Jeremy Patrick is a senior lecturer at the University of Southern Queensland School of Law and Justice. This post is based on a presentation given at the ICLRS 32nd Annual International Law and Religion Symposium, 7 October 2025.
Aboriginal and Torres Strait Islander communities have maintained a deep spiritual connection to the land and waterways of what we now call Australia for at least 65,000 years.[1] Although it is impossible to do justice to the importance and complexity of the legal protection of Indigenous spirituality in Australia, the short overview that follows is intended to articulate a key, if unfortunate, thesis: there is little in the way of constitutional safeguards for the religious freedom of Aboriginal and Torres Strait Islanders. Instead, such protections must come through legislative and regulatory instruments, which can be, and sometimes are, withdrawn by the federal and state governments due to political considerations. As we will see, the precarious nature of these protections, which can ebb and flow with the political winds, are an unfortunate legacy of decades of unduly narrow interpretations of the Australian Constitution.
Before moving further into the constitutional arena, however, a threshold question must be addressed: is it appropriate to discuss the holistic connection between land, lore, and kinship held by Indigenous Peoples as religious in nature? After all, some have argued that “religion” is a Western, settler construct that is ill-fitting as a descriptor of Indigenous spirituality. Indeed, many Aboriginal Australians themselves conceptualize their ancestral connection to country as distinct from (though perhaps supportive of) their religion. Thus, for example, a recent census showed 53% of Aboriginal Australians selected “Christianity” as their religion, with a further 35% choosing “No religion” and only 1% choosing “Aboriginal traditional religion.”[2] This does not mean that only 1% of Aboriginal Australians maintain spiritual beliefs tied to land and custom, but it does show that these beliefs can be syncretic and complex. There is additional, legal complexity about whether Indigenous spirituality counts as a “religion” because the High Court’s only attempt to define the term splintered into three judgments with no controlling opinion.[3]
From one point of view, Indigenous Australians are in the same boat as all other Australians when it comes to religious freedom—but this is a situation that provides cold comfort. In a series of cases, the High Court has interpreted the Australian Constitution’s guarantee of freedom of religion[4] as only being engaged if Parliament passes a law with the intent to suppress religious freedom—regardless of the effect. Thus, in the famous Stolen Generations Case,[5] the High Court dismissed the freedom of religion claim of several Aboriginal Australians who, as children, were forcibly separated from their families and raised in missions or the homes of White families where native spirituality was ruthlessly suppressed and Christianity was imposed. The High Court made clear that it did not matter that the foreseeable effect of the nationwide removals policy was to suppress Indigenous spirituality—all that mattered was that it was not the purposeof the policy. Although roundly criticized,[6] this “purpose test” means there has never been a successful religious freedom challenge in Australian constitutional history,[7] and thus Indigenous spirituality (like all other religions in Australia) is unlikely to receive meaningful constitutional protection.
Legal protection for Indigenous spirituality in Australia thus comes, as a practical matter, not from any constitutional guarantees but from specifically oriented legislation. For example, multiple federal and state statutes have been promulgated to protect sites and objects that are sacred to Aboriginal and Torres Strait Islanders.[8] Laws of this nature typically impose survey and consultation requirements prior to land development to ascertain whether there is a risk of damage to sacred areas. Such requirements are good as far as they go, but unfortunately, Australian history is replete with examples of this type of protective legislation being rolled back or limited in specific circumstances.[9] A famous example is the Hindmarsh Island Bridge Case,[10] where the Commonwealth simply passed a law removing Aboriginal heritage protections from a specific site, which a clan-group claimed to be sacred, to allow for bridge construction. More recently, in 2023, Western Australia repealed the Aboriginal heritage protection legislation it had passed (in part as a response to the destruction by a mining company of ancient rock shelters) due to pushback from non-Aboriginal landowners.[11]
The uncertainty easily visible in the macrocosm of global political upheaval can also be discerned—though, perhaps optimistically, not to the same extent—in the microcosm of Australian domestic politics on this issue. There are moments when the country seems to be heading in the right direction, such as the recognition of native title in the famous Mabo decision[12] or the Commonwealth’s Apology;[13] but then there are moments when the future looks more bleak, as exemplified by the defeat of the constitutional referendum to establish a First Nations’ Voice to Parliament[14] and the recent politicization of Welcome to Country ceremonies as part of an “anti-woke” backlash.[15] Given the lack of effective constitutional guarantees combined with the vicissitudes of politics, the best conclusion that can be drawn is that the legal protection of Indigenous spirituality is on uncertain footing in Australia: a matter of sufferance, not of right.
