Legal Essay: Examining Section 116 of Australian Constitution

This essay provides an in-depth analysis of Section 116 of the Australian Constitution, which restricts the Commonwealth of Australia from making laws regarding the establishment of religion, imposing religious observances, or prohibiting the free exercise of religion. The essay examines the High Court's interpretations of this section, noting its narrow application in practice, and discusses relevant case law, including Krygger v Williams and Attorney-General (Vic) (Ex rel Black) v Commonwealth. It explores the four corners of Section 116, which also addresses religious tests for public office, and highlights that this section primarily concerns "establishing religion" and "prohibiting free exercise." The essay concludes by summarizing the key aspects of Section 116 and its implications for religious freedom in Australia. The provided bibliography includes relevant websites, statutes, and case laws.

Running Head: Law 1
Law

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Introduction:
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.
1 Section 116 - commonwealth of Australia constitution act.

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Almost 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 in
their 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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While drafting this provision of the constitution in the period of 1890, religious clauses for both
state and federal government were moved in and out from the document, and it becomes reason
of huge debate related to freedom of religion. Because of this debate final document related to
freedom of religion is found in the chapter of state5.
The original plan was to limit the power of state for the purpose of making any provision in
respect to religion6. However, in case of final conventions state was overturned and power to
make laws regarding religion was imposed such as make any law which prohibits the
discrimination on the religious ground.
Conclusion:
After considering above facts it is clear that Section 116 of the commonwealth of Australia
constitution act states the provisions regarding not to legislate in respect of religion. Section 116 of
the Constitution allows any individual who is subject to a law prohibiting the free exercise of
their religion to challenge the validity of that law in the High Court.
5 CEFA, (2015). Religious freedom in the Constitution, < http://www.cefa.org.au/ccf/religious-freedom-
constitution>, Accessed on 5th October 2017.
6 Anthony Gray. Religious Freedom and Section 116 of the Australian Constitution: Would a Banning of the Hijab or
Burqa Be Constitutionally Valid?, < http://forumonpublicpolicy.com/vol2011.no2/archivevol2011.no2/gray.pdf>,
Accessed on 5th October 2017.

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BIBLIOGRAPHY
Website
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.
CEFA, (2015). Religious freedom in the Constitution, < http://www.cefa.org.au/ccf/religious-
freedom-constitution>, Accessed on 5th October 2017.
Anthony Gray. Religious Freedom and Section 116 of the Australian Constitution: Would a
Banning of the Hijab or Burqa Be Constitutionally Valid?, <
http://forumonpublicpolicy.com/vol2011.no2/archivevol2011.no2/gray.pdf>, Accessed on 5th
October 2017.

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Statute
Section 116 - commonwealth of Australia constitution act.
Case laws
Krygger v Williams [1912] HCA 65.
Attorney-General (Vic) (Ex rel Black) v Commonwealth 1981, HCA 2.