A Executive Power and Religion

Before examining the interpretation of s 116, it is necessary to consider what executive powers the Commonwealth possesses in relation to religion. Section 61 of the Constitution incorporates powers derivable from the royal prerogative, namely those prerogatives of the Crown that are applicable to Australia and appropriate to the spheres of responsibility vested in the Commonwealth by the Constitution.^{Footnote 2} Although the prerogative includes powers relating to religion, including supreme authority and jurisdiction as head of the Church of England,^{Footnote 3} power to convene ecclesiastical synods and the right of nomination to bishoprics and other ecclesiastical preferments,^{Footnote 4} as there is no established religion in Australia, those prerogative powers ‘do not exist and have never existed in respect of the Commonwealth’.^{Footnote 5}

Recent High Court decisions have significantly curtailed the non-statutory executive power of the Commonwealth. In Pape v Federal Commissioner of Taxation (‘Pape’), the High Court held that Commonwealth power to spend money must be found in s 61 of the Constitution or a valid statute^{Footnote 6} and in Williams v Commonwealth (No 1) (‘Williams (No 1)’) the Court held that s 61 does not include a general power to contract and spend money in relation to matters falling within the heads of Commonwealth legislative power.^{Footnote 7}

Given that the scope of non-statutory executive power is shrinking,^{Footnote 8} what scope remains for Commonwealth executive power to affect religion? French CJ noted in Williams (No 1) that ‘[t]here are undoubtedly significant fields of executive action which do not require express statutory authority’.^{Footnote 9} His Honour noted that the executive power referred to in s 61 extends to:

• • powers necessary or incidental to the execution and maintenance of a law of the Commonwealth;

• • powers conferred by statute;

• • powers defined by reference to such of the prerogatives of the Crown as are properly attributable to the Commonwealth;

• • powers defined by the capacities of the Commonwealth common to legal persons;

• • inherent authority derived from the character and status of the Commonwealth as the national government.^{Footnote 10}

We consider that there are several categories of executive power which may be relevant to religion. These are outlined in turn.

B Current Position on Section 116 and Executive Power

In its terms, s 116 only prohibits the making of laws, which means it only directly restricts the exercise of legislative power. However, Aroney notes that executive power is ‘indirectly’ affected by virtue of the fact that s 116 can limit laws which confer functions, powers and jurisdictions on executive agencies.^{Footnote 25} This has been understood to mean that s 116 does not apply to executive power unless that power is authorised by statute.^{Footnote 26} For example, Barwick CJ in Attorney-General (Victoria) ex rel Black v Commonwealth (‘DOGS Case’) notes the following:

Moens points out that although Barwick CJ was commenting in the specific context of the establishment clause, there is no reason why that analysis should not equally apply to the other clauses of s. 116.^{Footnote 28} This was also affirmed by Jackson J in the Full Federal Court, who, relying on the above passage by Barwick CJ, held that the application of s 116 to executive acts is on the basis that the relevant authorising legislation cannot permit an executive decision which amounts to a breach of s 116.^{Footnote 29} Justice Jackson further held that Barwick CJ’s remarks apply equally to all parts of s 116.^{Footnote 30} However, there is limited authority to suggest that s 116 imposes a limit on the exercise of non-statutory executive power.

Hobbs and Williams emphasise that, as s 116 applies only to legislative power, ‘the exercise of executive power poses a real risk for interference with religious freedom’.^{Footnote 31} Evans expands upon the potential risks:

