Section 116 guarantees the right to worship in whatever manner your favoured creed prescribes — but only so long as beliefs and practices conform with the definition of religion laid down by the High Court. In this regard, Koranic edicts are somewhat problematic
Thumbing through the Constitution the other day I came across Section 116 covering freedom of religion:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
Trusty Wikipedia then sent me to what is regarded as a leading authority on the question of religion, the 1983 judgment of the High Court in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic). In this case the court found that Scientology is a religion, despite some justices commenting that its practices were “impenetrably obscure”. In reaching this finding, the court argued that the definition of religion needed to be flexible while also recognising the need to be sceptical of disingenuous claims of religious practice. Justices Mason and Brennan held:
“… the criteria of religion [are] twofold: first, belief in a supernatural, Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief.”
Justices Wilson and Deane were less prescriptive, setting out five “indicia” of a religion:
1/ a belief in the supernatural
2/ a belief in ideas relating to “man’s nature and place in the universe
3/ the adherence to particular standards, codes of conduct or practices by those who hold the ideas
4/ the existence of an identifiable group of believers, even if not a formal organisation
5/ the opinion of the believers that what they believe in constitutes a religion.
A definition by the fifth judge, Justice Murphy, included the supernatural, but was less prescriptive on other matters.
It led me to ponder how effectively Islam meets these requirements: belief in the supernatural (Being, Thing or Principal) and adherence to codes of conduct. In the Koran these are most commonly presented as the Five Pillars: the Affirmation, Prayer, Charity, Fasting, and the pilgrimage to Mecca. These are what might be called housekeeping precepts and form the populist face of Islam. The more significant codes are those which are driving resurgent Islamism.
Firstly, the Koran encourages an ethos of ‘us’ and ‘them’, where the ‘us’ are Muslims and the ‘them’ are Jews, disbelievers and Christians: that is, Muslims and the rest. For example:
You who believe, do not take the disbelievers as allies and protectors instead of the believers: do you want to offer God clear proof against you? (Women 4:144)