THE ESTABLISHMENT CLAUSE: A SEARCH FOR MEANING
REID MORTENSEN*
I INTRODUCTION
Williams v Commonwealth1 was an important test of Australia’s national religious
settlement. The public funding of chaplains in state schools is a program that, in substance,
is indistinguishable from the public funding of religious schools and yet, at the same time,
a powerful symbolic step beyond it. However, the constitutional contest in Williams was
framed around the limits of federal executive spending. Even though the Australian
Constitution has provisions that expressly limit the Commonwealth’s power to address the
religious dimension of Australian life, these limitations made only a cameo appearance in
Williams – and even then it just seemed to be a gesture.
The Constitution provides, in section 116:
The Commonwealth shall not make any law for establishing any religion [‘establishment
clause’], or for imposing any religious observance [‘observance clause’], or for prohibiting
the free exercise of any religion [‘free exercise clause’], and no religious test shall be
required as a qualification for any office or public trust under the Commonwealth [‘religious
test clause’].
In Williams, the National Schools Chaplaincy Program (NSCP) helped to fund
chaplaincy services in state schools. No legislation created the Program. The
Commonwealth contracted directly with private providers of chaplaincy services.
Specifically in question in Williams was the Commonwealth’s contract with Scripture
Union Queensland – an evangelical para-church organisation dedicated to various kinds of
mission to youth. The agreement in question was for Darling Heights State School in
Toowoomba, where Scripture Union was to provide chaplaincy services that were to
include ‘general religious and personal advice to those seeking it, [and] comfort and
support to students and staff, such as during times of grief’.2 There was a condition that
the chaplain was not to seek to ‘impose any religious beliefs or persuade an individual
toward a particular set of religious beliefs’.3 Scripture Union agreed to ensure that the
chaplain signed a code of conduct (which included the ban on proselytising).4
While the High Court of Australia held that the NSCP was invalid, section 116 did
not help the court come to that conclusion. Only the religious test clause was raised. It
was argued that, as the NSCP required the appointment of a chaplain and was ‘to provide
for spiritual guidance … by persons who are likely to be clerics’, it was thereby
requiring a religious test for an office under the Commonwealth.5 The argument was
given short shrift. Gummow and Bell JJ held that the argument failed ‘at the threshold’.6
The chaplain entered no legal arrangement with the Commonwealth, and an office was not
held under the Commonwealth just because the Commonwealth was the ultimate source
*
1
2
3
4
5
6
Professor of Law and Head, School of Law and Justice, University of Southern Queensland,
Toowoomba, Australia. This article is based on a paper provided for the After Williams
Colloquium, University of Southern Queensland, Toowoomba, 4 October 2013.
(2012) 288 ALR 410 (‘Williams’).
Ibid 416.
Ibid 416.
Ibid 416.
Williams v Commonwealth [2011] HCATrans 198, 10.
Williams (2012) 288 ALR 410, 446.
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of funds.7 Hayne,8 Crennan9 and Kiefel10 JJ agreed. Heydon J thought that it may have
been ‘counterproductive’ to describe the persons engaged under the Program as
‘chaplains’ – ‘[s]ome vaguer expression, more pleasing to 21st century ears, like “mentor’
or “adviser” or “comforter” or “counsellor” or even “consultant” might have had an
emollient effect’.11 Still, ‘[t]he work described could have been done by persons who met
a religious test. It could equally have been done by persons who did not.’12 The absence
of a direct legal relationship between the chaplains and the Commonwealth meant that
they did not hold ‘offices’ under the Commonwealth.13 French CJ did not bother even to
mention section 116.
Williams is yet another suggestion of the impoverished condition of the
jurisprudence on section 116. The High Court’s decision in relation to the religious test
clause must be correct – a Commonwealth office or trust cannot be held just because
federal funding enables a position to be filled. However, the plaintiff’s silence on the
possible application of section 116’s establishment clause is largely possible because, in
the Defence of Government Schools Case (‘the DOGS Case’),14 the High Court rendered
the clause meaningless.15
The reopening of the DOGS Case in Williams was undoubtedly too daunting a
prospect. The DOGS majority had raised at least three hurdles to any successful
establishment clause challenge. The first was that a ban on ‘establishing any religion’
was held not to be a limitation on any Commonwealth power. In addition, the DOGS
majority adopted two other unprecedented and uniquely narrow approaches to the
construction of the whole of section 116 that inevitably gave the establishment clause,
along with the free exercise and observance clauses, the smallest potential application
to Australian federal law. Had the High Court in Williams been prepared to accept that
the plaintiff in Williams had successfully leapt even two of these three hurdles, the
other would still have seen the court rule that the establishment clause was inapplicable
to the case. It was not worth the effort.
