3.10 Section 116 of the Australian 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.
3.11 This provision has been read narrowly by the High Court. For example, in Krygger v Williams (1915)the High Court upheld a law requiring attendance at compulsory peacetime military training by persons who conscientiously objected on religious grounds. The court found the law requiring attendance at military training did not infringe s 116:
To 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.
3.12 Given the limitations of s 116 as a protection of religious freedom, and the limited protection at common law, there is some debate about the extent to which freedom of religion is protected by Australian law.
Principle of legality
3.13 The principle of legality provides some protection to freedom of religion. When interpreting a statute, courts will presume that Parliament did not intend to interfere with freedom of religion, unless this intention was made unambiguously clear. McHugh JA in Canterbury Municipal Council v Moslem Alawy Society (1985) suggested that Australian courts should show restraint in upholding provisions which interfere with religious equality:
If the ordinance is capable of a rational construction which permits persons to exercise their religion at the place where they wish to do so, I think that a court should prefer that construction to one which will prevent them from doing so.
3.14 Article 18(1) of the Universal Declaration of Human Rights 1948 enshrines freedom of religion:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
3.15 Article 18(1) of the ICCPR states that ‘everyone shall have the right to freedom of thought, conscience and religion’.
3.16 International instruments cannot be used to ‘override clear and valid provisions of Australian national law’. However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.
Bills of rights
3.17 In other countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms. Bills of rights and human rights statutes protect freedom of religion in the United States, the United Kingdom, Canada and New Zealand. An example is s 15 of the New Zealand Bill of Rights Act, which provides:
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
3.18 The Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2004 (ACT) also include protection for religious freedom. For instance, s 7 of the Victorian charter requires that in the event of a conflict between rights, lawmakers can place limits on rights, taking into account: ‘the nature of the right; the importance of the purpose of the limitation’; ‘the nature and extent of the limitation’; and ‘any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve’.
Australian Constitution s 116.
Attorney-General ex rel Black v Commonwealth (1981) 146 CLR 559, 604 (Gibbs J); Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116; George Williams and David Hume, Human Rights under the Australian Constitution (OUP, 2nd ed, 2013) 268. See also, Tony Blackshield, George Williams and Michael Coper (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 93–4.
Krygger v Williams (1915) 15 CLR 366, 369 (Griffith CJ).
Carolyn Evans, Legal Protection of Religious Freedom in Australia (2012) 88.
The principle of statutory interpretation now known as the ‘principle of legality’ is discussed more generally in Ch 1.
Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120, 130 (Mason ACJ, Brennan J).
Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525, 544 (McHugh JA). See also, DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) [5.15].
Minister for Immigration v B (2004) 219 CLR 365, 425  (Kirby J).
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). The relevance of international law is discussed more generally in Ch 1.
United States Constitution amend I.
Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 9(1).
Canada Act 1982 c 11, Sch B Pt 1 (’Canadian Charter of Rights and Freedoms’) c 11, sch B pt I, s 2(a).
Bill of Rights Act 1990 (NZ) s 15.
Charter of Human Rights and Responsibilities 2006 (Vic) s 14; Human Rights Act 2004 (ACT) s 14.