Clear and Emphatic: The Separation of Church and State Under the Australian Constitution
University of Tasmania Law Review, Vol. 27, No. 2, pp. 161-196, 2008
36 Pages Posted: 23 Jul 2011
Date Written: 2008
Section 116 of the Constitution is generally considered a weak guarantee of religious freedom, especially when compared to its United States counterpart. This article demonstrates the potentially broad effect of s 116 of the Constitution by applying its terms to laws relating to important aspects of public affairs in Australia that have generally been considered unproblematic in relation to issues of Church and State interactions: the structures and practices of government, free speech and education. The article takes as examples the practice of reciting prayers at the start of each sitting of the Parliament, the Royal Style and Titles Act 1973 (Cth), the provision of religious instruction in Territory schools and the law of blasphemy in relation to certain Territories.
The article begins by considering the broad definitional issues arising from the terms of the section and then analyses the constitutional validity of the chosen examples as against each relevant clause of the section.
Keywords: Church and State, section 116, establishing any religion, free exercise of religion, religious observance, blasphemy
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