1.2 1.

Article

The Place of the Child in Recent

Australian Debate about Freedom
of Religion and Belief

Renae Barker

https://doi.org/10.3390/laws11060083
 laws
Article
The Place of the Child in Recent Australian Debate about
Freedom of Religion and Belief
Renae Barker

Law School, University of Western Australia, Perth 6009, Australia; renae.barker@uwa.edu.au

Abstract: Political and legal debate about freedom of religion and belief (FoRB) in Australia has
intensified since the same-sex marriage postal survey in 2017. Central to this debate has been children,
their parents and institutions (Schools). This paper outlines the place of children in the Australian
FoRB since 2017, focusing on the same-sex marriage postal survey debate and subsequent reviews
into FoRB. In particular, it highlights the links drawn between same-sex marriage or marriage equality
and the Safe School Coalition Australia campaign, the emphasis on parental rights in relation to
education about marriage in schools, and the ongoing debate about potential reform to Australia’s
suite of anti-discrimination laws, including the failed federal Religious Discrimination Bill.

Keywords: freedom of religion; children and religion; church and state; law and religion; right of
the child

1. Introduction
In May 2021, Australian parents were shocked to discover that “knives” were being
brought into Australian schools–an activity that was apparently being sanctioned by
education departments (Turner-Cohen 2021). The “knives” in question were in fact Sikh
Citation: Barker, Renae. 2022. The Kirpans, worn by baptised Sikhs as one of the five markers of faith. What followed was an
Place of the Child in Recent intense public debate about the balance between safety in schools and freedom of religion
Australian Debate about Freedom of and belief (FoRB) of the children who attend those schools (Barker 2021a). Ultimately, the
Religion and Belief. Laws 11: 83. New South Wales Government backed away from its initial ban on the Kirpan, opting
https://doi.org/10.3390/ instead to permit the wearing of this religious symbol under strict conditions (Taouk 2021).
laws11060083 The Kirpan in schools debate highlights the important role children play in debates
Academic Editor: Patricia Easteal
about FoRB. While the issues related to Kirpans in schools was resolved relatively quickly
in favour of pluralism and inclusion, many other FoRB issues remain. Issues related to
Received: 11 August 2022 gender, sexuality, and marriage have garnered particular prominence in Australia over the
Accepted: 14 November 2022 last decade. As this article will demonstrate, children and the impact of proposed and, in
Published: 17 November 2022 some cases, successful law reform on children have been central to these debates.
Publisher’s Note: MDPI stays neutral Children, like adults, are rights holders under numerous international, supra-national
with regard to jurisdictional claims in and national human rights instruments. This includes FoRB. As well as general human
published maps and institutional affil- rights protections afforded to all people, regardless of age, children are provided specific
iations. protection under the Convention on the Rights of the Child (CRC). In relation to FoRB article
14 of the CRC provides:
1. States Parties shall respect the right of the child to freedom of thought, conscience and
religion.
Copyright: © 2022 by the author.
2. States Parties shall respect the rights and duties of the parents and, when applicable,
Licensee MDPI, Basel, Switzerland.
legal guardians, to provide direction to the child in the exercise of his or her right in a
This article is an open access article
distributed under the terms and
manner consistent with the evolving capacities of the child.
conditions of the Creative Commons
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations
Attribution (CC BY) license (https://
as are prescribed by law and are necessary to protect public safety, order, health or
creativecommons.org/licenses/by/ morals, or the fundamental rights and freedoms of others.
4.0/).

Laws 2022, 11, 83. https://doi.org/10.3390/laws11060083 https://www.mdpi.com/journal/laws

Laws 2022, 11, 83 2 of 16

However, the nature of FoRB and children is contested. Some argue that they are rights
holders now, entitled to fully exercise their FoRB (Barker 2020d). Others argue that although
children have a right to FoRB, it is different to that of adults. For example, Feinberg (1980)
argued that parents’ role was to provide children with a maximally ‘open future’. The effect
of this is to curtail the parents’ ability to include their child in all aspects of religious practice
and belief (Feinberg 1980). Still, others emphasise the role of parents in protecting and
exercising FoRB rights on behalf of their children (Ahdar and Leigh 2013). Whichever view
of the FoRB of children one finds most persuasive, the additional vulnerability of youth
makes the exercise of balancing their rights against those of others in the case of a conflict of
rights more challenging–not least because children are often unable to act independently to
assert and protect their rights.
Finding the right balance for children is particularly challenging in the Australian
context. Australia is one of the few, if not the only, western democratic country without a
national bill or charter of rights (Chappell et al. 2009), although some states and territories
have introduced local Charters of Rights. Political and legal debate in Australia has
increasingly included the role of religion and FoRB. The inherent difficulties in finding
the right balance between FoRB and protection of children’s other rights when religion is
involved has been central to many of these debates.
This article will examine the role children have played in legal and political debates
about FoRB in Australia beginning with the lead-up to the same-sex marriage (SSM) postal
survey in 20171 . While issues related to FoRB have been debated for decades, the debate
has intensified since the postal survey2 . It is important to note that while this paper has
been framed as being about FoRB and children, it is not children’s exercise of FoRB which
has been the subject of most of the debate. Instead, it is the rights of their parents and
schools and the impact of the exercise of FoRB and other fundamental rights by others on
children which has been the focus of FoRB debates in Australia. Even where the individual
exercise of religious beliefs or practices has been an issue, the locus of the precipitating
event has often been a school3 .
The paper is organised into four parts, Part One sets out the background and context
of the paper. Part Two provides an outline of religion in Australia, as well as the legal
protections and context for the protection of FoRB. Part Three examines the role of the child,
primarily via the parents and institutions (schools) in FoRB debates in Australia beginning
with the SSM postal survey in 2017. Finally, Part Four offers some concluding remarks.

2. Religion and Freedom of Religion in Australia

2.1. Religion
According to the 2021 census, the largest religious group in Australia is those that
self-identify with Christianity (43.9%). However, those that reported that they had no
religion accounted for nearly 40% of the population (38.9%). The remainder (17.2%) is made
up of those who self-identify with a minority faith (10%) such as Islam (3.2%), Hinduism
(2.7%) or Buddhism (2.4%), and those who did not answer the question4 (Australian Bureau
of Statistics 2022).

1 The postal survey was a non-binding, voluntary survey administered by the Australian Bureau of Statistics
which asked Australians “Should the law be changed to allow same-sex couples to marry?” The survey was
conducted as a political solution to ongoing debate about the legalisation of same-sex marriage. 79.5% of
eligible Australians participated in the vote which resulted in a ‘Yes’ vote of 61.6% and a ‘No’ vote of 38.4%
see https://www.abs.gov.au/ausstats/abs@.nsf/mf/1800.0 (accessed on 3 November 2022).
2 Other important debates about FoRB and children include the National School Chaplaincy Program, Religious
Education in Schools and the Royal Commission into Institutional Responses to Child Sexual Abuse.
3 See for example Secular Party of Australia Inc v The Department of Education and Training (2018) and Arora v
Melton Christian College (2017).
4 The question about a person’s religion is the only optional question on the Australian Census. The Australian
Census is conducted once every 5 years. A question about religion has been included in every census since
Federation in 1901. Most colonial censuses conducted prior to Federation also included a question about
religion. The most recent Census was conducted in 2021. For more information about the history of the religion
question in the Australian Census see Frame (2009).
Laws 2022, 11, 83 3 of 16

