The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Australian Constitution

Abstract

<jats:p> Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper purpose test is wrong. </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).…”

Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom

“…This view is implicitly supported by Beck, who questions the High Court's narrow approach to the free exercise clause by acknowledging the problematic nature of a narrow 'for' interpretation focusing on strict purpose and contrasting that with a broader 'with respect to' interpretation. 72 He observes that the narrow 'for' interpretation has the consequence that laws which 'seriously interfere with the free exercise of religion will not be invalid if that is an unintentional by-product of the pursuit of some other legislative purpose'. 73 Conversely, a broader 'with respect to' interpretation will allow Section 116 to render invalid laws which restrict free exercise of religion even if those laws are enacted in pursuit of some other legislative purpose.…”