and even superseding fundamental legal values would contradict the underlying natural law principles upon which our Constitution is based.

In the 1943 Jehovah’s Witnesses Case, Latham CJ articulated this idea by asserting that “an obligation to obey the laws which apply generally to the community is not regarded as inconsistent with freedom”. He went on to emphasise the importance of protecting religious minorities and remarked that a majority religion was capable of asserting its own rights and values as it possessed the capabilities and resources to ‘look after itself’. Essentially, laws that uphold community values will not be considered inconsistent with religious freedoms.

More recently, in the case of Islamic Council of Victoria v Catch the Fire Ministries, Inc, where Christian ministers incited hate against Muslims, the Victorian Supreme Court determined that religious discrimination that creates harm and operates against societal values constitutes a direct violation of Australia’s commitment to the ICCPR and the Racial and Religious Tolerance Act.

When we consider Latham’s interpretation of section 116 and the decision by the Victorian Supreme Court, it is evident that the judiciary upholds Dworkinian values by reading the Constitutional through a moral philosophical lens. And if the Constitution is a philosophical document, one that is subject to the principles of morality — it can be argued that Constitutional rights are not absolute. Instead, they are subject to limitations that aim to achieve morally just outcomes.

B. Defining Religious Freedom: Individual or Organisational rights?

Religious freedom, is about ensuring that religious individuals and organisations can practice their faith free of any form of discrimination. It is a right protected by the law and upheld through international treaties and declarations that are far-reaching in their effect on domestic laws. However, Christian bodies argue that these right extend to Christian organisations. For example, Article 6 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief provides equal protection of religious practices for both individuals and religious communities, and extends this protection to the building of and maintenance of charitable institutions.

In Australia, the High Court has recognised that freedom of religion has a fundamental place in democratic society, equating it to the essence of a free society. Supporters of religious beliefs argue that the practice of faith manifests itself through a broad range of acts, including the establishment of community services. However, determining where religious rights end and social policy obligations begins becomes challenging due to ambiguities in Australian laws protecting religious freedoms.

For example, Victorian legislation mentions community as being protected, but its definition of community appears to remain open to interpretation ­­ — where one may view religious community as being restricted to a church community that exists solely for religious observance, the most commonly used interpretation appears to be that community extends to religious community services. On the other hand, section 116 of the Constitution appears to be refined to religious observance and exercise. A central question that seems to arise is not the application of religious rights on individuals but whether these rights, and subsequently the exemptions linked to these rights, should encompass religious community services and the people who are employed in them.

C. Section 116 is about individual religious observance and not business practices

Nonetheless, the arguments wielded by Christian groups in the name of protecting religious freedom have certain shortcomings. First, the operation of a business or organisation is not inherently tied to practices or observances. Second, discrimination perpetrated by religious bodies against the LGBTQI community creates harm and contradicts the foundational principles of justice upon which our legal system and society are built.

Exemptions from anti-discrimination laws that are derived from the power granted in section 116 assume that the scope of this section extends to religious-owned businesses and services. However, upon examination of the language used in the section, it becomes evident that its primary focus has always been ensuring freedom within secular activities related to worship. Religious worship and observance have traditionally remained in the private sphere of the individual. Worship and one’s personal relationship with God are experiences that cannot be collectively experienced, as human beings are incapable of experiencing a collective consciousness. Article 18 of the ICCPR associates religion with consciousness and thought — both being psychological states that operate within individual perceptions and experiences of the world, and is restrained to the relationship with the self. Therefore, any laws pertaining to religious freedom ought to be presumed to apply to individual experiences rather than collective ones. This means that section 116 is restrained in its authority over individuals and is not practically applicable to a religious organisation. Yes, religion can be organised, but laws that apply to organisations go beyond the realm of individual liberties and freedoms. Last, it is worth noting that freedom of association is not an implied freedom in the Constitution, and the High Court has confirmed this notion.

In essence, exemption laws are limited to activities directly related to observance and worship and does not extend to collective activities like establishing businesses such as educational institutions, healthcare or social services. These endeavours cannot be deemed essential to the teachings or practices of any particular religion, nor can they be successfully argued as necessary for practising one’s faith. Allowing individuals from diverse backgrounds to participate in the free economic market is a universal right exercised by people regardless of their beliefs. It would be unreasonable to claim that engaging in commercial activities is a religious tenant. Therefore, connecting economic and societal participation exclusively with Christian practices as a means to justify discriminatory practices against the LGTBQI+ individuals who use those services, is baseless.

