Advancing tolerant, secular Commonwealth: anti-discrimination law

Masters Thesis


Harradine, Matthew William. 2019. Advancing tolerant, secular Commonwealth: anti-discrimination law. Masters Thesis Master of Laws (Research). University of Southern Queensland. https://doi.org/10.26192/q93x-k310
Title

Advancing tolerant, secular Commonwealth: anti-discrimination law

TypeMasters Thesis
Authors
AuthorHarradine, Matthew William
SupervisorPatrick, Jeremy
Gray, Anthony
Institution of OriginUniversity of Southern Queensland
Qualification NameMaster of Laws (Research)
Number of Pages201
Year2019
Digital Object Identifier (DOI)https://doi.org/10.26192/q93x-k310
Abstract

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.

KeywordsAustralia; Australian Constitution; Constitutional law; religious freedom; anti-discrimination law; discrimination
ANZSRC Field of Research 2020480702. Constitutional law
500405. Religion, society and culture
480410. Legal theory, jurisprudence and legal interpretation
480499. Law in context not elsewhere classified
Byline AffiliationsSchool of Law and Justice
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https://research.usq.edu.au/item/q5x94/advancing-tolerant-secular-commonwealth-anti-discrimination-law

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