Can the Australian constitution protect speech about religion or by religious leaders?

Abstract

This thesis considers whether speech about religion or the speech of religious leaders may, if burdened, be protected under Australia’s Constitution. Such ‘burdens’ may include religious tolerance laws, blasphemy law or defamation laws if those laws limit constitutionally protected speech about religion or by religious leaders.

Two elements of the Constitution - one written and one implied from its provisions - could protect burdened speech about religion or by religious leaders. First, section 116 of the Constitution, which prohibits the Commonwealth from making laws for proscribed purposes, including prohibiting the free exercise of religion. Secondly, the implied freedom of political discourse. In relation to the implied freedom of political discourse, the High Court has recognised that Australians must be able to communicate effectively about government and political matters so that they can make the electoral choices prescribed for them in the Constitution. If religious leaders speak about ‘government or political matters’ in the way that the High Court conceives of that phrase, then the religious leaders’ expression may, if burdened, fall within the protective scope of the implied freedom of political discourse.

This thesis examines these two areas of constitutional law. It explores the objectives of section 116. It reviews the debates about the aims of section 116 as these were described during the Australian Constitutional Conventions in the 1890s. The thesis analyses the High Court’s decisions under section 116 and assesses what kind of constitutional protection section 116 provides for speech about religion. In relation to the implied freedom of political discourse, this work reviews the decided cases on the implied freedom (and the literature) and considers whether speech about religion or by religious leaders could constitute speech about government and political matters in the way the High Court has described government and political matters.

The thesis then applies the tentative conclusions about the protective scope of the implied freedom of political discourse, to three detailed case studies. These case studies involve actual instances of speech by religious leaders and the leader of a religious lobby group. The studies assess whether the speech in each instance could fall within the protective scope of the implied freedom of political discourse if the speech was subject to a burden.