Australia is a liberal democracy and commonly celebrated as a model of multiculturalism. Its legal framework could be described as a Westminster appropriation of American republicanism. Section 116 of the Australian constitution states: “The Commonwealth [federal government] 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.” Such a statement applies to limitations incumbent upon the Commonwealth government but not to the state governments. Two states, New South Wales and South Australia, do not have religion or religious belief as a protected attribute in any legislation.
In addition, Australia has traditionally encouraged a close relationship between government and religious communities when it comes to education, chaplaincy, healthcare, and the charities sector. It is this close relationship, especially in education, that has become the most contentious area of religious freedom.
It is thus unfortunate that the gaps in Australia’s legal frameworks for protecting religious freedom at the federal and state levels are becoming more prominent as a direct result of contentious religious perspectives on family, marriage, and sexuality. In addition, media and government are growing increasingly hostile toward people of faith, which makes an equitable legal settlement difficult to attain.
Four examples demonstrate the challenges to religious freedom in Australia.
Victoria’s Gender Conversion or Suppression Practices Law
In 2021, the Victorian State Government passed the “Change or Suppression (Conversion) Practices Prohibition Act 2021,” which bans practices that seek to change or suppress a person’s sexual orientation or gender identity. Because the legislation was purportedly targeted at gay conversion therapies, pseudo-psychological practices to cure homosexual inclinations, and quasi-religious activities such as “deliverance ministries,” it was initially met with support from all religious communities in Victoria that recognized the harm that such practices have had on LGBTIQ+ people.
However, the Victorian government opted for a very broad and imprecise definition of “suppression” that could potentially cover a host of other activities that have nothing to do with gay conversion therapy. The legislation states that the suppression practices prohibited, with or without a person’s consent, include “carrying out a religious practice, including but not limited to, a prayer based practice, a deliverance practice or an exorcism” (emphasis added). This is to my knowledge the only jurisdiction in the world that criminalizes prayer—prayer that might even be requested by someone. While one might agree that attempts to “pray the gay away” are inappropriate and harmful, the legislation potentially also prohibits prayers to the effect that “Andrew/Angela would discern in the precincts of their own conscience how to live a life of chastity and holiness before God.” It will depend on how tribunals and courts interpret the prohibition and whether “chastity” and “holiness” constitute suppressions of sexual identity.
Also of great concern is the attorney-general’s explanatory memorandum, which states that the legislation is “intended to capture a broad range of conduct, including informal practices, such as conversations with a community leader that encourage change or suppression of sexual orientation or gender identity” (emphasis added). In other words, a common conversation, whether requested or impromptu, can be used as evidence for suppressing a person’s gender identity and sexual orientation. It presents a Stalin-era scenario whereby a minister of religion could, through an informal chat, be tricked or trapped into saying something that then becomes the grounds for a complaint or prosecution.
To compound matters, Ro Allen, commissioner for the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), told Eternity magazine that any mention of “celibacy” on the “basis of a person’s sexual orientation or gender identity” could potentially violate the legislation. In which case, if a celibate gay Christian advocates celibacy as a way of life to other LGBTIQ+ people, he or she could be made the subject of a complaint.
VEOHRC has also provided guidance explaining how people of faith are permitted to talk about gender and sexuality, a naked attempt to regulate religious speech and direct religious practices related to sexuality and identity.
To make matters worse, I attended one of VEOHRC’s seminars late last year and asked the convener if a medical practitioner such as a psychiatrist or a paediatrician could treat an adolescent with gender dysphoria in such a way that they would desist in their symptoms. I was told that such medical practice would violate the legislation and could be subject to legal proceedings if a complaint were made. This is clearly headed for some kind of showdown, as the Australian Association of Practicing Psychiatrists has recent declared that puberty blockers should not be given to children except in a clinical trial, a statement that could be regarded as violating VEOHRC’s interpretation of the legislation.
To be fair, the legislation only applies prison sentences to extreme cases such as sending children to gay deconversion camps, and sermons are not intended to be scrutinized by tribunals as long as they are not directed at individuals with a view to compelling them to change their gender identity or sexual orientation. However, the legislation is a prohibition of the free exercise of religion as it relates to beliefs about sexuality. The tragedy is that all the major faith groups in Victoria genuinely support a ban on harmful gay conversion therapies; the problem is that “suppression” is defined in such a way that it can potentially prohibit traditional religious beliefs expressed about family, gender, and sexuality.
Australian Law Reform Commission
The Australian Law Reform Commission (ALRC) is a government agency that provides advice on law reform to government on issues referred to it by the Australian attorney-general. When Australia legislated same-sex marriage in 2017, questions were raised as to what would be the implications for faith-based institutions, especially religious schools, as a consequent. After the federal government failed to pass a religious anti-discrimination bill, the matter was referred to the ALRC for review and recommendations. Their report was delivered in January 2023 and included the following recommendations:
- The introduction of a Religious Discrimination Act to protect individuals from discrimination based on their religion.
- The appointment of a Religious Freedom Commissioner to administer and promote religious freedom in Australia.
- The removal of exemptions in anti-discrimination laws that allow religious organizations to discriminate against individuals who do not share their beliefs.
While there is much good to affirm here in #1 and #2, it is very apparent that #3 is inherently problematic when it comes to balancing a general nondiscrimination principle with the ability of faith-based schools to maintain their ethos and identity in their faculty and staff hirings.
