Section 116 of the Australian Constitution
Encyclopedia
Section 116 of the Constitution of Australia
precludes the Commonwealth of Australia
(i.e., the federal parliament) from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion. Section 116 also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. The product of a compromise in the pre-Federation
constitutional conventions, Section 116 is based on similar provisions in the United States Constitution
. However, Section 116 is more narrowly-drafted than its US counterpart, and does not preclude the states of Australia
from making such laws.
Section 116 has been interpreted narrowly by the High Court of Australia
: while the definition of "religion" adopted by the court is broad and flexible, the scope of the protection of religions is circumscribed. The result of the court's approach has been that no court has ever ruled a law to be in contravention of Section 116, and the provision has played only a minor role in Australian constitutional history
. Among the laws that the High Court has ruled not to be in contravention of Section 116 are laws that provided government funding to religious schools, that authorised the dissolution of a branch of the Jehovah's Witnesses
, and that enabled the forcible removal of Indigenous Australian children from their families.
Federal Governments have twice proposed the amendment of Section 116, principally to apply its provisions to laws made by the states. On each occasion—in 1944 and 1988—the proposal failed in a referendum.
Section 116 has four limbs. The first three limbs prohibit the Commonwealth from making certain laws: laws "for establishing any religion"; laws "for imposing any religious observance"; and laws "for prohibiting the free exercise of any religion". The fourth limb proscribes the imposition of religious tests to qualify for any Commonwealth office or public trust. Only the "establishing religion" and "prohibiting free exercise" limbs have been the subject of cases before the High Court.
The section sits in Chapter V of the Constitution, which deals with the states of Australia. However, Section 116 does not apply to the states. Each state has its own constitution, and only Tasmania's has a provision similar to Section 116. Commentators attribute the erroneous location of Section 116 to a drafting oversight caused by the weariness of the committee charged with finalising the draft Constitution.
expressed concern about this assumption and moved to expand the provision to cover the Commonwealth as well as the states. The amendment was initially defeated, but Higgins later succeeded in having the eventual version of Section 116 adopted by the convention in a 25–16 vote. Higgins feared opposition to the provision from convention delegates concerned that the provision would impede the states' legislative powers, so the version passed by the convention did not mention the states.
The proposed inclusion of Section 116 in the Constitution was the subject of some dissent in the 1897 Melbourne Convention and the final convention in 1898. Protestant churches in New South Wales argued that the Constitution should state that divine providence is the "ultimate source of law", while convention delegates John Quick
and Patrick Glynn
moved to have God explicitly recognised in the Constitution. The Seventh-day Adventist Church
campaigned for a strict separation of church and state, being concerned that the Commonwealth might prohibit its members from working on Sundays. Both sides to some extent achieved their objectives: Section 116 was approved by the final convention, while Glynn successfully moved for the symbolic mention of "Almighty God" in the preamble to the British statute that was to contain the Constitution. The Constitution was then approved by popular referendums in each of the six colonies and took effect on 1 January 1901 (the colonies thus became the states of Australia).
Section 116 reflects two provisions of the United States Constitution
: the First Amendment
, which prohibits the making of laws for the establishment of religion and guarantees the free exercise of religion; and Article VI
, Section 3, which prohibits the imposition of religious tests
for public offices. Academic Clifford L. Pannam, writing in 1963, called Section 116 a "fairly blatant piece of transcription" of its US counterparts. However, in practice, Section 116 has been interpreted more narrowly than the US provisions.
was 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 but should recognise the need to be sceptical of disingenous claims of religious practice. Justices Anthony Mason and Gerard Brennan
held:
Justices Ronald Wilson
and William Deane
were less prescriptive, setting out five "indicia" of a religion: a belief in the supernatural; a belief in ideas relating to "man's nature and place in the universe"; the adherence to particular standards, codes of conduct or practices by those who hold the ideas; the existence of an identifiable group of believers, even if not a formal organisation; and the opinion of the believers that what they believe in constitutes a religion.
