LWB242 Constitutional Law

1. LWB242 Constitutional Law • Lecture 8: Freedom of religion Photo by David Tuffley (St Johns Anglican Church in Canberra) http://www.flickr.com/photos/tuffley/5237031489/

2. Freedom of religion 116. 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.

3. Introduction • Section 116 of the Constitution contains four different clauses: • The Commonwealth shall not make any law for establishing any religion. • The Commonwealth shall not make any law for imposing any religion observance. • The Commonwealth shall not make any law for prohibiting the free exercise of religion. • No religious test is required as a qualification for any office or public trust under the Commonwealth. • The first (The No Establishment Clause) and the third (The Free Exercise of Religion Guarantee) provisions will be considered.

4. Introduction • When applying s 116 of the Constitution, consider the following: • Is a law of the Commonwealth involved? • Is a “religion” involved? • Has a religion been established? • Has the free exercise of religion been interfered with?

5. Is a law of the Commonwealth involved? • Section 116 of the Constitution does not apply to the Australian States. • Grace Bible Church v Reedman • However s 116 of the Constitution does apply to Australian Territories. • Lamshed v Lake

6. Is a “religion” involved? • The concept of “religion” has not been defined in the leading cases. • Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth • The mainstream churches gave evidence that the Jehovah’s Witnesses were not Christians but the Court accepted without discussion that they followed a “primitive form of Christianity”. • Church of the New Faith v Commissioner for Pay-Roll Tax • The Court had to interpret a provision of an Act exempting religious bodies and decided that the two main elements are: • belief in a supernatural being, principle or thing; and • belief in some canons of conduct. • Held, therefore the “Church” set up by the Scientologists was a religious body.

7. Has a religion been established? • A Commonwealth law will be unconstitutional if the purpose of the law is to establish a religion. • Attorney-General (Victoria), Ex rel Black v Commonwealth(the “DOGS” case) • Commonwealth legislation which provided for grants to the States for distribution amongst denominational schools were challenged on the grounds that they amounted to an establishment of religion. • Held, the legislation was constitutional because the grants law was not a law which was specifically designed to establish a religion. Rather, it was specifically designed to improve the education in Church related schools. • The No Establishment Clause of s 116 is only violated in circumstances where the law is “for” the establishment of religion - the purpose approach. • Barwick CJ - establishing a religion involved an “identification of the religion with the civil authority so as to involve the citizens in a duty to maintain it”. That is, the establishment of State Church or State Religion, which would involve a reciprocal relationship between the Commonwealth and the religion, owing rights and duties. • Gibbs J and Stephen J - s116 only prevented the Commonwealth from making any law conferring the status of a State religion or State Church upon a particular religion or religious body. • Wilson J - if the Commonwealth showed “preference” to one religion over another, it would highlight the existence of a reciprocal relationship between the Commonwealth and would constitute the establishment of religion. But he noted that that would go much further than offering financial assistance.. • In dissent, Murphy J held that any support for a religion or church would violate the No Establishment Clause.

8. Has the free exercise of religion been interfered with? • The High Court held in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth per Rich at 149-150 that “Freedom of religion is not absolute. It is subject to ... restrictions ... essential to the preservation of the community. [It] may not be invoked to cloak or dissemble subversive opinions or practices ...”. • Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth • The National Security (Subversive Associations) Regulationsprohibited the advocate of doctrines which were prejudicial to the prosecution of the war in which the Commonwealth was engaged. It provided for the dissolution of associations propagating such doctrines and vested their property in the Commonwealth. The Jehovah’s Witnesses challenged the constitutional validity of the regulations. • Held, the regulations did not contravene s 116. • Latham CJ noted that the free exercise of religion does not empower individuals because of their religious beliefs to break the law of the country - a person cannot be exempted from the ordinary civil or criminal law of the grounds of their religion.

9. Recent decision • Williams v Commonwealth • The Scripture Union Queensland (SUQ), a public company, entered into the Funding Agreement with the Commonwealth to provide certain chaplaincy services at the Darling Heights State School in Queensland ("the School") in accordance with certain guidelines ("the NSCP Guidelines"). Those services included assisting the School and community "in supporting the spiritual wellbeing of students" and "being approachable by all students, staff and members of the school community of all religious affiliations". The Funding Agreement was entered into pursuant to the Commonwealth's National School Chaplaincy Program ("the NSCP"). The funding of the NSCP is not provided under legislation, but under a series of funding arrangements administered by the Commonwealth of which the Funding Agreement is one example. • Held, unanimously, that it did not infringe s 116, specifically the religious test clause. At [109]-[110]: • “The chaplains engaged by SUQ hold no office under the Commonwealth. The chaplain at the Darling Heights State Primary School is engaged by SUQ to provide services under the control and direction of the school principal. The chaplain does not enter into any contractual or other arrangement with the Commonwealth. That the Commonwealth is a source of funding to SUQ is insufficient to render a chaplain engaged by SUQ the holder of an office under the Commonwealth. • It has been said in this Court that the meaning of "office" turns largely on the context in which it is found, and it may be accepted that, given the significance of the place of s 116 in the Constitution, the term should not be given a restricted meaning when used in that provision. Nevertheless, the phrase "office ... under the Commonwealth" must be read as a whole. If this be done, the force of the term "under" indicates a requirement for a closer connection to the Commonwealth than that presented by the facts of this case. The similar terms in which the "religious test clause" is expressed in Art VI, cl 3 of the United States Constitution was emphasised by the plaintiff but there is no clear stream of United States authority on this provision which points to any conclusion contrary to that expressed above.”

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