At least it does not seem worth the effort while the DOGS Case is ‘settled law’.
So much was recognised by the New South Wales courts early in the litigation in
Hoxton Park Residents Action Group Inc v Liverpool City Council16 – litigation that
is still pending.17 However, settled law is not necessarily coherent, and it can be
unsettled. I argue that the High Court in DOGS took an approach to the
establishment clause that must be wrong. All of the judges – except Gibbs and
Stephen JJ – ignored basic principles of stare decisis. The majority made the
establishment clause a declaratory provision; in effect, a judicial repeal of the clause.
7
8
9
10
11
12
13
14
15
16
17
Ibid 446.
Ibid 460.
Ibid 537.
Ibid 562.
Ibid 495.
Ibid 495.
Ibid 532.
Attorney-General (Victoria) (ex rel Black) v Commonwealth (1981) 146 CLR 559 (‘DOGS’).
Cf. Keith Mason, Constancy and Change (Federation Press, 1990) 118; Michael Hogan
‘Separation of Church and State: Section 116 of the Constitution’ (1981) 53 Australian
Quarterly 214, 226; NFK O'Neill ‘Constitutional Human Rights In Australia’ (1987) 17 Federal
Law Review 85, 118.
Hoxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWSC 1312, [78]
(‘Hoxton Park I’); Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2)
[2011] NSWCA 363, [23] (‘Hoxton Park II’).
See Hoxton Park Residents Action Group Inc v Liverpool City Council [2014] NSWSC 372
(‘Hoxton Park III’); Hoxton Park Residents Action Group Inc v Liverpool City Council [2014]
NSWSC 433 (‘Hoxton Park IV’).
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The Establishment Clause: A Search for Meaning
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And the majority adopted narrowing principles that were incompatible with
approaches that, before DOGS, the High Court had taken to section 116.
The establishment clause must mean something that has some effect on Australian
federal law. That does not mean that the best understanding of the establishment clause is
one that would necessarily see federal funding of a state school chaplains program
rendered invalid. But, somewhat paradoxically, while the second Williams challenge did
not raise questions under section 116, the first Williams decision still improves the
prospects for the establishment clause to have a greater reach.
II THE ESTABLISHMENT CLAUSE BEFORE THE DOGS CASE
A Henry Higgins and the Melbourne Convention
Section 116 is an antidote. The Freethinker Henry Higgins moved its inclusion in
the looming Australian Constitution when, at the Melbourne Convention in 1898,
agreement was secured to have a statement in the Constitution Act that the people of the
federating colonies were ‘humbly relying on the blessing of Almighty God’ when uniting
in a federal Commonwealth.18 Higgins himself wanted to negate any implication that the
people’s humble reliance on God would give the Commonwealth some power to legislate
on religion.19 His particular concern was the decision of the United States Supreme Court
seven years earlier in Church of the Holy Trinity v United States,20 where the court had
relied on national religious patterns to hold that Americans were a ‘religious people’ and
the United States ‘a Christian nation’ – and to use this majoritarian position to uphold
preferential immigration treatment for an Anglican clergyman.21 Higgins does not seem to
have understood the implications of Holy Trinity properly, but he contended that, if this
were possible in the US where the Constitution did not expressly recognise God, the
Australian people’s ‘humble reliance’ was even more likely to enable the Commonwealth
to give preferential treatment to some religious groups.22 He had the energetic support of a
campaign led by Seventh-Day Adventists, who held to a concept of the separation of
church and state and who, like Higgins,23 were also troubled by the prospect of federal
Sunday closing legislation.24
18
19
20
21
22
23
24
Commonwealth of Australia Constitution Act 1900 (UK), Preamble; Official Record of the
Debates of the Australasian Federal Convention: Third Session (Sydney, 1986) 1733 (‘Official
Record’).
