Mapping Religion in Australian Federal Legislation: An Empirical Analysis of 288 Federal Statutes

Abstract

This article presents the first systematic, empirical mapping of explicit references to religion in Australian federal legislation. Drawing on a dataset of 288 statutes in force as of March 2024, the analysis employs a dictionary of 71 religious terms to identify the scope and nature of legislative engagement with religion. The analysis reveals a distinctive legislative mode of balancing freedom of religion or belief through legislation, and, in particular, statutory exemptions, rather than judicial review, advancing the understanding of Australia’s pragmatic approach to church–state relations. The study reveals that religion appears across a wide spectrum of federal law, with taxation, exemptions and special considerations, discrimination, rights, education, employment, crime, terrorism, and marriage emerging as key themes. The prevalence of taxation provisions underscores the financial dimension of the state–religion relationship, while the frequency of exemptions highlights the distinctive Australian approach of balancing freedom of religion or belief at the legislative stage rather than through judicial proportionality analysis. These findings complicate portrayals of Australia as a “secular” state and demonstrate the entanglement of religion and federal law, providing a foundation for further research.

1. Introduction

Section 116 of the Australian Constitution establishes the parameters for the interaction between the federal legislature and religion by prohibiting the federal government from “making any laws” for “establishing any religion”, “imposing any religious observance”, or “prohibiting the free exercise of any religion”. Further, “no religious test” is permitted for “any office or public trust” (Australian Constitution s. 116). While on its face this would seem to oust the federal government from any role legislating for religion, the High Court of Australia has consistently read section 116 narrowly, rejecting an American-style wall of separation (Puls 1998, pp. 142–46; Attorney General (Vic); ex rel. Black v. Commonwealth 1981, 1: pp. 664–65). In practice there is a wide range of areas where the federal legislature makes laws for religion without infringing the prohibitions in section 116. Identifying the full scope of the permitted interaction is not easy. Thus far, no law has ever been found to have infringed section 116. Furthermore, a significant proportion of interactions between state and religion in the Australian context occur at the state and territory level, where section 116 has no operation.

Models of state–religion relationships rely on different variables placing differing levels of importance on specific laws and public policies (Fox 2011). This is arguably inevitable due to differing legal and political systems as well as the inherently complex nature of the state–religion relationship. Due to the potentially all-encompassing nature of religion, almost any matter may become the subject of religious belief and practice (Adelaide Co. of Jehovah’s Witnesses Inc. v Commonwealth [1943], p. 124) and therefore the subject of laws regulating the manifestation of that belief and practice directly or indirectly and consciously or unconsciously. While this is arguably problematic for cross-jurisdictional comparative analysis (Barker and Clarke 2025) when considering a single jurisdiction, or perhaps a small range of jurisdictions with significant overlaps in legal and political systems as well as cultural and religious demographics, scope arguably exists to establish a base line of relevant laws and public policy for the purposes of further analysis.

Scholarship on the Australian state–religion relationship is relatively new as compared to its counterparts in Europe and North America. However, a distinct voice, sometimes referred to as the Australian School, has emerged. (Patrick 2025; see also Crowe et al. 2025).1 Australian commentators have argued for a range of normative applications of section 116 from being applied so as to permit state–religion interactions from mild establishment (Deagon 2023, pp. 153–82) through to a strict, more American-style separation of state and religion (Beck 2018). While some attempt has been made to reconcile these differing positions (Barker 2021), significant disagreement persists.

As Patrick has observed “monographs and edited collections … [tending] to concentrate around traditionalist Christianity, theories of natural law, and concerns about evolving societal views on sex and gender” (Patrick 2025, pp. 1–2). For example, Babie, one of the early leading scholars on law and religion in Australia, wrote extensively on law and theology (see, for example, Babie 2002, 2003, 2004). However, the majority of these works were published in theology and religious studies journals. His firstto be published in a law journal, came in 2007 and is arguably the first example of the Australian School (see Babie 2007, 2009). Others in the Australian School include, for example, Deagon (2023, 2025) and Neoh (2019), amongst others. Other trends in the scholarship include a focus on the analysis of section 116 (see, for example, Pannam 1963; Puls 1998; Blackshield 2005; Evans 2008; Beck 2018; Aroney 2024)2, freedom of religion and belief (FoRB) (see Evans 2012; Aroney 2014), and antidiscrimination law (see Foster 2016, 2022a; Quinlan and Thompson 2021). However, despite, or perhaps because of this, frantic scholarship disagreement persists, as evidenced by the divide between Deagon (2023) and Beck (2018). Part of the blame may lie in the descriptive, as opposed to empirical, approach taken thus far in understanding the Australian state–religion relationship. While focusing on, for example, the historical development of that relationship (Beck 2018; Barker 2019; Chavura et al. 2019) can be insightful and interesting, it inevitably focuses on some laws and public policies to the exclusion of others. To better understand and map the interaction of state and religion in Australia, and therefore better understand the full scope of interactions permitted by section 116, a more empirical approach is needed.

The aim of this paper is to identify and delineate the legislative interaction between the Australian federal government and religion. It does so via an empirical analysis of 288 federal statutes as of March 2024 identifying explicit references to religion, referred to in the paper as religious terms. It therefore offers a unique data-informed perspective of the Australian federal relationship between state and religion. The paper identifies and discusses the ten most frequent themes that emerged during the analysis: taxation, exemptions and special considerations, crime, education, discrimination, rights, marriage, and employment.

