Australia does have freedom of religion, but not as a single guaranteed right. Protection comes from a mix of sources: one narrow clause in the Constitution, federal workplace and human rights legislation, state and territory anti-discrimination laws, and criminal offences targeting religiously motivated violence. How well you are actually protected depends on where you live, who is treating you unfairly, and whether the issue involves a government body, a private employer, or a religious institution.
What the Constitution Says
The only explicit reference to religion in the Australian Constitution is Section 116. It says 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.”1Australasian Legal Information Institute. Commonwealth of Australia Constitution Act – Section 116
That single sentence does four things. It stops the federal Parliament from establishing an official religion, forcing anyone into religious observance, banning the practice of a religion, or imposing a religious test for federal office. Two limits on that protection matter for anyone trying to rely on it.
First, Section 116 binds only the Commonwealth. State and territory parliaments are not covered. The High Court has confirmed this narrow scope, noting “further justification for its narrow approach in the limited jurisdiction of s 116, which does not apply to the States.”2Parliament of Australia. Parliamentary Prayers and Section 116 of the Australian Constitution A state could, in principle, legislate in ways that touch religious practice without breaching Section 116.
Second, Section 116 is not a personal right you can sue on. As former Chief Justice French put it, “s 116 does not create a justiciable individual right to the free exercise of religion.”3High Court of Australia. Religion and the Constitution Someone affected by a federal law that violates Section 116 can challenge the law’s validity, but they cannot sue another person for interfering with their worship.
The courts have also read the clause narrowly. A law of general application that happens to burden a religious practice is not treated as “prohibiting the free exercise” of religion, and the High Court has held that “freedom of religion is not absolute” and does not shield “unsocial actions or actions subversive of the community itself.”2Parliament of Australia. Parliamentary Prayers and Section 116 of the Australian Constitution The upshot: Section 116 blocks laws aimed specifically at a religion, but does little against neutral laws that incidentally affect religious life.
Where the Real Protections Come From
Because the constitutional protection is thin and unenforceable by individuals, most day-to-day protection comes from statute law.
The Australian Human Rights Commission Act 1986 lets the Commission investigate complaints of religious discrimination in employment. Its role is limited to inquiry and conciliation. It cannot issue binding orders or award compensation, and if conciliation fails, there is no further federal remedy under the Act alone.4Australian Human Rights Commission. Factsheet – Guide to the Protections for Freedom of Religion
The Fair Work Act 2009 does more. Section 351 prohibits an employer from taking adverse action against an employee or prospective employee because of their religion, covering hiring, firing, demotion, and other detrimental treatment.5Australasian Legal Information Institute. Fair Work Act 2009 – Section 351 – Discrimination Breaches can be taken to the Federal Circuit and Family Court or the Federal Court, where enforceable orders and penalties are available. That makes it the strongest single federal protection for religious workers.
Australia has also ratified the International Covenant on Civil and Political Rights, whose Article 18 protects freedom of thought, conscience, and religion, with limitations only where “prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”6Attorney-General’s Department. Right to Freedom of Thought, Conscience and Religion or Belief Ratification alone does not make the ICCPR enforceable in Australian courts. It operates mainly as an interpretive guide and a benchmark for scrutinizing legislation.
State and Territory Laws
The most detailed protections against religious discrimination sit in state and territory legislation. Most jurisdictions prohibit unfair treatment based on religious belief or activity in employment, education, housing, and access to goods and services. Queensland, Victoria, and the ACT go further, having enacted Human Rights Acts that include a specific right to freedom of thought, conscience, religion, and belief.4Australian Human Rights Commission. Factsheet – Guide to the Protections for Freedom of Religion
Coverage is uneven. New South Wales, for example, has no specific prohibition on religious discrimination in its anti-discrimination legislation, leaving residents reliant on narrower federal protections. Some jurisdictions protect “ethno-religious origin” rather than religious belief generally, or cover only particular manifestations of faith such as religious dress at work or school. Where you live can materially change the protection you have.
When Religious Institutions Can Lawfully Discriminate
Australian law lets religious institutions do things that would otherwise be unlawful discrimination, so their staff and students face a different set of rules from workers elsewhere.
Section 38 of the Sex Discrimination Act 1984 permits religious educational institutions to discriminate against staff and students on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy, so long as the institution acts “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.”7Australasian Legal Information Institute. Sex Discrimination Act 1984 – Section 38 – Educational Institutions Established for Religious Purposes The exemption covers employees, contract workers, and the provision of education itself.
The Fair Work Act contains a parallel carve-out. Section 351(2)(c) shields religious institutions that act in good faith to avoid offending the religious sensitivities of their community.5Australasian Legal Information Institute. Fair Work Act 2009 – Section 351 – Discrimination Other exceptions in Section 351 apply where the action is not unlawful under the relevant state or territory anti-discrimination law, or where the discrimination reflects the inherent requirements of the position. State and territory anti-discrimination laws contain their own versions of these exemptions, and they vary in breadth.
The Australian Law Reform Commission examined how federal law could be reformed to stop religious schools discriminating against students or staff on grounds like sexual orientation or gender identity while still allowing them to prefer staff of their own faith. Its final report was tabled in Parliament in March 2024.8Australian Law Reform Commission. Religious Educational Institutions and Anti-Discrimination Laws As of early 2026, no legislation implementing the recommendations has passed, so the exemptions above remain in force.
Protection From Religiously Motivated Violence
Freedom of religion in Australia also means protection from being attacked or threatened because of your faith. Under Division 80 of the Criminal Code Act 1995, it is a federal offence to advocate or threaten violence against a group or its members based on their religion. “Advocate” includes counseling, promoting, encouraging, or urging violence.9Attorney-General’s Department. Hate Crime Offences
The penalties are:
- Up to five years imprisonment for advocating or threatening violence against a group distinguished by religion.
- Up to seven years where the conduct would also threaten the peace, order, and good government of the Commonwealth.
- A mandatory minimum of one year imprisonment where the targeted group is distinguished by race, religion, or ethnic origin and the violence is advocated through causing property damage.
- Up to five years (or seven in aggravated circumstances) for advocating or threatening damage to religious property, including places of worship.
At the state level, some jurisdictions have separate religious vilification laws. Victoria’s Racial and Religious Tolerance Act 2001 prohibits conduct that incites hatred, serious contempt, or severe ridicule of a person or group on the basis of their religious belief. Not every state has enacted vilification laws that specifically cover religion, and the remedies available differ.
The Gap in Federal Law
Australia has no standalone federal law that comprehensively prohibits religious discrimination the way the Racial Discrimination Act covers race or the Sex Discrimination Act covers sex. The Religious Discrimination Bill 2022 was introduced to fill that gap but lapsed at the end of the parliamentary term in July 2022 without being passed.10Parliament of Australia. Religious Discrimination Bill 2022 Disagreements over how to handle the religious school exemptions were a major factor in its collapse.
Without that legislation, federal religious discrimination protection comes down to the conciliation process at the Australian Human Rights Commission and the enforceable protection for workers under Section 351 of the Fair Work Act. For anything outside those channels, protection depends on your state or territory law, and coverage there is uneven.