4. THE AUSTRALIAN CONSTITUTION
Greg Booth L.L.M.(Hons)
not within the province of the present article to examine the State
Constitutions but our examination of the Australian, or Commonwealth,
Constitution immediately demonstrates an awareness that the supremacy of the
newly-created Parliament was to be exercised under God. The Commonwealth
Constitution was brought into being by section 9 of an Imperial statute,
assented to on
the people of
of course, may take many forms and the Commonwealth Constitution, the
document set out following section 9 of the Imperial statute to which we have
referred, has been carefully crafted to prevent the accretion to any one
organ of government, or to government as a whole, of undue power. The primary
purpose of this chapter is to focus on the means whereby it has been sought
to limit governmental power so as to prevent an encroachment on religious
freedom but it will assist, we hope, to first offer a rudimentary outline of
the context in which that matter is addressed. In what follows, references to
sections will be to the provisions of the Commonwealth Constitution itself,
and not to the provisions, often for convenience called the covering clauses,
of the statute establishing it.
II of the Constitution makes some further provisions about the Governor
General and also deals with the armed forces and Ministers of the Crown.
Chapter III deals with the establishment and jurisdiction of federal courts,
most notably the High Court of Australia, which today is the final interpreter
of the Constitution and what is authorized or prohibited thereby.
might not be out of place to remark, in passing, as was noted in an article
entitled Constitutional Conundrum by Philip Chubb published in the
magazine Time Australia on
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.
There can be little doubt that, regardless of his theological soundness, the young man who gave this evidence, under the pressure of a criminal prosecution, spoke from deep conviction. Yet to no avail. Sir Samuel Griffith, the Chief Justice of the day, narrowly circumscribed religion and, in so doing, the operation of section 116, as the following excerpt from his judgement shows:
"To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere. The constitutional objection entirely fails".6
Nothing more was heard of section 116 until, acting under defence regulations in the Second World War, Commonwealth officers excluded the Adelaide Company of Jehovah's Witnesses from Kingdom Hall on the basis that they were prejudicial to the defence of the Commonwealth and the efficient prosecution of the war, largely because of their refusal to give allegiance to any human authority. Now, although the Jehovah's Witnesses ultimately won this case on other grounds, their appeal to section 116 was unanimously rejected by the High Court. Mr. Justice Rich7 said:
"In one sense the provision is very wide and in another narrow. It is wide in the area of religious faith which it seeks to protect, but it may be said to be narrow in its description of the kinds of laws which it disallows as impinging upon the freedom of faith".
As to the width of section 116, Chief Justice Sir John Latham said:
"It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religions conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance."8
As to its narrowness, he proceeded:
"The word 'free' is used in many senses, and the meaning of the word varies almost indefinitely with the context. A man is said to be free when he is not a slave, but he is also said to be free when he is not imprisoned, and is not subject to any other form of physical restraint. In another sense a man is only truly free when he has freedom of thought and expression, as well as of physical movement. But in all these cases an obligation to obey the laws which apply generally to the community is not regarded as inconsistent with freedom. Freedom of speech is a highly valued element in our society. But freedom of speech does hot mean that an individual is at liberty to create a panic in a theatre by raising a false alarm of fire, as was pointed out in the United States of America in the case of Schenck v. United States (1919) 249 U.S. 47, at p.52 [63 Law.Ed.470, at p.473]. In James v. The Commonwealth  A.C. 578; 55 C.L.R. 1., the Privy Council dealt with the meaning of the words "absolutely free" in s.92 of the Constitution. It was there said: "Tree" in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law, as was pointed out in McArthur's Case (1920) 28 C.L.R. 530. Free Love, on the contrary, means licence or libertinage, though, even so, there are limitations based on public decency and so forth. Free dinner generally means free of expense, and sometimes a meal open to anyone who comes, subject, however to his condition or behaviour not being objectionable. Free trade means, in ordinary parlance, freedom from tariffs"  A.C., at p.637; 55 C.L.R., at p.56. Thus there is no dictionary meaning of the word "free" which can be applied in all cases."9
The High Court was acutely
aware that some have felt it a religious duty to kill and rob. Or to suicide.
