The Availability of Protection for Rights

The Availability of Protection for Rights

All global societies including Australian democratic society emphasize the value of the individual's religious freedom. The religious freedom represents the freedom to have individual thinking and the form of individual expression. Religious freedom is protected from inference or restriction by the Commonwealth by s. 116. 'Religion' in this context includes the major world faiths such as Christianity, Islam, Buddhism, Hinduism, as well as 'new' faiths or beliefs such as Scientology.

Two elements of the guarantee have come before the High Court. First, the Commonwealth cannot 'establish' a religion. This means that the Commonwealth cannot make a particular religion the national religion or provide special advantages to one or more faiths. However, the Court has held that the Commonwealth can provide funding to private and religious schools without infringing s. 116. (DOGS Case1981)

Second, the Commonwealth may not pass legislation 'for' the prohibition of the free exercise of religion.

U.S Postage Stamp, 1957

Map of religious freedom and restrictions in the w...

Demonstration for religious freedom

In 1997 the High Court considered whether the Northern Territory had infringed s. 116 by removing Aboriginal children from their families, because this measure prevented the free exercise of Aboriginal religions. (Kruger v. Commonwealth 1997) The High Court held that it did not, because it was not designed specifically to target religious practice. This decision means that laws that do not have an anti-religious purpose may be valid even though they restrict religious practice. These are narrow readings of s. 116, which limit how effectively the Constitution guarantees the freedom of religion in Australia. In addition, like s. 51 (xxxi), s. 116 only restricts Commonwealth power and does not prevent action by a state that interferes with religious freedom.

As regards to the question of religious freedom in commonwealth law, the prohibition of Commonwealth laws 'for establishing any religion' has been construed according to its historical...