Laws3700 Notes

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Leanna Perr

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Aug 3, 2024, 10:24:22 AM8/3/24

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However, where my disagreement with Dr Beck arises is in the conclusion he draws: that the fact that a minister of religion may not currently solemnise a same sex marriage, means that the provisions of the Marriage Act 1961 which achieve this result may be constitutionally invalid.

The forthcoming plebiscite, if it happens, may reveal whether or not the consensus of the Australian community on those matters has changed in recent years. But it does not seem plausible that a definition of the legal relationship of marriage that has been in force for most of recorded human history, in terms of the differential sexes of the parties, would overnight become an illegitimate policy end, which cannot be protected by Parliament.

However, because of the lack of clarity concerning how s 116 operates, in my view Parliament ought to explicitly provide such protections for religious freedom if it enacts laws allowing same sex marriage. Protection for religious free speech will also be needed if those who wish to maintain a respectful disagreement with the majority sexual orthodoxy, on religious grounds, are to be able to continue to articulate their views (see my previous comments on the case brought against Archbishop Porteous in Tasmania for simply teaching the Roman Catholic view of marriage in a booklet distributed to Roman Catholic schools.)

I was invited to speak to the J Rueben Clark Law Society annual conference on Friday May 29, and gave a paper on Religious Freedom in Australia. (I am not a member of the Society but happy to share in the work of supporting religious freedom with its members.) The paper covers something of the ground I covered in a previous blog post on this area, but in more detail and with footnotes! After the paper one member of the audience noted that I had omitted to mention s 46 of the Tasmanian Constitution Act 1934 which is the only provision for specific religious freedom protection in Australia in a State Constitution. Worth keeping in mind though so far no court has ever had occasion to consider what it means. Those who are interested in a detailed analysis of the somewhat patchwork system for religious freedom protection in Australia at the moment may find the paper of interest.

Since today is Australia Day, it seems like an appropriate occasion to make some comments about freedom of religion in Australia! Those of us who are blessed to live in this wonderful country have many things to be grateful for, and one of them is a tradition of free exercise of religion. However, this right is not protected here in precisely the same way as it is protected in other jurisidictions which share our common law heritage. In this post I want to outline briefly how the law protects freedom of religion in Australia.

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.

An important point to note about s 116, however, is that it does not apply to laws passed by a State, as opposed to the Commonwealth. The wording of the provision is clearly limited to the Commonwealth (and here in Australia our High Court has not made the step that the US Supreme Court took in Cantwell v Connecticut 310 US 296 (1940) of extending the free exercise limb of the First Amendment to the States.) Indeed, there is some academic and judicial debate as to whether s 116 even extends to Federal Territories, which are set up under authority of Commonwealth laws (although I think that there are strong hints in recent High Court decisions that, should the issue come up today, the High Court would apply s 116 to a Territory law- see Wurridjal v Commonwealth (2009) 237 CLR 309, which extended a similar limitation on general Commonwealth law-making powers to govern Territorial laws.)

How is religious freedom protected in Australia, then, where s 116 does not apply (in particular, under State law?) There are a number of possibilities which have been put forward, which I will briefly note.

There are a number of important international treaties which protect religious freedom. Probably the most important one, which Australia has undertaken to be bound by, is the International Covenant on Civil and Political Rights (the ICCPR), s 18 of which provides for a broad right of religious freedom.

Of course international conventions can provide a model to encourage legislation, and as we will see in a moment there is some local legislation which to some extent specifically adopts the ICCPR. But it cannot be litigated on directly in domestic courts.

While the common law has a long tradition of protecting freedoms in general, there is not a strong common law religious freedom tradition. In fact, of course, the common law developed in a country (Great Britain) where there was an established church, the Church of England, and at various points in history there were legal disabilities imposed on those from other religions. In Grace Bible Church Inc v Reedman (1984) 36 SASR 376 the South Australian Supreme Court held that there was no implied principle of religious freedom constraining State laws.

Of course there is a great deal more that could be said about all these areas, but hopefully this will provide a useful overview of religious freedom protection in Australia. On the whole our history has been fairly free from serious religious conflicts, and it is be hoped that we can continue to enjoy the freedom to live in accordance with our fundamental beliefs, while respecting the rights of others.