chapter  12
10 Pages

The future of section 116

ByLuke Beck

The Australian Constitution includes many rules. For example, the requirement that each original State must have at least six senators is a rule and so is the requirement that each original State must always have the same number of senators. Section 116 of the Australian Constitution is unlikely to be amended to apply to the States. The standards and principles employed by section 116 are capable of broad and narrow constructions. It provides that safeguard by constraining and regulating Commonwealth power to channel and discipline political judgment. Section 116 has the potential to provide a pragmatic safeguard against religious intolerance on the part of the Commonwealth, if only the High Court understood its history. Section 116 is concerned with the practical operation of laws. The High Court's existing case law on section 116 is not consistent with the idea that section 116 should be interpreted to avoid religious intolerance on the part of the Commonwealth.