Section 116

CC-BY: Con Tassios

For the benefit of people who believe that their religious beliefs trumps the civil rights of everyone else in a secular state, or believe that giving people civil rights will somehow limit their civil rights, I’ve posted a copy of Section 116 of the Constitution followed by some simple analysis of what it means.


Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.


So what does this mean? A simple reading of the section suggests that:

  1. The Commonwealth Parliament cannot make a law that establishes a state church.
  2. The Parliament cannot require that a person practice a particular religion.
  3. The Parliament cannot stop a person from practicing their faith freely.
  4. The Government cannot require candidates for public office or a position in the public service to be of a particular faith.

As with almost every other section of the Constitution, the High Court has interpreted it. Unlike the analogous Establishment Clause of the First Amendment to the United States Constitution, however, the court has interpreted it very narrowly. For example:

  1. Establishment explicitly refers to the establishment of a state church and does not prohibit the Federal Government from giving religious institutions certain privileges such as government funding to religious schools. ([1981] HCA 2).
  2. The Federal Government was able to shut down the Adelaide Company of Jehovah’s Witnesses during the Second World War and still be in compliance with the Section. ([1943] HCA 12).
  3. One cannot legally object to certain legal duties, such as compulsory military service, by citing their faith. ([1912] HCA 65).

It is important to note that this section may not apply to the States, as it explicitly states that the Commonwealth cannot make certain laws. There are laws in Victoria and the Australian Capital Territory that protect a number of human rights, including free exercise of religion, in a much broader sense than the Constitution. Most importantly: The Federal Parliament cannot amend the Constitution or the Victorian Human Rights Charter without a proper referendum or the permission of the Victorian Government respectively.* 


Bibliography and further reading

Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth 1943 67 CLR 116.

Attorney-General (Vic); Ex Rel. Black v. The Commonwealth 1981 146 CLR 559.

Charter of Human Rights and Responsibilities Act 2006 (Vic.) (s. 14).

Commonwealth of Australia Constitution Act 1900 (Imp.) (s. 116).

Human Rights Act 2004 (ACT) (s. 14).

Krygger v Williams 1912 15 CLR 366.


Disclaimer

I am not a lawyer, nor am I qualified to practice law. I do, however, possess the capability to read.

*It can, however, modify the ACT’s law without any consultation whatsoever because the ACT is not subject to the Constitution’s limitations on intervention in States as it is a territory.

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