In Australia, very limited number of freedoms is stated in the constitution, and one freedom which is directly protected by the constitution in Australia is the freedom of religion choice. This freedom of religious choice is protected by section 116 of the constitution. This section of constitution is of very high importance because this section ensures that Parliament will observe the true difference between what property belongs to the church and what to the state. However, it must be noted that this section not always ensures religious freedom because in the commonwealth structure of Australia Constitution scheduled only those matters on which parliament has power to make laws and in case matter is not within the authority of federal government then parliament has no power to make law on such matters.
In this paper we analyze this section on the basis of Three case laws that is Kruger v Commonwealth (1997) 190 CLR 1, Attorney- General (Vic)(Ex rel Black) v Commonwealth (1981) 146 CLR 559 and Krygger v Williams 1912 HC 65 15 CLR 36. This paper also includes following topics history of constitutional provision, detail identification and analysis of stated case laws, comparative analysis how this freedom is regulated in any other country, and whether constitution must be amended as per amended on this particular matter. Subsequently this essay s concluded with brief conclusion.
Statutory provision of Section 116:
Section 116 of the Commonwealth Constitution impose prohibition on the parliament in Australia to introduce any legislation in order to establish any religion, commanding compliance in relation to religion, and levy prevention on the unrestricted use of any religion, and it also prohibits the religious test for the purpose of qualifying the office in the Commonwealth.
This section is also depends on the anti-establishment clause introduced in America in the first amendment and Article VI s3 for the purpose of conducting test related to religion for to taking office. It must be noted that no law has been ever passed which is considered as offensive to the section 116 prohibition. This prohibition only applies to the laws of commonwealth and not to the state laws. This right of religious freedom is considered as fundamental right not only in Australia and also in various international human rights documents such as Article 9(1) of the European Convention on Human Rights for the purpose of protecting the right related to freedom of religion and it also manifest this right in relation of worship or practice, but it subject to limited exceptions.
History of Section 116:
Constitution of Australia was the hot topic of debate for almost a decade even before it was adoption in the period of 1901. Researchers stated that reference of term God in the Australian constitution were actually given for the purpose of satisfying the religious views of different groups of delegates who participate in the pre-Federation conferences and also include a movement which is conducted for the purpose of recognizing the god in the constitution. During the period of federation in Australia, religious climate has been defined as one which was tolerance based, and on which government was concerned for the advancement of Christian religion or for the anti-sectarian endorsement of religion. It has been argued that religion climate was mainly aims to make sure that religion aspect was tried to keep out of discourse of public and also that consideration related to religious does not affect any policy related to public.
Not even on single stage founders of Australian Federal system considered as motivated from the concept of relation between the religion and the state itself was not desirable thing.
Originator of section 116 was Tasmanian Attorney-General, Andrew Inglis Clark. However, it was presumed that motivation of Clark’s for imposing religious freedom in particular cases was because of his own Unitarian background. Both Edmund Barton and Henry Bournes Higgins were stated that reference to god does not indicate any implicit federal power for legislating in relation to religion and also projected a protection for guaranteeing that it did not occur. It must be noted at initial stage neither the motion nor the safeguard were passed.
Identification and analysis of case laws:
In case Kruger v Commonwealth (1997) 190 CLR 1, Plaintiff claimed that there was impugned laws which put prohibition on the free exercise of the beliefs related to aboriginal religious by differentiating the individual from their culture of aboriginal in relation of contravention of section 116 of the constitution. Section 116 also prohibits the commonwealth government from prohibiting autonomous of any religion. In this case, Gaudron J stated that section 116 extends various provisions for authorizing acts for the purpose of preventing freely chosen of any religion. Gaudron J also put rejection on the approach of Griffith CJ stated by him at earlier stage which he adopted in Krygger v Williams who stated that only those laws breach section 116 which put direct prohibition on religious practices. Her Honour further prepared for the purpose of assuming that exercise of power stated under the peoples ordinance which prevents particular number of people from freely following their religion which was aboriginal culture and practices with the other of their community. She stated the issue whether these restrictions could ever be justified. In Australia, freedom of religion is considered as absolute freedom. Particularly, section 116 is only infringes by law if purpose of that law is to put prohibition on the free exercise of a religion. However, for the purpose of ascertaining true motive of any law test was conducted by Gaudron J, and this test is known as test of proportionality.
Any law will not be considered as law for the purpose of prohibiting the autonomous of any religion, but in actual it does just that or operates with consequences in direct manner. It is necessary to fulfill some overriding public purposes and to satisfy some pressing social needs. Such law does not have any affect if such law is passed for specific purpose and does not connect with the religious freedom and affects that freedom in any way. In this case, Gaudron J stated that claim filed by plaintiff could not be considered at this stage of trial because there are number of questions of facts and law had to be resolved such as whether aboriginal religion was actually impeded and pleading must be entered only for the actual purpose of the ordinance.
In this case, Toohey stated that section 116 was actually directed for the purpose of law making of law rather than law administration? Therefore any anti-religious purposes have to be evinced from the statue face, and this interpretation makes section 116 less effective in relation to provide guarantee of freedom religion. It is necessary that law must provide ostensible purpose of inhibiting religious practice, instead of affecting the inhibiting religious freedom before it can be found that law breached section 116.