held that a law would only contravene the provision if establishing a religion was its "express and single purpose", while Justice Harry Gibbs
argued that the section only prohibits the establishment of an official state religion. Each justice in the majority contrasted Section 116 with its equivalent in the US Constitution to find that Section 116 is narrower. The court noted that the US Constitution prohibits laws respecting "establishment of religion" generally, whereas the prohibition in Section 116 is against the establishment of "any religion": this meant that Section 116 did not encompass laws that benefit religions generally; it only proscribed laws that established a particular religion. The approach of the High Court to the establishment limb of Section 116 thus largely reflects the views expressed by Constitutional scholars John Quick
and Robert Garran
in 1901, that establishment means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others."
) that a person could lawfully object to compulsory voting
on the grounds of religious belief. However, in 1943, the court continued the narrow approach it took in Krygger v Williams, upholding war-time regulations that caused the Adelaide branch of the Jehovah's Witnesses
to be dissolved and have its property acquired by the Commonwealth government. The government had declared the branch to be an organisation whose activities were "prejudicial to the defence of the Commonwealth": one of the branch's professed beliefs was that the government was an "organ of Satan
". Chief Justice John Latham held that the Constitution permitted the court to "reconcile religious freedom with ordered government".
In a 1997 case known as the Stolen Generations Case, the court upheld an ordinance issued in 1918 that enabled the forcible removal of Indigenous Australian children from their families. The court reasoned that the purpose of the ordinance was not to prohibit the free exercise of religion even though the ordinance may have had that effect. Peter Edge, an academic specialising in religion and the law, thus concludes that Section 116 will only "prevent legislation that has a prohibited purpose, rather than a prohibited effect". Delivering her judgment, Justice Mary Gaudron
denied that the provision confers rights upon individuals, commenting that it:
to establish a religion or prohibit its free exercise. In 1963, Pannam wrote that the provision was regarded "by all as having little practical value". Pannam considered the provision would only become significant if the High Court held that it applied to laws made by governments of the territories.
Contemporary constitutional scholar George Williams criticises the court's literal interpretation of the provision and others in the Constitution, saying the court has "transformed the Constitution into a wasteland of civil liberties". Williams argues that as an "express guarantee of personal freedom", the provision should be interpreted broadly and promote "individual liberty over the arbitrary exercise of legislative and executive power". Academics Gonzalo Villalta Puig and Steven Tudor have called for the court to broaden Section 116 by finding in it an implied right to the freedom of thought and conscience. In their view most Australians correctly "believe that the Constitution protects the right to freedom of thought and conscience just like it protects other civil and political freedoms", and that the court should give effect to that belief. They argue there is precedent for the court finding implied constitutional rights, such as the 1992 case of Australian Capital Television Pty Ltd v Commonwealth
, where the court found that the Constitution guaranteed the freedom of political communication.
In defence of Section 116 and the High Court's interpretation of it, Joshua Puls argues that the provision is appropriately limited, suggesting that a rigid "wall of separation" between religion and the state is undesirable, and that the stronger Constitutional protection of religion in the United States has become overly politicised. Fellow academics Jennifer Clarke, Patrick Keyzer and James Stellios argue that the court's narrow interpretation of the provision is consistent with the intention of the Constitution's drafters, who never intended for it to be a protection of individual rights, while Kevin Booker and Arthur Glass say the provision has "symbolic value". Booker and Glass defend the court's interpretation of the provision and other Constitutional rights, saying "the High Court can only work with the constitutional provisions before it".
