![]() Those exemptions are often criticised as extending privileges to religious institutions, but they are not some generous but wrongheaded gift of government they are a recognition of freedom the people already have, as confirmed by section 116. The existence of a freedom of religion is already recognised negatively by the exemptions extended to religious bodies in state and territory discrimination laws. To use the example of the universities again, the University of Sydney was deliberately established as a secular institution, its founding statute expressly forbidding the administration of any religious test for matriculating, sitting examinations or graduating to a degree. The colonial governments rejected the concept of a state church, so that all religions were treated as equal and their corporate forms regarded in law as voluntary associations, not unlike sporting clubs. Yet it has a far wider import-it reflects and seeks to explicitly enforce the stance of the former Australian colonies in rejecting the religious chauvinism that persisted in Britain into the nineteenth century, embodied in such legislation as the Test Acts of 16 (repealed in 1828), which prevented non-Anglicans from holding public office and graduating from the great universities. This provision has routinely been read narrowly by politicians and the High Court, and treated as a mere limitation on the legislative power of the Commonwealth. The Commonwealth shall not make any law for the establishing of 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 relevant provision enacted by Parliament in 1900 as part of the Constitution is section 116, which states: Is this opaque and extraordinary Bill really needed? ![]() ![]() The noise of minorities complaining about religious discrimination has increased in Australia since the 1970s due to the increase in Muslim immigration. One answer is that Australia already had a constitutionally established freedom of religion and a society that understood and respected religious belief and its place in our community. This was accomplished by the federal government in the 1970s in the domains of sex, race, age and disability. The language of “swords” and “shields”, juristic terms used in the law to describe when certain remedies can be sought from a court, masks the complications of the task undertaken-the redistribution of legal prohibitions and exemptions in the context of religion. But the term was invented so as to allow the government to say what it is not doing-creating a sword which would allow religions positive rights against outsiders. Traditionally our polity, like the United Kingdom from which our legal system comes, viewed the people’s protection from interference as a matter of freedoms protected by the common law and the philosophical theory that in such a system all was permitted other than that legitimately prohibited by Parliament, usually expressed through the criminal law which prevented freedom of action impinging in damaging ways on other people.Ī “right to a freedom” is a novel proposition in this tradition. This phrase summarises the confusion that exists, not analysed or sufficiently explained by the Attorney-General or the Ruddock Religious Freedom Review of May 2018, as to the existing legal position-is our capacity to practise religion based on a right, or a freedom, or something less than either? In his media release in August 2019 accompanying the first draft of the government’s Religious Discrimination Bill, the Attorney-General stated that the Bill, whose purpose is to protect people from discrimination on the basis of their religious belief or activity, did not create a “right to freedom of religion”.
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