The way in which the problem has been resolved is possibly best summarized
in the following passage from the judgment of Mr. Justice Starke:
Several of the cases have involved conflicts between adherents of different denominations of the Christian religion. Thus, in 1966 the Supreme Court of Queensland upheld the validity of a child custody order in favour of the mother but giving the father access on condition that he did not seek to inculcate in the children the beliefs of the Exclusive Brethren. It was held that this condition did not interfere with his exercise of his own, as distinct from the children's, religion11.
In 1972 the Supreme Court of New South Wales found that the interests of the children of a broken home would be best served by placing them in the custody of a Jehovah's Witness father and that, in reaching that decision, the Court had to look not at the worth of the religious beliefs but the welfare of the child based on all available information, including the external effect the religion could be expected to have on the child.12. The case was followed by the Family Court in a 1978 dispute between a nominal Catholic and a Jehovah's Witness, although this time the Jehovah's Witness lost1. In a somewhat amusing dictum, the Court made it clear that it is no part of the judicial function to rule that one form of religion is to be preferred to another:
"There may be many paths to the top of the mountain. Some would say there is only one. Some would say there is no path. Some would say there is no mountain.4.
An unusual case arose in 1977 where a Jewish husband, resident in Australia, petitioned the Family Court of Australa for dissolution of his marriage to a lady resident in Israel. The divorce was granted on condition that the husband procure for his wife a divorce by a rabbinical court which would be recognized in Israel. It was held that this involved no infringement of section 116 because public policy dictated that the wife should be as free of the marriage as the husband15.
Further light was thrown on what falls within section 116 by the High Court in 1983 in the course of deciding the claim of a body of scientologists for exemption from pay-roll tax. The case did not directly involve section 116 but the judgments are replete with "definitions" of "religion" which, it was recognized16, will find their place in the interpretation of the Constitution. Here are some of them:
would therefore hold that, for the purposes
of the law, 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, though canons of
conduct which offend against the ordinary
laws are outside the area of any immunity, privilege or right
conferred on the grounds of
“The better approach is to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category. Some claims to be religious are not serious but merely a hoax... but to reach this conclusion requires an extreme case. On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is religious. For example, if a few followers of astrology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a religious institution. Any body which claims to be religious, and offers a way to find meaning and purpose in life is religious. The Aboriginal religion of Australia and of other countries must be included. The list is not exhaustive; the categories of religion are not closed18.
To the extent that these passages are at variance with one another, the explanation lies in their forming parts of the reasons of different justices. The remaining justices resisted the temptation to offer a third definition, preferring rather to look for indicia, gleaned from "empirical observation of accepted religions", themselves liable to vary with changing social conditions"19.
Without setting out those indicia, it may be remarked that one of them involved the observation of standards or codes of conduct. That, of course, is reminiscent of the second element in the first passage reproduced above. Indeed, the justices who formulated that passage were at pains to point out that "religion encompasses conduct, no less than belief"20 .Yet for them, it will be recalled, canons of conduct which offend against "the ordinary laws" are beyond the protection of the Constitution. They explain their view in the following passage:
The question of what religious conduct would fall prey to "ordinary laws" was to arise in stark form the following year in the Supreme Court of South Australia. The case was Grace Bible Church Inc. v. Reedman 22 and the facts are as stated in the judgment of Mr. Justice Zelling:
"(1) The appellant is an incorporated body and the church as part of its Christian ministry conducts a non-government school.
(2) The school is an unregistered school.
(3) Students are enrolled and receive instruction at that school.
(4) Students were enrolled and received instruction at the school on 25 February 1983...
"In addition, the appellant called Pastor Shriver, the pastor of the church, who gave evidence that the church refused to register the school because his church was totally controlled by God and registration would mean that the church was controlled by another authority. He referred to a number of parts of the Bible, but in particular he founded his views upon Romans 13, verses 1-7"23.
The Church was appealing against its conviction for running an unregistered school. This was not the case of a school being unable to obtain registration because of some deficiency in its curriculum or facilities but the case of a school for which no application for registration had ever been made. By way of explanation, the following passage from the judgment of Mr. Justice Millhouse is instructive:
"Pastor John Lazerne Shriver... who gave evidence in the Magistrates Court... said that no application had been made "because our church is totally controlled by God". In cross-examination he said, "... the reason [why we failed to register] is that God is sovereign". In his evidence, which is like a religious discourse, he made several references to the Bible (e.g. Colossians, ch 1, v 18: "He is the head of his body, the church; he is the source of the body's life. He is the first-born Son, who was raised from death, in order that he alone might have the first place in all things" - and Proverbs, ch 22, v 6: "Teach a child how he should live, and he will remember it all his life" — I have used today's [sic] English Version). Pastor Shriver also quoted Romans, ch 13 w 1-7. When asked, "Does it [that is the passage from Romans] not exhort the Christian to obey the State authority?" he answered: "Only in so far as that State authority is compatible with the authority of God"24.
