Question: Is there a need to enact legislation to protect religious faith and the freedom to exercise and express that faith?  Is s 116 of the Constitution inadequate in its protection of freedom of religion, or does it get the balance right?

Balancing Act Needed? The Narrow Scope of ‘Free Exercise’ Under Section 116

A Introduction

In the wake of the Morrison government’s draft religious discrimination legislation, the debate surrounding religious freedom in Australia has seen a renewed interest.[1] However, the government’s legislative response to religious freedom concerns overlooks a question logically anterior to the debate – the adequacy of the Commonwealth Constitution (‘Constitution’), as a protector of religious freedom. Indeed, should s 116 of the Constitution provide adequate protection for freedom of religion, then the need for additional legislative protection falls away. Herein, accepting that the extent to which any religion will be free involves a process of ‘balancing’, it will be argued that s 116 provides a narrow protection of religious freedom, which will be contextualised with examples of curial balancing consistent with liberal assumptions regarding religious freedom. The inadequacy of this narrow approach becomes particularly apparent as a ‘comprehensive’ liberalism emerges, and it will be argued that a Commonwealth legislative response will provide a more appropriate framework within which to balance religious freedom.

B Structure of s 116

1 The value of religious freedom

The ‘freedom to believe and to act on one’s beliefs lies at the very core of the fundamental human rights and freedoms recognised in most western liberal jurisdictions’.[2] Religious freedom so understood embraces two ‘dimensions’ – an external freedom to act and an internal freedom to believe.[3] These interlinking dimensions – the freedom to believe and the freedom to act thereupon – find themselves at the ‘core of human dignity’, forming a ‘constitutional space’ for investigation and the pursuit of truth and knowledge.[4] Often treated, alongside religion, as facets of the same freedom, they are mutually supportive of a range of other rights essential to the proper functioning of democracy.[5] Where there is free exercise of religion, free expression and belief flourish. Indeed, ‘[f]reedom of religion, the paradigm freedom of conscience, is the essence of a free society’.[6] Religious freedom is therefore deserving of protection.

2 Four limbs

Religious freedom is protected by s 116 of the Constitution, which reads:  

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.

This section enshrines four explicit, symbolic, constitutional prohibitions (or ‘limbs’).[7] Of these limbs, it is the ‘free exercise’ limb (underlined above) which is most germane to the freedom to exercise and express religious faith and which will be discussed below.

3 Broad application

Section 116 ‘prevails over and limits all [constitutional] provisions which give power to make laws’, and applies to all Commonwealth laws.[8] This includes ‘laws which authorize (sic) the making of subsidiary laws in the form of proclamations, statutory rules or by-laws’, giving s 116 a wide ambit of operation.[9] It does not, however, apply to executive action, unless involving a religious test for office.[10] Although appearing in a constitutional chapter headed ‘The States’, the prohibitions in s 116 do not apply to State governments, despite an earlier draft to the contrary.[11] Instead, the States retain plenary power to legislate with respect to religion, speaking against s 116 as a repository of a broad statement of right or principle.[12] Nevertheless, s 116 refers widely to ‘any religion’, ‘any religious test’ and ‘any religious observance’, and therefore applies in respect of any body that can be defined as a ‘religion’.[13] Accepting that it is near impossible to define ‘religion’ so as to encompass all current or future religions, the High Court has opted for a wide construction of the term.[14] In Church of the New Faith, Mason ACJ and Brennan J defined ‘religion’ as ‘belief in a supernatural Being, Thing or Principle; and…the acceptance of canons of conduct in order to give effect to that belief’.[15] Wilson and Deane JJ pointed to certain identifiable elements of religion, including practices involving supernatural belief, ideas relating to man’s place in nature, and group identity.[16] On either approach, the scope of ‘religion’ in s 116 is broad. A definition focussing on belief and associated conduct (or indeed, upon supernatural ideas and group identity) embraces any array of faiths possessing these characteristics in addition to the prevailing monotheistic/Abrahamic faiths, ensuring s 116’s wide application in respect of a variety of religions.

C The narrow balance of s 116

Nevertheless, no freedom can be absolute.[17] The question thus arises: how can we ‘balance’ individual freedom against the needs of ordered government?[18] The following analysis proceeds on the assumption that this question is one of ‘institutional separation’: which decisions belong to the individual, and which decisions raise issues of stability and justice, over which the state should have authority?[19] The extent to which religion must be ‘free’ will, therefore, at any given point, depend on the weight given to competing notions of autonomy within the democratic process.[20] This may be characterised as a process of ‘balancing’, inevitably shaped by the dominant political considerations at play at in society at any given time.