The existing cases on s 116 also provide numerous examples of how the exercise of executive power may restrict freedom of religion, including the removal of the chosen leader of a religious community under migration powers, removal of members of a religious community from that community if the community is deemed unsafe, and preventing a religious community from assembling and propagating their religion in a state of emergency. In Minister for Immigration and Ethnic Affairs v Lebanese Moslem Association, the Minister deported an individual appointed to be an Imam of the Lebanese Moslem Association. The Full Federal Court reversed a Federal Court decision that the Minister was not permitted to determine the suitability of a religious leader against the decision of a religious association. Despite the Full Court’s factual finding that the exercise of ministerial power to remove an Imam was not ‘for’ prohibiting the free exercise of religion, they conceded it may still have that effect if this became a regular practice.^{Footnote 33} In Kruger v Commonwealth (‘Kruger’), the plaintiffs argued that a Northern Territory ordinance which authorised the forced removal of Indigenous children from their tribal culture and heritage was invalid as a law prohibiting the free exercise of religion. Toohey J and Gaudron J, in their respective minority judgements, conceded that ‘it may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory’.^{Footnote 34}

In Jehovah’s Witnesses v Commonwealth (‘Jehovah’s Witnesses’), the National Security (Subversive Association) Regulations 1940 (Cth) prohibited the advocacy of doctrines which were considered to be prejudicial to the Commonwealth’s prosecution of the war. They provided for the dissolution of associations propagating such doctrines and vested their property in the Commonwealth.^{Footnote 35} The Jehovah’s Witnesses case challenged the constitutional validity of the Regulations on the basis that, among other arguments, they prohibited the free exercise of religion. The Court held that the Regulations and subsequent exercise of executive power giving effect to the Regulations did not breach s 116. For example, Williams J claimed that ‘a state of war, therefore, justifies legislation by the Commonwealth Parliament … which makes many inroads on personal freedom …’.^{Footnote 36} Babie argues this reasoning implies ‘that the conduct claimed to be infringed by the relevant legislation would almost certainly be encompassed by the ambit of the right if it extended to cover the effects of legislation’.^{Footnote 37} While the law evinces no express purpose to limit free exercise, ‘in its administrative application [it] makes possible the limitation of free exercise … based upon a finding of dangerous religious belief’.^{Footnote 38} Similarly, McTiernan J indicated that ‘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’.^{Footnote 39} In referring to the ‘real object’ and the ‘Executive’, McTiernan J allows ‘the possibility that the stated purpose and the deeper objective of legislation [and executive action] may differ’.^{Footnote 40} Mortensen concludes that ‘the Court in Jehovah’s Witnesses assumed that a facially-neutral regulation directed at the suppression of subversive organizations, burdening religion in its effect, could offend the Free Exercise Clause’.^{Footnote 41} This could occur by virtue of the law itself or the administrative application of the law (ie its effect in terms of an exercise of executive power under statute). As such, it is possible that s 116 also extends to limiting laws which restrict freedom of religion in their effect, not merely in their terms or purpose.

Section 116 therefore limits the exercise of executive power under statute, potentially including the effects of the law and not merely its purpose. As concisely stated by McTiernan J, ‘the section creates a restriction both on legislative and executive power’.^{Footnote 42} The most explicit considerations of the application of s 116 to executive power have occurred in the context of executive powers granted under statute (ie statutory executive power). It appears to be reasonably settled that s 116 limits statutory executive power to the extent that it limits the operation of the law conferring the power. However, in the Jehovah’s Witnesses case, Latham CJ also acknowledged that the non-statutory executive power of the Commonwealth under s 61 extends to ‘obstruction to recruiting, certainly in war-time, and, in my opinion, also in time of peace. Such obstruction may be both punished and prevented’. Moreover, ‘propaganda tending to induce members of the armed forces to refuse duty may not only be subjected to control, but may be suppressed’.^{Footnote 43} This would in effect allow the suppression of doctrines which advocate for religiously based pacifism which could, for example, breach the free exercise clause. Evans has also indicated ways in which non-statutory executive power may burden freedom of religion, as discussed above.^{Footnote 44}

In conclusion, we consider that there are significant areas of executive power which may impact religion in the ways specified in s 116. These impacts would not necessarily be prohibited by the current interpretation of s 116, which only clearly limits the exercise of statutory executive power which targets religion in explicit terms. In this article, we take this logic further by arguing that s 116 should also limit the exercise of pure executive power which is not granted by statute (ie non-statutory executive power). To do this, in the first instance we reason by analogy through examining emerging scholarship arguing that the implied freedom of political communication limits both statutory and non-statutory executive power. Since the implied freedom constrains government power using the same structure as s 116 (it is in the form of a limit on legislative and correlative powers rather than in the form of a personal right giving rise to individual action), the analogy is sound.^{Footnote 45}