D. Liberty and Christianity

Throughout history, Christianity has been associated with limitations of freedoms and the advancement of oppressive power structures. It has fostered patriarchal power structures throughout Western culture and promoted the subordination of women to the greater benefit of men. It played a pivotal role in sparking the Trans Atlantic Slave Trade, resulting in a mass African diaspora and was used as a tool to create a class divide amongst enslaved Africans and undermine slave revolutions. Christianity has strong ties to colonisation and the various atrocities associated with ‘civilising’ Indigenous populations. Australia is an apt example, where from the 1920s to the 1950s, Aboriginal children were forcefully separated from their families and taken into the custody of Christian missionaries for the purpose of assimilating Indigenous children into white society founded in Christian values. Christianity, at its core, operates in direct contrast to the principle of liberty. As a religion, the teachings of Christianity are embedded in doctrines of self-restraint for the betterment of others and at the expense of the liberty of the self. Yet, history paints us a different picture — one where Christianity has benefited enormously from the systematic and social oppression of others. It is unsurprising then, that contemporary Christian groups cry human rights violations and advocate for the freedom to engage in discriminatory practices; not at the expense of the self, but at the detriment of marginalised members of society.

E. Prevention of harm to the liberty of others is an overriding value

We’ve established that exemption laws should, in theory, only apply to individual religious observances, and that Christianity at it’s heart has operated counter to libertarianism. However, while exemption laws shield practising Christians from having to work with or serve LGTBQI+ individuals, no tangible harm can be said to be inflicted on Christian individuals. While being around LGBTQI+ individuals may cause some personal discomfort for a practising Christian, it does not significantly disrupt their way of life, nor does it cause any harm that creates a significant detriment to a Christian’s interests, goals or objectives. John Stuart Mill’s harm principle defines harm as the ‘wrongful setback of interests’ which ought to be avoided at all costs, while in contrast, injury amounts to merely a slight inconvenience.

In contrast, substantial evidence demonstrates that discrimination against Queer individuals has profound adverse consequences that impact an individual’s access to education, job opportunities, and health services. Where discrimination infringes upon LGBTQI+ liberties and rights to self-determination, no tangible harm can be said to be experienced by Christians. Without concrete pragmatic examples illustrating the detrimental harm of working with LGBTQI+ people would have on Christian individuals, it is difficult to support the rationality for exemption laws as being adequately just in the name of protecting personal sensitivities that merely amount to hurt and not harm.

In jurisdictions where the LGBTQI+ community experience transgressions on their right to self-determination and liberty due to existing exemption laws; this not only hampers their opportunities for economic advancement but further reinforces principles of inequality in an otherwise just society. Ongoing acceptance of discriminatory practices at a policy level perpetuates the marginalisation and devaluation of LGBTQI+ people, while also creating real-life consequences on their right to determine their own future, status, and independence without external forces impacting these objectives. This societal limitation, enabled by exemption laws, stands in stark contrast to the core principles of justice that inform our legal system. A continued allowance for discrimination not only undermines the fundamental rights and dignity of the LGBTQI community but also contradicts the principles of liberty and justice that inform our laws.

V. Conclusion

When considering the principles of liberty, justice and morality, along with an analysis of the historical context and language of section 116, it becomes evident that there is a no principally sound argument that supports the notion that religious rights are absolute overarching rights, and the right of the LGBTQI+ community should not be jeopardised to accommodate religious exemptions.


A. Articles, Books and Reports

Allen Buchanan, ‘The Morality of Inclusion’ 0 (10) Social Philosophy and Policy

Carolyn Frick, The Making of Haiti: The Saint Domingue Revolution from Below. (University of Tennessee Press, 1990)

Clifford Bob, Rights as weapons : instruments of conflict, tools of power (Princeton University Press, 2019)

Connie Roasati, ‘The Moral Reading of Constitutions’ in Wil Waluchow and Stefan Sciaraffa (ed), The Legacy of Ronald Dworkin (Oxford University Press, 2016)

Douglas Ezzy et. al, ‘LGBTQ+ non-discrimination and religious freedom in the context of government-funded faith-based education, social welfare, healthcare and aged care’ (2022) 0(0) Journal of Sociology

Elenie Poulous, ‘Constructing the Problem of Religious Freedom: An Analysis of Australian Government Inquiries into Religious Freedom’ (2019) 583 (10) Religions

Elenie Poulous, ‘Three Discourses of Religious Freedom: How and Why Political Talk about Religious Freedom in Australia has Changed’ (2023), 14(5) Religion

Erwin Chemerinsky and Michele Goodwin, ‘Religion Is Not a Basis for Harming Others: Review Essay of Paul A. Offit’s Bad Faith: When Religious Belief Undermines Modern Medicine’ (2016) 104(5) Georgetown Law Journal 1135

Gary Bouma, ‘Religious diversity and social policy: An Australian dilemma’ (2012) 47(3) Australian Journal of Social Issues

Kerry Robinson, Peter Bansel, Nida Denson, Georgia Ovenden and Cristyn Davies, ‘Growing Up Queer: Issues Facing Young Australians Who Are Gender Variant and Sexuality Diverse’ (Report, Young and Well Cooperative Research Centre, Melbourne, February 2014)

