Constitution Forbids “Religious Freedom” to Discriminate

Elvert Barnes

My brief submission to the Review into Religious Freedom


Section 116 of the Constitution of Australia precludes the Commonwealth of Australia (i.e., the federal parliament) from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion.

In my view this establishes freedom of religion to a degree that should satisfy any person of faith. It establishes that no person may experience legal discrimination based on their particular beliefs and nor may a person be prevented from practicing their beliefs within the framework of civil law, while at the same time making it clear that no other person may be constrained in any way by another person’s beliefs.

With the alteration of The Marriage Act, in my view, comes no expressed or implied pressure on any religion to alter their practices.

Consecrated places of worship may still set their own boundaries with regard to whom they will marry and which marriages they will bless.

It remains that Church involvement in marriage is ceremonial and optional, providing a service only to those who subscribe to that particular faith.

Indeed, without the civil and legal procedures being followed, a Church marriage is legally meaningless.

However, once those outside of consecrated frameworks begin practicing discrimination, whether it is with regard to marriage or any other matter, then there is a risk of matters of personal faith having a negative impact on the lives of all other people.

In my view, the Commonwealth of Australia Constitution Act expressly forbids this.

If a business that provides a service to the general public is permitted to determine which class of people they serve based on religious precepts, then it can be seen that there would be no difference if they were permitted to refuse service to women, people with disabilities or people of colour.

It is already accepted that some people of faith may set up religion-specific businesses – Kosher butchers; Halal food outlets; Christian bookshops, etc. – and those businesses advertise their limitations without criticism or restriction.

In my submission, no further allowances need be made to ensure freedom of religion.

I believe that any legislation permitting people to discriminate on the basis of religion would be contrary to the spirit and intention of the Commonwealth of Australia Constitution Act, and that this inquiry should find, with clear conscience, that there need be no additional legislation to protect people of faith.

Steve Howton