Protections from statutory encroachment

Australian Constitution

5.25     Religious freedom receives some constitutional protection in Australia. 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.

5.26     The provision includes four prohibitions on the making of Commonwealth laws, —the ‘establishment’, ‘observance’, ‘free exercise’ and ‘religious test’ clauses respectively. It restrains the legislative power of the Commonwealth to enact laws that would establish a religion or prohibit the free exercise of religion, but does not explicitly create a personal or individual right to religious freedom.[23]

5.27     Australian courts have considered the interpretation of s 116 in only a small number of cases. Those cases have concerned the meaning of religion (as discussed above), and the operation of the ‘free exercise’ and ‘establishment’ clauses.[24] Generally, however, s 116 has been read narrowly by the High Court.[25]

Establishment clause

5.28     There is only one decision of the High Court that considers the scope of the establishment clause—the case of Attorney-General (Vic) (ex rel Black) v Commonwealth (the DOGS case)—in which an organisation called Defence of Government Schools, challenged federal funding of non-government schools operated by religious organisations.[26]

5.29     The High Court held that the funding did not contravene the establishment clause when the funding was for ordinary educational purposes. The reasoning in the DOGS case has been described as ‘restrictive’, strict’ and as setting ‘a very high threshold’.[27] A majority held that the establishment clause only prohibited the Commonwealth from passing legislation that purposely created a national church or religion.[28]

5.30     However, the continuing strength of the authority of the decision in the DOGS case has been questioned. One reason is that, since this case was decided in 1981, the High Court has adopted a more liberal approach to the interpretation of constitutional rights and safeguards.[29] More fundamentally, such a narrow interpretation would render the establishment clause meaningless, because it would ‘only ban something about which the Federal Parliament appears to have no power to legislate—the creation of a national church’.[30]

5.31     Importantly, this leaves room to argue that s 116 may be capable of applying to laws that have the effect, and not just the purpose of establishing religion, imposing religious observance, prohibiting the free exercise of religion, or requiring religious tests.

Free exercise clause

5.32     In Krygger v Williams the High Court upheld a law requiring attendance at compulsory peacetime military training by persons who conscientiously objected to military training on religious grounds. The Court found the law requiring attendance at military training did not infringe the free exercise clause of 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.[31]

5.33     Griffith CJ also stated that while ‘a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds … it does not come within the prohibition of s 116’.[32] These statements can be seen as suggesting that the free exercise clause is concerned only with laws which ‘in terms’ ban religious practices or otherwise forbid the free exercise of religion.[33]

5.34     The Jehovah’s Witnesses case challenged a ban of the Jehovah’s Witnesses under defence regulations.[34] The effect of the ban was that the group’s doctrines were illegal and they could not lawfully print or publish their beliefs or hold meetings advocating those beliefs. While the regulations were found to be invalid as ultra vires the National Security Act 1939 (Cth) and, in part, beyond the defence power in s 51(vi) of the Constitution,[35] the judgments provided interpretations of s 116.

5.35     Arguably, the judges in the Jehovah’s Witnesses case took a broad view of the free exercise clause, and assumed that a ‘facially-neutral regulation directed at the suppression of subversive organizations, burdening religion in its effect’, could offend the clause.[36]

5.36     However, in Kruger v Commonwealth, the High Court confirmed the view that laws that have the effect of indirectly prohibiting the free exercise of religion are not invalidated by s 116.[37] That is, s 116 is interpreted as purposive in nature—being directed at laws that explicitly have the prohibited aim, rather than just the indirect effect.[38]

5.37     It remains possible, however, that the removal or lessening of exemptions for religious organisations contained in Commonwealth anti-discrimination laws or, for example, legislating for same-sex marriage without adequate recognition for freedom of religion, may have constitutional implications under s 116.

Principle of legality

5.38     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.[39] In Canterbury Municipal Council v Moslem Alawy Society, it was suggested that Australian courts should show restraint in upholding provisions which interfere with the exercise of religion:

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.[40]

5.39     However, under Australia’s model of parliamentary supremacy, common law protection of freedom of religion has its limits, where a legislative intention is clearly expressed:

Although a court intent on maximally protecting the common law right to freedom of religion might exhibit unusual reluctance to find that Parliament intended to invade the right, the presumption that Parliament does not intend to interfere with common law rights and freedoms remains rebuttable.[41]

International law

5.40     Article 18 of the Universal Declaration of Human Rights enshrines freedom of religion, in providing that everyone ‘has the right to freedom of thought, conscience and religion’.[42]

5.41     Article 18.1 of the International Covenant on Civil and Political Rights, (ICCPR) provides:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.[43]

5.42     The UN Human Rights Committee has explained that the right to freedom of thought, conscience and religion is ‘far-reaching and profound’ and ‘encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others’.[44]

