Freedom of Religion Under the Australian Constitution: Is Proportionality the Answer?

Abstract

Under the current approach set out in the 1997 ‘Stolen Generations’ case of Kruger v Commonwealth, the free exercise clause of s 116 of the Australian Constitution is only violated if a law has the purpose of prohibiting the free exercise of religion. In the light of the introduction of structured proportionality testing in some areas of Australian constitutional law, scholars have recently considered whether the current test under the free exercise clause might be replaced with proportionality, given its current momentum. However, proportionality is a controversial test whose introduction to Australian law has been contested. This article seeks to contribute to the debate over proportionality in Australian law by outlining a case for why proportionality should not be adopted in respect of the free exercise clause under s 116. After first considering the current interpretation given to the free exercise clause, the article assesses proportionality as a possible test. It contends that proportionality is a flawed test because its final balancing stage involves a weighing of incommensurable values that confers excessive discretion on the judiciary. Rather than proportionality, the High Court should return to earlier dicta and develop a means-end test of reasonable necessity for assessing interference with the free exercise of religion.