In sum, the ALRC recommends that religious schools should not be permitted to discriminate against either students or faculty/staff “on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy.” However, schools may discriminate on the basis of belief, which raises the obvious question as to whether schools can discriminate on religious beliefs pertaining to sex, sexual orientation, gender identity, marital or relationship status, or pregnancy. The ALRC advises that religious schools can preference certain stuff based on religious beliefs, but that a person is never required to maintain allegiance to those beliefs once hired.
Quite strangely, the ALRC contends that although religious schools are voluntary religious associations, their refusal to admit a person who does not share their beliefs is “a significant burden on the person’s rights, with the potential for mental health impacts and impacts on the individual’s freedom of religion, particularly where membership of a religious community is part of a person’s family and social identity.” In other words, a person’s inability to join a voluntary organization whose beliefs and values they do not necessarily share somehow and in some way causes them profound trauma and irrevocable harm.
In addition, the ALRC report frequently makes mention of article 18 of the International Covenant on Civil and Political Rights (ICCPR), which provides a robust definition of religious freedom. But the ALRC mentions ICCPR article 18 usually in the context of trying either to circumvent or minimize rights to religious freedom. The ICCPR articulates the importance of religious freedom “in community with others” and “in the religious and moral education of their children.” Yet the ALRC report focuses on the limitations to international standards of religious freedom rather than ensuring Australia’s compliance with them.
The Andrew Thorburn Affair
Andrew Thorburn was a former CEO of one of Australia’s largest banks who was appointed CEO of Essendon football club in October 2022. He was also an evangelical Christian who was chairman of the board of City on a Hill Church in Melbourne. Media subsequently mined sermons preached at City on a Hill Church, drawing attention to sermons on abortion and gay marriage, which caused an uproar with journalists and government figures expressing their disgust with Thorburn’s church.
The fact that the sermons expressed standard Christian beliefs did not register with anyone. Nor did anyone notice that the sermons were delivered before Thorburn was even a member of the church. Neither was attention given to the fact that Thorburn stated that he did not necessarily agree with everything said in his church’s pulpit. No one pointed out that Thorburn, as the CEO of a major bank, had overseen the bank’s pro-LGBTIQ+ policies. Nonetheless, the Essendon Club president gave Thorburn an ultimatum: resign from his church board or resign as the CEO of Essendon. Thorburn chose to resign as Essendon CEO. The president stated: “The board made clear that, despite these not being views that Andrew Thorburn has expressed personally and that were also made prior to him taking up his role as chairman, he couldn’t continue to serve in his dual roles at the Essendon football club and as chairman of City on the Hill. The board respects Andrew’s decision.”
The tragedy is that Thornburn was forced to resign not for anything he said nor for anything he did. It was clearly a matter of guilt by association and giving into the progressive hate mob.
Unfortunately for Essendon, they did not seek legal advice about the ultimatum given to Thorburn, and it quickly became clear that that Thorburn could sue them for discrimination, wrongful dismissal, harassment, and defamation. Some months later, after legal action was canvassed, Essendon issued an apology to Thorburn and agreed to a settlement whereby a nondisclosed sum would be donated to charity, and an ethics institute would be commissioned to make recommendations to the club on how to form a tolerant and inclusive space for all people.
The Thorburn affair is a prime example of what happens when boards make knee-jerk responses to progressive media mobs and the need for a national religious anti-discrimination bill in Australia to bolster intermittent safeguards for people of faith.
The Seizure of Calvary Hospital
The Australian Capital Territory (ACT) is a municipality that houses much of the apparatus of the commonwealth government and constitutes a federally administered “territory” rather than a state (somewhat similar to Washington D.C.).
The ACT is governed by a left-leaning legislative assembly that recently rushed through laws to enable them to seize Calvary Hospital, which was owned and operated by the Little Company of Mary, which was invited to set up the hospital by the commonwealth government in the 1970s.
The supposed rationale for the compulsory acquisition of Calvary hospital by the ACT government was to streamline health services in the region. However, the acquisition came some months after a report by the ACT government found that Calvary hospital’s “overriding religious ethos” was “problematic” because it refused to perform abortions and euthanasia.
While the commonwealth government did have the power to prevent the acquisition, they opted not to intervene. Despite public outcry, alarm raised by religious freedom advocates, public statements of protest by Catholic bishops, and an unsuccessful legal challenge, Calvary hospital was seized by the ACT government and renamed North Canberra Hospital.
Australian legal professor Joanna Howe commented that “the decision of the ACT government to compulsorily acquire a faith-based institution does not bode well for the future of faith-based schools and hospitals in Australia.”
Several things about the incident are frightening. First, the legislation to acquire the hospital included reference to the police’s being authorized “to use force, such force as is reasonably necessary” if there were protests or resistance to the acquisition. Second, the motivation for the seizure was purely punitive: it was a punishment against a Catholic hospital because it would not kill babies in utero or eliminate the dying. Third, it sets a dangerous precedent as to what Australian governments might do in the future when it comes to seizing the assets of religious communities it finds distasteful.
The most chilling scene, one you would expect in the former Soviet Union or modern-day China, was when the cross of Calvary Hospital was removed on a Sunday, at the very moment when many Catholics were at mass.
A Precarious Future
Australia prides itself on being the land of the fair-go for everyone. The Australian ethos is one of mateship, and there is an innate dislike for bullying behavior. However, gaps in the Australian constitution, uneven protections for religious freedom across the states, the inability or unwillingness of federal governments to legislate a comprehensive suite of religious freedom protections, and some prevailing social hostility toward people of faith mean that the religious freedom situation in Australia, while not dire, is certainly becoming precarious.