to expand the scope of Section 116: in 1944 and in 1988. In 1944, John Curtin
's Labor
government put a package of measures, known as the "Fourteen Powers referendum", to the Australian public. The purpose of the package was mainly to widen the Commonwealth's legislative powers for the purposes of post-war reconstruction. The widening of powers would sunset
after five years. One of the measures in the package was to extend Section 116 so that it prohibited the states, not merely the Commonwealth, from making the laws proscribed by the section. The package's 14 measures—which included diverse matters such as powers to provide family allowances and legislate for "national health"—were bound together in a single question. H. V. Evatt
, the Labor Attorney-General
, argued that freedom of religion was "fundamental to the whole idea of democracy" and that the suppression of civil rights by dictatorships in Europe demonstrated the need for Australia to have a strong Constitutional guarantee of the freedom. The conservative Coalition
, then in opposition and led by Robert Menzies
, campaigned against the package. Arthur Fadden
, leader of the Country Party
(the junior member of the Coalition), claimed a "yes" vote would permit the government to implement a "policy of socialisation". The package was rejected: the national "yes" vote was less than 46 per cent, and there was majority support for the package only in South Australia and Western Australia. One reason for the rejection was the bundling of multiple controversial proposals into one question: voters could not vote in favour of the measures they supported and against those they opposed, giving them reason to vote against the entire package.
A similar proposal to amend Section 116 was put to the Australian people in a referendum in 1988. The referendum contained four questions, the last of which sought to amend Section 116 and other constitutional "rights and freedoms". Again, the proposal was initiated by a Labor government (under Bob Hawke
); again, the proposal was opposed by the Coalition; and again, multiple controversial proposals were bound into one question, being "to alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government." The proposal in respect of Section 116 was to extend its operation to the states, and expand the protection to cover any government act (not just legislation) that established a religion or prohibited its free exercise. Some church officials objected to the proposal, fearing that funding of religious schools by the states could become unlawful. The question failed to pass, being opposed by a majority of voters in each of the states. The 70 to 30 per cent nation-wide vote against the proposal was the largest margin by which a proposal to amend the Constitution had ever been defeated at a referendum. Williams attributes the failure of the proposal mainly to the absence of bipartisan support for it, highlighting the "determined and effective" opposition of senior Coalition politician Peter Reith
. Williams also points to the "notorious reluctance" of Australians to support Constitutional referendums: of the 44 proposals to amend the Constitution, only eight have succeeded.
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
precludes the Commonwealth of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
(i.e., the federal parliament) from making laws for establishing any religion, imposing any religious observance, or prohibiting the free exercise of any religion. Section 116 also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. The product of a compromise in the pre-Federation
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
constitutional conventions, Section 116 is based on similar provisions in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. However, Section 116 is more narrowly-drafted than its US counterpart, and does not preclude the states of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
from making such laws.
Section 116 has been interpreted narrowly by the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
: while the definition of "religion" adopted by the court is broad and flexible, the scope of the protection of religions is circumscribed. The result of the court's approach has been that no court has ever ruled a law to be in contravention of Section 116, and the provision has played only a minor role in Australian constitutional history
Constitutional history of Australia
-Emergence of the Commonwealth of Australia:After European settlement in 1788, Australia was politically organised as a number of separate British colonies, eventually six in all...
. Among the laws that the High Court has ruled not to be in contravention of Section 116 are laws that provided government funding to religious schools, that authorised the dissolution of a branch of the Jehovah's Witnesses
Adelaide Company of Jehovah's Witnesses v Commonwealth
Adelaide Company of Jehovah's Witnesses Inc v Commonwealth 67 CLR 116 was a court case decided in the High Court of Australia on 14 June 1943....
, and that enabled the forcible removal of Indigenous Australian children from their families.
Federal Governments have twice proposed the amendment of Section 116, principally to apply its provisions to laws made by the states. On each occasion—in 1944 and 1988—the proposal failed in a referendum.
Text of the provision and location in the Constitution
Section 116 says: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.
Section 116 has four limbs. The first three limbs prohibit the Commonwealth from making certain laws: laws "for establishing any religion"; laws "for imposing any religious observance"; and laws "for prohibiting the free exercise of any religion". The fourth limb proscribes the imposition of religious tests to qualify for any Commonwealth office or public trust. Only the "establishing religion" and "prohibiting free exercise" limbs have been the subject of cases before the High Court.
