Paul Babie

The Concept of Freedom of Religion in the Australian Constitution. A Study in Legislative-Judicial Cooperative Innovation

  • Abstract

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Keywords: Religious Freedom; Australian Constitution; Religious Freedom in S 116; Implied Freedom of Political Communication; Legislative-Judicial Creativity.

This essay examines the work of legislators and judges in propounding the concept of freedom of religion in the Australian Constitution. While it is commonly thought that the Constitution provides little protection for religious freedom, a review of the historical and textual sources reveals otherwise. Indeed, such an assessment indicates a significant strand of Millsian liberal thought behind the freedoms guaranteed in s 116 (the religious freedom provision): the legacy of the Consitutions framers. This, when combined with the work of the judiciary, especially the High Court of Australia, over the course of Australia's federal history, reveals a somewhat well-developed concept of freedom of religion. The essay concludes by reflecting upon the nature and efficacy of such legislative-judicial cooperation in the context of religious freedom.

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