Notwithstanding this articulation of spiritual conviction, the Court upheld another kind of conviction, that pertaining to the commission of a criminal offence, the conduct of an unregistered school. The faith had been reflected in conduct but the conduct fell to be rendered unlawful by a law which was evidently regarded as having as its subject the matter of education, and not religion. It was specifically denied, not surprisingly in view of the legal history outlined in our last chapter on the English heritage, that there was an inalienable right of religious freedom in Australia. Though the position was regarded as "regrettable" by one of the justices, it was asserted that religious freedom was not complete under the law.
The case we have just considered demonstrates another thing which it is vital to appreciate when considering section 116. The section is addressed to the Commonwealth. It will be recalled that it commences with the prohibition, "The Commonwealth shall not make any law". As the Supreme Court of South Australia was aware, it says nothing whatever about the States25.
Predictably, it is from the States that some problems are now emerging. The Americans overcame this difficulty with the 14th Amendment but, in Australia, the States, with the exception of Tasmania26, are quite free to prohibit, as blatantly as they like, the free exercise of religion.
In their Annotated Constitution of the Australian Commonwealth, Quick and Garran27 point out that an earlier draft of the Commonwealth Constitution made section 116 binding on the States but that the clause was rejected. Apparently, nothing more happened along the lines of applying the section to the States until 25th September, 1975, when, at the Melbourne Session of the Australian Constitutional Convention, the then Prime Minister, Mr. Whitlam, suggested the inclusion in section 116 of a form of words which would have applied it to the States, as well as the Commonwealth28. On 29th October, 1976, the Hobart Session formally recommended this change, over objections based on the need for prayers in schools, compulsory blood transfusions and the banning of some sects. It may be of interest to note that politically conservative delegates were the main opponents.
Had the position rested there, the scope for the practical operation of section 116 would not have appeared promising. However, in a very recent case29, the Federal Court of Australia was called upon to examine the legality of a refusal to grant to the Imam of a mosque in a Sydney suburb permanent residency and the constitutionality of an order deporting him. Some remarks of potentially far-reaching consequence fell from Mr. Justice Pincus of that Court. First, section 116 was held to apply to administrative action as well as the making of laws. Secondly, when the Constitution prohibits law "for" prohibitioning the free exercise of any religion, it is not prejudicial only to measures which those responsible for them subjectively intend to interfere with religion. Thirdly, it is for the challenged authority to demonstrate not only that his or its actions did not in fact transgress the constitutional bounds but also that the constitutional guarantee was conscsiously considered in initiating any action of which complaint is subsequently made. With respect to this last matter, his Honour said:
"It appears to me that, at the least, the guarantee [of religious freedom] must have required the respondent [the Minister for Immigration and Ethnic Affairs to take the following matters into account:
(1) That the respondent has no right so to exercise his powers as to endeavour to put an end to expressions of a purely religious character on the part of the sheikh [the Imam], whether "fundamentalist" or otherwise. Reading the powers granted to the respondent under the [Migration] Act as subject to s.l 16, it appears to me that the respondent is not entitled, by reason (wholly or in pan) of disapproval of such expressions, to take steps to bring them to an end.
(2) That the respondent's decisions must not be brought about by an opinion formed by him that the association's members [those attending the mosque] might be better served religiously by an Imam other than the one they have chosen"30.
In the result, the Minister was ordered to reconsider his decisions. So far as the law reports show, that is the first time in its history that the religious freedom guarantee has acted as a brake on government action.