1 A narrow balance

The free exercise limb of s 116 strikes a narrow balance of religious freedom. The High Court has held that the yardstick for invalidity under s 116 is the purpose of an impugned law.[21] A general law will not fall afoul of s 116 unless that law has the purpose of achieving an object which s 116 forbids.[22] This means that the free exercise limb’s application is limited to legislation that has as its very purpose the infringement of free exercise.[23] So long as a law which, for example, regulates facial coverings, is framed in a sufficiently general and protective manner, the free exercise limb is unlikely to be engaged, irrespective of the law’s practical impact upon religious headwear.[24] The inadequacy of this approach is evident – general laws can curtail religious freedom with impunity, and since purpose focuses ‘on the internal forum’, lawmakers can control constitutional invalidity through careful drafting.[25] In balancing Commonwealth legislative power with religious freedom, freedom has been afforded a narrow scope. Perhaps unsurprisingly then, the free exercise limb has never been successfully invoked, s 116 variously criticised as ‘effectively useless’[26], of ‘little practical value’[27] and ‘meaningless’.[28] The balance, many would contend, is thoroughly off. However, if ‘balancing’ is a process shaped by particular political considerations, then some further contextualisation is clearly required.

2 Influence of liberal assumptions

The narrow nature of the test applied to determine whether a law has breached the free exercise limb is reflective of certain classical liberal assumptions. Indeed, s 116’s narrow balance finds ideological parallel in the classical liberal assumption that religious freedom is subject to state determinations of what is required for social order.[29] This assumption was evident in the judgment of Latham CJ in Jehovah’s Witnesses, which involved a wartime challenge to certain national security regulations, which provided, inter alia, that ‘prejudicial’ organisations could be declared unlawful and dissolved. On 17 January 1941, such a declaration was made in relation to the Adelaide Company of Jehovah’s Witnesses.[30] Referring to J.S. Mill’s ‘On Liberty’, Latham CJ noted that that liberty did not mean a licence for individuals to do as they please, ‘because such liberty would mean the absence of law and order, and ultimately the destruction of liberty’.[31] Recognising the classical liberal ‘harm principle’ (that self-protection may justify interference with liberty), Latham CJ argued in support of the state’s interference with freedom of religion in order to preserve social order, thus maintaining freedom itself.[32] The High Court unanimously held that the regulations did not infringe s 116.[33]  

Section 116’s narrow balance also finds a historical parallel in the classical liberal assumption that religious freedom is essentially private in nature.[34] This assumption was particularly evident in Krygger v Williams (‘Krygger’)[35], which concerned a scheme of compulsory military service pursuant to the Defence Act 1903 (Cth). Section 135 of the Act made evading service an offence. Section 143 offered ‘non-combatant duties’ for religious objectors. Mr Krygger claimed that military service would prohibit the free exercise of his Christian religion.[36] The appeal was dismissed, Griffith CJ characterising Mr Krygger’s refusal to be trained in non-combatant duties as ‘absurd’, noting that ‘[t]o require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion’.[37] This approach reflects the narrow assumption that religious freedom is private in nature, extending to thought and worship, but not to public acts absent any clear religious link.

3 Contextualisation

Insofar as ‘balancing’ is a process shaped by political considerations, then the narrow balance afforded to s 116 reflects, on these examples of curial balancing, the influence of particular political assumptions. In Krygger, a narrow approach to religious freedom corresponded with liberal assumptions regarding the public-private divide.[38] In Jehovah’s Witnesses, a narrow approach to religious freedom reflected liberal assumptions regarding state control.[39] These examples illustrate an observable ideological streak present within the limited case law on the free exercise limb. The effect of this, consciously or otherwise, would be to shape s 116 to fit these assumptions.[40] Since the free exercise limb is a limit on Commonwealth legislative power, and that limb has been interpreted narrowly, Commonwealth legislative power expands accordingly. Although, the adequacy of the interpretation afforded to s 116 cannot turn on the veracity of the underlying political assumptions, any expansion in Commonwealth legislative power certainly compounds the requirement for strengthened protections for rights and freedoms, including for religious freedom.

