That’s me in the corner… On the question of s116 of the Constitution #auslaw

The Guardian was lovely enough to publish one of my articles arguing that Australia should avoid having a Bill or Charter of Rights.  The argument there is fairly straightforward.  Despite popularising the Bill of Rights, the United States has a shocking human rights record (the example I chose was McCarthyism); thus, Bills of Rights aren’t terribly effective.  Secondly, because the Bill of Rights is very broad, it has resulted in perverse outcomes (the example I chose was the Westboro Baptist Church’s picketing of funerals — the First Amendment protects them but not the family burying a loved one).  Further, because we lack a Bill or Charter of Rights, Australia has been able to score some impressive legal victories, such as the Plain Packaging Tobacco legislation which isn’t possible in other jurisdictions.

The point is summed up here:

When society lost interest in upholding the lofty rhetoric of rights, the First Amendment didn’t come to the aid of the heretics. A Bill of Rights has not stopped the US trying to find a new definition of pain and suffering in the belly of offshore detention centres. Conversely, when the Australian Government sought a referendum to acquire the power to pass anti-Communist legislation, Australians voted it down. The best rights protection will always be an engaged and critical electorate, not a parliament with rusted on training wheels.

This doesn’t sit well with a lot of people.  Challenging the assumptions behind human rights legislation is ipso facto a difficult task.  Our culture ideologically prepares us to accept rights as legal norms, making it difficult to even express the idea that human rights are problematic.  Thus, I’ve had quite the interesting range of feedback.  Some people thought I was attacking human rights out of a libertarian campaign to take people’s property.  Some people thought I was making an anti-Indigenous statement.  And one person pondered whether or not I was actually Andrew Bolt.

A few commentators and a few e-mail correspondents had some interesting responses, particularly in relation to this paragraph:

Our constitution also fails to defend religious freedom. In Snyder v Phelps, SCOTUS discovered this right protected the Westboro Baptist church’s right to protests at military funerals. Our deficiency has meant Australian courts might consider other priorities, such as the welfare of children. In a 1978 case called The Marriage of Paisio, the family court found that “certain practices, albeit given a veneer of religious justification, are in fact so positively harmful to the welfare of the children that they must be removed from the influence of those who advocate such practices”.

One person took umbrage with this in fairly strong terms: ‘Section 116 of our constitution explicitly protects religious freedom. It is worded almost identically to the US religion clauses – though Australian courts have read them somewhat differently. I wonder if you would correct your blatant error of fact.’

I’ve written about s116 before but, in the interest of not writing turgid legal essays, I kept away from drilling into a thorough analysis of the section. So let’s go on an adventure through the wonderful world of s116 of the Constitution and why it’s not what you think it is.

Here’s the text of s116:

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.

On first reading, it looks like I goofed.  I claimed that we didn’t have protected religious freedom in the Constitution and yet — and yet — here it is saying that the Commonwealth shall not make any law for prohibiting the free exercise of any religion.

To use Prof Hilary Charlesworth’s understatement: ‘[T]he language is hedged and technical.‘  The important words in this clause are ‘The Commonwealth’.  Here’s what John Alexander Cockburn had to say during the Constitutional Conventions:

There is no atrocity which the human mind can devise which has not at some time or another been perpetrated under the name of religion, and the states should have the power to prevent such occurrences as those referred to by the right honorable member (Sir Edward Braddon) and others which might be mentioned ad libitum. There are a number of sects in different parts of the world whose religious observances embrace every form of horror one can imagine. I think that the clause should be struck out, and that the states should be allowed to retain the right to do what they think necessary to preserve and maintain their civilization. With regard to the amendment of the honorable member (Mr. Higgins), I think the honorable gentleman himself admitted yesterday that it would prevent a state from making laws against Sunday trading for example. [Source]

In other words, this was never intended to promote religious freedom but, instead, was designed to stop the Commonwealth from taking the power away from the States.

Comparing it with the Establishment Clause and the Free Exercise Clause of the First Amendment shows why this isn’t an open and shut case of me being a moron.  Here’s the First Amendment in full (EC and FEC in bold):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As for the no religious test, that was based off clause 3, Article VI of the US Constitution (relevant bit in bold):

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The link to freedom of expression in this statement is the first sign that there’s something fundamentally different between this protection of rights and s116.  It’s true that Andrew Inglis Clark used the EC and FEC as the template for s116, but their intent is revealed to be quite different both in the Constitutional Conventions and in the way the Courts interpreted the two provisions.