A Legislative Supremacy and the Executive

This part of the article explains legislative supremacy as a principle in the Australian constitutional system in more detail, including how it is assumed by the Constitution and what it means for the relationship between the legislature and the executive. Parliamentary supremacy over the executive can be understood in a political sense in which Parliament is supreme over the executive. That is, under the conventions of responsible government which are a fundamental aspect of our constitutional system, the executive is a creature of Parliament and is accountable to Parliament for the exercise of its powers.^{Footnote 79} This relationship of supremacy and accountability is reflected in provisions of the Constitution such as s 64, which requires Commonwealth ministers to be members of Parliament, and s 83, which requires expenditure of Commonwealth funds to be appropriated by law. In theory, this principle has the consequence that ‘[i]n the long run the Parliament, comprising the House of Representatives and the Senate, is in a position to control the Executive Government’.^{Footnote 80}

Parliamentary supremacy over the executive can also be understood in another sense, namely the supremacy of legislative power over the executive and in relation to executive power. This derives from the English principle of parliamentary sovereignty, which, as classically explained by A V Dicey, means that Parliament has ‘the right to make or unmake any law whatever’, and secondly, ‘that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament’.^{Footnote 81}

The incorporation of executive powers into the Constitution has led some to argue that the powers specifically conferred by the Constitution are entrenched and cannot be removed by legislation. Further, s 61 might be thought to constitutionalise the powers of the executive and therefore place it beyond the reach of the legislature. Enid Campbell argued that powers such as those contained in s 72 of the Constitution could not be abolished nor amended by legislation.^{Footnote 82} JE Richardson argued that many of the High Court’s pronouncements relating to the subordination of executive to legislative power concerned the prerogative, rather than the specific powers conferred on the Governor-General or executive power ‘in its extension to the execution and maintenance of the laws of the Commonwealth and the Constitution’.^{Footnote 83} Thus, while the principle of legislative supremacy over the executive clearly permits the Commonwealth Parliament to control the exercise of the prerogative component of the executive power contained in s 61, ‘the executive power is partly inalienable and not within reach of the federal Parliament’.^{Footnote 84} That is, because s 61 expressly states that the executive power ‘extends to the execution and maintenance of this Constitution’, and of the laws of the Commonwealth, then it is beyond the power of the Parliament to remove those powers. Section 61 ‘cannot become a complete sacrificial victim to the legislative powers’.^{Footnote 85}

Whatever the validity of these arguments in 1977, they are now much more doubtful in light of the High Court decisions in Pape and Williams (No 1), and the High Court has clearly held that the principle of legislative supremacy applies to Commonwealth executive power. The High Court has held that the Constitution imports ‘the basal assumption of legislative predominance inherited from the United Kingdom’^{Footnote 86} and that ‘it is of the very nature of executive power in a system of responsible government that it is susceptible to control by the exercise of legislative power by Parliament’.^{Footnote 87} Jacobs J said in Victoria v Commonwealth and Hayden:

The Court has also held that the Commonwealth Parliament has clear power to modify or abrogate the prerogative powers which have been incorporated into s 61.^{Footnote 89} In cases such as Williams (No 1), the principle of parliamentary supremacy over the executive was employed by the Court in interpreting the Constitution to significantly limit Commonwealth executive power in ways not immediately apparent from the text of the Constitution.^{Footnote 90}

As noted by Aroney, parliamentary supremacy is ‘[p]erhaps the most fundamental principle of them all’ but ‘is implied rather than explicitly stated in the Constitution’.^{Footnote 91} This illustrates several points of relevance for this article. First, it highlights the limitations of the text in understanding the Australian constitutional system. Although the High Court has emphasised that its fundamental role in constitutional interpretation is to expound the text of the Constitution, ‘upholding it throughout precisely as framed’,^{Footnote 92} the meaning of the Constitution cannot be gleaned solely from its text.^{Footnote 93} The Constitution assumes various constitutional and common law doctrines which inform its meaning^{Footnote 94} and the High Court has often employed historical materials when interpreting the Constitution.^{Footnote 95} Secondly, it illustrates the point that the High Court is not afraid to draw judicially enforceable implications from the principle of parliamentary supremacy over the executive.