Generation Alpha (0–9 years) and Gen Z (10–24 years) are more likely to identify as
having no religion (46.5% and 44.0%) and are more likely to belong to a minority religion
(12.8% and 10.0%). However, as the Australian Bureau of Statistics (2017) noted in relation
to the 2016 census, ‘[t]he religious pattern of those under 18 is most similar to the 35–49 year
olds, suggesting the form may be completed with their parents’ beliefs’. A better indication
of the views of younger Australians may come from the statistics for young adults, the
youngest of whom may have been completing the census independently for the first time.
Millennials (25–39 years) for example, had the highest proportion who did not self-identify
with any religion (46.5%). While the Interwar generation (75+) had the largest proportion
who identified with a religion other than Christianity (18.6%), this was closely followed by
Millennials (14.9%) (Australian Bureau of Statistics 2022).
While the number of Australians identifying with Christianity specifically, and religion
more generally, is declining, religion still plays an important role in the lives of many
children via their enrolment in non-Government, predominantly religious, schools and
the inclusion of religious programs in state-run secular schools. Australian Catholic and
independent schools5 both receive significant funding from the Federal Government, with
non-government schools receiving $12.1 billion in funding in 2018–2019. This represents
24.2% of all government funding to schools (Productivity Commission 2021). In terms
of enrolments, in 2020, 19.4% of student attended Catholic schools, while 15% attended
independent schools (Australian Bureau of Statistics 2021). While education in government
schools is secular6 , religion is still present in state schools via both the National School
Chaplaincy Program and Special Religious Education (SRE)7 (Barker 2019b). The NSCP is
a federally funded initiative that provides funding for Chaplains to both government and
non-government schools. While the program allows for the employment of secular welfare
workers, as well as religious chaplains, as former Prime Minister John Howard explained
at the time the NSCP was introduced:
I am calling them chaplains because that has a particular connotation in our
language . . . And as you know I’m not overwhelmed by political correctness.
To call a chaplain a counsellor is to bow to political correctness. Chaplain has a
particular connotation, people understand it, they know exactly what I’m talking
about. (ABC News 2006)
The Education Acts in all Australian states and territories provide what is various
described as Special Religious Education (SRE), Religious Education (RE) or Special Re-
ligious Instruction (SRI), on either an opt-in or opt-out basis8 . These religious classes are
usually taught by external providers and focus on specific religious education, usually of
the majority Christian religion (Babie 2021a).

2.2. Freedom of Religion

Australians enjoy a comparatively high level of FoRB. In the 2020 Pew report In 2018,
Government Restrictions on Religion Reach Highest Level in More Than a Decade, Australia
received a relatively low ‘Government Restrictions Index’ score of 1.8 (Majumdar and
Villa 2020). This is consistent with the state-religion relationship in Australia, which has
variously been described as liberal separation (McLeish 1992; Babie et al. 2019), pragmatic
pluralism (Soper et al. 2017) and non-establishment pluralism (Barker 2021b)9 .

5 The majority of whom are affiliated with a religion see Independent Schools Australia (2020).
6 In all states and territories, except Queensland, the state Education Acts require that education be secular see
Education Act 2004 (ACT) s 28; Education Act 1990 (NSW) ss 30 & 33; Education Act 2016 (Tas) s 125(1); Education
and Training Reform Act 2006 (Vic) s 2.2.10; School Education Act 1999 (WA) s 68(1)(a).
7 Special Religious Education (SRE) is also referred to as Religious Education (RE), Religious Instruction (RI)
and Special Religious Instruction (SRI). It is usually offered on an opt-in or opt-out basis.
8 Education Act 2004 (ACT) s 29; Education Act 2015 (NT) s 86; Education Act 1990 (NSW) s 32; Education (General
Provisions) Act 2006 (Qld) s 76; Education Act 1972 (SA) s 102; Education Act 2016 (Tas) s 126; Education and
Training Reform Act 2006 (Vic) s 2.2.11; School Education Act 1999 (WA) s 69.
9 For a discussion of the correlation between state-religion relationships and freedom of religion see Durham
and Scharffs (2019) and Temperman (2010).
Laws 2022, 11, 83 4 of 16

FoRB in Australia is protected via a patchwork of constitutional provisions, state and

federal anti-discrimination laws, common law rights and state-based rights charters (Barker
2019b). Babie (2020) has referred to an ‘ethos’ of protection of FoRB. He argues that
[t]he ethos is more akin to the ‘unwritten’ British Constitution, in the sense that it
is comprised of two disparate sources: laws properly so-called (constitutional,
statute, and common law), and “conventions, understandings, habits, or practices
[which] . . . may . . . be termed . . . constitutional morality.” Indeed, it may even
be the case that this ethos of protection for FoRB may have a wider ambit than any
rigidly defined, written protection, such as a proposed Commonwealth Religious
Freedom Act. In other words, rather than being found in any one single document,
one finds the ethos in a convergence of sources found in many texts the product
of legislative and judicial processes: the Commonwealth Constitution, at least
one State constitution, Commonwealth, State, and Territory legislation, and in
the common law. (Babie 2020) [internal citations omitted].
While Section 116 of the Australian Constitution ostensibly protects FoRB, it only applies
to laws passed by the Federal Government, and has historically been interpreted narrowly
by the High Court of Australia10 . It is usually interpreted as a limit on federal government
power, rather than as an individual right, despite textual similarities with the United States
of America’s first amendment (Adelaide Company of Jehovah’s Witness v Commonwealth 1943).
Section 116 states:
The Commonwealth shall not make any law for establishing any religion, or for
imposing religious observance, or for prohibiting the free exercise of any religion,
and no religious test shall be required for any office or public trust under the
Commonwealth.
In relation to children and schools, the High Court considered federal government
funding of religious schools in Attorney General (Vic); ex rel Black v The Commonwealth (1981),
and the federal funding of a religious chaplaincy program in both non-government and
state-run schools in Williams v The Commonwealth (2012)11 . In both cases, the Court found
that the funding programs did not breach Section 11612 .
Even if Section 116 did guarantee individual religious freedom, it does not apply
to actions by state governments (Babie et al. 2019). Given that a significant number of
important intersections between the state and religion, such as education, health, and
criminal law, are regulated by state governments, any protection the provision may have
offered would be limited in scope.
With the exception of the context of employment13 , federal anti-discrimination law
does not currently prohibit discrimination on the basis of religion. The 2018 Religious
Freedom Review recommended that the government either amend the Racial Discrimination
Act 1975 (Cth) to include prohibitions on religious discrimination or introduce a standalone
religious discrimination act (Ruddock et al. 2018)14 . As will be discussed below, the Federal
Government drafted a Religious Discrimination Bill in response to this recommendation.
However, the Bill failed to pass Parliament.
Federal anti-discrimination law does, however, provide some exemptions from general
anti-discrimination provisions for religious bodies and schools. These exemptions permit

10 Section 116 has only been considered by the High Court of Australia on a handful of occasions see Krygger v
Williams (1912) 15 CLR 336; Adelaide Company of Jehovah’s witnesses v Commonwealth (1943) 67 CLR 116; Attorney
General (Vic); ex rel Black v The Commonwealth (1981) 146 CLR 559; Kruger v Commonwealth (1997) 190 CLR 1 and
Williams v The Commonwealth (2012) 248 CLR 156.
11 See also Williams v The Commonwealth [No. 2] (2014) 252 CLR 416.
12 Neither of these cases considered FoRB specifically. Adelaide Company of Jehovah’s Witness v Commonwealth
concerned the so-called separation of church and state clause of section 116 while Williams v The Commonwealth
considered the prohibition on religious tests for public office.
13 For the employment context see Australian Human Rights Act 1986 (Cth) ss 30–35.
14 At the time of writing this recommendation was under active consideration with a final bill expected to be
presented to parliament in late 2021 or early 2022.
Laws 2022, 11, 83 5 of 16

religious bodies and religious educational institutions to discriminate in relation to certain