The section sits in Chapter V of the Constitution, which deals with the states of Australia. However, Section 116 does not apply to the states. Each state has its own constitution, and only Tasmania's has a provision similar to Section 116. Commentators attribute the erroneous location of Section 116 to a drafting oversight caused by the weariness of the committee charged with finalising the draft Constitution.
Origins
The Constitution was the product of a series of constitutional conventions in the 1890s. The issues of religious freedom and secularism were not prominent in the convention debates, which focused on the economic and legislative powers of the proposed Commonwealth parliament. The first draft of Section 116, approved by the Melbourne Convention of 1891, would have prohibited the states from passing laws prohibiting the free exercise of religion. The Commonwealth was not mentioned because it was assumed that the Commonwealth parliament would have no power to make such laws. At the Melbourne Convention of 1897, Victorian delegate H. B. HigginsH. B. Higgins
Henry Bournes Higgins , Australian politician and judge, always known in his lifetime as H. B. Higgins, was a highly influential figure in Australian politics and law.-Career:...
expressed concern about this assumption and moved to expand the provision to cover the Commonwealth as well as the states. The amendment was initially defeated, but Higgins later succeeded in having the eventual version of Section 116 adopted by the convention in a 25–16 vote. Higgins feared opposition to the provision from convention delegates concerned that the provision would impede the states' legislative powers, so the version passed by the convention did not mention the states.
The proposed inclusion of Section 116 in the Constitution was the subject of some dissent in the 1897 Melbourne Convention and the final convention in 1898. Protestant churches in New South Wales argued that the Constitution should state that divine providence is the "ultimate source of law", while convention delegates John Quick
John Quick (politician)
Sir John Quick , Australian politician and author, was the federal Member of Parliament for Bendigo from 1901 to 1913 and a leading delegate to the constitutional conventions of the 1890s.-Early life:...
and Patrick Glynn
Patrick Glynn
Patrick McMahon Glynn KC was an Attorney General of Australia and Minister for External Affairs.-Early life:...
moved to have God explicitly recognised in the Constitution. The Seventh-day Adventist Church
Seventh-day Adventist Church
The Seventh-day Adventist Church is a Protestant Christian denomination distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming of Jesus Christ...
campaigned for a strict separation of church and state, being concerned that the Commonwealth might prohibit its members from working on Sundays. Both sides to some extent achieved their objectives: Section 116 was approved by the final convention, while Glynn successfully moved for the symbolic mention of "Almighty God" in the preamble to the British statute that was to contain the Constitution. The Constitution was then approved by popular referendums in each of the six colonies and took effect on 1 January 1901 (the colonies thus became the states of Australia).
Section 116 reflects two provisions of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
: the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, which prohibits the making of laws for the establishment of religion and guarantees the free exercise of religion; and Article VI
Article Six of the United States Constitution
Article Six of the United States Constitution establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position and holds the United States under the...
, Section 3, which prohibits the imposition of religious tests
No religious test clause
The No Religious Test Clause of the United States Constitution is found in Article VI, paragraph 3, and states that:This has been interpreted to mean that no federal employee, whether elected or appointed, career or political, can be required to adhere to or accept any religion or belief...
for public offices. Academic Clifford L. Pannam, writing in 1963, called Section 116 a "fairly blatant piece of transcription" of its US counterparts. However, in practice, Section 116 has been interpreted more narrowly than the US provisions.
Judicial consideration
The High Court's consideration of Section 116 has generally been limited to three areas: the definition of "religion"; the meaning of "law for establishing any religion"; and the meaning of "law for prohibiting the free exercise of any religion". The two other elements of the provision—the clauses prohibiting the Commonwealth from imposing of religious observance and from prescribing religious tests for public offices—have not been the subject of any cases before the court. The court has never ruled a legislative provision to be in contravention of Section 116. As a result of the court's narrow and literal interpretation of Section 116, the provision has played a minor role in Australian constitutional history.Meaning of "religion"
A threshold test considered by courts applying Section 116 is whether a belief seeking constitutional protection is a "religion". The leading authority on the question is the 1983 judgment of the High Court in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic). The court found that ScientologyScientology
Scientology is a body of beliefs and related practices created by science fiction and fantasy author L. Ron Hubbard , starting in 1952, as a successor to his earlier self-help system, Dianetics...