Stellios and Zines referred to the ‘accepted view that executive power extends only to matters within Commonwealth legislative competence’.^{Footnote 96} As already noted, Williams (No 1) held that s 61 of the Constitution does not include a general power to contract and spend money in relation to matters falling within the heads of Commonwealth legislative power.^{Footnote 97} It does not seem to challenge the principle that ‘executive power extends only to matters within Commonwealth legislative competence’. If this is the case, then it suggests that any limitations on legislative power contained within the Constitution correspondingly limit the scope of executive power.

Section 51(xxxix) of the Constitution confers power on the Commonwealth Parliament to legislate in relation to ‘matters incidental to the execution of any power vested by this Constitution … in the Government of the Commonwealth … or in any department or officer of the Commonwealth’. This confers power on the Parliament to legislate in relation to executive power, although it is probably not a plenary power to do so.^{Footnote 98} In summary, as Harrison Moore pithily put it, ‘we are not encouraged to believe that the executive can make good an independent sphere of its own, free from legislative interference and control’.^{Footnote 99} This principle has been ‘constitutionalised’ by cases such as Pape and Williams (No 1).

B Preventing the Commonwealth from Sidestepping a Constitutional Prohibition

In several cases, the High Court has interpreted various provisions of the Constitution in such a way as to prevent the Commonwealth from circumventing constitutional prohibitions or restrictions. These cases are relevant to the subject of this article and shed light on how the High Court deals with such cases.

Section 96 empowers the Commonwealth to ‘grant financial assistance to any State on such terms and conditions as the Parliament thinks fit’. The High Court has held that this enables the Commonwealth to undertake activities beyond the heads of legislative power in s 51 and may impose conditions to induce a State to do something which the Commonwealth does not have power to do.^{Footnote 100} That is, the Commonwealth can use s 96 to do things indirectly via the intermediary of the States which it could not do directly.^{Footnote 101} However, the Commonwealth cannot use s 96 to sidestep a constitutional prohibition such as s 116. As put by Gibbs J, ‘ss 96 and 116 should be read together, the result being that the Commonwealth has power to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit, provided that a law passed for that purpose does not contravene s 116’.^{Footnote 102}

Section 51(xxxi) empowers the Commonwealth to legislate with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’. The provision has been described as a ‘a very great constitutional safeguard’ and so should ‘receive a liberal and wide construction’.^{Footnote 103} As such, the High Court has held that the Commonwealth cannot avoid the requirement to afford just terms by effecting acquisitions of property indirectly such as by means of an independent agency or a State government.^{Footnote 104} In P J Magennis Pty Ltd v Commonwealth, Latham CJ held:

Section 51(xxxi) requires just terms for legislation whose object is to acquire property, even if the Commonwealth is not the entity which directly acquires the property, and it is not possible for the Commonwealth to evade this requirement by effecting an acquisition indirectly. The guarantee of just terms in s 51(xxxi) is not to be avoided by ‘a circuitous device to acquire indirectly the substance of a proprietary interest’.^{Footnote 106} The Constitution does not permit the Parliament to achieve ‘by indirect or devious means’ what is expressly forbidden by s 51(xxxi).^{Footnote 107} Section 51(xxxi) therefore qualifies the Commonwealth’s power under s 96 to make grants to the States such that the Commonwealth has no power to grant financial assistance on the condition that a State acquires property on other than just terms.^{Footnote 108}

Further, in Spencer v Commonwealth Perry J noted that s 51(xxxi) is relevant to the scope of Commonwealth executive power:

That is, although s 51(xxxi) is a head of legislative power and therefore not directly concerned with executive power, it has been interpreted by the courts so as to limit Commonwealth power to enter into agreements, limiting the scope of executive power in s 61. Notwithstanding the apparently clear text of s 51(xxxi), it has been interpreted to apply to executive power.

