From Law and Religion Framework Overview (2013) by Adam Channer and Rachel Snow
Although Australia has no official state religion, the 2011 census indicated that 61% of the population are proclaimed Christians (25.3% Catholic, 17.1% Anglican, 5% Uniting Church, 2.8% Presbyterian and Reformed, 2.6% Eastern Orthodox, 1.6% Baptists, 1.2% Lutheran, 1.1% Pentecostal and 4.5% other Christian groups), and adherents of Non-Christian Religions make up 7.2% of the population (2.5% Buddhism, 2.2% Islam, 1.3% Hinduism, 0.5% Judaism, and 0.8% other non-Christian groups). The number of Australians claiming no religion was 22.3% of the population in 2011, up from nearly 19% in 2006. Due to increasing immigration from countries in the Asia-Pacific region, Africa, and the Middle East, non-Christian religions are currently increasing at a faster rate than Christian religions.
Historically speaking, Australia’s legal and constitutional heritage both come from the United Kingdom. At the time of federation, it adopted a federal structure that was based upon what it considered to be the best aspects of the Constitution of the United States. It simultaneously retained within its federal constitution the best of the Westminster parliamentary system of government, including the principles of responsible government. Its religious heritage from 1788 was predominantly from the United Kingdom. In the early to mid-1800s, religious refugees from Europe, particularly Prussia, came to the free colony of South Australia, mixing Lutheran influences with the Anglican, Presbyterian and Catholic influences that came from the British Isles.
Thus, although not native to Australia, the Judeo-Christian belief system and the British common law were transplanted to and began to be established in Australia during the early years of its colonization in the 18th century. As a result of colonization, the 19th century saw European Christian settlers, predominantly from the United Kingdom, marginalize the rituals and customs of the indigenous Australians, and on the day the Commonwealth of Australia was created (January 1, 1901), Sir John Downer, one of the members of the drafting committee of the Australian Constitution and an original Senator in the newly formed federal parliament, declared: “The Commonwealth of Australia will be, from its first stage, a Christian Commonwealth.” After some debate in the drafting process, the final version of the Preamble had by the time of enactment also adopted a form of wording that reflects similar sentiments: “Whereas the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth.”
The Australian federal Constitution (the Constitution) provides for freedom of religion only in a limited way. Despite the limited constitutional protection of religious freedom, to date, Australian federal and state governments have generally acted to promote or, at the least, to respect religious freedom. The single federal constitutional provision relating to religious freedom reposes in section 116 of the Constitution. Although the section is based upon and worded similarly to the United States’ Establishment and Free Exercise clauses, the constitutional restrictions on Federal government religious legislation have been interpreted much more narrowly in Australia than in the United States. It has never been interpreted as if it were part of a bill of rights and is, in any event, only binding upon the Federal Parliament and, to some lesser extent, the Federal Executive.
While in practice, religious freedom has generally been respected, the actual legal landscape for religious regulation in Australia is more nuanced, due, in part, to the narrow interpretation section 116 has been given in the High Court. The Commonwealth Government is a government that has only the legislative and executive powers provided for in the Constitution. The express enumerated powers of the government are found in section 51 of the Constitution. Section 51 contains no express legislative powers with respect to religion or religious freedom. There is, however, the potential of implied power respecting religion within the express power to implement international covenants by which it is bound or as may be referred to it by a state or states .
Despite the legislative limitation, successive Federal Governments have legislated and administered federal schemes either to exempt religions from burdens that would otherwise be imposed upon them under taxation and anti-discrimination laws or to provide funding to religious schools and chaplaincy services. The funding of denominational schools is socially, culturally and politically sensitive in Australia because only 35% of Australian children attend non-government schools, many of which are run by religious bodies. The trend indicates that that percentage is increasing.
Religious freedom has been negatively impacted by some exercises of federal power, particularly in times of war, and been upheld as valid, despite the provisions of section 116.
Recent attempts at revising Commonwealth laws to remove exemptions and protections for religious bodies underline the fragile nature of religious freedom in Australia in the absence of stronger constitutional or common law guarantees. Although freedom of religion has been mostly respected, it should by no means be taken for granted.
The six Australian states (New South Wales, Queensland, Southern Australia, Tasmania, Victoria, and Western Australia) and the two territories (the Australian Capital Territory and the Northern Territory) are not bound by the provisions of section 116. Notwithstanding the lack of a constitutional requirement to do so, the respective state governments have, like successive Federal Governments, generally respected religious freedom. Some states have legislated and administered their own schemes to exempt religious organizations from burdens that would otherwise be imposed upon them under state taxation and anti-discrimination laws. Some states have enacted laws that expressly prohibit vilification on the basis of religion. On the other hand, there is controversy as to whether other rights that have been conferred on sections of the community by state legislatures impose improper restrictions and adversely impact freedom of religious practice in particular circumstances, such as in the case of medical practitioners dealing with abortions.
The formation and operation of a church as an unincorporated body of individuals in Australia is not subject to, or conditional on, any legislative recognition or registration. If the church is organized as a legal entity, then the recognition or registration requirements applicable to that legal entity will apply–the obligations follow because in this instance the church is a legal entity and not because it is a church. A legal entity controlled by or associated with a church is likewise subject to the recognition or registration requirements otherwise applicable to that legal entity.
A church, whether a legal entity or an unincorporated body cannot (from December 3, 2013) access taxation relief otherwise available to a religious institution unless it is first registered under the Australian Charities and Not-for-profits Commission Act 2012.
The Marriage Act (1961), section 26, allows the Governor-General, by Proclamation, to declare a religious body or a religious organization to be a recognized denomination for the purposes of the Act — a person may be registered as a celebrant if, inter alia, the person is a minister of religion of a recognised denomination.
Against the background outlined above, some key aspects of the present condition of religious freedoms, regulations and discrimination in Australia can be noted: (1) Religious instruction is permitted in public schools, but parents may elect to have their children not attend; (2) The majority of faith-based private schools receive government funding. (3) The National School Chaplaincy Program provides funding for both government and private schools seeking to establish or extend chaplaincy service; (4) Minority religious groups have equal rights to land and status for constructing places of worship (however some city councils have attempted to restrict local Muslim and Buddhist building activities); (5) All of the respective states include among their proclaimed public holidays Good Friday, Easter Monday and Christmas.
At both the Commonwealth and state levels, Australia, has long regarded itself increasingly as a secular, multicultural society in which adherence to Judeo-Christian beliefs, though of historical importance, are of less significance than to previous generations. Despite the general perception and trend away from formal Judeo-Christianity, religion has remained a highly important consideration in policy and legislation. This is both as a result of recent immigration by minority groups to whom religion is culturally or socially significant and the activism of established religious groups in relation to the major political parties, particularly at the time of general elections.