otherwise protected attributes such as sex, sexual orientation, gender identity, martial or
relationship status, and pregnancy “in order to avoid injury to the religious susceptibilities
of adherents of that religion or creed.” (Sex Discrimination Act 1984, s 38)15 .
Protection for FoRB is stronger at the state and territory level. However, due to
differences between jurisdictions, there is significant inconsistency between the protections
available for residents of different states (Elphick 2017). As with the federal level, the
primary protection for FoRB comes from anti-discrimination legislation. Most states and
territories prohibit discrimination on the basis of religion16 . However, in South Australia
discrimination is only prohibited on the basis of ‘religious appearance or dress17 , while
New South Wales has announced plans to amend the Anti-Discrimination Act 1977 (NSW) to
prohibit discrimination on the basis of religion (Speakman and Ward 2021). Like federal anti-
discrimination laws, state and territory anti-discrimination laws also contain exemptions to
general prohibitions on discrimination for religious organisations or bodies and religious
schools. In the absence of more comprehensive protections for FoRB, these clauses play
an important role in balancing rights protected in anti-discrimination laws (Foster 2016).
However, it is important to remember, as Aroney (2019) has argued, ‘[r]eligious freedom
and religious discrimination are not exactly the same thing’.
More explicit protection of FoRB is provided in Victoria, Queensland and the Aus-
tralian Capital Territory via legislative Charters of Rights18 . Section 46 of the Tasmanian
Constitution (Constitution Act 1934 [Tas]) also provides for FoRB, although it is a bit of a
mystery how this provision made its way into the Tasmanian Constitution (Museum of
Australian Democracy n.d.; Barker 2019b; Babie 2021a, 2021b).
Adding to the patchwork of protections for FoRB in Australia are state-based prohibi-
tions on religious vilification in Victoria, Queensland and Tasmania19 . Religious vilification
was also temporarily prohibited by the Federal Government during the SSM postal survey
in 2017 (Barker 2019b). Further, legislative prohibitions on racial discrimination and vilifica-
tion have been interpreted to include ‘religious groups that can establish a common “ethnic
origin”. This has been interpreted to include Jewish and Sikh people (Ruddock et al. 2018).
FoRB is also weakly protected in Australia via common law principles of statutory
interpretation. While views are mixed as to whether the common law contains an express
recognition for FoRB (Barker 2020b; Babie 2021b), it is clear that common law principles of
statutory interpretation require courts to consider whether any statute purporting to limit
FoRB has done so ‘in clear and unambiguous terms’ (Babie 2021b).
Finally, while Australia does not have a constitutional or legislative right to freedom
of speech, political speech is protected via the implied freedom of political communication.
In McCloy v New South Wales (2015) the High Court stated that the implied freedom is:
[a] qualified limitation on legislative power implied in order to ensure that the
people of the Commonwealth may ‘exercise a free and informed choice as electors’.
It is not an absolute freedom. It may be subject to legislative restrictions serving
a legitimate purpose compatible with the system of representative government
for which the Constitution provides, where the extent of the burden can be
justified as suitable, necessary and adequate, having regard to the purpose of
those restrictions.

15 For exemptions provided to religious bodies see Sex Discrimination Act 1984 (Cth) s. 37.
16 See for example Anti-Discrimination Act 1977 (NSW) s56(d); Anti-Discrimination Act 1992 (NT) s51(d); Equal
Opportunity Act 1984 (SA) s 50(1)(c); Anti-Discrimination Act 1998 (Tas) s52(d); Equal Opportunity Act 2010 (Vic)
s 82(2); Equal Opportunity Act 1984 (WA) s 72(d).
17 Equal Opportunity Act 1984 (SA) s 85T(1)(f).
18 Human Rights Act 2004 [ACT]; Charter of Human Rights and Responsibilities Act 2006 [Vic]; Human Rights Act
2019 [Qld].
19 Racial and Religious Tolerance Act 2001 [Vic]; Anti-Discrimination Act 1991 [Qld]; Anti-Discrimination Act 1998
[Tas].
Laws 2022, 11, 83 6 of 16

In Attorney-General (SA) v Corporation of the City of Adelaide (2013), the High Court
confirmed that religious speech could be political speech and therefore, political religious
speech could be protected by the implied freedom of political communication (Barker
2020c). The Court however missed the opportunity to consider where the line may be
drawn between political and non-political religious speech (Barker 2020c; Landrigan 2014).

3. The Place of the Child in Recent Freedom of Religion Debates

3.1. Same-Sex Marriage Debate
In 2017, the Federal Parliament amended the Marriage Act 1961 (Cth) to, inter alia,
change the definition of marriage from ‘the union of a man and a woman to the exclusion
of all others, voluntarily entered into for life’ to ‘the union of 2 people to the exclusion of all
others, voluntarily entered into for life’(emphasis added) (Marriage Act 1961 (Cth))20 . While
marriage is an institution only legally available to those over 1821 , the potential impact of
the change to the definition of marriage on children was central to the Australian debate
on SSM or marriage equality (Gerrard 2020). Indeed, this link is explicit in Australia’s
common law definition of marriage. In Russell v Russell (1976) Jacobs J states that:
Marriage as a social institution which the law clothes with rights and duties
attaching to the parties thereto is primarily an institution of the family. . . . The
primary reason for its evolution as a social institution, at least in Western Society,
is in order that children begotten of the husband and born of the wife will be
recognised by society as the family of that husband and wife.
Also central to the debate were the implications of a ‘Yes’ vote on FoRB. This can be
seen most clearly in the name of the amending Act: Marriage Amendment (Definition and
Religious Freedoms) Act 2017 (Cth).
SSM had been debated in Australia for over a decade prior to the postal survey debate,
which intensified and crystallised into an ‘electoral-style campaign’, despite significant com-
munity opposition to an earlier plan for a non-binding plebiscite on SSM (Thomas et al. 2020).
The central role that children were going to play in the arguments from both the ‘Yes’ and
‘No’ campaigns became evident almost immediately. The first ‘No’ campaign ad to air on
Australian television featured three mothers speaking about their fears for their children’s
education in the wake of a ‘Yes’ vote. The ad explicitly linked SSM to the then relatively recent
controversy surrounding the Safe Schools Coalition Australian (SSCA) program. As Thomas
et al. (2020) argues, the ad, inter alia, deliberately positioned ‘LGBTIQ people with threats to
children’.
The SSCA program, which was first introduced in Victorian schools in 2010, and
expanded nationally in 2014, aimed to ‘promote affirmation and inclusivity of sexuality
and gender diverse students through a voluntary teacher training programme . . . with
the intention of fostering whole-school improvements in celebrating sexuality and gender
diversity’ (Rawlings and Loveday 2021; see also Ulman 2017) (internal citation omitted).
This led to intense public criticism of the program by conservative political and religious
groups, including the Australian Christian Lobby (ACL) (Carden 2018). The media framed
this opposition as being based on problematic content which was ‘dangerous and risky to
students,’ as being a problem of political correctness and political discord, and as ‘a threat
to children, and that children inherently required protection–especially due to their innate
innocence’ (Rawlings and Loveday 2021). The Federal Government responded by ordering a
review of the SSCA program by Professor Bill Louden. Despite Louden’s review expressing
support for the program, the Federal Government withdrew funding (Carden 2018).