was 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 but should recognise the need to be sceptical of disingenous claims of religious practice. Justices Anthony Mason and Gerard Brennan
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank 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 Ronald Wilson
Ronald Wilson
Sir Ronald Darling Wilson, AC, KBE, CMG, QC was a distinguished Australian lawyer, judge and social activist serving on the High Court of Australia between 1979 and 1989 and as the President of the Human Rights and Equal Opportunity Commission between 1990 and 1997.Wilson is probably best known as...
and William Deane
William Deane
Sir William Patrick Deane, AC, KBE, QC , Australian judge and the 22nd Governor-General of Australia.-Early life:William Deane was born in Melbourne, Victoria. He was educated at Catholic schools including St. Joseph's College, Hunters Hill and at the University of Sydney, where he graduated in...
were less prescriptive, setting out five "indicia" of a religion: a belief in the supernatural; a belief in ideas relating to "man's nature and place in the universe"; the adherence to particular standards, codes of conduct or practices by those who hold the ideas; the existence of an identifiable group of believers, even if not a formal organisation; and the opinion of the believers that what they believe in constitutes a religion.
"Establishing any religion"
The courts have taken a narrow approach to the interpretation of the prohibition against "establishing any religion", deriving from the 1981 case of Attorney-General (Vic) (Ex rel Black) v Commonwealth (the DOGS case), in which the High Court held that Commonwealth funding of religious schools did not contravene Section 116. Chief Justice Garfield BarwickGarfield Barwick
Sir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
held that a law would only contravene the provision if establishing a religion was its "express and single purpose", while Justice Harry Gibbs
Harry Gibbs
Sir Harry Talbot Gibbs, GCMG, AC, KBE, QC was Chief Justice of the High Court of Australia from 1981 to 1987 after serving as a member of the High Court between 1970 and 1981...
argued that the section only prohibits the establishment of an official state religion. Each justice in the majority contrasted Section 116 with its equivalent in the US Constitution to find that Section 116 is narrower. The court noted that the US Constitution prohibits laws respecting "establishment of religion" generally, whereas the prohibition in Section 116 is against the establishment of "any religion": this meant that Section 116 did not encompass laws that benefit religions generally; it only proscribed laws that established a particular religion. The approach of the High Court to the establishment limb of Section 116 thus largely reflects the views expressed by Constitutional scholars John Quick
John Quick (politician)
Sir John Quick , Australian politician and author, was the federal Member of Parliament for Bendigo from 1901 to 1913 and a leading delegate to the constitutional conventions of the 1890s.-Early life:...
and Robert Garran
Robert Garran
Sir Robert Randolph Garran GCMG KC was an Australian lawyer and public servant, an early leading expert in Australian constitutional law, the first employee of the Government of Australia and the first Solicitor-General of Australia...
in 1901, that establishment means "the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others."
"Prohibiting the free exercise of any religion"
The protection of the free exercise of religion was also interpreted narrowly in early High Court judgments. In 1912, the court in Krygger v Williams held that a person could not object to compulsory military service on the ground of religious belief. The court considered that Section 116 would only protect religious observance from government interference; it would not permit a person to be excused from a legal obligation merely because the obligation conflicted with his or her religious beliefs. In a 1929 case, Higgins, then a Justice of the High Court, suggested (as obiter dictumObiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
) that a person could lawfully object to compulsory voting
Compulsory voting
Compulsory voting is a system in which electors are obliged to vote in elections or attend a polling place on voting day. If an eligible voter does not attend a polling place, he or she may be subject to punitive measures such as fines, community service, or perhaps imprisonment if fines are unpaid...