D A contemporary difficulty: comprehensive liberalism

1 Comprehensive liberalism

Ideological observations aside, s 116’s narrow approach is increasingly inadequate, as it is ill-equipped to balance competing notions of autonomy. As Rawls notes, nascent liberalism was a ‘political’ liberalism, where the political conception of justice applied only to the framework of basic institutions.[41] Now, a ‘comprehensive’ liberalism addresses all aspects of human life, including personal character, ideals of friendship, familial and associational relationships, and ideals of conduct.[42] Indeed, government intervention into attendance at religious schools[43], hospital staff[44] and the confessional[45] reflects a shift towards addressing ‘the non-political aspects of life’.[46] For s 116, this means balancing the need for religious freedom not only with the need to preserve social order, but also with the need to preserve democratic freedom and equality for other citizens. However, because s 116’s purposive test provides no standard by which to justify interference with religious freedom, there is a danger that the free exercise of religion may suffer as a result of government intervention in favour of competing rights. For example, a law of general application requiring mandatory sexual abuse reporting may require priests to breach the confessional seal. If the purpose of the law is not aimed at restricting confessional practices, it is unlikely to enliven the protection of the free exercise limb. Accepting then that the balancing task is increasing in difficulty, it is plain that s 116’s narrow approach to religious freedom is increasingly inadequate for the task at hand. It is therefore preferable that an additional, protective, stage of analysis occur, which examines the justifiability of any restriction.[47]

2 Limitations standards

‘Limitations standards’ provide a standard to be used to determine the justifiability of any limitations imposed upon fundamental rights.[48] These standards recognise that certain rights are non-derogable, and that deviations from them must be  ‘demonstrably justified in a free and democratic society’.[49] Indeed, the free exercise limb would be strengthened by this recognition if it included a framework within which to openly assess the justifiability of limitations placed upon religious freedom in favour of other interests.[50] Unfortunately, the addition of a limitation standard to the purpose test is unlikely to ameliorate its inadequacy, as the justifiability enquiry logically follows the question of whether the impugned law has the purpose of infringing free exercise, which remains a narrow hurdle, nor is this interpretation open on current authority.[51] A limitation standard may nonetheless have potential legislative application. On the confessional seal example, see, for instance, the limitations standard in s 7(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) and the interaction this provision may have with recently passed mandatory sexual abuse reporting legislation.[52]

E Legislative response

There is an emerging need to address the issues associated with balance correlative to the exercise of any democratic freedom. Although this need is not yet dire – religious freedom complaints to the Australian Human Rights Commission are rare (around 3% of complaints in 2011/12) and Australians ‘by and large enjoy a high degree of religious freedom’ – there is a growing need for action.[53] A constitutional amendment (for example, to extend the operation of s 116 to the States) is unlikely to succeed, having failed by a record margin in 1988.[54] Furthermore, a ‘judicial interpretive update’ (to use Babie’s phrase) seems unlikely to respond these issues, or to do so promptly.[55] Indeed, the free exercise limb was last considered by the High Court in 1997, and although higher courts have speculated on a ‘more flexible’ interpretation of s 116 based on redress to the Convention debates, there is nothing to suggest an imminent departure from established precedent.[56]

A Commonwealth legislative response then, under, for example, s 51(xxix) of the Constitution, would be most appropriate, invalidating any inconsistent State laws.[57] Although beyond this paper’s scope to consider the appropriate legislative response in detail, it is apposite to note that the Morrison government’s 2020 legislative agenda includes religious discrimination laws.[58] As Hobbs and Williams have pointed out, protecting religious freedom through a ‘Religious Discrimination Act’ is a ‘narrow and distorting lens’ which does not amount to a positive right, catalysing similar problems to those above.[59] Hobbs and Williams refer to debates over gay students and religious schools as illustrating the need for a framework to reconcile the right to exercise religion with the right to non-discrimination.[60] This is similar to what I describe as the difficulties of contemporary balancing. I accept Hobbs and Williams’ perspective, and note that, although a patchwork of ‘basic protections’ for religious freedom already exist in Commonwealth, State and Territory laws (centred primarily around exceptions to discrimination laws) legislation designed to protect religious freedom should consider providing a standard to be used in determining the justifiability of limitations imposed upon religious freedom.[61] Uniform Commonwealth legislation in this respect would provide democratic redress to Australia’s stance as the sole nation among liberal democracies without national protection of fundamental rights, including religious freedom.

F Conclusion

Although expressed in clear language, the words of s 116 fall shorter in effect than they do in impression. Indeed, s 116 provides only a narrow protection of religious freedom, looking only to the Commonwealth’s purpose, and providing no framework within which to balance contemporary cries for freedom and equality. A legislative response, with an appropriate limitation standard, can provide a structure within which to determine the justifiability of contemporary encroachments upon religious freedom – a complicated exercise. The nature of this limitation standard provides an interesting opportunity for further discussion and research.

