National security and the free exercise guarantee of section 116: Time for a judicial interpretive update

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 up...

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Bibliographic Details
Published in:Federal law review 2017-09, Vol.45 (3), p.351-381
Main Author: Babie, Paul
Format: Article
Language:English
Subjects:
Constitutional law
Freedom of religion
International law and human rights
Migration Act 1958 (Cth) (legislation)
National security
Prevention
Terrorism
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Summary: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 to 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.
ISSN:0067-205X
1444-6928
DOI:10.1177/0067205X1704500301