Thursday, April 17, 2014

Is Section 116 a "right" or merely a "limitation on . . . legislative power"?

I wrote the following as a footnote to a paper on witchcraft, fortune-telling, and what I call "the new spirituality."  After the footnote got longer and longer, I realised I needed to excise it and change the text to avoid the dispute entirely.  Still, I think it's an important topic and one I hope to revisit in the future.
One can quibble about whether Section 116, the Australian Constitution’s provision regarding religious freedom, should be labelled a “right.”  See, e.g., Kruger v. Commonwealth, (1997) 190 CLR 1, 124-25 (per Gaudron, J.) (“It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.  It follows, in my view, that s. 116 must be construed as no more than a limitation on Commonwealth legislative power . . . it cannot be construed as impliedly conferring an independent or free-standing right”).  However, styling Section 116’s religious freedom guarantee as a “limitation on . . . legislative power” rather than a “right” is illogical.  The wording of Section 116 (“The Commonwealth shall not make any law for . . . prohibiting the free exercise of any religion”) and the wording of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) are both expressed as direct restraints on legislative power, but the latter has always been understood to confer an individual right to relief.  Further, Justice Gaudron’s reference to Section 116 not restraining the States is irrelevant to whether Section 116 is a “right” or not; rights always prohibit some actors from doing something, but not other actors from doing the same thing.  The First Amendment was held not to restrict state action until the twentieth century; the rights in American state constitutions do not limit the Federal government; domestic constitutional rights instruments rarely, if ever,  provide relief against the actions of foreign governments; few rights documents (the Quebec Charter excepted) provide claims for relief from non-governmental actors at all.  In Australia, as in every jurisdiction that has the equivalent of a “standing” doctrine, a claim for relief will always be brought by a particular organisation or association who asserts that its religious beliefs or actions have been burdened.  It thus makes little sense to talk about a restraint on interference with the free exercise of religion in the absence of an acknowledgement that without individuals (and the associations) they form, there is no exercise of religion to be prohibited in the first place.  Indeed, styling a constitutional provision as a “right” versus a “legislative prohibition” likely goes more to what remedy should be made (invalidation of a statute or a “constitutional exception”) than whether a claim for relief should be allowed at all.

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