There are two references to God or religion in the Australian Constitution. The first of two recitals provides:
WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
Western Australia agreed later but also joined the Commonwealth on 1 January 1901. The Constitution itself, having conferred numerous legislative powers on the Commonwealth Parliament, then enacts in section 116 four restrictions on the exercise of those powers:
116. The Commonwealth not to legislate in respect of religion
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.
Dr Beck’s book is a comprehensive, well-researched, useful and welcome analysis of the origin, interpretation and future of those provisions. It is not a theological work but is eminently readable by non-lawyers. In Chapter 1 the author immediately engages the attention of the reader by relating details of the crime and conviction in 1894 of Mr Robert Shannon. Shannon was a builder and worked on a Sunday, contrary to the Sunday Observance Act 1677 which was then in force in New South Wales. He was a member of the Seventh Day Adventist Church and observed Saturday as the Lord’s Day. The trial and conviction, which resulted in Mr Shannon refusing to pay the fine and therefore being required to be set in stocks outside a Sydney courthouse for two hours, attracted considerable publicity and public consternation. It was an event indicative of the political setting of a foundational influence on the inclusion and content of these provisions of the Constitution.
The book is not only, as will be seen, a significant and timely legal text and highly relevant to the origin, purpose and interpretation of section 116. It also provides an insightful analysis of religious practices and attitudes in Australia in the late nineteenth century and of the influence both of minority pressure groups and of mainstream churches at that time against the background of their respective theologies. Furthermore, it provides a helpful comparison with those attitudes to religion in the US as revealed in the development of somewhat similar but by no means identical constitutional provisions of that country contained in the First Amendment of the US Constitution in 1791.
Dr Beck assiduously traces the development of the debates as to what religious provisions should or should not be included in the Constitution and whether they should also apply to the State parliaments. He describes this with meticulous detail, not only as to what took place in the formal Constitution Conventions of the 1890s, but in many other forums as well, and does so in a manner which is eminently readable.
Two significant conclusions of the author emerge from that review: first, that the insertion of the two provisions was essentially driven by political rather than religious considerations, and secondly that little discussion took place in the Conventions as to the actual meaning of the provisions eventually agreed upon.
Dr Beck then embarks upon a discussion as to why the particular language of section 116 was chosen, given that the perceived objective of one of the main protagonists, Henry Higgins, later Mr Justice Higgins, was to deny power to the Commonwealth to make laws ‘on the subject of religion’ as understood by him. This was a wider prohibition than the chosen words would appear to impose. Given the course of the debate and drafting of the proposed section Dr Beck concludes that the language used in section 116 is ‘rather haphazard’ and was merely a response to pragmatic concerns.
It is the discussion which follows of two competing jurisprudential theories behind the enactment of section 116 which may leave a non-lawyer reader somewhat bemused. However, it is an analysis which is consistent with and appropriate to the detailed analysis of the results of Dr Beck’s careful research. His preferred theory as to the origin of section 116 is what he describes as the ‘safeguard against religious intolerance’ theory, rather than one of neutrality towards religion. In his view, that is relevant to any purposive construction of the section. Indeed, he relies on that theory to criticize, in the final chapter, the reasoning, and in one case the conclusion, of the High Court in two cases. The first is Attorney-General (Vic); ex rel Black v The Commonwealth (1981). The majority in that case decided that the provision by the Commonwealth of financial aid to non-government schools, including church schools, did not offend the first leg of section 116. The second is Williams v The Commonwealth (2012) where the validity of funding school chaplains by the Commonwealth was in question. The Court held that the chaplains did not hold an ‘office … under the Commonwealth’, but that the funding was not supported by any necessary legislation.
The continuity of the reasoning leading to these conclusions is interrupted in Chapters 10 and 11 by an unfortunately placed but interesting excursus relating to the attempts to amend section 116, principally by extending its operation to the States and Territories. Two of those attempts went to a referendum in 1944 and 1988. In each case the amendment to section 116 was accompanied by other unrelated amendments to the Constitution. Both attempts failed. The description of those and other attempts is nevertheless comprehensive and well written.
Whether Dr Beck’s constitutive theory and the resultant criticism of the High Court’s approach to section 116 is justified is not for me to judge. There will no doubt be nice questions as to the extent to which Dr Beck’s research can bear on the proper interpretation of the Constitution. However, his conclusion clearly indicates the timely significance of this book as legislators and judges inevitably come to grapple with the resolution of emerging questions concerning the interface between ‘prohibiting the free exercise of any religion’ on the one hand and issues relating to prohibiting discriminatory conduct based on religious grounds on the other hand.
This book is meticulously researched and eminently readable by both lawyers and non-lawyers, with an excellent foreword by The Honourable Robert French AC, a former Chief Justice of the High Court of Australia. It is a welcome and timely contribution to the jurisprudence of section 116 of the Constitution.
