The Australian Constitution contains no guarantee of freedom of religion or freedom of conscience. Indeed, it contains very few provisions dealing with rights — in essence, it is a Constitution that confines itself mainly to prescribing a framework for federal government, setting out the various powers of government and limiting them as between federal and state governments and the three branches of government without attempting to define the rights of citizens except in minor respects.

Section 116 of the Constitution merits mention not only because it has been wrongly said, during the course of debate, that properly understood it guarantees freedom of religion. Properly understood, it does no such thing. It prohibits the Commonwealth from:

• establishing any religion

• imposing any religious observance

• prohibiting the free exercise of any religion

• requiring any religious test as a qualification for any office or public trust under the Commonwealth.

Because s 116 does not apply to state laws, it provides no protection against state laws interfering with religion. Further, the High Court of Australia has interpreted the provision narrowly. While it is distinctly possible that the High Court could revise its view that s 116 is not infringed by a Commonwealth law whose effect, as distinct from its purpose, is to establish or prohibit a religion or impose a religious observance, there is nothing at this time to support the view that the other shortcomings of the section can or will be overcome.