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Part VII Rights, Ch.42 Religion

Carolyn Evans

From: The Oxford Handbook of the Australian Constitution

Edited By: Cheryl Saunders, Adrienne Stone

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 07 August 2020

This chapter turns to section 116 of the Commonwealth Constitution in Australia, which prohibits the Commonwealth from legislating in respect of religion. After an overview of the history and context of section 116, this chapter examines the way that the High Court has interpreted the term ‘religion’, the free exercise clause, and the establishment clause. The definitional issue brings the Court closest to the usual interpretative exercise relevant to other constitutional and statutory provisions. Its case law in this area has been more sophisticated and detailed than has been in the other two areas. With respect to religious freedom and non-establishment, the Court has had a focus on technical aspects of interpretation, parliamentary sovereignty, and limitations of the role of the courts that have allowed it to avoid the necessity of engaging in the deeper, more complex issues that arise in similar constitutional contexts.

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