The paper proceeds in five sections. Section 1 introduces the research while Section 2 sets out the methodology, including an explanation of the coding process. Section 3 outlines the results before Section 4 analyses and discusses these results. Finally, Section 5 offers a conclusion noting limitations of the study and areas for future research.

2. Methods

The aim of this research was to identify and analyse all federal statutes that directly or indirectly deal with religion. It analysed legislation through a process of categorisation and coding to identify the frequency and significance of statutes that refer to religion, specific religions, or religious practices (“religious terms”). The analysis involves five stages: (1) development of a dictionary of religious terms, (2) searching the federal register of legislation to identify legislation containing these religious terms and, (3) coding the resulting referencing to identify themes.

This paper focuses on Commonwealth statutes only. Given Australia’s federal system, many areas of law relevant to the state–religion interaction such as education, health, and criminal law are primarily state or territory responsibilities. These will be the subject of future research. Despite this limitation, as the literature discussed above and this analysis will show, there are still significant areas of interaction between the state and religion at the federal level. Another limitation of this analysis is the focus on legislation in a common law jurisdiction overlooks important areas of interaction found only in case law. Again, this will be the subject of future research. The present analysis establishes the national legislative baseline.

2.1. Definitional Reasoning and Creating a Dictionary of “Religious Terms”

The first stage was to develop a dictionary of religious terms. The dictionary of religious terms was identified through a process of conceptual analysis; a typology of the religions was distilled, informed by the literature and broader commentary that discussed or frequently used related terms (Engler and Gardiner 2017, p. 616). Specifically, the dictionary of religious terms employed in this research listed concepts that were used to define, describe, or characterise the most prevalent religions in Australia, their variants (for example, Christian, Islamic, Hindu, and Buddhist) and their synonyms (for example, Anglican, Catholic, and Muslim) noting comparable uses of near equivalent terms, explanatory terms, and associated terms for each religion and its synonyms and variants (Engler and Stausberg 2021, p. 121). This included reviewing the set of religious terms from Australian Bureau of Statistics (ABS) data (Australian Bureau of Statistics 2022) in order to extract implicit terms (Engler and Gardiner 2017, p. 617). This paper does not intend to impose or formulate any semantic theory in justifying the terms used in this analysis (Engler and Stausberg 2021, p. 121). The data-theory spectrum assisted with the identification of the search terms. Specifically, the “data” portion of the spectrum was applied and utilised for conceptual work and theorising, for example, imposing criteria to decide that certain words are linked to “religion” or to the identified religions based on the ABS data, and re-describing those terms using technical vocabulary (Engler and Stausberg 2021, p. 114). This research specifically focuses on the empirical environment and the definitions, classifications, and observations on the data portion of the spectrum (Engler and Stausberg 2021, p. 115).

A further justification in the way the terms were identified is found in the definition of “analysis” in the Cambridge Dictionary of Philosophy. Analysis is defined as “the process of breaking up a concept, proposition, linguistic complex, or fact into its simple or ultimate constituents” (Audi 2015). Elements of the analysis are unified or connected in some significant sense (Engler and Stausberg 2021, p. 119). In the selection of terms, some terms were identified using this method, for example, the word “Christian” is frequently broken into “Catholic” and “Protestant”. These terms were then further analysed into their variants and frequently associated terms, for example, identifying the terms “Pope” and “bishop”. A similar process was undertaken with terms such as “Islam” and “Secular”. These conditions constitute the connotation that allows the researcher to identify the denotation (Engler and Stausberg 2021, p. 120). To ensure the data collection would be precise and to test for counterexamples, initial research was performed in legislation to search for the word “religion” and then closely analyse words that were used around the term and in the relevant chapters. For example, the word “religious” was frequently used in the context of “religious practitioner” which was added to the dictionary. This ensured that the width and precision of the terms were accounted for (Engler and Stausberg 2021, p. 128).

A total of 71 words were finalised for the legislative research including words such as “Christian”, “Catholic”, “faith”, “church”, and “temple”, amongst many others. The complete list of religious terms is set out in Appendix A.

2.2. Searching Religious Terms in the Federal Register of Legislation

The second stage was to search for the identified religious terms in the Federal Register of Legislation in March 2024. Each term was individually searched with search results restricted to “in force”, “name and text”, “Act only”, and “contain phrase”. This ensured that all “in force” Acts were scanned for the term. Of the 71 terms, 24 religious terms were found in federal legislation (see Appendix B). These 24 terms were found across 288 statutes (see Appendix C). This process found the exact religious term in each piece of legislation. For example, the term “religion” appears 51 times in the Marriage Act 1961 (Cth) (“Marriage Act”) and 13 times in the Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act”). Furthermore, some statutes may contain more than one religious term, an example is the Marriage Act, which contains numerous references to the term “religion” and “religious” throughout the legislation.

There were certain instances where religious terms found in legislation were excluded in the final analysis. For example, the term “faith” was referred to in 472 statutes; however, this term was further scrutinised, as the reference to “faith” was frequently with reference to “good faith”, a well-known legal standard which is not related to religion. Subsequently, a search of the federal register for the term “good faith” revealed 464 references. The results of both terms were compared, analysed, and isolated to 20 sole references to faith (that is outside the context of good faith) and included in the final analysis. Another example is the word “doctrine” where close reading found that references to “doctrine” frequently referred to “constitutional doctrine”. There were 50 results for “doctrine” and 29 results for “constitutional doctrine”. The two search results were compared and analysed, and the 11 statutes that did not contain “constitutional” were isolated and included in the final analysis. Each statute was downloaded as at the date accessed and saved in preparation for the coding stage.