20 The original definition of marriage was inserted in 2004 by the Marriage Amendment Act 2004 (Cth). Prior to
that date the definition of marriage was assumed to be restricted to a union between a man and a woman
based on the common law definition of marriage in Hyde v Hyde (1866).
21 People aged 16 to 18 may, in exceptional circumstances, marry with the consent of their parents and a
magistrate. Under section 95 of the Marriage Act 1961 (Cth) it is an offence to marry a minor or person not of
marriage age.
Laws 2022, 11, 83 7 of 16

While the ‘Yes’ campaign’s follow-up ad did not feature children, subsequent ads
featured heterosexual nuclear family units, including children. As with ‘No’ campaign
ads, mothers spoke about their children, this time focusing on their role in teaching their
children about equality and fairness (Thomas et al. 2020). For the ‘Yes’ campaign, ‘the
symbolic violence of having same-sex families called into question and of being depicted as
depraved and insalubrious raised significant concerns surrounding the impact of the vote
itself on the mental health and wellbeing of children and young people’ (Gerrard 2020),
and was therefore also central to their campaign strategy.
While religion and FoRB is not explicit in these ads, it is worth considering that the first
‘No’ campaign ad to air was funded by the ACL (Thomas et al. 2020). Religious groups have
long been enjoined to place their religious arguments in secular terms when engaging in
public discourse (McBride 2017). As Rawls argued, citizens ‘should be ready to explain the
basis of their actions to one another in terms each could reasonably expect that others might
endorse as consistent with their freedom and equality’ (Rawls 1996, p. 218). The reframing
of religious or moral issues related to children in secular terms has been observed in a
number of contexts. For example, in relation to the rise of the Christian Right in the United
States of America, Bailey (2002, p. 261) observed that ‘prayer in school was repackaged in
terms of students’ rights, childcare issues were wrapped in the rhetoric of parental choice’
and that arguments against abortion were reframed by ‘claiming that unborn children
have a “right to life”.’ (Bailey 2002, p. 254). Similarly, Greenawalt (2009) notes that in
the context of family law decisions a judge must, in determining the best interests of the
child, rely on public reasons, and not those based on religious belief or other philosophical
views. In the context of the Australian SSM debate, Poulos (2019) noted that ‘opponents of
marriage equality make strategic decisions to frame their objections not on arguments about
immorality or religious beliefs but on the negative consequences of same-sex marriage
to society–it threatens marriage, family, freedoms and rights’. In the American context,
Bailey (2002, p. 255) noted that the debate was similarly reframed in terms of ‘pluralism,
family, and freedom’. An absence of explicit reference to Christianity or religious teachings
should not, therefore, be seen as the absence of such motivations or connections. The ACL
continues to advocate for ‘traditional marriage,’ as well as continuing to link SSM to the
SSCA program (Australian Christian Lobby n.d.).
Both the ‘Yes’ and ‘No’ campaigns used images associated with privilege in Australia.
As Thomas et al. (2020) note, the focus of the ads was on heteronormative family structures
of the white nuclear family–Mum, Dad and a couple of ‘normatively-gendered children’.
Added to this litany of privilege is, arguably, an unspoken ‘Christian privilege’. As outlined
above, and argued by Quinlan (2016), Australia is, and has historically been, a predom-
inantly Christian country. While this is changing, it is still an important feature of the
Australian identity. As both Poulos (2019) and Ezzy et al. (2021) observed, a feature of
this unspoken Christian privilege is an increasing ‘disjunction between the truth claims of
Christians and the demands of treating others respectfully in a diverse society’ (Ezzy et al.
2021). As Poulos (2019) argues:
With the increasing legal protections afforded to women and especially LGBTIQ
people, most religious groups in Australia are seeing their traditional beliefs and
moral codes eroded by society and contradicted in law. In the balancing rights
problematisation, the privileged Christian majority . . . becomes the persecuted
minority because the truth claims of its beliefs have been challenged in law.
Ezzy et al. (2021) add ‘“legal protections afforded to members of the religious minori-
ties” to Poulos’ list’.
Further, a direct link between so-called ‘traditional marriage’22 , the importance of
procreation and children, and Australia’s ‘Christian’ heritage has been a prominent feature
of arguments against SSM in Australia long before the 2017 postal survey (see Quinlan 2016).

22 Marriage between one man and women.

Laws 2022, 11, 83 8 of 16

For example, Quinlan (2016) argues, inter alia, that a compelling reason to maintain the
so-called ‘traditional’ definition of marriage is the dominance of Christianity in Australia.
The link between FoRB, children and the SSCA program continued during the par-
liamentary debate on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017
(Cth). During the parliamentary debate, 14 unsuccessful amendments were proposed to
the Bill. In relation to children, Liberal Senator James Paterson proposed the insertion of a
new section, which would have enabled parents to withdraw their children from classes
where the school is teaching a view of marriage that is inconsistent with the parent’s values
regarding marriage (Barker 2019b).
During his argument in support of the clause, Paterson (2017) explicitly linked the
amendment to the right of parents to withdraw their children from SRE classes and the
SSCA program. While he attempted to suggest that parents may have secular reasons
for objecting to the teaching of SSM, his focus was squarely on parental rights and FoRB
(Paterson 2017). The right for parents to educate their children in the religion of their choice
is protected in international law (Doe 2011). While under article 13(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) education should ‘promote
understanding, tolerance, and friendship among all nations and all racial, ethnic or religious
groups’ parents retain the right, under article 18(4) of the International Covenant on Civil and
Political Rights (ICCPR), to ‘ensure the religious and moral education of their children in
conformity with their own convictions’. The right of parents, and children, to withdraw
from religious education specifically is further articulated in article 5(2) of the Declaration
on the Elimination of All forms of Intolerance and Discrimination based on Religion or Belief
(DEDAW):
[e]very child shall enjoy the right to have access to education in the matter of
religion or belief in accordance with the wishes of his parents or, as the case may
be, legal guardians, and shall not be compelled to receive teaching on religion or
belief against the wishes of his parents or legal guardians, the best interests of the
child being the guiding principle.
However, the right to withdraw from other classes is less clear. For example, the
European Court of Human Rights has held that parents do not have a right to withdraw
their child from secular ethics classes (Appel-Irrgang v Germany 2009), nor from mandatory
sex education classes (Kjeldsen, Busk Madsen and Pedersen v Denmark 1976). Paterson’s
suggestion, therefore, that parents should have a right to withdraw their children from
classes about marriage is dubious from an international law perspective.
Other speakers made the link between children, SSM, and FoRB even more explicit.
For example, speaking in support of the amendment, Liberal Senator David Fawcett linked
the amendment to article 18(4) of the ICCPR (Fawcett 2017).
A count of the references to FoRB during the debate on the amendments proposed by
Paterson reveals that FoRB was referred to 17 times, often alongside other fundamental
freedoms such as freedom of speech. By contrast, Liberal Senator Eric Abetz explicitly
argued that SSM was not a fundamental human right:
What we are embarking upon with this legislation, potentially, is to compromise
those fundamental rights in favour of something which has been shown time
and again not to be a fundamental human right, namely, same-sex marriage.
The international law on that is exceptionally clear. Does that stop a country
from legislating for same-sex marriage? Of course not. It is not one of those
fundamental international human rights. So what we have here is the Australian
legislature seeking to establish a new right and, in so doing, compromising those
very basic fundamental human rights that, thank goodness, we were all able to
grow up with. (Abetz 2017)
The role of children in the SSM debate is clear when the public debate, including
the advertisements for both the ‘Yes’ and ‘No’ campaigns, are considered alongside the
parliamentary debate. While the impact of the change to the marriage laws on children
Laws 2022, 11, 83 9 of 16

were not the only arguments mounted, they were a continuous thread throughout the
debate with, in relation to the ‘No’ campaign in particular, a clear link to religious or
so-called ‘traditional’ views about marriage.

