Taking Seriously the Free Exercise of Religion under the Australian Constitution

Abstract

This article argues that the current (or at least assumed) approach to interpreting the s 116 free exercise of religion clause in the Australian Constitution needs to be reconsidered. There is a widespread belief that ‘for’ connotes a narrow and binary purpose test when employed in s 116. That test is drawn from a rationale that relates to the specific context of the establishment clause. However, unlike establishment, a binary test of purpose is insufficient to do justice to the complex ways in which law may interact with the free exercise of religion. We suggest that the relevant test for the free exercise clause must consider the legal and practical effect of a law to ascertain whether it has a constitutionally obnoxious purpose. We outline an analytical framework to assess whether a law that infringes the free exercise clause is constitutionally justified, which considers whether the law is appropriate and adapted to serve a legitimate end. This framework provides the tools needed to perform a justification analysis that transparently ventilates and evaluates the competing rights and interests in play in a manner that is sufficiently context-sensitive. Importantly, it builds on the High Court of Australia’s existing free exercise jurisprudence and reflects orthodox constitutional principle.