2.3. Codifying Legislation Containing ‘Religious Terms’ into Themes

The final stage was coding of the federal legislation containing religious terms using NVivo Release 1.7 coding software. Each statute, identified in stage 2, was uploaded to NVivo, then using each religious term in turn, the specific term was searched in the statute, and its context and general theme/s were identified. For example, the Broadcasting Services Act 1992 (Cth) (“Broadcasting Act”) appeared whilst searching for the term “religion”. Therefore, this statute was uploaded, and the term “religion” was searched within the statute itself. The specific reference was then categorised. Section 123 of the Broadcasting Act referred to the “portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of … religion …”. This reference was then isolated and themed into a separate code, “Broadcasting, Film and Television”. Another example is the Commonwealth Electoral Act 1918 (Cth) (“Electoral Act”) where section 184A allows a postal vote “because of the applicant’s religious beliefs or membership of a religious order”, this was themed into “Exemptions and Special Considerations”.

This process was repeated for each reference to the religious term within each statute identified in stage 2. However, there were some exceptions to every single reference being coded. For example, the Marriage Act contained 51 references to the term “religion”, most of which were found in Part IV of the Act. As “minister of religion” was a defined term in the Marriage Act, it appeared repeatedly within the relevant subdivision, therefore reference to “religion” was coded once into “Marriage”, and the remaining references were assessed for any differences or additional themes before searching other areas of the legislation. Thus, certain statutes with several references to a religious term are grouped into a single term to be themed once to avoid unnecessary duplication and skewing of results. A total of 33 codes were identified, as listed in Table 1 below.

Table 1. Identified codes.

Taxation	Miscellaneous
Lacks direct religious connection	Exemptions and Special Considerations
Crime	Rights
Discrimination	Employment
International Covenant	Education
Specific Legislation	Charities
Marriage	Democracy
Indigenous Rights	Terrorism
Defence	Property
Broadcasting, Film, and Television	Family
Socio-Economic Assistance	Health
Tax Deductions	Insurance
Privacy	Evidence
Funding	Indigenous Heritage Protection
Succession to the Crown	Registration and Data Collection
Border Protection	Financial Grants
Trade Practices

The analysis included in vivo codes allowing words or phrase cited from the legislation itself such as “Evidence” as a code for evidence-related acts (Engler and Stausberg 2021, p. 519). Open coding methods were also employed to label the terms in a broader, less structured manner, based on what was objectively significant, for example, the reference to “religion” in the Referendum (Machinery Provisions) Act 1984 (Cth) was themed into a broad category of “Democracy”. The general coding method applied in this paper is both open and emergent and has avoided being consciously informed by theory or a particular theoretical framework. Although some codes were anticipated based on literary discussion, such as “Taxation” and “Marriage”, the process and coding method was specific to the legislation as each emerged and was codified at the point of analysis, rather than filtered into a set of predetermined categories.

This paper also used content analysis of the text to identify units of information, or particularly the areas of legislation that refer to these defined religious terms and then grouped them into themes or categories. This allowed for exploration of the relationships between these themes and the specific statutes associated with these themes, allowing for a holistic analysis of religion in federal legislation (Engler and Stausberg 2021, p. 514).

In coding the legislative texts, it is essential to note that references may pertain to multiple thematic codes. This approach facilitates a comprehensive understanding of the multifaceted nature inherent in certain legislative references. For example, section 35 of the Age Discrimination Act 2004 (Cth) (“Age Act”) provides that:

This part does not affect an act or practice of a body established for religious purposes that:

(a)

conforms to the doctrine, tenets or beliefs of that religion; or

(b)

is necessary to avoid injury to the religious sensitivities of adherents of that religion.

The reference to “religion” under this statute was themed into both “Discrimination” and “Exemptions and Special Considerations”. Another example is the Native Title Act 1993 (Cth) where section 44 provides for special purpose leases, this was themed into three codes. The first code was “Indigenous rights” as the general nature of the statute related to Indigenous rights, it was also themed into “Miscellaneous” as specific references related to a Hindu temple, and “Property” as the reference related to leases and property-related rights.

Another example is the Sex Discrimination Act where religious terms were coded into “Discrimination” as a general code, and “Exemptions and Special Considerations” as it provided an exception to discrimination on the basis of religious beliefs, “Education” was also coded as it related to sex discrimination within schools and “Specific Legislation”, which is a code used when a religious term is found within a statute name itself and is referred to in the legislation table of another statute. For example, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) is found in 20 different statutes which were also included for completeness.

2.4. Limitations

As already highlighted the methodology outlined above has some inherent limitations. First, stage 2 was conducted in March 2024. Since then, there have been numerous amendments to federal legislation which may impact the results. For example, the amendments introduced by the Criminal Code Amendment (Hate Crimes) Act 2025 (Cth) are not included.

Second, only federal Acts were included in the analysis. As such, delegated legislation was excluded. As a result, some areas of interaction between the federal legislature may have been overlooked where religious terms only appear in delegated legislation and not in the enabling Act.

Third, and related to the second limitation, the analysis only captures legislation containing religious terms. Statues that impact upon religious belief, practice, institutions, or individuals without explicitly recognising this were not captured by the analysis. For example, while the Criminal Code Act 1995 (Cth) (Criminal Code Act) is captured by the analysis, as discussed below, provisions within the Act related to the financing of terrorism would not have been captured by the analysis set out above. However, as identified by Lynch et al. (2015), these provisions have the potential to impact the Islamic practice of Zakat (charitable giving), one of the five pillars of Islam (see also Barker 2019).