C Application to Section 116

This section considers how the principles in the previous sections apply to the interpretation of s 116. As noted, s 116 consists of four clauses. The establishment, religious observance and free exercise clauses prohibit the Commonwealth from making any law ‘for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion’. These clauses are directed to the making of laws which do those things, and so these clauses are a restriction on legislative power.^{Footnote 110} These clauses of s 116 do not deal with executive power or the administration of a law in their terms, although, as we saw Barwick CJ note, if the administration of a law ‘is within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending s 116’.^{Footnote 111} The weight of authority appears to be that the establishment, religious observance and free exercise clauses do not apply to executive power, although McTiernan J held in Jehovah’s Witnesses that s 116 ‘creates a restriction both on legislative and executive power’.^{Footnote 112} In addition, s 116 provides that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. Thus, as Stephen J noted, s 116 ‘prohibits one avenue of encroachment open to legislature and executive alike – the imposition of religious tests for office holders’.^{Footnote 113}

Thus, it must be acknowledged that the express terms of the establishment, religious observance and free exercise clauses apply only to legislative, and not executive action, although considerations relating to the administration of a law cannot be excluded. As Barwick CJ noted in the DOGS Case, in constitutional interpretation ‘the text of our own Constitution is always controlling’.^{Footnote 114} Nevertheless, it is legitimate to draw implications in some cases which are not expressly stated in the Constitution.^{Footnote 115} Although the High Court gives primacy to the text when interpreting the Constitution, Dixon J said in Australian National Airways Pty Ltd v Commonwealth that ‘[w]e should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications’.^{Footnote 116} The High Court will draw implications ‘based on the actual terms of the Constitution, or on its structure’.^{Footnote 117} Dawson J wrote that ‘[t]he only implications which may be drawn from the express terms of the Constitution are those which are necessary or obvious’.^{Footnote 118}

Should, then, such an implication be drawn extending the prohibition in the establishment, religious observance and free exercise clauses of s 116 to the exercise of executive as well as legislative power? We argue that there are four reasons why a constitutional implication should be drawn which extends s 116 to the exercise of executive power.

First, we argue that s 116 should be given a flexible operation consistent with its rights-protective focus. Stephen J wrote in the DOGS Case that s 116 ‘is a constitutional provision of high importance’.^{Footnote 119} In Church of the New Faith v Commissioner of Pay-roll Tax (Vic), Mason CJ and Brennan J wrote that ‘[f]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society’.^{Footnote 120} However, s 116 has typically been interpreted narrowly by the High Court and has never resulted in the invalidation of a Commonwealth law.^{Footnote 121} Similar to s 51(xxxi), s 116 is ‘a very great constitutional safeguard’ and so should ‘receive a liberal and wide construction’.^{Footnote 122} As Dixon J wrote in relation to s 51(xxxi), ‘consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect’.^{Footnote 123} As noted above, s 51(xxxi), which is concerned with legislative power, has been interpreted so as to limit executive Commonwealth power.^{Footnote 124} There is therefore nothing unprecedented about extending the same principles of interpretation in relation to s 116.