Ibid 1770.
143 US 457 (1891).
Ibid 465, 471; see also Zorach v Clauson 343 US 306, 313 (1952).
Cf. Official Record, above n 18, 1769-70; Clifford L. Pannam, ‘Travelling Section 116 with a
US Road Map’ (1963) 4 Melbourne University Law Review 41, 54.
At the Melbourne Convention, Higgins said ‘I merely want to preserve to the individual state the
absolute power of regulating all observances [ie, of imposing Sunday observances] of this sort’:
Official Record, above n 18, 1769-70.
Richard Ely, Unto God and Caesar (Melbourne University Press, 1976) 26-30.
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Higgins’ proposal for restrictions on federal legislation affecting religion represented
a significant change from the 1891 Convention in Sydney, which had accepted a free
exercise clause limiting the powers of the States, but which had also rejected any religion
clauses which would place limits on the Commonwealth. His initial proposal in the 1898
Convention was to place limits on both Commonwealth and State powers over religion,
but he deferred to States’ rights and settled on clauses that largely replicated those dealing
with religion in the First Amendment and Article VI section 1 of the United States
Constitution. The Melbourne Convention accepted them, although Sir Edmund Barton
made minor adjustments in the drafting stage – adjustments that have been given unusual
significance. These became section 116.25
Little else can be gained from the Federation Debates for any precise meaning of
section 116. At the Melbourne Convention, Higgins and Richard O’Connor thought that it
would replicate the operation of the First Amendment, although neither seemed to show
any real understanding of the purposes of the First Amendment or the US Supreme
Court’s early interpretation of its free exercise clause.26 If the original intent of section 116
is therefore at all helpful, it must only be to the extent that it reveals the general mischief
that Higgins, as sponsor, hoped it would prevent. This was to avoid a religious preference
of the kind that Higgins thought that the US Supreme Court had endorsed in Holy Trinity,
and the possibility of federal Sunday closing legislation.27 Still, the language of section
116 suggests that it encompasses much more. The blatant plagiarism of the First
Amendment and Article VI section 1 was, on the whole, unthinking, and so to some extent
it must be accepted that the language of section 116 is accidental and imprecise. But it is in
the Australian Constitution, and that in itself suggests that it should not be ignored.
B After Federation
The earliest commentary on the establishment clause assumed that it
constitutionalised a settled political principle of non-discrimination and moral pluralism in
the treatment of religious groups in Australian colonial polities – albeit a principle that was
shared with other parts of the Empire. As early as 1901, Sir John Quick and Sir Robert
Garran claimed that the establishment clause prevented ‘the erection of a State Church, or
the concession of special favours, titles, and advantages to one church which are denied to
others’.28 These principles of non-discrimination emerged from the efforts of colonial
government to remain out of the denominational disputes (mainly between Catholics and
Protestants) that plagued politics and education through the nineteenth century.29 This
obviously informed the interpretation of the establishment clause taken by Quick and
Garran and, in 1901, Harrison Moore – who believed that it provided for ‘strictly
unsectarian’ government.30 Indeed, the principle of non-discrimination was supported by
all of the most important commentators on section 116 before the DOGS Case was
decided. This certainly included a ban on a national church or religion, but evidently
25
26
27
28
29
30
Ibid 1, 76-88; John Andrew La Nauze, The Making of the Australian Constitution (Melbourne
University Press, 1972) 229.
Ely, above n 24, 87; Official Record, above n 18, 1769, 1778.
See Higgins, above n 23.
John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth
(Sydney, 1901) 951.
Stephen McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section
116’ (1992) 18 Monash University Law Review 207, 222-3.
William Harrison Moore, The Constitution of the Commonwealth of Australia (Charles F.
Maxwell, 2nd ed, 1910) 55.