Fourth, as already discussed, this analysis focused on federal legislation. As a result, both state and territory legislation and common law interactions between the state and religion are not included. In a federal common law jurisdiction, these are significant locus of interaction and should be the subject of future analysis.

Finally, while every effort was made to ensure a comprehensive dictionary of religious terms, as outlined above, it is likely that some terms that indicate an interaction between religion and the federal legislature may have been overlooked.

As a result of these limitations, the interaction between the federal legislature and religion is likely to be wider than outlined in this analysis. However, we are confident that the methods employed, when accounting for these limitations, are sufficient to capture the majority of interactions.

3. Findings

As shown by Figure 1, the two most prevalent religious terms in federal legislation are “religious” and “religion”, which occurred 157 and 65 times, respectively. As can be seen, these account for the majority of religious terms identified in stage 2. This is significant, as the terms “religion” and “religious” are, relatively speaking, neutral in that they are not typically associated with a particular belief system, religion, denomination, or sect. Other similarly neutral religious terms identified in federal legislation include “religious practitioner” and “religious institution”. The term “religious minister” is also arguably neutral, although the term “minister” is most typically associated with Christianity. Similarly, “chaplain” is usually associated with Christianity, although institutions may have chaplains from other faith traditions.

Figure 1. Religious terms and legislative results.

The next most frequent reference is “faith” at 20 results. This is also arguably a neutral term, although like “religious minister” it is more typically associated with Abrahamic religions. The terms “Catholic” and “Religious Institution” were found in 17 pieces of legislation. On the lower end of the graph the terms “theology”, “devotion”, “Papist”, “clergy”, “Bible”, and “bishop” were only found in one piece of legislation. The term “Hindu” was found in two pieces of legislation, and the terms “temple”, “Jewish”, and “synagogue” appeared five times in legislation.

As discussed above, a total of 33 codes were established during the coding process. Figure 2 below illustrates the frequency of these codes across federal legislation. Out of the 288 statutes uploaded, 155 statutes were found to belong to two or more themes, whilst the remaining 133 statutes were categorised into a single theme. As discussed above, it is important to note that many statutes made references to various religious terms within the same piece of legislation. However, they may be individually referenced based on a specific religious term, potentially relating to different themes based on the contextual usage within the statute. Consequently, there is an overlap in legislation, with certain statutes falling under several themes based on specific religious terms discussed and referenced.

Figure 2. Frequency of themes in federal legislation that refer to religious terms.

“Taxation” emerged as the most frequently occurring theme in legislation containing religious terms, accounting for 76 references. The second most frequently coded theme was “Miscellaneous” with 58 items. The “Miscellaneous” theme highlights instances where the context of the religious term distinctly belonged to a certain theme but also exhibited other unique miscellaneous characteristics. For instance, in the Charities Act 2013 (Cth) (“Charities Act”), an exception to the public benefit test is provided in section 10(2) to “closed or contemplative religious orders”. The section provides “… that a purpose of an entity be for the public benefit, if the entity is a closed or contemplative religious order that regularly undertakes prayerful intervention at the request of members of the general public”. While this reference falls within the “Charities” themes, the reference to “closed and contemplative religious orders” advances a unique miscellaneous concept. In the vast majority of cases, statues coded into the theme “Miscellaneous” were also coded into at least on another theme and the concept being coded into “Miscellaneous” only occurred in a single statue. The theme “Miscellaneous” was therefore used to both recognise the existence of these unique themes while at the same time avoid unnecessary duplication and the proliferation of single statute themes. While not analysed further in the Discussion section below, the prevalence of reference that warranted coding into the “Miscellaneous” theme speaks to both the complexity and diversity of federal legislative interactions between state and religion.

Other prevalent themes include “Exemptions and Special Considerations” which contained 56 references. Many exemptions and special considerations were found to intersect with other categories such as discrimination, employment, and taxation. In these circumstances exemptions were available, specifically based on religious beliefs and adherence. The themes “Crime”, “Rights”, and “Discrimination” had 46, 33, and 32 references, respectively. Other prominent themes which surfaced from the statutes related to “Terrorism”, “Marriage”, and “Education” featuring 16, 31, and 38 references, respectively.

4. Discussion

The following analysis focuses on the eight individual themes with the largest numbers of religious terms: Taxation, Exemptions and Special Considerations, Crime, Education, Discrimination, Rights, Marriage, and Employment. The themes “Charities” and “Terrorism” are also considered due to their respective overlap with “Taxation” and “Crime”, bringing the number of these themes analysed to ten. As discussed above, the theme “Miscellaneous” was excluded as, rather than representing a single theme, it is best thought of as a reference to 58 separate concepts or themes. These, along with other less frequent themes, will be the subject of future research and analysis.

4.1. Taxation and Charities

As outlined above, “Taxation” emerged as the predominant theme with 76 references. In Australian law and religion literature, taxation of religious institutions, or more specifically, exemptions from taxation is often linked to charitable status due to the operation of the Charities Act 2013 (Cth) and registration with the Australian Charities and Not-for-profits Commission (ACNC) as a pre-requisite for many taxation exemptions and concessions. As a result, these two themes, “Charities” and “Taxation”, should be considered together. In addition to the 76 references to taxation, the above analysis coded a further 22 occurrences of a religious term to the theme “Charities”. We also noted that, as religious organisations and institutions are often referred to in specific taxation and charities legislation as receiving specific considerations and exemptions from various tax regimes, a significant proportion of the references to both taxation and charities were also coded into the theme “Exemptions and Special Considerations”. This theme will be discussed separately below.

