National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update

Abstract

<jats:p> This article, in three parts, suggests both why and how the courts ought to reconsider, and thereby update, the approach to the free exercise guarantee of s 116. First, having briefly outlined the current interpretation of the free exercise guarantee, it suggests the necessity for an update based upon the need for liberal constitutional democracies to provide what has been referred to as ‘“constitutional space” for investigation and pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the right and, in the second, provides for a limitations standard by which to assess infringements of the right. Finally, the article concludes that the proposed update to s 116 ensures a robust protection for free exercise in its application to Commonwealth legislation and executive action. </jats:p>

Religious Freedom and Education in Australian Schools

“…Attorney-General (Vic); Ex rel Black v Commonwealth ('DOGS Case') (1981) 146 CLR 559, 605. A vast scholarly literature has developed around the interpretation of s 116: see, e.g., (Aroney et al 2017;Babie 2007Babie , 2011Babie , 2015Babie , 2017Babie , 2018Babie , 2020Babie and Bhanu 2018;Babie and Rochow 2010;Babie et al 2019;Babie and Krumrey-Quinn 2014;Barker 2015aBarker , 2015bBarker , 2020bBarker , 2020dBeck 2016a, Beck 2016bBeck 2013;Krieg and Babie 2013;Langos and Babie 2020). (Tasmanian Constitutional Law Reform Project 2021).…”

“…The South Australian emergency order is representative: Emergency Management Act 2004 (SA), s 25, authorises the Police Commissioner to issue emergency orders, pursuant to which the following directions have been issued: Emergency Management (Public Activities No 16) (COVID-19) Direction 2020, 14 December 2020; Emergency Management (Cross Border Travel No 22) (COVID-19) Direction 2020, 14 December 2020; Emergency Management (COVID-19) (Isolation Following Diagnosis or Close Contact) Direction 2020, 8 September 2020; Emergency Management (COVID-19) (Peppers Waymouth Isolation) Direction 2020, 17 November 2020; Emergency Management (CODI-19) (Parafield Cluster Isolation No 4) Direction 2020, 28 November 2020; Emergency Management (Supervised Quarantine) (COVID-19) Direction 2020, 14 December 2020; Emergency Management (Residential Aged Care Facilities No 17) (COVID-19) Direction 2020, 14 December 2020; Emergency Management (Prohibition of Point of Care Serology Tests) (COVID-19) Direction 2020, 24 June 2020; Emergency Management (Reporting on COVID-19 Testing No 2) Direction 2020, 9 September 2020. See(Government of South Australia 2020) (Babie 2017)…”