National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update
| Author | Paul Babie |
| Published date | 01 September 2017 |
| DOI | 10.22145/flr.45.3.1 |
| Date | 01 September 2017 |
| Subject Matter | Article |
NATIONAL SECURITY AND THE FREE EXERCISE
GUARANTEE OF SECTION 116: TIME FOR A JUDICIAL
INTERPRETIVE UPDATE
Paul Babie*
ABSTRACT
This article, in three parts, suggests both why and how the courts ought to reconsider,
and thereby update, the approach to the free exercise guarantee of s 116. First, having
briefly outlined the current interpretation of the free exercise guarantee, it suggests the
necessity for an update based upon the need for liberal constitutional democracies t o
provide what has been referred to as ‘“constitutional space” for investigation and
pursuit of truth.’ Second, it proposes a ‘judicial interpretive update’ to the interpretation
of s 116, outlining a two-stage approach which, in the first stage, sets the ambit of the
right and, in the second, provides for a limitations standard by which to assess
infringements of the right. Finally, the article concludes that the proposed update to s
116 ensures a robust protection for free exercise in its application to Commonwealth
legislation and executive action.
‘If they take you in the morning, they will be coming for us that night’.
1
I INTRODUCTION: IF THEY TAKE YOU IN THE MORNING
The protections for free exercise of religion found in national constitutions or legislative
enactments play an increasingly significant role in the political landscape of major
* Adelaide Law School, The U niversity o f Adelaide. Thanks to Brett G Scharffs, Charles J
Russo, Matthew Stubbs, Beth Nosworthy, and Laura Grenfell for helpful guidance,
conversations and suggestions; and to two anonymous reviewers for extremely perceptive
and helpful comments. Thanks to Natalie Williams (LLB Adelaide, 2017) for outstanding
research assistance in the preparation of this article.
1
James Baldwin, ‘An Open Letter to My Sister, Angela Y. Davis’ in Angela Y Davis, Ruchell
Magee, the Soledad Brothers and Other Political Prisoners (eds), If They Come in the Morning:
Voices of Resistance (Verso, 2016) 19, 23.
352 Federal Law Review Volume 45
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western liberal democracies. In the United States,
2
Canada
3
, and Europe,
4
for instance,
case law continues to build upon and thereby bolster the long-established substantive
content of the protection for r eligious freedom contained in relevant constitutional or
quasi-constitutional provisions. These developments attempt, albeit imperfectly, to keep
pace with the ever-growing possibilities for the infringement of free exercise.
Among all liberal democracies, Australia stands alone as providing no
comprehensive constitutional or legislative protection of fundamental r ights and
freedoms; and those rights that are protected by the Commonwealth Constitution
5
or by
state and territory legislation which seek to protect such rights
6
find narrow and
restrictive interpretations in the hands of the judiciary. This is no less true of the
approach taken to s 116 of the Commonwealth Constitution
7
which, on its face, contains
2
Trinity Lutheran Church of Columbia Inc v Pauley, 582 US __ (2017); Burwell v. Hobby Lobby Stores
Inc, 573 US___ ( 2014). The United States Supreme Court also announced on 26 June that it
would hear an appeal in Masterpiece Cakeshop v Co Civil Rights Comm’n, 582 US __ (2017), a
case involving a baker in Colorado who refused, on free exercise grounds, to bake a cake for
a same-sex marriage reception.
3
See Nova Scotia Barristers’ Society v Trinity Western University (2016) 401 DLR (4th) 56 (Nova
Scotia Court of Appeal); Trinity Western University v Law Society of British Columbia (2016) 405
DLR (4th) 16 (British Columbia Court of Appeal); Trinity Western University v The Law Society
of Upper Canada (2016) 398 DLR (4th) 489 (Ontario Court of Appeal); Good Spirit School Division
No. 204 v Christ the Teacher Roman Catholic Separate School Division, 2017 SKQB 109; Sean Fine,
‘Saskatchewan to invoke Charter clause over Catholic school funding’, The Globe and Mail, 2
May 2017 <https://www.theglobeandmail.com/news/national/saskatchewan-to-invoke-
charters-notwithstanding-clause-over-catholic-school-funding/article34866278/>; while
Saskatchewan announced that it would invoke the s 33 notwithstanding clause of the Canada
Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’), it will also appeal the
decision to the Saskatchewan Court of Appeal, see ‘Saskatchewan’s Catholic school boards
to appeal ruling on funding’, The Globe and Mail, 28 April 2017
<https://www.theglobeandmail.com/news/national/education/sakatchewans-catholic-
school-boards-to-appeal-ruling-on-funding/article34851810/>.
4
See Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions
(Court of Justice of the European Union, C-157/15, 14 March 2017) and Bougnaoui and
Association de défense des droits de l’homme (ADDH) v Micropole Univers (Court of Justice of the
European Union, C-188/15, 14 March 2017)
<http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170030en.pdf>.
5
Especially ss 51(xxxi), 80, 116 and 117. To this list must be added the implied right to political
communication as elaborated in Lange v Australian Broadcasting Corporation (1997) 189 CLR
520 (‘Lange’). See Paul Babie and Neville Rochow, ‘Feels Like Déjà Vu: An Australian Bill of
Rights and Religious Freedom’ [2010] Brigham Young University Law Review 821.
6
Such as the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities
Act 2006 (Vic).
7
Indeed, the Commonwealth government itself seems to recognise that the right to freedom
of religion and belief is under-protected. On 29 November 2016, the Minister for Foreign
Affairs asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire
into and report on the status of the human right to freedom of religion or belief: see
Parliament of Australia, Inquiry into the status of the human right to freedom of religion or belief <
http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Def
ence_and_Trade/Freedomofreligion >.
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