In the subsequent appeal to the full court, however, the brake was to be released31. Although Mr. Justice Jackson, who delivered the leading judgment, accepted, with qualification, the proposition that section 116 would apply to executive action and was prepared to assume that its effects might not be limited to actions actually intended to prohibit the free exercise of religion, his Honour rejected the proposition that the Minister had to demonstrate a conscious consideration of section 116. The test was whether the action complained of violated the section. Holding that it did not, his Honour referred to the word "prohibiting" in section 116 which, it was said, "appears... to mean a proscription of the right to exercise without impediment by or under Commonwealth laws any religion which is the choice of the person in question"2. In the Full Court's view, there was no prohibition, although the possibility was left open that a repeated refusal to allow any overseas ministers of a religion to enter or remain in Australia might constitute a prohibition. Our story is necessarily incomplete. We can say that, at the State level, religious freedom does not usually depend on constitutional law. It has tended to depend on the political realities of life, which have produced a variety of exemptions from the operation of laws. At the Commonwealth level, the limits of section 116 have yet to be discovered but the section cannot be lightly regarded. Who knows what excesses its very existence may have restrained? Quite apart from section 116, it is perhaps too early to tell whether our religious freedom depends on what the late Mr. Justice Hutley called "inherited sentiments in its favour"33 or whether, as was the thesis of the preceding article, our inheritance affords a surer basis than sentiment. For these matters we must wait, as "freedom slowly broadens down, from precedent to precedent"34.
Hodge v. The Queen (1883) 9 Appeal Cases (App. Cas.) 117, 132; R. v. Bunh (1878) 3 App. Cas. 889,90S; PoweU v. Appollo Candel Co. Ltd. (1885) 10 App. Cas. 282.cf., however, Building & Construction Employees & Builders' Labourers' Federation v. Minister for Industrial Relations (unreported, 31 October, 1986, N.S.W. Court of Appeal).
J. Quick & R.R. Garran, "The Annotated Constitution of the Australian Commonwealth", 1901, 1976 reprint, p. 287.
There are many American cases on a similar provision in the United States Constitution but the High Court has been astute to distinguish them: see Attorney General (Vie.) (ex rel. Black) v. Commonwealth (1980) 33 Australian Law Reports (A.L.R.) 321, 146 Commonwealth Law Report (C.L.R.) 559.
15 C.L.R. 366.
Ibid., at 367.
Ibid., at 369.
Adelaide Company of Jehovah's Witnesses Inc. v. Commonwealth (1943) 67 C.L.R., 116 at 148.
Ibid, at 123.
Ibid, at 126-7.
Ibid, at 155.
Kiorgaard v. Kiogaard (1967) Queensland Reports (Q.R.) 162.
Even v. Even 19 Federal Law Reports (F.L.R.) 296.
In the marriage of Paisio (1978) 26 Australian Law Reports (A.L.R.) 132.
In the marriage of Shulsinger 19 F.L.R. 296.
Church of the New Faith v. Commissioner of Pay-Roil Tax (Victoria) (1982-3) 154 C.L.R. 120, 130 per Mason A.C.J. and Brennan J.
Ibid, at 136, per Mason A.C.J. and Brennan J.
Ibid, at 151, per Murphy J.
Ibid, at 173, per Wilson and DeaneJJ.
Ibid, at 135.
Ibid, at 136.
(1984) 54 A.L.R. 571.
Ibid, at 572.
Ibid, at 583.
The law about school registration before the Supreme Court was a State law, not a Commonwealth one. Perhaps section 116 had been raised in response to a hint that it might have some relevance to the States: Attorney General for New South Wales (Ex. rel. MacLeod) v. Grant (1976) 51 Australian Law Journal Reports (A.L.J.R.) 10,20 per Murphy J. More likely, it was intended as a demonstration of prevailing political sentiment. -
Section 46 of the Tasmanian Constitution guarantees a measure of religious freedom.
p. 951. Note, however criticisms of the authors by Ely, "Unto God and Caesar", 1976, pp. 89-102.
Lebanese Moslem Association v. Minister for Immigration and Ethnic Affairs (1986) 11 Federal Court Reports 543.
Ibid., at p.38 of the judgement.
Minister for Immigration and Ethnic Affairs v. Lebanese Moslem Association, unreported, 19th February, 1987.
P.28 of the judgment. For the treatment of the other propositions, see pp. 8-11 and 26-7.
F.C. Hutley, "The Legal Traditions of Australia as Contrasted with those of the United States" (1981) 55 Australian Law Journal (A.L.J.) 63,66.
Tennyson, "You ask me, Why", iii.