Section 116 of the Constitution of Australia

Section 116 of the Constitution of Australia precludes the Commonwealth of Australia from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion. It also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. No court has ever ruled a law to be in contravention of the Section.

About Section 116 of the Constitution of Australia in brief

Section 116 of the Constitution of Australia precludes the Commonwealth of Australia from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion. It also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Section 116 has been interpreted narrowly by the High Court of Australia. No court has ever ruled a law to be in contravention of the Section. The provision has played only a minor role in Australian constitutional history. Federal Governments have twice proposed the amendment to apply its provisions to laws made by the states. On each occasion—in 1944 and 1988—the proposal failed in a referendum. The Constitution was the product of a series of constitutional conventions in the 1890s. The issues of religious freedom and secularism were not prominent in the convention debates, which focused on the economic and legislative powers of the proposed Commonwealth parliament. Commentators attribute the erroneous location of Section  116 to a drafting oversight caused by the weariness of the committee charged with finalising the draft Constitution. The first draft of Section 116, approved by the Melbourne Convention of 1891, would have prohibited the states from passing laws prohibiting thefree exercise of religion. The proposed inclusion of the provision was the subject of some dissent in the 1897 Melbourne Convention and the final convention in 1898. Only Tasmania’s has a provision similar to Section-116. The section sits in Chapter V of the constitution, which deals with the states of Australia, but it does not apply to the states, as each state has its own constitution, and only Tasmania’s is similar to the Commonwealth’s.

It reflects two provisions of the United States Constitution, which prohibits the making of laws for the establishment of religion and guarantees the free exercise of religion, and prohibits the imposition of religious tests for public offices; and Article VI, Section 3, which prevents the imposition of religious tests for public offices and public trust. The High Court has ruled that the laws that provided government funding to religious schools, that authorised the dissolution of a branch of the Jehovah’s Witnesses, and that enabled the forcible removal of Indigenous Australian children from their families are not in violation of the section. The amendment was initially defeated, but H. B. Higgins later succeeded in having the eventual version of Section 116 adopted by the convention in a 25–16 vote. Protestant churches in New South Wales argued that the Constitution should state that divine providence is the ultimate source of law. The Seventh-day Adventist Church campaigned for a strict separation of church and state, being concerned that Commonwealth might prohibit working on Sundays. Both sides to some extent achieved their objectives: Section by the final Convention was approved and the preamble to the British Constitution was to contain the symbolic mention of the ‘Almighty God’ The provision was then approved by popular referendums in each of the six colonies and went into effect on January 1, 1901.

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