Secondly, such an implication is necessary to prevent the Commonwealth from evading a constitutional guarantee. As Dixon J said in Bank of New South Wales v Commonwealth, ‘when a constitution undertakes to forbid or restrain some legislative course, there can be no prohibition to which it is more proper to apply the principle embodied in the maxim quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud [“when anything is prohibited, every means by which the thing may be accomplished is also prohibited”]’.^{Footnote 125} A similar principle was expressed by Mason CJ, Deane and Gaudron JJ in Georgiadis v Australian and Overseas Telecommunications Corporation:

Lord Atkin famously said that ‘[t]he Constitution is not to be mocked by substituting executive for legislative interference with freedom’,^{Footnote 127} which was specifically applied in relation to s 116 by McTiernan J in Jehovah’s Witnesses.^{Footnote 128} Prohibiting the Commonwealth from legislating so as to establish or prohibit the free exercise of religion but allowing the Commonwealth to do so by means of executive power would amount to mocking the Constitution ‘by substituting executive for legislative interference with freedom’. Gaudron J wrote in Kruger:

To adapt words of Aickin J, ‘[i]t would be a serious gap in the constitutional safeguard’ if the Commonwealth could effect by means of executive power that which is prohibited by legislation.^{Footnote 130} In the DOGS Case, the High Court held that s 96 was subject to s 116, such that the Commonwealth could not evade the constitutional prohibition in s 116 by means of grants made under s 96.^{Footnote 131}

Thirdly, our proposed interpretation is necessary to ensure consistency with fundamental constitutional values. Parliamentary sovereignty over the executive is a fundamental constitutional principle which is integral to the Australian system of government, but which is not expressly stated in the Constitution.^{Footnote 132} As noted earlier, the High Court has employed the concept of parliamentary supremacy to draw implications which are not expressly found in the text of the Constitution, namely previously unforeseen limitations on executive power.^{Footnote 133} If the Commonwealth had power to do by means of executive action that which is denied to the legislature, this would mean that there would be an area of executive action not subject to regulation by Parliament. Not drawing the implication we propose would, to adapt the words of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Court (NSW), create the potential for ‘islands of [executive] power immune from [legislative] supervision and restraint’.^{Footnote 134} The implication proposed in this article is therefore necessary to safeguard Parliament’s supremacy in relation to the executive. The limitation on legislative power contained in s 116 entails a corresponding limitation on executive power.^{Footnote 135}

Finally, our proposed interpretation is necessary to avoid inconsistency in the Constitution. As noted, s 51(xxxix) confers power on the Commonwealth Parliament to legislate in relation to matters incidental to the execution of any power conferred on the Commonwealth government. Not drawing the implication we propose would create a clash between ss 51(xxxix) and 116. That is, where the Commonwealth executive engaged in activity which infringes the establishment, religious observance or free exercise clause of s 116, s 51(xxxix) would suggest that the Commonwealth Parliament possesses some power to legislate in relation to that exercise of power. Section 116 would, however, operate to deny the Parliament power to legislate to regulate aspects of that exercise of power. In order to ensure coherence in the Constitution, it is necessary to draw an implication extending the prohibitions on legislative power contained in s 116 to executive power.

The obvious hurdle to our argument is that, on its terms, s 116 applies only to Commonwealth laws and not executive power. The text of the Constitution therefore appears to clearly preclude our proposed interpretation. However, as noted above, the text of s 51(xxxi) is also clear, being a head of legislative power and not directly concerned with executive power. Notwithstanding this, the High Court has held that s 51(xxxi) should be interpreted so as to prohibit the exercise of executive power which attempts to evade the requirements of just terms. The considerations noted in this section suggest that it is consistent with constitutional principle for s 116 to be interpreted in an analogous fashion. Further, if it is true that ‘the precise language of section 116 was not the result of a careful drafting choice’,^{Footnote 136} then it could be said that the implication proposed in this article is simply making explicit what is implicit in the terms of s 116.

The argument outlined here is intended to apply specifically to s 116, and it is not suggested that it would have the consequence that, wherever the term ‘law’ appears in the Constitution, that should be interpreted to include executive action. This is because s 116 is a restriction on power and our argument, analogous with the case law on s 51(xxxi), is intended to prevent the Commonwealth doing through executive action what it cannot accomplish through legislation. Those considerations do not apply in relation to other provisions of the Constitution which refer to ‘law’ such as ss 61 and 109.