I declare that this entry is my own unaided and original work.

Bibliography

A Articles/Books/Reports

Adhar, Rex and Jan Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2nd ed, 2013)

Babie, Paul, ‘National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update’ (2017) 45(3) Federal Law Review 351

Barker, Renae, State and Religion : The Australian Story (Routledge, 2018)

Beck, Luke, ‘The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study’ (2014) 35(2) Adelaide Law Review 225

Cumbrae-Stewart, Frank, ‘Section 116 of the Constitution’ (1946) 20(6) The Australian Law Journal 207

Deagon, Alex, ‘Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom’ (2018) 46(1) Federal Law Review 113

Gray, Anthony, ‘Section 116 of the Australian Constitution and dress restrictions’ (2011) 16(2) Deakin Law Review 293

Hogan, Michael, ‘Separation of Church and State: Section 116 of the Australian Constitution’ (1981) 53(2) The Australian Quarterly 214

McConnell, Michael, ‘Why Is Religious Liberty the First Freedom’ (2000) 21(1) Cardozo Law Review 1243

McLeish, Stephen, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ (1992) 16(2) Monash University Law Review 207

Pannam, Clifford, ‘Traveling Section 116 with a U.S. Road Map’ (1963) 4 Melbourne Law Review 41

Parkinson, Patrick, ‘Christian concerns about an Australian Charter of Rights’ (2010) 15(2) Australian Journal of Human Rights 83

Puls, Joshua, ‘The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees’ (1998) 26(1) Federal Law Review 139

Rawls, John, Political Liberalism (Columbia University Press, 2005)

Scharffs, Brett, ‘Why Religious Freedom? Why the Religiously Committed, the Religiously Indifferent, and Those Hostile to Religion Should Care’ (2017) 4 Brigham Young University Law Review 957 

Slee, Amruta, ‘The Delicate Balance of Religious Rights’ (2013) 51(5) New South Wales Law Society Journal 16

Hobbs, Harry and George Williams, ‘Protecting Religious Freedom in a Human Rights Act’ (2019) 93(9) Australian Law Journal 721

Kildea, Paul, ‘The Bill of Rights debate in Australian political culture’ (2003) 9(1) Australian Journal of Human Rights 65

B Cases

A-G (Vic) (ex rel Black) v Commonwealth (1981) 146 CLR 559

Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (1943) 67 CLR 116

Cantwell v Connecticut, 310 US 296, 303-4 (1940)

Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120

Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156

Kruger & Ors v Commonwealth (1997) 190 CLR 1

Krygger v Williams (1912) 15 CLR 366

C Legislation

Canada Act 1982 (UK) c 11, sch B pt I

Charter of Human Rights and Responsibilities Bill 2006 (Vic)

Children Legislation Amendment Act 2019 (Vic)

Commonwealth Constitution

D Treaties

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

E Other

Attorney-General’s Department, Religious Freedom Bills - First Exposure Drafts (Web Page, 29 August 2019) <https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills.aspx>

Attorney General’s Department, Religious Freedom Bills – Second Exposure Drafts (Web Page, 10 December 2019) <https://www.ag.gov.au/Consultations/Pages/religious-freedom-bills-second...

Expert Panel on Religious Freedom, Religious Freedom Review: Report of the Expert Panel (Report, 18 May 2018) <https://www.ag.gov.au/RightsAndProtections/HumanRights/Documents/religio...

Karp, Paul, Scott Morrison backtracks on law to expel gay students (Web Page, 12 October 2018) <https://www.theguardian.com/australia-news/2018/oct/12/scott-morrison-ba...

Martin, Sarah, Religious discrimination bill: faith-based groups and equality advocates welcome delay (Web Page, 1 December 2019) <https://www.theguardian.com/australia-news/2019/dec/01/scott-morrison-pu...

Stayner, Tom, Religious hospitals will soon be able to pick staff based on faith (Web Page, 20 November 2019) <https://www.sbs.com.au/news/religious-hospitals-will-soon-be-able-to-pic...

Towell, Noel and Simone Koob, Laws forcing priests to report child abuse passed in Victorian parliament (Web Page, 11 September 2019) <https://www.theage.com.au/national/victoria/laws-forcing-priests-to-repo...

Wilkie, Ben, Debates about the seal of confession intensify as Australian mandatory reporting laws move closer to reality (Web Page, December 19 2019) <https://www.americamagazine.org/faith/2019/12/19/debates-about-seal-conf...