Tax exemptions for religious organisations in Australia, specifically income tax, can be traced back to the first introduction of a federal income tax act (McGregor-Lowndes 1998, p. 221). At the time, the provision of these exemptions sparked major debate, with several speakers expressing concerns about the advantage that religious organisations would receive because of tax exemptions during the parliamentary debate on the Income Tax Assessment Act 1936 (Cth) (Commonwealth of Australia 1936, pp. 1893–98). This debate has continued. It has been argued that the benefits of billions of dollars to religious organisations on the basis that their activities are charitable is the “most archaic and inequitable features of the current system” (Perkins and Gomez 2009, p. 6). While religion does not receive direct funding from the state, charities, including religious charities, are exempt from a wide range of taxes including income, capital gains tax, fringe benefits tax, and goods and services tax (Dal Pont 2010, pp. 144–53). The emergence of taxation as the most frequent theme in the above analysis highlights this. It further emphasises the dominant role taxation, and specifically exemptions from taxation, plays in the interaction between the state and religion in Australia. Arguably, a significant amount of government revenue has been forgone due to these tax exemptions provided to religious organisations, which can be seen as the indirect funding of charities (Barker 2019, p. 301). As Senator Xenophon has argued, through these provisions “the government is effectively making donations on our behalf” (Commonwealth of Australia 2010, pp. 28–44). While we would not necessarily disagree with the sentiment of this statement, it is important to note that the frequency of the theme “Taxation” in our analysis should not be read as reinforcing this view. Rather, it may speak to the complexity of the taxation system and legislation, as opposed the volume and extent of exemptions (Slemrod 2010).

Our analysis showed that an overwhelming amount of legislation which refers to religious terms is linked to income tax. These exemptions do not, however, extend to religious individuals or leaders who are still subject to personal income tax. Consequently, our analysis did not identify references related to this form of taxation.

Our analysis also revealed other taxation areas that considers religious aspects such as the Customs Tariffs Act 1995 (Cth) (“Customs Tariffs Act’”) and the Fuel Tax Act 2006 (Cth) (“Fuel Tax Act”). Schedule 3 of the Customs Tariffs Act discusses the classification of goods and general special rates of duty with specific reference to “preparation for perfuming or deodorising rooms, including odoriferous preparations and use during religious rites”. While section 70–20 of the Fuel Tax Act discusses the application of the fuel tax law to religious practitioners and institutions in the same way as the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”). Another interesting example is article 23 of the International Tax Agreements Amendment Act (No. 1) 2008 (Cth). Under this provision, an organisation established exclusively for a religious purpose may be exempt from tax under the domestic law of that contracting state.

Other examples of exemptions, not related to the income of religious institutions themselves, include Pay as You Go (PAYG) obligations for personal income tax and the Goods and Services tax (GST). The Taxation Administration Act 1953 (Cth) includes PAYG provisions in relation to payment to religious practitioners for an activity, or series of activities, if it is performed by the religious practitioner in pursuit of his or her vocation as a religious practitioner or as a member of a religious institution. While the GST Act provides a specific goods and services tax exemption for religious services, if it is in the supply of service by an ACNC registered religious institution and is integral to the practice of that religion.

Religious-based organisations and charities dominate the Australian charity sector (O’Halloran 2011, p. 31). Due to this dominance, religion-based charities or those with religious origins are inherently more likely to receive these benefits and exemptions afforded to charities. Section 7 of the Charities Act specifically provides that the “purpose of advancing religion” is a charitable purpose. Although religious organisations will often fall under other categories such as “advancing education” or “relieving the poverty, distress or disadvantage of individuals or families”, the fact that the “purpose of advancing religion” remains a charitable purpose highlights the ongoing and influential role that taxation exemptions and charitable status play in the Australian state–religion relationship.

As with taxation, our analysis also highlighted less well-known examples of religious terms in charities legislation. The Charities Act contains specific provisions in relation to “closed or contemplative religious orders”. Under common law, and the Charities Act, a charity is required to show a public benefit. However, this is presumed for certain heads of charity: relief of the poor, the aged and impotent, advancement of education, and advancement of religion (Income Tax Special Purposes Commissioners v Pemsel 1891). Closed and contemplative religious orders did not meet the common law “public requirement” (Dal Pont 2010, pp. 242–45). As a result, specific reference to closed and contemplative religious orders was inserted via the Extension of Charitable Purposes Act 2004 (Cth) and later included in the Charities Act (Barker 2019).

As highlighted by the above analysis and discussion, at the federal level finances are an integral part of the interaction of the state and religion. This interaction even extends to the commercial operations of religious organisations. Australia is one of only three countries in the world where commercial enterprises of religious organisations are granted tax concessions (Perkins and Gomez 2009, p. 6). As Justice Murphy stated in Church of the New Faith v Commissioner of Pay Roll Tax “most organised religions have been riddled with commercialism, this being an integral part of the drive by their leaders for social authority and power…The great organised religions are big business” (Church of the New Faith v Commissioner of Pay Roll Tax 1983, [45]). There have long been calls for the reduction or elimination of exemptions (Cavanagh 2017) which tend to re-emerge whenever there is public debate about discrimination or misbehaviour among religious organisations’ leaders or individuals. While some Australian scholarship has addressed this (see Barker 2019; Babie et al. 2019; Cavanagh 2017) taxation, it has not emerged as a dominant theme in the scholarship. While, as already mentioned above, the emergence of taxation as the largest category in our analysis may be linked to the inherent complexities of the taxation system, it also suggests that greater attention needs to be paid to this important, and in many ways unique, aspect of the Australian state–religion dynamic.