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The Establishment Clause: A Search for Meaning
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demanded more of the Commonwealth in the even-handed treatment of different religious
groups.31
There was not a single judicial decision before DOGS that expressly referred to
the establishment clause, although many alluded to section 116 in general terms
without the judge isolating a claim about the effect of any one of its four clauses. A
number concerned institutional relations between the Commonwealth and religious
groups and, therefore, are possibly better treated as references to the establishment
clause than to, say, the observance or free exercise clause. The earliest of these is the
High Court’s 1912 decision in Colonial Sugar Refining Co Ltd v Attorney-General
(Cth).32 There, Griffith CJ suggested that section 116 prevented the Commonwealth
from appointing a Royal Commission ‘to investigate the tenets of any religious body
in the Commonwealth, its assets, the administration of its revenue, and the internal
management of its institutions’.33 The principle on which Griffith CJ based this
conclusion was not explained, but he seems to have understood that section 116
prohibited any significant contacts between the Commonwealth executive
government and religious groups: in short, to have accepted some idea of the
separation of church and state. Until Murphy J’s dissent in the DOGS Case, this was
the only judicial support for anything comparable to the ‘wall of separation’ between
church and state that dominated US establishment clause jurisprudence from the
mid-twentieth century.
A more important line of decisions emerged in the matrimonial courts. In these
cases, section 116 was held to have required courts not to discriminate between the
competing religious beliefs or practices of litigants in parenting cases. Here, the parties
argued that one parent’s religious beliefs or practice improved – or undermined – their
argument for custody, or for an order relating to the child’s religious upbringing or
education. This requirement of non-discrimination was developed as an equitable principle
in English and Irish courts through the nineteenth century, and was applied in Australian
courts in the exercise of inherent matrimonial jurisdictions.34 In 1966, the Supreme Court
of Queensland, exercising jurisdiction under the Matrimonial Causes Act 1959 (Cth),
relied on section 116 as another reason not to discriminate between the parents’ competing
religious beliefs.35 However, it was only in 1971 that Carmichael J explicitly read this
principle of religious equality into section 116. In Evers v Evers,36 both parents had been
31
32
33
34
35
36
FD Cumbrae-Stewart, ‘Section 116 of the Constitution’ (1946) 20 Australian Law Journal 207,
208; William Anstey Wynes, Legislative, Executive and Judicial Powers in Australia (Law
Book Co., 1976) 134; Richard Darrell Lumb and Kevin William Ryan, The Constitution of the
Commonwealth of Australia Annotated (Butterworths, 3rd ed, 1981) 382; Pannam, above n 21,
85. The exception to this is Joshua Puls, who supported the status quo after the DOGS Case, but
who also at points assumed that this was the same as Quick and Garran’s understanding – which
it explicitly was not: Joshua Puls, ‘The Wall of Separation: Section 116, The First Amendment
and Constitutional Religious Guarantees’ (1998) 26 Federal Law Review 139, 158. See text
accompanying nn 139-142.
(1912) 15 CLR 182.
Ibid 194.
Lyons v Blenkin (1821) Jac 245, 260, 264n; 37 ER 842, 846, 847-8; Attorney-General v Cullum
(1842) 1 Y & CCC 411, 417; 62 ER 948, 951; In re Grimes (1877) IR 11 Eq 465, 470; In re
Clarke (1882) LR 21 Ch D 817, 823; In re Scanlan, Infants (1888) LR 40 Ch D 200, 207;
Barnardo v McHugh [1891] AC 388, 400; In re McGrath (Infants) [1893] 1 Ch 143, 149; In re
Carroll, an Infant [1931] 1 KB 317, 336; see also Austin v Austin (1865) 34 Beav 257, 262-3; 55
ER 634, 636; In re Violet Nevin (an Infant) [1891] 2 Ch 299, 309; In re Besant (1879) 11 Ch D
519, 520. For Australian cases, see Ellen Goodman, ‘The Relevance of Religion in Custody
Adjudication under the Family Law Act’ (1981) 7 Monash University Law Review 217.
Mauger v Mauger (No 1) (1966) 10 FLR 285, 302; Kiorgaard v Kiorgaard and Lange [1967]
Qd R 162, 165-7.
(1972) 19 FLR 296.
