Religious Freedom in Constitution †Free Samples to Students

Question: Discuss about the Religious Freedom in Constitution. Answer: 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. 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 childrens from their families. 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 Williams[2]. 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 Commonwealth[3]. 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. 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 state[5]. The original plan was to limit the power of state for the purpose of making any provision in respect to religion[6]. 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. References Chapter 4- Freedom of Religion, https://www.google.co.in/url?sa=trct=jq=esrc=ssource=webcd=7cad=rjauact=8ved=0ahUKEwj_w-a0jtnWAhVBvI8KHa8NBB4QFghSMAYurl=http%3A%2F%2Fwww.aph.gov.au%2FParliamentary_Business%2FCommittees%2FHouse_of_Representatives_Committees%3Furl%3Djfadt%2Freligion%2Frelchap4.pdfusg=AOvVaw0FAXi-t-oac8CJzMbVpF7F, Accessed on 5th October 2017. CEFA, (2015). Religious freedom in the Constitution, https://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?, https://forumonpublicpolicy.com/vol2011.no2/archivevol2011.no2/gray.pdf, Accessed on 5th October 2017.