on the grounds of religious belief. However, in 1943, the court continued the narrow approach it took in Krygger v Williams, upholding war-time regulations that caused the Adelaide branch of the Jehovah's Witnesses
Adelaide Company of Jehovah's Witnesses v Commonwealth
Adelaide Company of Jehovah's Witnesses Inc v Commonwealth 67 CLR 116 was a court case decided in the High Court of Australia on 14 June 1943....
to be dissolved and have its property acquired by the Commonwealth government. The government had declared the branch to be an organisation whose activities were "prejudicial to the defence of the Commonwealth": one of the branch's professed beliefs was that the government was an "organ of Satan
Satan
Satan , "the opposer", is the title of various entities, both human and divine, who challenge the faith of humans in the Hebrew Bible...
". Chief Justice John Latham held that the Constitution permitted the court to "reconcile religious freedom with ordered government".
In a 1997 case known as the Stolen Generations Case, the court upheld an ordinance issued in 1918 that enabled the forcible removal of Indigenous Australian children from their families. The court reasoned that the purpose of the ordinance was not to prohibit the free exercise of religion even though the ordinance may have had that effect. Peter Edge, an academic specialising in religion and the law, thus concludes that Section 116 will only "prevent legislation that has a prohibited purpose, rather than a prohibited effect". Delivering her judgment, Justice Mary Gaudron
Mary Gaudron
Mary Genevieve Gaudron, AC, QC , Australian lawyer and judge, was the first female Justice of the High Court of Australia.-Youth:...
denied that the provision confers rights upon individuals, commenting that it:
... does no more than effect a restriction or limitation on the legislative power of the Commonwealth. It is not, 'in form, a constitutional guarantee of the rights of individuals'... It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.
"Imposing any religious observance" or requiring a "religious test" for public office
Neither the clause of Section 116 prohibiting the Commonwealth from imposing of religious observance nor the clause prohibiting the prescription of religious tests for public offices had been the subject of cases before the High Court, until Williams v Commonwealth, argued on 9, 10 and 11 August 2011 (judgment reserved). This is a challenge brought by a parent to a government program funding the services of chaplains in schools. The parent argues that the program imposes a religious test for public office, by requiring a chaplain to be endorsed by a religious organisation.Commentary
When the Constitution took effect in 1901, Quick and Garran argued that Section 116 was redundant as the Commonwealth had not been given the legislative power under Section 51Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
to establish a religion or prohibit its free exercise. In 1963, Pannam wrote that the provision was regarded "by all as having little practical value". Pannam considered the provision would only become significant if the High Court held that it applied to laws made by governments of the territories.
Contemporary constitutional scholar George Williams criticises the court's literal interpretation of the provision and others in the Constitution, saying the court has "transformed the Constitution into a wasteland of civil liberties". Williams argues that as an "express guarantee of personal freedom", the provision should be interpreted broadly and promote "individual liberty over the arbitrary exercise of legislative and executive power". Academics Gonzalo Villalta Puig and Steven Tudor have called for the court to broaden Section 116 by finding in it an implied right to the freedom of thought and conscience. In their view most Australians correctly "believe that the Constitution protects the right to freedom of thought and conscience just like it protects other civil and political freedoms", and that the court should give effect to that belief. They argue there is precedent for the court finding implied constitutional rights, such as the 1992 case of Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television Pty Ltd v Commonwealth
Australian Capital Television v Commonwealth 177 CLR 106 was a significant court case decided in the High Court of Australia on 30 September 1992...
, where the court found that the Constitution guaranteed the freedom of political communication.
In defence of Section 116 and the High Court's interpretation of it, Joshua Puls argues that the provision is appropriately limited, suggesting that a rigid "wall of separation" between religion and the state is undesirable, and that the stronger Constitutional protection of religion in the United States has become overly politicised. Fellow academics Jennifer Clarke, Patrick Keyzer and James Stellios argue that the court's narrow interpretation of the provision is consistent with the intention of the Constitution's drafters, who never intended for it to be a protection of individual rights, while Kevin Booker and Arthur Glass say the provision has "symbolic value". Booker and Glass defend the court's interpretation of the provision and other Constitutional rights, saying "the High Court can only work with the constitutional provisions before it".
