Freedom of Religion

In as much as the Commonwealth Consitution provides a right to freedom of religion, section 116 of the Constitution provides:

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.

As you can see, section 116 contains four separate religious guarantees on Commonwealth (but not State power). The commonwealth shall not make law for:

1. establishing any religion;
2. imposing any religious observance;
3. prohibiting the free exercise of religion; and
4. require a religious test as a qualification for any office or public trust under the Commonwealth.

The case law before the High Court of Australia has exclusively concerned gaurantees (a) and (c).

In respect of (a), the prohibition on 'the establishment of any religion' applies to only a narrow range of laws. Essentially, the Commonwealth is prohibited from favouring one religion over all others to an extent where people might perceive that the particular religion has become the official religion of Australia.

In respect of (c), it was initially tested in Kryger v Williams (1912) 15 CLR 366. In this case, the Commonwealth's conscription laws, which prohibited Kryger from manifesting his anti-militarist beliefs by requiring his compulsory participation in military training, was unsuccessfully challenged. The Kryger court felt that section 116 only prohibited laws which directly prohibited the 'doing of acts which are done in the practice of religion' (Griffith CJ at 369). It did not prohibit laws which compelled people to act in a manner contrary to their religion.

Section 116 has more recently arisen in Kruger v Commonwealth (the Stolen Generation case) (1997) 190 CLR 1. The case concerned a challenge to a Northern Territory Ordinance (repealed in 1953) which authorised the compulsory removal of Aboriginal children from their families, and the complusory detention of Aboriginal people on reserves. One claim in the case was that the enforced separation of people from their culture effectively prohibited the free exercise of Aboriginal religions.

The majority found a breach of section 116 was not made out. The majority's view in Kruger diminishes the potential effectiveness of section 116 as a guarantee of freedom of religion.

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