Section 116 of the Australian Constitution and the Jurisprudential Pillars of Neutrality and Action-Belief Dichotomy

Research output: Contribution to journalArticle

Abstract

The Australian High Court's approach to the characterisation of section 116 of the Constitution is often mystifying and incoherent. Public policy and judicial discretion operate to conceal any distinctive doctrine that can be drawn from the number of High Court cases which have considered section 116. While the jurisprudence concerning section 116 remains ill-defined and somewhat contradictory, this convoluted area of law can be reconciled by the jurisprudential pillars of neutrality and action-belief dichotomy. These juris- prudential pillars operate to stabilise religious jurisprudence in Australia by defining the peripheral boundaries of seemingly discretionary public policy based decisions. This article examines the inception of section 116 into the constitution, its operation as a separation between church and state, as a guarantee to the free exercise of religion, its application to the territories and
as a cause of action for damages.
Original languageEnglish
Pages (from-to)255-276
Number of pages21
JournalInternational Trade Business Law Review
Volume11
Publication statusPublished - 2008

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