Constitutional Rights of Worship

Introduction

In her obiter dicta of Kruger v Commonwealth, Gaudron J (in dissent) made an interesting argument concerning constitutional guarantees of freedom of religion (s. 116). She said that the Commonwealth can infringe on these guarantees in order to perform a needful government action. Gaudron stated this in reference to section 116 of the Constitution and in context of the Stolen Generations. Gaudron reveals an interesting trend in the Commonwealth today showing a disregard towards religious affiliation. As a Christian, I disagree with the meaning of Justice Gaudron’s statement. It infringes on the rights of people like me who seek to follow their religion without government intervention. There needs to be changes in section 116 since it is too broad in its interpretation and can be used by the Commonwealth to interfere with religion. For my thesis, I will argue that Gaudron’s limitations restrict the freedom of religion of Australians and there needs to be a referendum to amend section 116 of the Constitution.

1. Kruger v Commonwealth context

Before I argue my thesis, it is important to understand the context of this argument. Gaudron’s dicta were made in dissent of the final decision with Kruger v Commonwealth. Gaudron and her fellow Justices dissented but came to similar conclusions in response to the plaintiff’s argument. The plaintiff, Kruger argued that the 1918 Ordinance declared by the Chief Protector that legalized taking away Aboriginal children was unconstitutional. It prohibited their freedom of religion. Brennan CJ, Toohey and Gummow JJ argued that section 116 acted for the purpose of enabling all Australians the right to worship whoever they sought fit. However, they looked at the purpose of the ...

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... towards the limits shown towards freedom of religion.

Conclusion

Through adding ‘or place specific limits’ to section 116 and adding a provision to section 122, the limits to freedom of religion described by Gaudron J will be mostly removed. This will give greater liberties for the everyday Australian’s liberties to worship any religion they wish. However, we may have to wait a while since our current Government is not interested in these changes. I say this since our Prime Minister is atheist and the Labor Government have more pressing issues at hand. When these changes are administered by any future government will make Australia a better place to live and more family-oriented. Also, the common religious disinterest within Australia will dissipate and also make Australia a safer place to live.

Works Cited

Constitution of the Commonwealth of Australia