3.2. Religious Freedom Review

On 22 November 2017, in the midst of the public debate on the SSM postal survey,
then Prime Minister Malcolm Turnbull announced an inquiry, by a government-appointed
Expert Panel, into freedom of religion (the “Religious Freedom Review”) (Turnbull 2017;
Ruddock et al. 2018). The objective, outlined in the Terms of Reference was to ‘examine
and report on whether Australian law (Commonwealth, State and Territory) adequately
protects the human right to freedom of religion’ (Ruddock et al. 2018). The Expert Panel
made 20 recommendations, six of which related to children and education (Ruddock et al.
2018; Barker 2020a). Despite comprising just 30% of the twenty recommendations, it is
these six that garnered the most media attention in the immediate aftermath of the leaking,
and eventual release, of the Expert Panel’s report (see Topsfield 2018; Barry 2018).
Recommendations 5–8 of the Religious Freedom Review related to exemptions in the
Sex Discrimination Act 1984 (Cth) (“SDA”) and other state and territory-based discrimina-
tion laws that provide religious schools with exemptions from some aspects of the SDA.
These recommendations sought to narrow these exemptions (Elphick et al. 2018), although
inaccurate media reporting at the time suggested otherwise (see Barry 2018). Specifically,
the Religious Freedom Review recommended the removal of any exemptions relating to
race, disability, pregnancy, or intersex status, or on the basis that existing employees had
entered into a marriage. Further, the Review recommended that the remaining exemptions
in the SDA be amended to require schools to have a publicly available policy ‘outlining its
position in relation to the matter and explaining how the policy will be enforced’ (Ruddock
et al. 2018)23 .
Recommendation 9 related to classes that contain ‘instruction on religious or moral
matters’ (Ruddock et al. 2018). The Review recommended that state and territory education
departments should ‘maintain clear policies as to when and how a parent or guardian may
request a child be removed’ from these classes and that the policies be ‘applied consistently’
(Ruddock et al. 2018).
Recommendation 12 dealt with the nexus between schools and the legalisation of SSM,
by recommending that the Commonwealth amend the Marriage Act 1984 (Cth) ‘to make it
clear that religious schools are not required to make available their facilities, or provide
goods and services, for any marriage’ (Ruddock et al. 2018). An exemption of this nature
already exists in Section 47B of the Marriage Act 1961 (Cth) for ‘bodies established for a
religious purpose’. Section 47B permits these bodies to refuse to make their facilities or
services available for the solmisation of a marriage or for ‘purposes reasonably incidental
to the solmisation of marriages’.
While the majority of the recommendations of the Religious Freedom Review were
accepted by the Federal Government, at the time of writing none of the recommendations
from the Review have sounded in legislative reform–including those relating to children
and schools. On the one hand, this might suggest that FoRB issues, including those related
to children, are not urgent, however the number of reviews into FoRB and related issues
would belie this interpretation of government inaction.
Poulos (2019) has identified nine separate inquiries at both state and federal level,
including the Religious Freedom Review, into FoRB prior to 2019, with a further 11 which
included considerations of FoRB as part of a wider inquiry into human rights, LGBTI rights,
or race discrimination. Perhaps tellingly, 13 of the 20 inquiries, (65%), have occurred since
2011. Further, since the publication of Poulos’s study in 2019, the recommendations of the
Religious Freedom Review have sparked further public inquiries. There have been five

23 Section 34(3) of South Australia’s Equal Opportunity Act 1984 (SA) already requires schools to have a publicly
available policy; see also Barker (2019a).
Laws 2022, 11, 83 10 of 16

public inquiries in addition to those previously identified, taking the count to 18 (72%)
inquiries in the last decade24 . Ten of these (40%) have occurred since (or in conjunction
with) the SSM postal survey in 201725 .
If a lack of importance and attention towards FoRB issues cannot explain government
inaction, another explanation may be the complexity of the issue of balancing ‘competing
rights’, particularly in the context of children. A feature of the public inquiries conducted
since 2011, including the Religious Freedom Review, is the problematisation of FoRB as
being primarily about the balancing of competing rights (Poulos 2019). Prior to 2011, the
dominant problematisation of FoRB was religious diversity. As Poulos (2019) explains,
‘[t]he balancing rights problematisation assumes that the granting of equality rights will
always be a threat to religious freedom’. In relation to the Religious Freedom Review, Poulos
notes that ‘[i]t focuses entirely on issues that [are] related to the freedom of organisations,
especially schools, and individuals . . . to discriminate against others on the basis of sexual
orientation, gender identity and relationship status’. (emphasis added)
The emphasis on children and schools, as well as government inaction, makes sense
in an environment where the primary problem of FoRB which needs to be ‘solved’ is the
need to balance ‘competing’ rights. As the New South Wales Anti-Discrimination Board
observed (1984):
the thorniest problem . . . for it is education that we find the most contentious
about such apparent paradoxes is determining which rights take priority over
others: parents’ rights to have their children educated in the beliefs of their choice
or no belief at all, religious groups’ rights to perpetuate traditions and beliefs by
passing their culture on to the next generation, and the right children have to
receive an education that adequately prepares them for the world.
Today, in the context of the recommendations made regarding children and schools
by the Religious Freedom Review, we might add the right not to be discriminated against
in employment and education on the basis of ones (or parents’) gender, gender identity,
sexuality or marital status.
In the absence of an easy ‘solution’ the Government has found it impossible to act on
the recommendations of the Religious Freedom Review. This is most clearly exemplified
in the failed attempt to pass the Religious Discrimination Bill 2021 as recommended by the
Review.

3.3. Religious Discrimination Bill

One of the key recommendations of the Religious Freedom Review was the inclusion,
at the federal level, of a prohibition of religious discrimination. As outlined above, while
most states and territories prohibit religious discrimination, such a prohibition is notably
absent at the federal level.
Recommendation 15

24 While not strictly public inquiries, the Federal Government also released two exposure drafts of their proposed
Religious Discrimination Bill during this time. In each case they called for public submissions and conducted
public consultations with interest groups and individuals.
25 Between the leaking of the recommendations in October 2018 and its formal release in December 2018, the
Federal Senate Legal and Constitutional Affairs Reference Committee conducted an inquiry into Exemptions
that Allow Faith-Based Educational Institutions to Discriminate Against Students, Teachers and Staff (Senate Legal
and Constitutional Affairs Reference Committee 2018). This was followed in January 2019 when the Federal
Senate Legal and Constitutional Affairs Legislations Committee considered a private member’s Bill designed
to carry out the recommendation from the Religious Freedom Review to remove the exemptions relating to
students (Senate Legal and Constitutional Affairs Legislations Committee 2019). The Government also referred
recommendations 5–8 of the Religious Freedom Review to the Australian Law Reform Commission (2019). In
2021, the New South Wales parliament conducted a review of the Anti-Discrimination Amendment (Religious
Freedoms and Equality) Bill 2020 (Joint Select Committee 2021). Finally, while not directly related, the Western
Australian Law Reform Commission has recently released its final report of its review of the Equal Opportunity
Act 1984 (WA) (Law Reform Commission of Western Australia 2022).
Laws 2022, 11, 83 11 of 16