Thus, a 1948 case, Cantwell v Connecticut, found that the Fourteenth Amendment means the First Amendment restricts the legislative competence of the States:

The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.

It is difficult to imagine that Australia would find that s116 applies to the States which itself is curious, given that s116 is in the section of the Constitution titled ‘The States’ (this anomaly is due to a quirk which arose from the Constitutional Convention debates).  Indeed, the clause was written specifically to allow the States to interfere with religious belief.  Here is the always excellent (but criminally under-utilised in Twitter debates) Quick and Garran:

Whilst the Constitution forbids the Federal Parliament to interfere with the free exercise of religion, it does not make any provision for protecting the citizens of the States in their religious worship or religious liberties; this is left entirely to the State Constitutions and laws, and there is no inhibition in regard to the subject imposed upon the States. [Source]

More importantly, the US judicial interpretation has constructed the First Amendment as speaking to the rights of the citizen.  Australian Courts, on the other hand, have not.

I write a lot about Krygger v Williams because it has one of my judicial heroes creating the ‘Don’t Be A Crybaby’ theory of jurisprudence.  The case involved whether or not compelling a person to enlist in the army when their religion forbade them from enlisting was a violation of s116.  In the United States, remember, the First Amendment says that Congress shall make no law prohibiting religious practice; our much better Constitution says that the Commonwealth cannot pass legislation for prohibiting the free exercise of religion.  Thus we get Sir Samuel Griffith CJ:

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.

Barton J (formerly Prime Minister) followed up with:

As to the constitutional objection, the Defence Act is not a law prohibiting the free exercise of the appellant’s religion, nor is there any attempt to show anything so absurd as that the appellant could not exercise his religion freely if he did the necessary drill. I think this objection is as thin as anything of the kind that has come before us. [Source: Ibid.]

Then, in 1943, we have Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth.  Where the interpretation of Krygger might be ‘So long as the Commonwealth does not create a law for the purpose of restricting free exercise of religion, it can get away with it’, Jehovah’s makes it a little bit more complicated.

Sir John Latham CJ took a line which seemed to echo views about individual liberties:

In the first place, it is important to observe that s. 116 is an express prohibition of any law which falls within its terms. The section deals with laws which in some manner relate to religion. The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws.

Accordingly no law can escape the application of s. 116 simply because it is a law which can be justified under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s. 116 imposes.

This is an interesting development on Quick and Garran’s commentary on the Constitution:

In considering the question of religion, the Federal Convention was called on to decide (1) whether it was advisable to grant substantive power of this kind to the Federal Parliament; and if not, (2) whether it was necessary to deny this power to the Federal Parliament. As regards the first question, it was not seriously suggested that any such power should be granted. The only arguable point was whether it ought to be denied, and if so, to what extent? The Federal Parliament is a legislative body capable only of exercising enumerated powers. Its powers are determined and limited by actual grants to be found within the Constitution. Anything not granted to it is denied to it. If it is not granted the power to deal with religion, it cannot legislate concerning religion. It is superfluous to deny to it what is not granted—what it does not possess. [Source]

Latham goes on a bit further, seemingly in contradiction of my point:

The prohibition in s. 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by Federal law—Deorum injuriae Diis curae. [The injuries of the gods are the concern of the gods] Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion. [Source. Translation inserted by me]

But Starke J frames his comments in a very different way:

The liberty and freedom predicated in s. 116 of the Constitution is liberty and freedom in a community organized under the Constitution. The constitutional provision does not protect unsocial actions or actions subversive of the community itself. Consequently the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and the duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order. Therefore there is no difficulty in affirming that laws or regulations may be lawfully made by the Commonwealth controlling the activities of religious bodies that are seditious, subversive or prejudicial to the defence of the Commonwealth or the efficient prosecution of the war. [Source: Ibid.]

In other words, s116 is not a personal liberty (as it is framed in the US Constitution) but a liberty and freedom in a community.

McTiernan J uses a style closer to Krygger:

The reasons are that it is plain that none of the Regulations is in terms “a law for prohibiting the free exercise of any religion”; and it does not appear that the real object of the Regulations is to arm the Executive with power to prohibit or restrict the exercise of any religion or that there is any attempt “to mock” the constitutional guarantee of religious freedom. [Source: Ibid.]

So while Latham CJ was looking at the right through the lens of individual liberty, it is difficult to argue that the rest of the court was of a similar mind.  It’s worth noting that, in the same year as Jehovah’s, the Supreme Court of Queensland reaffirmed Krygger in Sellars v Nielson.

