Advancing tolerant, secular Commonwealth: anti-discrimination law

Harradine, Matthew William (2019) Advancing tolerant, secular Commonwealth: anti-discrimination law. [Thesis (PhD/Research)]

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Abstract

This work deconstructs the High Court of Australia’s interpretation of the ‘free exercise clause’ of the Australian Constitution. Then, the work draws conclusions on the potential for that clause to evolve and operate as a rule requiring the Commonwealth to be tolerant and secular. Finally, this work considers the constitutional validity of federal anti-discrimination laws that impact the religious freedom of Australian persons. This work addresses three questions:

1. How has the free exercise clause in section 116 of the Australian Constitution been constructed by the High Court of Australia and is this construction adequate – why, or why not?

2. How is religious freedom an issue in Australia, and how does the free exercise clause in section 116 of the Australian Constitution relate to the social issue of religious freedom?

3. Having regard to the free exercise clause in section 116 of the Australian Constitution as a potential constraint, are federal anti-discrimination laws constitutionally valid?

The work is split between two divisions. The first provides an examination of High Court and Federal Court judgements relating to the ‘free exercise clause’ of the Australian Constitution. The key principles are identified and critically evaluated through a combined textualist and contextual lens, having regard to the legal realities of modern Australia. A conclusion is drawn as to the proper construction of the free exercise clause and its relationship with religious freedom in Australia. The second division pinpoints conflicting religion-law interests and cross-references the legislation that prompts those conflicts either demonstrably in case law or theoretically on a plain doctrinal reading. The language of civilised religion is adopted to objectively discuss the issue of religious freedom through the perspective of a constitutionalist and legalist. The constitutional validity of federal antidiscrimination law is then examined.


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Item Type: Thesis (PhD/Research)
Item Status: Live Archive
Additional Information: Master of Laws (Research) thesis.
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Supervisors: Patrick, Jeremy; Gray, Anthony
Date Deposited: 02 Sep 2020 04:27
Last Modified: 21 Apr 2021 02:00
Uncontrolled Keywords: Australia; Australian Constitution; Constitutional law; religious freedom; anti-discrimination law; discrimination
Fields of Research (2008): 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
22 Philosophy and Religious Studies > 2204 Religion and Religious Studies > 220405 Religion and Society
18 Law and Legal Studies > 1801 Law > 180122 Legal Theory, Jurisprudence and Legal Interpretation
18 Law and Legal Studies > 1801 Law > 180119 Law and Society
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4807 Public law > 480702 Constitutional law
50 PHILOSOPHY AND RELIGIOUS STUDIES > 5004 Religious studies > 500405 Religion, society and culture
48 LAW AND LEGAL STUDIES > 4804 Law in context > 480410 Legal theory, jurisprudence and legal interpretation
48 LAW AND LEGAL STUDIES > 4804 Law in context > 480499 Law in context not elsewhere classified
Identification Number or DOI: doi:10.26192/q93x-k310
URI: http://eprints.usq.edu.au/id/eprint/39454

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