Adelaide Company of Jehovah’s Witnesses v Commonwealth : Balancing Free Exercise and Public Order

To an extent unlike all of the other cases in this book, the High Court of Australia decision in Adelaide Company of Jehovah’s Witnesses v Commonwealth forms part of an extensive body of jurisprudence in many national jurisdictions dealing with the freedom of religion or belief (FoRB) of the Jehovah’s Witnesses.

The chapter contains four subsequent sections. Section II provides the background to the faith of the Jehovah’s Witnesses and the conflict which brought them to the High Court in ACJW. Section III carefully analyses the judgments delivered in ACJW, grouping them into four themes that make clear the two-step process: whether the Constitution contains a power for the Commonwealth (federal) government to legislate with respect to religion; the meaning of ‘religion’ as found in section 116; the relationship between conscience and conduct, and the relationship between individual conduct and community social order. Section IV examines what a re-appraisal of the judgments in ACJW means for section 116: the recognition that the FoRB guarantee protects both freedom of and freedom from religion; that ACJW itself contains the two-step test for assessing the application of section 116 (the first step encompassing the ambit of the guarantee and the second step the process of assessing infringements of the guarantee); and, finally, and perhaps most controversially, the potential for section 116 to extend to protecting against infringements committed by the states as opposed to the federal government alone. Section V briefly concludes.

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