5.43     Under art 18.4, the parties to the ICCPR also ‘undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’.

5.44     The UN Human Rights Committee has noted that public education that includes instruction in a particular religion or belief is inconsistent with art 18.4, unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.[45]

5.45     The UN Human Rights Committee also observed that the fundamental character of freedom of thought, conscience and religion is reflected in the fact that this provision cannot be derogated from, even in time of public emergency.[46]

5.46     Infringement of a person’s rights under art 18 may engage a number of other rights and freedoms protected in the ICCPR, including the right to privacy,[47] the rights to hold opinions and freedom of expression,[48] the right of peaceful assembly,[49] and liberty of movement.[50]

5.47     International instruments cannot be used to ‘override clear and valid provisions of Australian national law’.[51] However, where a statute is ambiguous, courts will generally favour a construction that accords with Australia’s international obligations.[52]

Bills of rights

5.48     In some countries, bills of rights or human rights statutes provide some protection to certain rights and freedoms, for example in the United States,[53] the United Kingdom,[54] Canada[55] and New Zealand.[56] An example is s 15 of the New Zealand Bill of Rights Act 1990 (NZ), 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.

5.49     The Charter of Human Rights and Responsibilities 2006 (Vic) and the Human Rights Act 2004 (ACT) also include protection for religious freedom.[57]

[23]           Arguably, the implied constitutional freedom of political communication may also provide some protection for the free exercise of religion, to the extent that public expression of religious perspectives is ‘relevantly political and a factor in the formation of political opinions as a function of the democratic process’: A Deagon, Submission 84.

[24]           The religious test clause was raised in the ‘School Chaplains’ case, but the High Court determined that a school chaplain did not hold an office under the Commonwealth: Williams v Commonwealth (No 1) (2012) 248 CLR 156.

[25]           Attorney-General (Vic) (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 (Oxford University Press, 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; Peter Radan, Denise Meyerson and Rosalind Croucher (eds), Law and Religion (Routledge, 2005) ch 4.

[26]           Attorney-General (Vic) (ex rel Black) v Commonwealth (1981) 146 CLR 559.

[27]           See Luke Beck, ‘The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study’ [2014] Adelaide Law Review 225, 225–6.

[28]           Attorney-General (Vic) (ex rel Black) v Commonwealth (1981) 146 CLR 559, 579, 583–4, 604, 615–6, 653; Reid Mortensen, ‘The Unfinished Experiment: Report on Religious Freedom in Australia’ Emory Law Review 167, 174.

[29]           Generally, Mortensen, above n 28; Beck, above n 27.

[30]           Mortensen, above n 28, 174.

[31]           Krygger v Williams (1915) 15 CLR 366, 369 (Griffith CJ).

[32]           Ibid.

[33]           Kruger v Commonwealth (1997) 190 CLR 1, 130–31.

[34]           Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116.

[35]           Ibid 148, 150, 156, 157, 168; Mortensen, above n 28, 172.

[36]           Mortensen, above n 28, 173. Referring, in particular, to Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116, 132 (Latham CJ).

[37]           See, eg, Kruger v Commonwealth (1997) 190 CLR 1, 40 (Brennan CJ), 86 (Toohey J).

[38]           Gaudron J disagreed with this narrow interpretation and stated that s 116 was ‘intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it’: Ibid
130–31.

[39]           Church of the New Faith v Commissioner for Pay-roll Tax (Vic) (1983) 154 CLR 120, 130 (Mason ACJ, Brennan J).

[40]           Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525, 544 (McHugh JA). See also Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 228–9.

[41]           Denise Meyerson, ‘The Protection of Religious Rights under Australian Law’ (2009) 3 Brigham Young University Law Review 529, 542.

[42]           Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Sess, 183rd Plen Mtg, UN Doc A/810 (10 December 1948) art 18.

[43]           International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 18.1.

[44]           United Nations Human Rights Committee, General Comment 22 on Article 18 of the ICCPR on the Right to Freedom of Thought, Conscience and Religion, CCPR/C/21/Rev.1 (30 July 1993) [1].

[45]           Ibid [6].

[46]           Ibid [1]. See International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 4.2. Derogations allow states parties to adjust their obligations temporarily under the treaty in exceptional circumstances, for example, in times of public emergency threatening the life of the nation.

[47]           International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 17.

[48]           Ibid art 19.

[49]           Ibid art 21.

[50]           Ibid art 12.

[51]           Minister for Immigration v B (2004) 219 CLR 365, [171] (Kirby J).

[52]           Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J). See Ch 2.

[53]           United States Constitution amend I.

[54]           Human Rights Act 1998 (UK) c 42, sch 1 pt I, art 9(1).

[55]           Canada Act 1982 (UK) c 11, Sch B Pt 1 (Canadian Charter of Rights and Freedoms) s 2.

[56]           New Zealand Bill of Rights Act 1990 (NZ) s 15.

[57]           Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14; Human Rights Act 2004 (ACT) s 14.