Religious Freedom and the Australian Constitution

Constructing the Problem of Religious Freedom: An Analysis of Australian Government Inquiries into Religious Freedom

“…The nature and place of religion and religious belief in Australia has been, since European invasion, the topic of regular debate and varying degrees of controversy. It was given significant attention during the late nineteenth century constitutional convention debates prior to federation (Barker 2019;Beck 2018) with the arguments settling on the recognition of God included in the Preamble, and a section in the Constitution prohibiting the Commonwealth (not the states) from establishing or prohibiting any religion, imposing religious observance, or making religion a qualification for public office (s 116). Since federation in 1901, this constitutional protection for religious freedom has proven 'far from comprehensive', as Evans has noted, 'and the way [s] in which it has been interpreted allow significant scope for government interference with religious freedom' (Evans 2012, p. 92).…”

“…While the protection of religious freedom in Australia has been well studied (see for example Parkinson 2007;Hosen and Mohr 2011;Bouma 2012;Evans 2012;Ball 2013;Babie et al 2015;Baines 2015;Beck 2018), and there have been a number of studies of submissions to inquiries on religious freedom and human rights law (Dunn and Nelson 2011;Nelson et al 2012;Poulos 2018), this paper is unique in examining all the reports of religious freedom inquiries and broader inquiries which included consideration of religious freedom. In tracing the problematisation of religious freedom over time in policy documents, this analysis describes for the first time how the eventual dominance of one problematisation over another has entrenched a discourse of religious freedom that has privileged the idea of 'belief' and marginalised the experiences of minority religious groups and those who experience religiously framed discrimination.…”

Religion and the Constitution: A Response to Luke Beck’s Safeguard against Religious Intolerance Theory of Section 116

“…141 He argues that section 116 should not be interpreted narrowly, and, as noted above, he argues for a broader interpretation of the establishment clause, which would result in further limiting the power of the Commonwealth in relation to religion. 142 Beck's argument in relation to the establishment clause illustrates a key weakness in his theory. He argues that the clauses of section 116 are examples of intolerance, and that establishing a religion is intolerant 'because it frames those who are not members of the established religion as outsiders'.…”

“…He argues that the clauses of section 116 are examples of intolerance, and that establishing a religion is intolerant 'because it frames those who are not members of the established religion as outsiders'. 143 He also argues that establishment is not simply about setting up a national church, but 'something broader about giving official imprimatur to religions and religious principles'. 144 However, these two arguments do not sit well together.…”

Religious diversity, legislation, and Christian privilege

“…Similarly, Mahmood (2015) argues that Christian proselytization and the consolidation of Christian influence over the modern state has often been facilitated by legal arguments for religious liberty. More specifically, with reference to Australia, Luke Beck (2018: loc. 951) observes that ‘Australian social and political history is littered with examples of Protestant religious groups seeking to influence the law in areas of “morality” where their own rights to freely practise their own religion are not at stake.’…”