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The Availability Of Protection For Rights

1194 words - 5 pages

The Availability of Protection for RightsAll global societies including Australian democratic society emphasize the value of the individual's religious freedom. The religious freedom represents the freedom to have individual thinking and the form of individual expression. Religious freedom is protected from inference or restriction by the Commonwealth by s. 116. 'Religion' in this context includes the major world faiths such as Christianity, Islam, Buddhism, Hinduism, as well as 'new' faiths or beliefs such as Scientology.Two elements of the guarantee have come before the High Court. First, the Commonwealth cannot 'establish' a religion. This means that the Commonwealth cannot make a particular religion the national religion or provide special advantages to one or more faiths. However, the Court has held that the Commonwealth can provide funding to private and religious schools without infringing s. 116. (DOGS Case1981)Second, the Commonwealth may not pass legislation 'for' the prohibition of the free exercise of religion. In 1997 the High Court considered whether the Northern Territory had infringed s. 116 by removing Aboriginal children from their families, because this measure prevented the free exercise of Aboriginal religions. (Kruger v. Commonwealth 1997) The High Court held that it did not, because it was not designed specifically to target religious practice. This decision means that laws that do not have an anti-religious purpose may be valid even though they restrict religious practice. These are narrow readings of s. 116, which limit how effectively the Constitution guarantees the freedom of religion in Australia. In addition, like s. 51 (xxxi), s. 116 only restricts Commonwealth power and does not prevent action by a state that interferes with religious freedom.As regards to the question of religious freedom in commonwealth law, the prohibition of Commonwealth laws 'for establishing any religion' has been construed according to its historical meaning. It prohibits laws conferring a special legal status and privileges on a specific religion, in a manner analogous to the UK laws that confer on the Church of England and the Church of Scotland the status of national churches. Hence Commonwealth laws do not violate the prohibition merely because they indirectly aid the promotion of religion: DOGS Case.The freedom consequent upon the prohibition of laws 'for prohibiting the free exercise of any religion' is narrow for at least two reasons:• The Court has construed 'exercise' of religion as referring only to performance of activities that are of an exclusively religious character (e.g., acts of individual or collective worship). On this view, a law does not infringe the prohibition merely because it requires a person to do 'an act which his religion forbids': Krygger v Williams• The Court has construed the reference to 'free' exercise of religion in its constitutional context, i.e., as a freedom which, since it is guaranteed by the...

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