John Finnis, Aquinas: Moral, Political and Legal Theory (Oxford University Press, 1998)

John Locke, The Two Treatises of Civil Government (Phoenix, 1993)

John Rawls, A Theory of Justice: Revised Edition (Harvard University Press, 1999)

John Stuart Mill, Collected Works of John Stuart Mill (Toronto: University of Toronto Press, 1963)

John Stuart Mill On Liberty (J.W Parker and Son, London, 1859)

Kai Möller, ‘Balancing and the Structure of Constitutional Rights’ (2007) 5(3) International Journal of Constitutional Law

Linda McClain, ‘The Rhetoric of Bigotry and Conscience in Battles over “Religious Liberty v LGBT Rights” in William N. Eskridge and Robin Frewell (ed) Freedom, LGBT Rights and Prospects for Common Ground (Cambridge University Press, 2018)

Luke Beck, ‘Clear and Emphatic: The Separation of Church and State under Australian Constitution’ (2008) 27(2) University of Tasmania Law Review

Marcus Aurelius, Meditations (Book 1) (Walter Scott, 1887)

Michael Hoagan, ‘Separation of Church and State: Section 116 of the Australian Constitution’ (1981) 53(2) The Australian Quarterly 214–228

Rakesh Chandra, ‘Collective Rights v Individual Rights’ (2017) 4(7) International Journal of Multidiscplinary Research and Development 51–55

Richard Sanders, Demonizing Democracy: Christianity v Vodoun and the Politics of Religion in Haiti (2008) 63(1) Press for Conversion!

Saifuddin Ahmed and Jörg Matthes, ‘Media representation of Muslims and Islam from 2000 to 2015: A meta-analysis’ (2016) 79(3) International Communication Gazette

Sarah Moulds, ‘Drawing the Boundaries: The Scope of the Religious Bodies Exemptions in Australian Anti-Discrimination Law and Implications for Reform’ (2020) 47(1) The University of western Australia Law Review

Sarah Warbelow, ‘Sound Nondiscrimination Models and the Need to Protect LGBTQ People in Federal Law’ in William Eskridge and Robin Fretwell (eds) in Religious Freedom, LGBT Rights, and the Prospect of Common Ground (Cambridge University Press, 2018)

Sebastiano Bavetta, Pietro Navarra, and Dario Maimone, Freedom and the Pursuit of Happiness. An Economic and Political Perspective (New York: Cambridge University Press, 2014)

Thomas Hill, ‘The Kantian Conception of Autonomy’ in John Philip Christman (ed), The Inner Citadel: Essays on Individual Autonomy (Oxford University Press, 1989)

William Galston, ‘Moral Personality and Liberal Theory — John Rawls’s “Dewey Lectures” (1982) 10(4) Political Theory

B. Case Law

Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116, 124

Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120

Mulholland v Australian Electoral Commission (2004) 220 CLR 181

Newman v. Piggie Park Enters. INC , 390 U.S. 400 (1968)

Wainohu v New South Wales (2011) 243 CLR 181

C. Legislation

Age Discrimination Act 2004 (Cth)

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Commonwealth Constitution

Human Rights Act 2004 (ACT)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Sex Discrimination Act 1984 (Cth)

D. Treaties

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.

International Covenant on Civil and Political Rights

E. Other

Australian Christian Lobby, Submission No 299 to Australian Law Reform Commission, Inquiry into Religious Educational Institutions and Anti-Discrimination Laws (24 February 2023)

Australian Human Rights Commission ‘Guide to the protections for freedom of religion’ (2019) (Fact sheet, 29 July 2023).

Australian Human Rights Commission ‘Religious Exemptions under the SDA — Information Sheet’ (2017) (Information Sheet, 27 July 2023).

Jade Young, ‘For the love of all that is queer and holy: exploring the experiences and identity tensions of LGBTQ individuals within Christianity’, (Master of Arts Thesis, Colorado State University, 2022)

Susan Liesching, ‘Church and State in Australia: The Background and Implications of Separation’, (Master of Arts Thesis, The Australian National University, 1953)

Tim Wilson, ‘The Forgotten Freedoms — Freedom of Religion’ (Speech, Blackfriars Lecture, Australian Catholic University, 29 May 2014).

United Nations Human Rights Committee, General Comment No 22: The right to freedom of thought, conscience and religion, 48th sess, 1993, UN Doc Rev.1 (29 July 1994)

Victorian Equal Opportunity and Human Rights Commission, ‘ Equal Opportunity Act 2010 — Reforms to religious exemption to government-funded goods and services’, (Fact Sheet, 27 July 2023)



Laura E Fox

LLB (Hons) and BA (Gender Studies and Philosophy) student at the Australian National University. A collection of academic essays.