4.2. Discrimination, Rights, and Employment

In coding the legislation containing the religious terms, “Discrimination”, “Rights”, and “Employment” emerged as significant themes in their own right with 33, 32, and 30 references, respectively. However, we also identified significant overlap between these themes, and as a result we have chosen to analyse them together.

Examples of the “Discrimination” theme include references in the Age Act and the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act). Section 35 of the Age Act provides a general exemption to unlawful age discrimination where it relates to an act or practice of a body established for religious purposes that “conforms to the doctrine, tenets or beliefs of that religion or is necessary to avoid injury to the religious sensitivities of adherents of that religion”. While the definition of discrimination in section 3 of the Australian Human Rights Commission Act “does not including any distinction, exclusion or preference … in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed …”.

Our analysis identified significant overlap between discrimination in relation to employment and religion. Schools may exclude teachers who breach religious practices; for example, excluding unmarried female teachers who become pregnant or who are homosexual or in de facto relationships (Evans and Ujvari 2009, p. 35). The coding process also identified connections between rights and employment with a significant portion of the statutes coded into both themes. An example of this is the Fair Work Act 2009 (Cth) (Fair Work Act). Under section 153 of the Fair Work Act terms of employment are not considered to be discriminatory in relation to employment as a member of the staff of an institution that is “conducted in accordance with doctrines, tenets, beliefs or teaching of a particular religion or creed”, “merely because it discriminates … in good faith and to avoid injury to the religious susceptibilities of adherents of that religion or creed”. Furthermore, under section 251 adverse action taken against a staff member of an institution “conducted in accordance with doctrines, tenets, beliefs or teachings of a particular religion or creed are not unlawful”. Similar exemptions are provided in section 38 of the Sex Discrimination Act.

The right to freedom from discrimination and the right to ForB have often been described as clashing (Elphick 2017, p. 149). There has been recent public and political debate about freedom from discrimination, religious discrimination, and FoRB in the context of the proposed federal Religious Discrimination Bill 202, Religious Discrimination (Consequential Amendments) Bill 2021 and Human Rights Legislation Amendment Bill 202 (the Religious Discrimination Bills). The Religious Discrimination Bills included multiple provisions specifically establishing general and specific exemptions from religious discrimination alongside prohibitions on discrimination based on a person’s religious belief or activity in a range of areas in public life (Commonwealth of Australia 2022, pp. 2–7). However, during debate on the bills, many Liberal backbenchers crossed the floor in favour of amendments the government did not support, including an amendment to remove the ability of religious schools to discriminate against LGBTQIA+ students. The amended bill passed the lower house with bipartisan support; however, a final vote was not called in the Senate due to internal tensions in the Liberal Party and general discontentment with the bill (Tsikas 2024).

While the Religious Discrimination Bills have not become law, debate continues regarding the appropriate balance between the right not to be discriminated against and FoRB. There have been multiple public inquiries at the federal, state, and territory level into various aspects of this clash of rights, which further highlights the importance of these themes in the interaction between federal legislation and religion (Barker 2022; Poulos 2019). It is therefore unsurprising that discrimination, FoRB (Rights), and, to a lesser extent, employment have all been dominate themes in Australian scholarship on law and religion. Arguably in the absence of a national bill or charter of rights legislation, regulating discrimination has had to do some of the work performed by bills or charters of rights and proportionality jurisprudence in other jurisdictional contexts. That is not to say that the right to freedom from discrimination and FoRB are synonymous, in fact they may be in opposition to one another in some contexts (Aroney 2019). However, anti-discrimination law, and, in particular, the exemptions for religious organisations, provides a mechanism for institutional autonomy and balancing FoRB against other fundamental rights (Foster 2016, 2022b; Parkinson 2022; see also Deagon 2023).

4.3. Education

“Education” also emerged as an important theme with 38 references. Several references relate to specific colleges and schools. For example, the “Australian Catholic University” in the Tertiary Education and Standards Agency (Consequential Amendments and Transitional Provisions) Act 2011 (Cth) and various councils such as “The Australian Council of Christians and Jews” in the Income Tax Assessment Act 1997 (Cth) in relation to the deductibility of gifts or contributions. While provisions in the Schools Assistance (Learning Together—Achievement Through Choice and Opportunity) Act 2004 (Cth) require appointments in a Catholic school to account for the relationship of the school with the bishop, parish priests, and the leadership of religious institutions. These references highlight the important role of non-government educational institutions, which are predominantly religious, in Australia’s education sector. Around 36% of primary and secondary school students attend non-government schools (Australian Bureau of Statistics 2024). With around 25% of all government funding for schools spent on non-government schools, with the majority of that funding coming from the federal government (Independent Schools Australia 2024).

As alluded to above, there is also significant overlap between “Education”, “Discrimination”, “Rights”, and “Employment”. For example, section 38 of the Sex Discrimination Act provides exemptions for educational institutions established for religious purposes permitting discrimination against employees, contractors, and students on the basis of “sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment” where this is performed “in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed”. In the case of employees and contractors, discrimination is also permitted on the basis of sex. These exemptions are generally argued for on the basis that without the ability to stand at least a little to one side of societal norms, they face the risk of becoming “agents of the State” and lose their value (Evans and Ujvari 2009, p. 35) and that they are necessary to preserve FoRB in allowing “the faith community to preserve its own existence…and to educate successive generations of the faith community …”(Cowen 2022, p. 84).