Referendums
Federal governments have twice proposed referendumsReferendums in Australia
In Australia, referendums are binding polls usually used to alter the Constitution of the Commonwealth or a state or territory. Non-binding polls are usually referred to as plebiscites.-Federal referendums:...
to expand the scope of Section 116: in 1944 and in 1988. In 1944, John Curtin
John Curtin
John Joseph Curtin , Australian politician, served as the 14th Prime Minister of Australia. Labor under Curtin formed a minority government in 1941 after the crossbench consisting of two independent MPs crossed the floor in the House of Representatives, bringing down the Coalition minority...
's Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
government put a package of measures, known as the "Fourteen Powers referendum", to the Australian public. The purpose of the package was mainly to widen the Commonwealth's legislative powers for the purposes of post-war reconstruction. The widening of powers would sunset
Sunset provision
In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law...
after five years. One of the measures in the package was to extend Section 116 so that it prohibited the states, not merely the Commonwealth, from making the laws proscribed by the section. The package's 14 measures—which included diverse matters such as powers to provide family allowances and legislate for "national health"—were bound together in a single question. H. V. Evatt
H. V. Evatt
Herbert Vere Evatt, QC KStJ , was an Australian jurist, politician and writer. He was President of the United Nations General Assembly in 1948–49 and helped draft the United Nations Universal Declaration of Human Rights...
, the Labor Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
, argued that freedom of religion was "fundamental to the whole idea of democracy" and that the suppression of civil rights by dictatorships in Europe demonstrated the need for Australia to have a strong Constitutional guarantee of the freedom. The conservative Coalition
Coalition (Australia)
The Coalition in Australian politics refers to a group of centre-right parties that has existed in the form of a coalition agreement since 1922...
, then in opposition and led by Robert Menzies
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
, campaigned against the package. Arthur Fadden
Arthur Fadden
Sir Arthur William Fadden, GCMG was an Australian politician and, briefly, the 13th Prime Minister of Australia.-Introduction:...
, leader of the Country Party
National Party of Australia
The National Party of Australia is an Australian political party.Traditionally representing graziers, farmers and rural voters generally, it began as the The Country Party, but adopted the name The National Country Party in 1975, changed to The National Party of Australia in 1982. The party is...
(the junior member of the Coalition), claimed a "yes" vote would permit the government to implement a "policy of socialisation". The package was rejected: the national "yes" vote was less than 46 per cent, and there was majority support for the package only in South Australia and Western Australia. One reason for the rejection was the bundling of multiple controversial proposals into one question: voters could not vote in favour of the measures they supported and against those they opposed, giving them reason to vote against the entire package.
A similar proposal to amend Section 116 was put to the Australian people in a referendum in 1988. The referendum contained four questions, the last of which sought to amend Section 116 and other constitutional "rights and freedoms". Again, the proposal was initiated by a Labor government (under Bob Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
); again, the proposal was opposed by the Coalition; and again, multiple controversial proposals were bound into one question, being "to alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any government." The proposal in respect of Section 116 was to extend its operation to the states, and expand the protection to cover any government act (not just legislation) that established a religion or prohibited its free exercise. Some church officials objected to the proposal, fearing that funding of religious schools by the states could become unlawful. The question failed to pass, being opposed by a majority of voters in each of the states. The 70 to 30 per cent nation-wide vote against the proposal was the largest margin by which a proposal to amend the Constitution had ever been defeated at a referendum. Williams attributes the failure of the proposal mainly to the absence of bipartisan support for it, highlighting the "determined and effective" opposition of senior Coalition politician Peter Reith
Peter Reith
Peter Keaston Reith, , former Australian politician, was a Deputy Leader of the Liberal Party and then a senior Cabinet minister in the first two terms of the Howard Government.-Early life:...
. Williams also points to the "notorious reluctance" of Australians to support Constitutional referendums: of the 44 proposals to amend the Constitution, only eight have succeeded.