Essay on The Australian Constitution (Doc)
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Added on 2020-03-16
Essay on The Australian Constitution (Doc)
Added on 2020-03-16
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Running Head: Law 1Law
Law2Introduction:Section 116 of Australian Constitution restrict the commonwealth of Australia (Federal parliament) to make any law which establish any religion, imposing any religious observance, or prohibits any person from exercise any free religion. Section 116 also states that no religious test is required on part of qualification for any office and public trust under commonwealth. It must be noted that provisions of section 116 are based on the provisions of United States Constitution.Section 116 is drafted in more narrow part as compared to US constitution. In this essay, section 116 of the Australian constitution is discussed. Subsequently this essay is concluded with brief conclusion1. Section 116 of Australian constitution:High Court of Australia interprets this section in very narrowly, but definition of religion adopted by Court is broad and flexible in nature, and the scope of the protection is circumscribed. The result related to the approach of Court stated that no Court has ever ruled a law which contravenes section 116 of the Act, and these provisions will play minor role in the history of the Australian constitution. Among those laws which have been ruled by High Court of Australia does not contravene section 116 of the constitution such as provide government funding to religious schools, dissolution of branch related to Jehovah's Witnesses, and forcible removal of indigenous Australian children’s from their families. 1Section 116 - commonwealth of Australia constitution act.
Law3Almost two times, Federal government proposed amendment related to section 116, but both the times proposal was failed. As stated above protection of free exercise of religion was interpreted by High Court narrowly intheir early judgments. This can be understood through case law Krygger v Williams2. This case was decided in 1922, and in this Court held that person could not object to compulsory military service because of the religious belief. Court further stated that this section only protects the interference of government in religious matters.There is one ore case law in which Court taken very narrow approach related to establishing any religion that is Attorney-General (Vic) (Ex rel Black) v Commonwealth3. In this case, court stated that there was no contravention of section 116 if commonwealth funding religious schools.This section has four corners, and the first three corners put prohibition on commonwealth from making any such law which establish any religion, impose any observance on religion, and also prohibiting free exercise of any religion. However, fourth corner of section 116 states that no religious test is required on part of qualification for any office and public trust under commonwealth. It must be noted that, court only resolves those cases which include question related to "establishing religion" and "prohibiting free exercise"4. This section is defined under Chapter V of the Constitution, which only deals with the states of Australia. However, it must be noted that section 116 does not apply on all the states. Each state has its own constitution, and only Tasmania has provision which is similar to section 116. 2 Krygger v Williams [1912] HCA 65. 3 Attorney-General (Vic) (Ex rel Black) v Commonwealth 1981, HCA 2. 4 Chapter 4- Freedom of Religion, < https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&cad=rja&uact=8&ved=0ahUKEwj_w-a0jtnWAhVBvI8KHa8NBB4QFghSMAY&url=http%3A%2F%2Fwww.aph.gov.au%2FParliamentary_Business%2FCommittees%2FHouse_of_Representatives_Committees%3Furl%3Djfadt%2Freligion%2Frelchap4.pdf&usg=AOvVaw0FAXi-t-oac8CJzMbVpF7F>, Accessed on 5th October 2017.
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