Advancing tolerant, secular Commonwealth: anti-discrimination law

Advancing tolerant, secular Commonwealth: anti-discrimination law

This work deconstructs the High Court of Australia’s interpretation of the ‘free exercise clause’ of the Australian Constitution. Then, the work draws conclusions on the potential for that clause to evolve and operate as a rule requiring the Commonwealth to be tolerant and secular. Finally, this work considers the constitutional validity of federal anti-discrimination laws that impact the religious freedom of Australian persons. This work addresses three questions:

1. How has the free exercise clause in section 116 of the Australian Constitution been constructed by the High Court of Australia and is this construction adequate – why, or why not?

2. How is religious freedom an issue in Australia, and how does the free exercise clause in section 116 of the Australian Constitution relate to the social issue of religious freedom?

3. Having regard to the free exercise clause in section 116 of the Australian Constitution as a potential constraint, are federal anti-discrimination laws constitutionally valid?

The work is split between two divisions. The first provides an examination of High Court and Federal Court judgements relating to the ‘free exercise clause’ of the Australian Constitution. The key principles are identified and critically evaluated through a combined textualist and contextual lens, having regard to the legal realities of modern Australia. A conclusion is drawn as to the proper construction of the free exercise clause and its relationship with religious freedom in Australia. The second division pinpoints conflicting religion-law interests and cross-references the legislation that prompts those conflicts either demonstrably in case law or theoretically on a plain doctrinal reading. The language of civilised religion is adopted to objectively discuss the issue of religious freedom through the perspective of a constitutionalist and legalist. The constitutional validity of federal antidiscrimination law is then examined.