Religion and the Constitution: an Illusory Freedom

Abstract

In Australia, there are very few civil freedoms that are enshrined in the Constitution. One 'freedom' that at first glance appears to be protected by the Constitution is a freedom of religious choice. That freedom is protected, if it is protected. by s. 116 of the Constitution. This paper will consider that section and the limited role that it has been given by the High Court of Australia. It will be discovered that any guarantee that the section may appear to give has been seriously limited, with the result that like so many civil liberties in Australia, the freedom of religion is protected by the political process and the 'goodwill' of government, rather than by being enshrined in the foundation documents of the nation.