The Commonwealth should amend the Racial Discrimination Act 1975, or enact a
Religious Discrimination Act, to render it unlawful to discriminate on the basis
of a person’s religious belief or activity’, including on the basis that a person
does not hold any religious belief. In doing so, consideration should be given
to providing for appropriate exceptions and exemptions, including for religious
bodies, religious schools and charities.
In September 2019, then federal Attorney General Christian Porter launched the first
exposure draft of the Religious Discrimination Bill. This was followed by a second exposure
draft in late 2020. The intervention of the global COVID-19 pandemic saw work on further
drafts delayed. The final version of the Religious Discrimination Bill was introduced to the
federal parliament on 25 November 2021. While the Bill passed through the House of
Representatives successfully, it ultimately lapsed on 25 July 2022 before passing the Senate
after the Government effectively withdrew the Bill. Then, Attorney General, Michaelia
Cash, argued that amendments to the bill [if] passed by the Senate may have unintended
consequences (Martin and Karp 2022).
The amendments in questions were in fact to the Human Rights Legislation Amend-
ment Bill 2021 which, along with the Religious Discrimination (Consequential Amend-
ments) Bill 2021, was introduced alongside the Religious Discrimination Bill 2021. The
amendment sought to repeal Section 38(3) and amend Section 37 of the SDA. As explained
by the mover of the amendment, the effect of these amendments was to ‘remove the excep-
tion that allows religious educational institutions to discriminate in connection with the
provision of education or training’. (Sharkie 2022)
By the time the Religious Discrimination Bill 2021 was debated by Federal Parliament in
February 2022, these two provisions of the SDA had already undergone significant public
scrutiny. As outlined above the Religious Freedom Review recommended the narrowing
of these provisions. In the immediate aftermath of the leaking of the Reviews’ recommen-
dations, inaccurate media reporting portrayed this recommendation as an expansion of
these exemptions, leading to significant public outcry (Elphick et al. 2018; Barry 2018).
In its 2018 report into Legislative Exemptions that Allow Faith-Based Educational Institutions
to Discriminate Against Students, Teachers and Staff, the Senate Legal and Constitutional
Affairs Reference Committee (2018) were ‘pleased to hear various faith-based educational
institutions indicate that they have not, would not, and do not wish to expel students on
the basis of their sexuality’. The Committee nevertheless felt that ‘if it is the case that the
exemptions are not being used against students, that is no reason to maintain them. Rather,
it is reasonable to remove them as necessary. The Committee did not hear any satisfactory
examples of cases in which a school might need these exemptions in order to uphold its
religious ethos’ (Senate Legal and Constitutional Affairs Reference Committee 2018). As a
result, significant momentum had built up in favour of amendments to Section 37 and 38
of the SDA. In response, the Government proposed minor amendments, however these did
not go far enough for the Opposition and cross bench.
Throughout the preceding debate, members of the House had expressed concern
that the effect of the Religious Discrimination Bill, and accompanying bills, would be to
discriminate against and further marginalise LGBTIQA+ children and their families. Of
the 46 members of the House of Representatives who spoke during the Second Reading
Speech on the three bills, 36 (78%) expressed concern about the potential negative impact
of the Religious Discrimination Bill on children and teachers and, in particular, those who
identify as LGBTIQA+ and transgender. Many spoke of the need to ‘protect children’ and
expressed disappointment that the rights of children were being pitted against the rights of
religious minorities. For examples Labour Party MP Sharon Claydon commented:
This Prime Minister, this coalition government, should not be asking us to pit
children against people with disability and those who are potentially hurt by
the flaws in this bill. We shouldn’t be pitting those people against members of
minority faiths, for example, who will be protected by this bill. What a diabolical
Laws 2022, 11, 83 12 of 16

proposition to be putting to the Australian Parliament. And of course it doesn’t

have to be that way. (Claydon 2022)
Those who spoke in support of the unamended bill also referred to the issue, defending
the role schools played and the right of parents to educate their children in accordance with
their own religious beliefs and morals.
In supporting the amendment to the Bill the Leader of the Opposition summed up
the sentiment expressed by the cross bench and Opposition throughout the debate: ‘No
child should be discriminated against. Overwhelmingly, Australians of faith would agree
with this too. Australian families are going to wake up in a few hours and look on, with
sadness and anger, . . . ’ (Albanese 2022). The amendment and the Bill passed the House of
Representatives, despite opposition from the Government.
While the Religious Discrimination Bill was criticised on a number of fronts, it was
arguably the concerns about the impact on children which ultimately led to its effective
withdrawal by the Government. The Government and its supporters, such as the ACL,
could not support the amendments to the SDA, which would have had a profound impact
on religious schools. As explained by the ACL, from their perspective ‘[t]aking away
protections for Christian schools is a price too high to pay for the passage of the religious
discrimination bill. The amendments voted on by Labor, independents and these Liberal
MPs unnecessarily interfere with the operation of faith-based schools’ (Martin and Karp
2022). On the other hand, those that supported the amendment saw it as crucial to protect
LGBTIQA+ children from discrimination in education. As Labor MP Anne Aly explained:
the principle here is one of equality and understanding that equality is not a
finite resource. It can’t be a finite resource. If we want equality for ourselves,
we must be prepared to extend equality to all others, because equality doesn’t
work if it’s just for you. It’s like having two children but only loving one of
them. You just can’t do that. So it is important that this bill be underpinned by
the fundamental principle that all people are worthy of equality, all people are
worthy of protection, all people are worthy of freedom and all people are worthy
of respect. (Aly 2022)
The ultimate impact of the withdrawal of the Religious Discrimination Bill is that
Australia still does not have a federal prohibition on religious discrimination, while at the
same time religious schools continue to be permitted to discriminate against LGBTIQA+
children. This is despite the fact that leaders and spokespeople for religious schools have
made representations that they do not make use of these exemptions in relation to students–
yet they remain.

4. Conclusions
During the Second Reading debate on the failed Religious Discrimination Bill Greens
party leader Adam Bandt argued ‘no child in this country should have to wake up to
headlines that say they are being traded off as political collateral . . . ’ (Bandt 2022). Yet,
this is exactly what has happened. As Poulos (2019) has observed, debate about freedom
of religion in Australia has been framed as a clash of rights. This clash is particularly
evident when the role and place of children in these debates are considered. The debate
has descended, as Claydon (2022) noted, into a choice between ‘protecting’ children and
FoRB. Yet, as Aly (2022) argued, equality should mean equality for all otherwise ‘[i]t’s like
having two children but only loving one of them’.
The issues relating to the intersection of children, schools and FoRB highlighted in the
public and parliamentary debates on SSM, the Religious Freedom Review and Religious
Discrimination Bill are far from resolved. Religious schools are still able to discriminate
against LGBTIQA+ children and their families, while children from religious minorities,
such as the Sikh child discussed at the beginning of this article, are still not protected from
religious discrimination at the federal level.
Debates about FoRB and religious discrimination are likely to continue in the near
future. At the state level, the New South Wales State Government announced they will
Laws 2022, 11, 83 13 of 16

amend the Anti-Discrimination Act 1977 (NSW) (Speakman and Ward 2021), and the Law
Reform Commission of Western Australia has recently released its review of the Equal
Opportunity Act 1984 (WA). At the federal level, it is unclear when, or if, the newly elected
Labor Government will introduce its own Religious Discrimination Bill.
Even if the Government chooses not to revisit the concept of a Religious Discrimination
Bill, the issues raised in the SSM debate, Religious Freedom Review and Religious Discrimi-
nation Bill debates have not gone away. A new approach to resolving these issues in the
best interests of Australian children will need to be found. One option, proposed by Barker
(2021a) in relation to the Kirpan issue and the Religious Discrimination Bill (Barker 2021c) is
to reframe the issues as a question of the relationship between the state and religion, rather
than as a matter of rights. At the moment this is contested, with the relationship variously
described as liberal separation (McLeish 1992; Babie et al. 2019), pragmatic pluralism (Soper
et al. 2017) and non-establishment pluralism (Barker 2021b). Before new laws such as a
Religious Discrimination Act can be discussed a wider public debate about the future of
the Australian state-religion relationship needs to take place. Once this debate has taken
place, the necessary law reform can follow. Such an approach avoids the clash of rights
problem articulated by Poulos (2019) while at the same time providing a new framework
for conversations about the state, religion and children. Ultimately, Australia will need to
decide on the nature of the relationship between state and religion, and it is this which will
determine how issues related to FoRB and children will be determined.
The direction of the debate about FoRB needs to be re-oriented. As Labor MP Clare
O’Neil said in her closing remarks during the Second Reading Speech on the Religious
Discrimination Bill:
children should not be discriminated against for any reason in this country—they
should not. There is not a religious leader in my community who would argue
for such a right to discriminate, and I think it’s very unfortunate that this debate
has descended into a dispute about whether children should be discriminated
against. The parliament should not be deliberating on that question; it has a clear
answer, and the answer is no. (O’Neil 2022)
This includes both LGBTIQA+ children and religious children alike.

Funding: This research received no external funding.