So which interpretation of s116 survives?  The ‘religious freedom is a communal right’ as espoused by Starke, or ‘religious freedom is an individual right’ as espoused by Latham?

Both get some airplay in subsequent decisions.  Latham’s view was cited favourably in Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (“The Scientology Case”).  Starke’s view is the one which most aligns with Attorney-General (Vic); Ex Rel Black v Commonwealth (“DOGS case”).

More importantly, even if you take Latham’s view that it’s an individual right, there’s no way of reading it as binding on the States.  As Barwick CJ says in DOGS:

An attempt was also made in argument to develop some restriction on the language of s. 116 from the position it occupies in the Constitution being included as it is in Ch. V which bears the heading “The States”. But, in my opinion, the language of the section is not in the slightest affected by the position in which the section is placed in the text of the Constitution: nor can its meaning be determined thereby. To suggest that, because of that placement, it should be read as in any sense a direction to the States is to deny effect to simple and direct English. The section plainly says “The Commonwealth shall not” and its final words deal only with any office or public trust under the Commonwealth.

As for the argument that s116 should be read through the lens of the First Amendment:

[T]here is the resort to the text of the American Constitution, and in this instance to the text of the Bill of Rights, and to the decisions of the American courts, particularly those of the Supreme Court in construing these texts. The plaintiffs have placed considerable emphasis on this material: indeed, it has formed a major element in their submissions. […] Even similar or identical language in the American instrument to that in our Constitution can, in my view, rarely, if ever, be controlling. But divergencies in the respective texts must inevitably weaken, if indeed they do not destroy, any support which might be sought to be derived from the American text or its construction. […] Further, in the instant case, not merely is there difference between the Australian text and the language of the relevant provisions of the Bill of Rights, but that language had received an interpretation before the adoption of our Constitution. It later had further and at times different interpretation. The adoption of such diverging language thus has a more than usual significance. It can scarce be said with reason that the use of different, and as I think radically different, language in our Constitution, indicated an intention thereby to achieve what the American courts had decided to be the result of the American text. […] I find the language of s. 116 in the relevant part quite unambiguous and have no need to attempt to give it meaning by analogy of, or by derivation from, that of the Bill of Rights or from the interpretations it had received. Consequently, I have no need to dwell on the radical difference in the nature of the Bill of Rights as a whole and that of our Constitution and of s. 116 in particular and the consequences that difference in nature may have on any attempt to use the language and circumstances of the one as an aid to the construction of the other. […] 

The divergence in language to which I have earlier referred is apparent from the use of the word “respecting” in the American text and the word “for” in s. 116. What the former may fairly embrace, quite clearly the latter cannot: and that is so, in my opinion, even without placing critical significance on the purposive nature of the Australian expression and the lack of such an element in the American text. […]  However, in the interpretation and application of s. 116, the establishment of religion must be found to be the object of the making of the law. Further, because the whole expression is “for establishing any religion”, the law to satisfy the description must have that objective as its express and, as I think, single purpose. Indeed, a law establishing a religion could scarcely do so as an incident of some other and principal objective. In my opinion, a law which establishes a religion will inevitably do so expressly and directly and not, as it were, constructively. [Source: Ibid.]

So there we have it.  s116 is not the First Amendment, there is doubt about whether or not religious freedom is an individual or communal right under the Constitution, and there’s absolutely nothing protecting this ‘freedom’ from interference by the States.  Thus we can make sense of Prof Geoffrey Sawer’s comment:

If one asks therefore about the sorts of fundamental guarantees often included in constitutions — liberty and security of the person, freedom of association, liberty of political action, freedom of opinion and expression of opinion, religious toleration, liberty of the Press, freedom of movement, inviolability of postal communication, liberty to petition governments for redress of grievances, fair trial or due process of law, freedom from unreasonable searches and seizures, freedom from arbitrary arrest, right of trial by jury etc. — one can only answer that as a matter of constitutional theory, none of these rights and liberties is constitutionally guaranteed against all governments; most of them exist only at the mercy of the federal and State parliaments.  [Source; emphasis mine]

The assertion that s116 ‘explicitly protects religious freedom’ is, to use my correspondent’s words, a ‘blatant error of fact’.  At the very least, it’s not controversial to claim that the States could clip religious freedom consistently with the Constitution.  We could argue whether or not Krygger would be decided differently today in the post Universal Declaration of Human Rights world but, as it stands, my comments were entirely correct, if not merely defensible.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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