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Jehovah’s Witnesses although, by the time of her claim for custody of her boys, the
mother’s convictions had lapsed. Carmichael J refused to take the father’s religion into
account in making the custody order and, in part, relied on section 116. It seems that
Carmichael J thought that the question involved the free exercise clause, but the reasoning
here is inexact because he stated the principle by reference to religious freedom and
institutional relations between government and religion. It is therefore possible that both
the free exercise and the establishment clauses were implicated in this principle, but the
distinction between the two clauses is one that the matrimonial courts just never
recognised. Thus, in Evers Carmichael J concluded that ‘[t]he freedom I see ... granted [by
section 116] is a freedom from the imposition of theological ideas: Parliament and the
courts cannot prefer Christianity to any other religion, or prefer any religion to none at
all’.37 This interpretation of section 116 was applied in parenting cases in the Family Court
after Evers.38 Then, in 1982, in an application for special leave to appeal to the High Court
in New v New,39 Gibbs CJ tried to exclude the operation of section 116 in parenting cases.
Special leave was refused in New, but had it been granted these decisions might have
presented a direct challenge to the High Court’s then recent holding in DOGS. In its
subsequent decisions in Marriage of Litchfield40 and Marriage of Firth,41 the Family
Court still relied on section 116 as a source of this principle of non-discrimination in
parenting cases. But since Firth in 1988 the Family Court has abandoned its references to
section 116 in cases in which it has invoked the principle of even-handed treatment of
different religious beliefs and practices.42
This use of section 116 to find a principle of non-discrimination even appears in
adjudication in matters of exclusive State competence. Given that section 116 applies only
to the Commonwealth, these questions of State law are clearly beyond its technical reach.
Nelan v Downes43 was an appeal from the Supreme Court of Victoria to the High Court,
and concerned a settlement of £50 for masses for the repose of souls. In England, such
settlements had been held invalid under Reformation period legislation as superstitious
uses.44 However, the High Court held that the legislation had not been received into the
law of Victoria or any other State, and the bequest could be treated as charitable. Isaacs J
used section 116 to reinforce that conclusion. Holding that in Australia all religions stood
equally before the law, he said that ‘[i]t is not unimportant that the people of the
Commonwealth have declared their public policy on the subject by sec. 116 of the
Constitution’.45 He admitted that this did not determine the State law of trusts, but was ‘a
strong indication of public policy’ suggesting the correct legal position.46 Similarly,
McHugh JA alluded to section 116 as a signpost of religious equality in Canterbury
Municipal Council v Moslem Alawy Society.47 There, a majority of the New South Wales
Court of Appeal held that a house used for prayer and the reading of the Koran was a
‘place of public worship’ for town planning purposes, even though the general public had
37
38
39
40
41
42
43
44
45
46
47
Ibid 302.
In the Marriage of Shulsinger (1977) 8 Fam LR 11,611, 11,616-7; In the Marriage of Paisio
[1979] FLC 90-659 (78,513-15); K v K [1979] FLC 90-680 (78,630); In the Marriage of Plows
[1979] FLC 90-712 (78,798); N v N [1981] FLC 91-111 (76,828); cf. In the Marriage of Plows
[1979] FLC 90-607 (78,116); In the Marriage of Grimshaw [1981] FLC 91-090.
Unreported, High Court of Australia, 5 March 1982.
(1987) 11 Fam LR 435, 440.
[1988] FLC 91-171 (76-024).
See Anthony Dickey, Family Law (Law Book Co., 5th ed, 2007) 311-12.
(1917) 23 CLR 546; cf. Michael Blakeney ‘Sequestered Piety and Charity - A Comparative
Analysis’ (1981) 2 Journal of Legal History 207, 220-3.
1 Edw VI c 14.
(1917) 23 CLR 546, 568.
Ibid.
[1985] 1 NSWLR 525.
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The Establishment Clause: A Search for Meaning
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no access to it. In reaching this conclusion, McHugh JA held that a court should be
reluctant to give legislation an interpretation which in effect gives preference to one
religion over another.48
The preservation of religious equality has always been a matter of fundamental concern to
the people of Australia and finds its place in the Constitution, s116.
In both cases, religious equality was considered a legitimate objective of State
adjudication. In the Moslem Alawy Case, it was probably decisive, because there was a
sound line of precedent against the majority’s interpretation. Here, section 116 was used
only to indicate that some legal manifestation of the principle of religious equality exists,
even though according to more conventional legal method it could not apply directly to the
case.