While education is formally outside federal legislative competence, the frequency of the “Education” theme in our analysis highlights the significant role education plays in the Australian state–religion relationship. Federal funding of religious schools is often highlighted as part of Australia’s pluralistic state–religion relationship (Soper et al. 2017). Indeed, education has long played a significant role in that relationship (Barker 2019). This is further highlighted by High Court cases such as Attorney General (Vic); ex rel. Black v. Commonwealth (1981) and Williams v Commonwealth (2012), both of which involved constitutional challenges under section 116 of the Australian Constitution related to educational funding programmes.

4.4. Exemptions and Special Considerations

The second most common individual theme identified during the coding process was “Exemptions and Special Considerations” with 56 instances. Although, taxation and discrimination law provide for a large portion of exemptions, this section particularly discusses exemptions available in areas other than under taxation and discrimination law, both of which have already been discussed above. Examples of this theme include the Classification (Publication, Films and Computer Games) Act 1995 (Cth) (Classification Act), Electoral Act 1918 (Cth) (Electoral Act), Transport Legislation Amendment Act 1995 (Cth) (Transport Act), and Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005 (Cth) (Employment and Workplace Relations Legislation Amendment Act).

Section 6B of the Classification Act provides that, religious films “wholly or mainly comprising a documentary record of a religious event or activity is exempt from classification requirements”. These exemptions also apply to community or cultural films which align with what was justified in the explanatory memorandum as a need to accommodate a greater range of appropriate contemporary content (Commonwealth of Australia 2014, p. 20). Section 184A of the Electoral Act provides a postal vote to an applicant where their religious beliefs or membership of a religious order precludes them from attending a polling booth. The origin of this exemption likely lies in the High Court case Judd v McKeon (1926) where Higgins J commented in obiter that:

“… in my opinion, if abstention from voting were part of the elector’s religious duty, as it appeared to the mind of the elector, this would be a valid and sufficient reason for his failure to vote (sec. 116 of the Constitution)”

(Judd v McKeon 1926, p. 387).

Another example can be found in section 386E of the Transport Act, where the refusal to submit to a medical examination can be defended if the person establishes that the failure or refusal was based on religious or other conscientious grounds or medical grounds. Finally, a more niche example can be found in the Employment and Workplace Relations Legislation Amendment Act in relation to exemptions from certain participation requirements attached to parenting payments.

The broad range of exemptions discussed in this section as well as above under “Taxation and Charities, Discrimination, Rights, Employment, and Education highlight an ongoing theme in the Australian state–religion relationship. In the absence of a national bill or charter of rights, rights exemptions become both necessary and perform a dominate role in facilitating FoRB. As already discussed above in the context of discrimination law, these exemptions and special considerations have been referred to as balancing clauses (Foster 2016, 2022b), highlighting their role in balancing the rights not to be discriminated against with the right to FoRB in a similar way to a proportionality test in jurisdictions with a bill or of rights (see Babie 2020). The frequency of the theme “Exemptions and Special Considerations” highlights that the role of exemptions in balancing rights goes beyond discrimination law, and furthermore that despite the absence of a bill or charter of rights, the federal legislature has taken an active role in protecting FoRB via exemptions. The challenge with this approach is that the legislature must be aware of the potential for a law to infringe on FoRB before an exemption can be built in, leaving less well understood religious beliefs and practices vulnerable. It also runs the risk of privileging FoRB over other rights as the point of balancing is at the law’s creation rather than its application. It may be that there is no risk to FoRB or there is no need for balancing and proportionality as no clash in fact exists between either FoRB and other rights of FoRB and public interest.

4.5. Crime and Terrorism

A total of 46 references relating to “Crime” and 16 references to “Terrorism” were identified during the coding process. In coding these two themes we noted that acts associated with terrorism often invoked criminal sanctions. Consequently, multiple statutes were classified under both “Crime” and “Terrorism”, highlighting the overlapping nature of these themes. Most of the legislation discussed in this section relates to Australia’s international obligations, particularly regarding war crimes and extradition, reflecting international treaties and international law more generally. This is the only place within the ten themes discussed in this paper where religious terms relate directly to Australia’s international obligations.

While links between terrorism and religion are disputed, Australian anti-terrorism laws draw a clear link (Barker 2019, pp. 135–46). The definition of “terrorist act”, introduced by the Border Security Legislation Amendment Act 2002 (Cth), includes that action or threat of action is made with “the intention of advancing a political, religious or ideological cause”. This link was seen throughout our analysis. For example, the Anti-Terrorism Act has multiple religious terms, for example, sch 3 s 102.8(4)(b) refers to association with terrorist organisations but excludes association where it is in a place being used for public religious worship or takes place in the course of practising a religion. While sch 7 s 80.2(5) discusses offences committed where the person urges a group or groups (whether distinguished by race, religion, nationality, or political opinion) to use force or violence against another group or groups (as so distinguished). Similarly, the Border Security Legislation Amendment Act 2002 (Cth) defines “terrorist act” as meaning an action or threat of action is made with “the intention of advancing a political, religious or ideological cause”. At the time of writing, the legislative definition of terrorism in section 100.1 of the Criminal Code Act is being reviewed by the Independent National Security Legislation Monitor with the very real prospect that references to religion may be removed from the definition (Independent National Security Legislation Monitor 2025). Should that happen, the number of references to religion within legislation related to religion would decrease, reducing, but not removing completely, the role of crime and terrorism in the Australian state–religion relationship.