References:
[1] Evidence of First Peoples, NATIONAL MUSEUM OF AUSTRALIA (last visited 5 Nov. 2025).
[2] See ADAM POSSAMAI & DAVID TITTENSOR, RELIGION AND CHANGE IN AUSTRALIA 98 (Routledge 2022) (summarizing results of 2016 census).
[3] See Church of the New Faith v Commissioner of Pay-Roll Tax [1983] HCA 40 (Austrl.). Elsewhere, I have argued that the “spiritual but not religious” should be protected by constitutional religious freedom guarantees, though the discussion did not specifically address Indigenousspirituality—and there are important differences between the two types. See JEREMY PATRICK, FAITH OR FRAUD: FORTUNE-TELLING, SPIRITUALITY, AND THE LAW (UBC Press 2020).
[4] Section 116 of the Australian Constitution was modelled on the religion clauses of the U.S. Constitution and similarly contains a free exercise of religion guarantee.
[5] See Kruger v Commonwealth (Stolen Generations Case) [1997] 146 ALR 126 (Austrl.). See also Sarah Joseph, Comment, Kruger v Commonwealth: Constitutional Rights and Stolen Generations 24(2) MONASH UNIVERSITY LAW REVIEW 486 (1998).
[6] See, e.g., Benjamin B. Saunders & Dan Meagher, Taking Seriously the Free Exercise of Religion Under the Australian Constitution, 43(3) SYDNEY LAW REVIEW 287 (2021).
[7] The Australian Constitution does not contain a bill of rights, and the handful of scattered rights that do exist in the document are unlikely to be successful in protecting Indigenous spirituality. Australia’s international commitments via treaties have domestic legal effect only if implemented legislatively by Parliament, and this legislation can be amended or repealed in the same way as any other ordinary legislation. For U.S. readers, it is also worth noting that the constitutions of individual states in Australia are not entrenched and do not contain enforceable rights guarantees.
[8] An important example at the federal level is the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
[9] Another good example, though in a different context, was the Commonwealth’s suspension of the Racial Discrimination Act 1975 to enable legislation that discriminated against Aboriginal and Torres Strait Islander Peoples in the Northern Territory Intervention of 2007. See Northern Territory National Emergency Response Act 2007 (Cth).
[10] See Kartinyeri v Commonwealth [1988] HCA 22 (Austrl.).
[11] See, e.g., Narelle Towie, Divisive, Confusing, and Stressful: Western Australia’s Aboriginal Cultural Heritage Laws in a Mess, THE GUARDIAN (13 Aug. 2023). The repealed legislation was replaced with an earlier version dating to 1972.
[12] Mabo v Queensland (No 2) [1992] HCA 23 (Austrl.).
[13] See Apology to Australia’s Indigenous Peoples, PARLIAMENT OF AUSTRALIA (13 Feb. 2008).
[14] See, e.g., Simon Atkinson, Australia’s Last Vote Was All About Indigenous People – Now They Say It’s ‘Silence,’ BBC (29 Apr. 2025).
[15] See, e.g., Dechlan Brennan, Politicising Welcome to Country ‘Just Adds to the Division,’ NATIONAL INDIGENOUS TIMES (29 Apr. 2025).