III THE DOGS CASE
The question of state assistance for religious (and principally Catholic) schools had
vexed colonial governments in Australia, but assistance was terminated in the 1880s in all
colonies except Queensland – where a program of per capita grants for all school students
maintained indirect assistance into the twentieth century. However, the question was more
generally revived with new funding and structural pressures on both State and Catholic
schools in the 1950s. Then, the combined political power of Catholic and Protestant
coalitions and the practical reality that a viable Catholic school system relieved pressure
on the State schools brought Commonwealth assistance to religious schools in the late
1960s.49 Legislation passed between 1969 and 1979 authorised the Commonwealth
Government to provide financial assistance to non-government schools but, although the
Catholic school system was its primary beneficiary, it placed no restrictions on religious
practices or instruction in the supported schools.50 The Commonwealth claimed the power
to pass the legislation under its spending and Territories powers, and withdrew the money
under its appropriations power.51 In 1981, the legislation was challenged in the High Court
by the Council for the Defence of Government Schools (or ‘DOGS’) organisation, an
interest group originally formed in evangelical Protestant circles. DOGS obtained the
support of secularists, teachers and parents of students in State schools, and through the
late 1960s and early 1970s had operated as a political party and lobby group. Its political
opportunities collapsed in 1972 on the election of the Whitlam Government, which
increased state assistance to religious schools. After that, the campaign was conducted
through litigation. The DOGS Case came before the High Court when, in 1979, Victorian
Attorney-General Haddon Storey granted a fiat to DOGS, allowing it to challenge the
Commonwealth scheme.
Three interpretations of the establishment clause were put to the High Court in
DOGS. The DOGS organisation’s success depended on the concept of ‘the wall of
separation’. It argued, by reference to American establishment clause jurisprudence, a
48
49
50
51
Ibid 544.
Michael Hogan, The Catholic Campaign for State Aid (1978) 1-6; The Sectarian Strand
(Penguin, 1987) 94, 251-5.
Independent Schools (Loans Guarantee) Act 1969 (Cth); Schools Commission Act 1973 (Cth);
State Grants (Schools) Act 1974 (Cth); State Grants (Schools) Act 1976 (Cth); State Grants
(Schools) Amendment Act 1976 (Cth); State Grants (Schools Assistance) Act 1976 (Cth); State
Grants (Schools Assistance) Act 1977 (Cth); State Grants (Schools Assistance) Act 1978 (Cth);
State Grants (Schools Assistance) Amendment Act 1977 (Cth); State Grants (Schools Assistance)
Amendment Act 1978 (Cth).
Australian Constitution, ss 81, 96, 122.
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general principle that the Commonwealth could not recognise or render support to a
religious group and, more specifically, that US Supreme Court decisions prohibited
governmental assistance for religious schools. Secondly, the defending governments and
religious schools proposed ‘the national church interpretation’, arguing that the
establishment clause only prevented the Commonwealth from creating a national church
or religion. Thirdly, DOGS also proposed the principles of non-discrimination, and argued
that the legislation was invalid under the establishment clause because it did not require
the equal treatment of religious groups. It did not expressly prevent the Commonwealth
from conceding preferential treatment to some schools over others on the basis of religious
affiliation. This interpretation did not necessarily help DOGS, and probably would have
helped the defendants who, however, were not prepared to advance it.52
The High Court upheld the validity of the state assistance legislation by an
overwhelming majority. Barwick CJ and Gibbs, Stephen, Mason, Aickin and Wilson JJ,
by and large, adopted forms of a national church interpretation of the establishment clause.
Murphy J dissented, insisting that the establishment clause created a wall of separation
between church and state.
A Establishing any religion – Washminster mutation to Westminster Confession53
The combination of British parliamentary government with a US-structured
federation and Senate has led Australia’s constitutional settlement to be described as
the ‘Washminster’ mutation.54 There are few provisions of the Australian Constitution
that can as readily be described as a Washminster mutation than the establishment
clause – particularly after the DOGS Case.55 The clause itself is the Barton recast of the
US First Amendment, but the majority – at least in its approach – insisted on reading
the establishment clause with a British lens. This could hardly have been the intent of
the Founders. However, Barwick CJ and Wilson J expressly excluded any possible
reference to the Federation Debates,56 and the others in the majority did so sub silentio.