In this case, judges duly decided that language of that particular ordinance does not show any purpose of restricting the religious freedom of aboriginals. Brennan CJ, Dawson and Gummow JJ agreed with this decision, and stated that Section 116 does not restrict any power of legislative nature under section 112 because of the plenary nature of that power. Claim made by plaintiff under section 116 have been failed with the majority confirming its apparent limited liability.
Attorney- General (Vic)(Ex rel Black) v Commonwealth (1981) 146 CLR 559, is the only case where the scope of establishment clause was considered with respect to organizations known as defense of government schools. In this case the federal funding which religious organizations operate was challenged by organization. In this case, it was stated by the high court that the establishment clause is not violated by such funding as it was used for the purpose of education purposes conventional in nature. Setting strict, restrictive and high threshold has been pointed out as the main cause in support of this case. In this case it was held by the majority that only prohibitions are imposed on the commonwealth by the establishment clause with respect to enacting any provisions that create religion or national church with purpose
It has to be considered that ongoing strong point of the authority in relation to the decision provided in DOGS case has been subjected to questions, and one primary cause behind this was that the case had been decided in 1981 and as a result the High Court has accepted a more liberal approach for interpreting safeguards and constitutional rights. However, such narrow interpretation makes the interpretation clause meaningless clause because such interpretation only ban the Federal government creating a national church as it would have no powers. However, the argument regarding the capability of Section 116 with respect to application of any law which may have a binding effect and not merely for establishing a religion, imposing provisions on religions, stating religious test and preventing unrestricted use of religion has been provided through this case.
In the case of Krygger v Williams 1912, it was provided by the High court that any provisions which needs turnout at essential harmony military exercise by persons who refuse this exercise on ongoing basis in relation to religious grounds. Further it had been stated by the court that such provision provides for turnout at essential harmony military exercise does not violate the unrestricted implementation of section 116. Thus any provisions which necessitates the public to a particular performance which has no relation to religion in any express or implied way is not preventing the public from an unrestricted use of religion.
In the given case, it was further stated by Griffith CJ that if any provisions necessitates the public to commit a specific act which is forbidden by their religion then the specific act can be objected on ethical grounds, however it cannot be considered to be falling under the scope of prohibitions related to Section 116. It was suggested by the statements made by Griffith CJ that unrestrictive use clause is only in relation to those particular clauses through which religious practices are banned or prohibition with respect to the exercise of any religion is made. With respect to the case of Jehovah’s Witnesses, the ban of Jehovah’s Witness was challenged under defense provisions. The group doctrine was made illegal as an effect of this ban and it was not legally published or printed with respect to their belief or held meetings conducted meeting advocating such belief. In case the regulations in question were not consistent with the National Security Act 1939 (Cth) and, in addition, not within the defense authority in s 51(vi) of the Constitution, the decision given for with respect to the interpretations of s 116.
However, a broad view with respect to the free exercise clause was taken by the Judges of Jehovah’s Witnesses case, in addition it was also assumed by them that a facially-neutral regulation which has been engaged at the overpowering of dissident organizations, and putting burden on the religion as a result of its effects, then the law is effected by such clause.
United States constitution and Section 116 Comparison:
It has been stated by Article VI of the United States Constitution that with respect to any qualification for any public trust or office under the United States no religious test is required. This is not an accidental similarity between the United States and Australian constitution. In Australia, 19th Century was highly affected from the history of religious conflict of sectarianism and religious oppression.
There is also a little difference between both the constitutions such as in America experience of the persecution of minority religious sects had been considered as directly relevant to the original founding and in some cases religious freedom as consequence was already get protection in various state constitutions and some constitutions include the requirement related to religious test for public tests. On the other hand, in Australia it was sectarianism in which conflict is arise between the Protestants and Catholics which actually raised concerns and also provide historical backgrounds for the framers of Australia's Constitution. Till the period of 1890 there are number of Australian communities which faced sectarian issue and especially focused on questions of state financial aid to schools. After the period of 1870 when colonial parliaments initiate to pass laws for compulsory education for the purpose of refusing financial aid to religious or parochial schools.
However, it is necessary to extend the scope of section 116 because this section is no more than limit on commonwealth power, and it also not guarantee religious freedom to the citizens of Australia. As peer this section commonwealth cannot impose any restriction on the religious right of person but such restriction can be imposed in other forms. This section also allowed some other law to be part of any law which is against the section 116 but fulfills any aim of commonwealth. Therefore, it is necessary that constitution must widen up its scope and also prohibits other laws and practices which infringes the religious rights of any person.
In this paper, it can be concluded that the scope of Section 116 of the Australian constitution based on three case laws, and as per this report, section 116 of the Commonwealth Constitution prohibits the parliament in Australia to pass any law for the purpose of imposing religious observance, establishing the religion, preventing the unrestrictive use of any religion, and it also prohibits any religious test from being compulsory as a qualification for office in the Commonwealth. This section allowed the Parliament for observing the true difference between what properly belongs to the church and what to the state.
After analyzing all the above facts of this essay it is clear that, it is necessary to extend the scope of section 116 because this section is no more than limit on commonwealth power, and it also not guarantee religious freedom to the citizens of Australia. As per this section commonwealth cannot impose any restriction on the religious right of person but such restriction can be imposed in other forms.
Therefore, it is concluded that Section 116 does not provide any guarantee to the freedom of religion to Australian citizens
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