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 jurisprudential 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.