Conflicts of Interest: The author declares no conflict of interest.

References
ABC News. 2006. Federal Govt to Fund Chaplains in Schools. October 29. Available online: https://www.abc.net.au/news/2006-10-
29/federal-govt-to-fund-chaplains-in-schools/1297270 (accessed on 3 November 2022).
Abetz, Eric. 2017. Bills: Marriage Amendment Definition and Religious Freedoms Bill 2017 in Committee. Australia. Parliament House.
Senate. Official Hansard. 2019(14) 45th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1099 (accessed on 13 November 2022).
Ahdar, Rex, and Ian Leigh. 2013. Religious Freedom in the Liberal State, 2nd ed. Oxford: Oxford University Press.
Albanese, A. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Aly, A. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Appel-Irrgang v Germany. 2009. Appel-Irrgang v Germany. No. 45216/07, ECHR 2009. Available online: https://hudoc.echr.coe.int/eng#
\{%22itemid%22:[%22001-112539%22]\} (accessed on 13 November 2022).
Aroney, Nicholas. 2019. Religious Discrimination and Religious Freedom: An Evaluation of the Exposure Draft of the Australian
Religious Discrimination Bill 2019. SSRN. Available online: https://ssrn.com/abstract=3455089 (accessed on 5 November 2022).
Australian Bureau of Statistics. 2021. Schools. Available online: https://www.abs.gov.au/statistics/people/education/schools/latest-
release#:~{}:text=Students-,In%202021%3A,and%20independent%20schools%20(15.4%25) (accessed on 13 November 2022).
Laws 2022, 11, 83 14 of 16

Australian Bureau of Statistics. 2017. Census of Population and Housing: Reflecting Australia–Stories from the Census, 2016 Religion
in Australia. Available online: https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/2071.0~{}2016~{}Main%20
Features~{}Religion%20Data%20Summary~{}70 (accessed on 5 November 2022).
Australian Bureau of Statistics. 2022. Religious Affiliation in Australia: Exploration of the Changes in Reported Religion in the 2021
Census. Available online: https://www.abs.gov.au/articles/religious-affiliation-australia (accessed on 9 August 2022).
Australian Christian Lobby. n.d. Marriage. Available online: https://www.acl.org.au/marriage (accessed on 5 November 2022).
Australian Law Reform Commission. 2019. Background Paper: Inquiry into Religious Exemptions in Anti-Discrimination Legislation.
Available online: https://www.alrc.gov.au/wp-content/uploads/2019/08/background_paper_religious_freedom_inquiry-1.pdf
(accessed on 5 November 2022).
Babie, Paul T. 2020. The Ethos of Protection for Freedom of Religion or Belief in Australian Law. University of Western Australia Law
Review 47: 64–91.
Babie, Paul T. 2021a. Religious Freedom and Education in Australian Schools. Laws 10: 7. [CrossRef]
Babie, Paul T. 2021b. Religion and Education in Australian Government Schools. In Law, Education, and the Place of Religion in Public
Schools: International Perspectives. Edited by Charles J. Russo. Abingdon: Taylor and Francis Group, pp. 36–52.
Babie, Paul T., Joshua Neoh, James Krumrey-Quinn, and Chong Tsang. 2019. Religion and Law in Australia. Alphen aan den Rijn:
Wolters Kluwer.
Bailey, Michael E. 2002. The Wisdom of Serpents: Why Religious Groups Use Secular Language. Journal of Church and State 44: 249–70.
[CrossRef]
Bandt, A. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Barker, Renae. 2019a. Religions Should be Required to be Transparent in Their Use of Exemptions in Anti-discrimination Laws.
Alternative Law Journal 44: 191–96. [CrossRef]
Barker, Renae. 2019b. State and Religion: The Australian Story. London: Routledge.
Barker, Renae. 2020a. It is not Inevitable: The Future Funding of Faith-Based Schools after Ruddock. The Australasian Catholic Record 97:
144–55.
Barker, Renae. 2020b. The Freedom of Religion Debate: Where are we and How did we Get Here? Brief 47: 27–32.
Barker, Renae. 2020c. Freedom of Religion Without a Bill of Rights: Australia’s Peculiar Approach to Tackling Freedom of Religion and
Other Human Rights issues. In Freedom of Religion or Belief: Creating Constitutional Space for Fundamental Freedoms. Edited by Paul
Babie, Neville Rochow and Brett Scharffs. Cheltenham: Edward Elgar Publishing, pp. 109–30.
Barker, Renae. 2020d. Children in Schools: The Battle Ground of Religious Belief. The University of Western Australia Law Review 47:
152–74.
Barker, Renae. 2021a. A Religious Symbol, Not a Knife: At the Heart of the NSW Kirpan Ban is a Battle to Define Secularism. The
Conversation. Available online: https://theconversation.com/a-religious-symbol-not-a-knife-at-the-heart-of-the-nsw-kirpan-
ban-is-a-battle-to-define-secularism-161413 (accessed on 5 November 2022).
Barker, Renae. 2021b. Pluralism versus Separation: Tension in the Australian Church-State Relationship. Religion and Human Rights 16:
1–40. [CrossRef]
Barker, Renae. 2021c. Nothing less than the character of Australian secularism is at stake in the religious discrimination debate. ABC
Religion and Ethics. Available online: https://www.abc.net.au/religion/australian-secularism-and-the-religious-discrimination-
debate/13655762 (accessed on 28 October 2022).
Barry, Paul. 2018. Religious Freedom Furphy: Fairfax Denies Any Mistakes in Its Reporting on Schools Discriminating Against Gay
Students. In Media Watch. episode 36. Produced by Tim Latham. Aired 15 October 2018. Sydney: Australian Broadcasting
Corporation, TV series episode.
Carden, Clarissa. 2018. ‘Fiddling with young kiddies’ minds’: Report on the Safe Schools Coalition Australia. Continuum: Journal of
Media & Cultural Studies 33: 297–309.
Chappell, Louise, John Chesterman, and Lisa Hill. 2009. The Politics of Human Rights in Australia. Cambridge: Cambridge University
Press.
Claydon, S. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Doe, Norman. 2011. Religion and Public Schools in the States of the European Union. In Religion in Public Education. Edited by Gerhard
Robbers. Germany: European Consortium for Church and State Research, pp. 29–39.
Durham, W. Cole, Jr., and Brett G. Scharffs. 2019. Law and Religion: National, International, and Comparative Perspectives, 2nd ed. Alphen
aan den Rijn: Wolters Kluwer.
Elphick, Liam. 2017. Sexual Orientation and ‘Gay Wedding Cake’ Cases Under Australian Anti-Discrimination Legislation: A Fuller
Approach To Religious Exemptions. Adelaide Law Review 38: 149–93.
Elphick, Liam, Amy Maguire, and Anja Hilkemeijer. 2018. Ruddock Report Constrains, Not Expands, Federal Religious Exemptions.
The Conversation. Available online: https://theconversation.com/ruddock-report-constrains-not-expands-federal-religious-
exemptions-96347 (accessed on 5 November 2022).
Laws 2022, 11, 83 15 of 16