Other examples within the “Crime” and “Terrorism” themes include section 268.46 of the Criminal Code Act that provides that a person commits an offence or war crime if they attack a building dedicated to religion as well as education, art, science, or a charitable purpose. While section 7 of the Extradition Act 1988 (Cth) provides an objection to extradition where “surrender to the extradition country may prejudice, punish, detain or restrict a person for their religion”.

Finally, several religious exemptions are available during federal criminal proceedings. For example, section 34DL(b)(vi) of the Australian Security Intelligence Organisation Act 1979 (Cth) provides that in working out the time that a person can be questioned under a warrant, certain times are disregarded, such as times allowing the person to engage in religious practices in accordance with the subject’s religion. While under section 34BB(3)(e) of the same Act, the test to issue a questioning warrant requires the attorney general to consider the best interests of the person as a primary consideration, including the right of the person to practice their religion.

As a result, criminal law will continue to play a role in the state–religion relationship even if religion is removed from the definition of terrorism. Indeed, its role was highlighted during the convolutional Convention debates which became section 116 of the Australian Constitution (Ely 1976, p. 63). Finding the balance between ensuring that legitimate religious expression is not unnecessarily criminalised while also protecting the vulnerable and society from harmful religious practices will always be part of any state–religion dynamic.

4.6. Marriage

While “Marriage” is predominantly covered by just one federal act, a total of 31 references relating to marriage were identified during the coding process. The majority of references to marriage related to the definition of an “authorised celebrant”, allowing ministers of religion to solemnise marriage, and respecting the beliefs and views of the religious community. Examples of religious terms within the Marriage Act include section 47(2) which expressly provides ministers of religion with the right to refuse to solemnise marriages. While section 47B of the Marriage Act provides that bodies established for religious purposes may refuse to make facilities available and to provide goods or services if the refusal conforms to the doctrines, tenets, or beliefs of the religion.

The passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (Marriage Equality Act) marked a new era for religion and law in Australia (Gleeson and Poulos 2024, p. 72). The protection of FoRB played an important role in the public and political debate leading up to the passage of the Marriage Equality Act, as highlighted by the Acts name (Poulos 2020, p. 1; Barker 2019). The political responses and debates relating to marriage equality were immensely significant, with sociologists of religion describing the post-2017 religious environment as representing a new stage in the relationship between religion and the Australian state (Possamai and Possamai-Inesedy 2021, pp. 359–74). Perhaps ironically, marriage equality, which involved the move away from a traditional Christian definition of marriage as between a man and a woman, has involved an increase in reference to religion in the Marriage Act. While beyond the scope of our original analysis, it is interesting to note that prior to the passage of the Marriage Equality Act, the Marriage Act contained the words “religion”, “religious”, or “minister of religion” 51 times while the version we analysed contained those religious terms 140 times. In making federal marriage law more secular, the interaction between federal legislation and religion has increased. While this is perhaps an isolated example, it does highlight that moving towards a more secular society does not eliminate interactions between state and religion. In fact, such a move may increase the legislative interaction as the need to balance competing interests increases. Secular does not necessarily mean the absence of religion (Clarke and Barker 2024).

5. Conclusions

This paper has provided the first systematic, empirical mapping of explicit references to religion in Australian federal legislation. By analysing 288 statutes containing religious terms, the analysis demonstrates the breadth and complexity of the interaction between the federal legislature and religion. The analysis has highlighted the prevalence of religious terms and therefore the interaction between federal legislation and religion across a range of key areas including taxation, exemptions and special considerations, discrimination, rights, education, employment, crime, terrorism, and marriage.

The prevalence of taxation-related provisions underscores the financial dimension of the relationship between state and religion, while the frequent appearance of exemptions highlights the extent to which FoRB is accommodated through exemptions designed to balance FoRB with other rights, including the right not to be discriminated against, and public interest in the absence of a federal bill or charter of rights.

The findings reveal a high level of entanglement between the federal legislature and religion, with religion simultaneously constrained, privileged, and accommodated across diverse areas of federal law. In particular, the role of exemptions and special considerations illustrates how the legislature balances competing rights and interests at the point of law-making, rather than through subsequent judicial application of proportionality analysis. This approach both protects and privileges FoRB, while also leaving less well-known religious practices vulnerable.

While the analysis has highlighted the ongoing and strong interaction between the federal legislature and religion in key areas, further analysis is needed to fully map the expression of the Australian state–religion relationship in legislation. Themes that appeared less frequently, as well as occurrences of religious terms that were coded into “Miscellaneous”, require further examination to understand the more niche and obscure interactions. The analysis outlined above also needs to be repeated for each state and territory, as a significant portion of interactions between state and religion in key areas such as education, health, and crime are primarily state responsibilities. However, this paper has provided a first snapshot of the prevalence of religious terms and themes in federal legislation upon which future research can build.

These findings also establish an empirical baseline for understanding how religion is embedded within Australian federal law and, in doing so, illuminate the distinctive contours of the Australian model of state–religion relations. Rather than reflecting either strict separation or overt endorsement, the pattern revealed is one of pragmatic accommodation, where religious references and exemptions are woven through the legislative framework itself. Recognising this legislative mode of engagement provides a foundation for future comparative and theoretical work, enabling a more precise analysis of how Australia’s legal system negotiates the boundaries between state neutrality, religious freedom, and social pluralism.