Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws

Abstract

Many Australian anti-discrimination statutes contain special provisions to balance equality with religious freedom. However, if these religious freedom provisions in state anti-discrimination laws are narrowed too much, the laws may become inoperative by virtue of s 109 of the Australian Constitution, which says that an inconsistency between State and Commonwealth law shall be resolved in favour of the latter. This article explores the relationship between religious freedom, s 109 of the Australian Constitution, and anti-discrimination laws. It concludes that, to avoid constitutional difficulty, states should ensure religious freedom provisions in their anti-discrimination statutes are at least as wide in scope and effect as that provided by the Commonwealth in its anti-discrimination statutes.

Note: “This is the final version of a paper by published in the Australian Journal of Law and Religion (AJLR). Available online at: https://ausjlr.com/wp-content/uploads/2022/07/Volume-1-Foster.pdf”

Keywords: Law and Religion, Discrimination, Australian Constitution s 109