Ezzy, Douglas, Rebecca Banham, and Lori Beaman. 2021. Religious Diversity, Legislation, and Christian Privilege. Journal of Sociol-
ogy. Available online: https://journals.sagepub.com/doi/full/10.1177/14407833211022036 (accessed on 13 November 2022).
[CrossRef]
Fawcett, David. 2017. Bills: Marriage Amendment Definition and Religious Freedoms Bill 2017 in Committee. Australia. Parliament
House. Senate. Official Hansard. 2019(14) 45th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1099 (accessed on 13 November 2022).
Feinberg, Joel. 1980. The Child’s Right to an Open Future. In Whose Child? Children’s Rights, Parental Authority, and State Power. Edited
by William Aiken and Hugh LaFollette. Lanham: Rowman and Littlefield, pp. 124–53.
Foster, Neil. 2016. Freedom of Religion and Balancing Clauses in Discrimination Legislation. Oxford Journal of Law and Religion 5:
385–430. [CrossRef]
Frame, Tom. 2009. Losing My Religion: Unbelief in Australia. Kensington: UNSW Press.
Gerrard, Jessica. 2020. Boys in Dresses: Same-sex Marriage, Children and the Politics of Equivalence. Australian Feminist Studies 35:
70–80. [CrossRef]
Greenawalt, Kent. 2009. Secularism, Religion, and Liberal Democracy in the United States. Cardozo Law Review 30: 2383–2400.
Independent Schools Australia. 2020. Snapshot 2020: Independent Schools in Australia. Available online: https://isa.edu.au/snapshot-
2020/ (accessed on 9 August 2022).
Joint Select Committee. 2021. Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedom and Equality Bill 2020.
Inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020. Parliament of New South Wales.
Available online: https://www.parliament.nsw.gov.au/committees/listofcommittees/Pages/committee-details.aspx?pk=267
(accessed on 13 November 2022).
Kjeldsen, Busk Madsen and Pedersen v Denmark. 1976. Kjeldsen, Busk Madsen and Pedersen v Denmark. Nos. 5095/71, 5920/72,
5926/72 ECHR 1976. Available online: https://hudoc.echr.coe.int/fre#\{%22itemid%22:[%22001-57509%22]\} (accessed on
13 November 2022).
Landrigan, Mitchell. 2014. Can the Implied Freedom of Political Discourse Apply to Speech By or About Religious Leaders? Adelaide
Law Review 34: 427–57.
Law Reform Commission of Western Australia. 2022. Final Report–Review of the Equal Opportunity Act. Available online:
https://www.wa.gov.au/government/publications/project-111-review-of-the-equal-opportunity-act-1984-wa (accessed on
13 November 2022).
Majumdar, Samirah, and Virginia Villa. 2020. In 2018, Government Restrictions in Religion Reach Highest Level Globally in More Than
a Decade. Pew Research Centre. Available online: https://www.pewforum.org/2020/11/10/in-2018-government-restrictions-
on-religion-reach-highest-level-globally-in-more-than-a-decade/ (accessed on 5 November 2022).
Martin, Sarah, and Paul Karp. 2022. Coalition Shelves Religious Discrimination Bill after Christian Lobby Says Changes Do ‘More
Harm than Good’. The Guardian. Available online: https://www.theguardian.com/world/2022/feb/10/coalition-shelves-
religious-discrimination-bill-after-christian-lobby-says-changes-do-more-harm-than-good (accessed on 28 October 2022).
McBride, Cillian. 2017. Religion, Respect and Public Reason. Ethnicities 17: 205–19. [CrossRef]
McLeish, Stephen. 1992. Making Sense of Religion and the Constitution: A Fresh Start for Section 116. Monash University Law Review 18:
207–36.
Museum of Australian Democracy. n.d. Documenting Democracy: Constitution Act 1934 (Tas). Available online: http://foundingdocs.
gov.au/item-sdid-32.html (accessed on 5 November 2022).
O’Neil, C. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Paterson, J. 2017. Bills: Marriage Amendment Definition and Religious Freedoms Bill 2017 in Committee. Australia. Parliament House.
Senate. Official Hansard. 2019(14) 45th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1099 (accessed on 13 November 2022).
Poulos, Elenie. 2019. Constructing the Problem of Religious Freedom: An Analysis of Australian Government Inquires into Religious
Freedom. Religions 10: 583. [CrossRef]
Productivity Commission. 2021. Report on Government Services: Child Care, Education and Training. Available online: https:
//www.pc.gov.au/research/ongoing/report-on-government-services/2021/child-care-education-and-training (accessed on
5 November 2022).
Quinlan, Michael. 2016. Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia. University of Notre
Dame Australia Law Review 18: 71–123. [CrossRef]
Rawlings, Victoria, and Jenna Loveday. 2021. ‘A Threat to the Social Order’: A ‘Problem Frame’ Analysis of the Safe Schools Coalition
Australia Programme within Print Media. Discourse: Studies in the Cultural Politics of Education, 1–15. [CrossRef]
Rawls, John. 1996. Political Liberalism. Cambridge: Cambridge University Press.
Ruddock, Philip, Nicholas Aroney, Annabelle Bennett, Frank Brennan, and Rosalind Croucher. 2018. Religious Freedom Review:
Report of the Expert Panel. Available online: https://www.ag.gov.au/sites/default/files/2020-03/religious-freedom-review-
expert-panel-report-2018.pdf (accessed on 5 November 2022).
Laws 2022, 11, 83 16 of 16

Senate Legal and Constitutional Affairs Legislations Committee. 2019. Sex Discrimination Amendment (Removing Discrimination Against
Students) Bill 2018; Canberra: Parliament of Australia.
Senate Legal and Constitutional Affairs Reference Committee. 2018. Legislative Exemptions that Allow Faith-Based Educational Institutions
to Discriminate Against Students, Teachers and Staff ; Canberra: Parliament of Australia.
Sharkie, R. 2022. Bills: Human Rights Legislation Amendment Bill 2021 in Committee. Australia. Parliament House. House of
Representatives. Official Hansard. 2022 46th Parliament, 1st Session. Available online: https://www.aph.gov.au/Parliamentary_
Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6820 (accessed on 13 November 2022).
Soper, J. Christopher, Kevin R. den Dulk, and Stephen V. Monsma. 2017. The Challenge of Pluralism: Church and State in Six Democracies.
Lanham: Rowman & Littlefield.
Speakman, Mark, and Natalie Ward. 2021. Media Release: New Laws Set to Tackle Religious Discrimination. New South Wales
Government. Available online: https://dcj.nsw.gov.au/content/dam/dcj/dcj-website/documents/news-and-media/media-
releases/2021/new-laws-set-to-tackle-religious-discrimination.pdf (accessed on 5 November 2022).
Taouk, Maryanne. 2021. Religious Knives Known as Kirpans to be Allowed in NSW Schools After Ban Reversed. ABC News. Available
online: https://www.abc.net.au/news/2021-08-13/religious-knives-to-be-allowed-in-nsw-schools-again/100374484 (accessed
on 5 November 2022).
Temperman, Jeroen. 2010. State-Religion Relationships and Human Rights Law: Towards a Right to Religious Neutral Governance. Leiden:
Brill.
Thomas, Amy, Hannah McCann, and Geraldine Fela. 2020. “In this House we Believe in Fairness and Kindness”: Post-liberation
Politics in Australia’s Same-sex Marriage Postal Survey. Sexualities 23: 475–96. [CrossRef]
Topsfield, Jewel. 2018. Religious Freedom Review Enshrines Right of Schools to Turn Away Gay Children and Teachers. Sydney
Morning Herald. Available online: https://www.smh.com.au/politics/federal/religious-freedom-review-enshrines-right-of-
schools-to-turn-away-gay-children-and-teachers-20181009-p508o7.html (accessed on 5 November 2022).
Turnbull, Malcolm. 2017. Media Release: Ruddock to Examine Religious Freedom Protections in Australia. Australian Government–
Department of Prime Minister and Cabinet. Available online: https://pmtranscripts.pmc.gov.au/release/transcript-41338
(accessed on 9 August 2022).
Turner-Cohen, Alex. 2021. ‘It’s Dangerous’: Sikh Community Divided After Government Bans Religious Knives in Schools Following
Sydney Stabbing. In 7News; May 18. Available online: https://7news.com.au/news/religion-and-belief/its-dangerous-sikh-
community-divided-after-government-bans-religious-knives-in-schools-following-sydney-stabbing-c-2871116 (accessed on
13 November 2022).