They nevertheless tried to identify the legal meaning of the concept of establishment at
1900.57 In doing so, Gibbs J was the most conventional in relying on Phillimore J’s
description of the English religious establishment in 1907 in Marshall v Graham.58
The process of establishment means that the State has accepted the Church as the
religious body in its opinion truly teaching the Christian faith, and given it a certain
legal position, and to its decrees, if rendered under certain legal conditions, civil
sanctions.
So, according to Gibbs J, the establishment clause prohibited the Commonwealth
from creating a national religion of the dimension and reach, and with the incidents of,
the Church of England. Stephen J similarly focused on the nature of the Church of
England’s established status, also recognising that the nature of that establishment was
52
53
54
55
56
57
58
DOGS (1981) 146 CLR 559, 561-75; see also PD Lane ‘Commonwealth Reimbursements for
Fees at Non State Schools’ (1964) 38 Australian Law Journal 130.
For extended treatment of this, see Reid Mortensen, ‘Judicial (In)Activism in Australia’s
Secular Commonwealth’ in Christine Parker and Gordon Preece (eds), Theology and Law:
Partners and Protagonists? (ATF Press, 2005) 52, 63-5 (‘Judicial In(A)ctivism’).
Elaine Thompson, ‘The “Washminster” Mutation’ (1980) 15(2) Politics 34, 38.
See Reid Mortensen, ‘The Unfinished Experiment: A Report on Religious Freedom in
Australia’ (2007) 21 Emory International Law Review 167, 167, 173-4.
DOGS (1981) 146 CLR 559, 577-8, 654.
For recent criticism of this approach, see Commonwealth v Australian Capital Territory
[2013] HCA 55, [20]-[23].
[1907] 2 KB 112, 126.
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complex, imprecise and a product of all its relations with the government.59 Gibbs and
Stephen JJ’s approach nevertheless gives rise to problems of construction, which I
return to below.60
Mason J (with whom Aickin J agreed) added ambiguity. Mason J referred to
establishment in terms of the Church of England, the Church of Scotland, and the
Church of Ireland.61 However, even in 1900 the establishments in these countries were
of significantly different quality. The Church of England was characterised by the
Supreme Governorship of the Monarch, Crown appointments of bishops and other
ecclesiastical officeholders, the membership of bishops in the House of Lords, and
church legislation passed by Parliament. In contrast the Church of Scotland had
jealously guarded its independence from the Crown, though not always successfully.62
It tolerated only a High Commissioner to represent the Crown at meetings of the
General Assembly. In 1900, though, Parliament still claimed to be able to legislate for
the Church of Scotland.63 On Mason and Aickin JJ’s approach, the prohibited
establishment could be more easily reached if it was something akin to the Church of
Scotland – that is, identified as a national church although largely self-determining.
And as for Mason J’s reference to the Church of Ireland, in 1900 it had been
disestablished for 29 years. The less said about that, the better.
To Mason J’s ambiguities, Barwick CJ and Wilson J added legal heterodoxy.
Barwick CJ based his understanding of what amounted to establishment in 1900 on the
House of Lords’ decision in 1904 in Free Church of Scotland v Overtoun.64 The
process of ‘establishing’ involved ‘the entrenchment of a religion as a feature of and
identified with the body politic ... so as to involve the citizen in a duty to maintain it
and the obligation of, in this case, the Commonwealth to patronize, protect and
promote the established religion.’65 Wilson J explicitly supported the Overtoun
approach, holding that establishment ‘goes much deeper than financial assistance …
because it is expressive of a duty to maintain and support, or, in other words, a duty to
“promote religion” as embodied in the doctrine and standards of the Church’.66
Barwick CJ’s and Wilson J’s use of Overtoun was heterodox because, although
the decision was delivered in 1904, it was not giving effect to a Scots or English
common law definition of establishment. A closer examination of Overtoun reveals
that the question before the House of Lords was whether a union of Presbyterian
churches in Scotland was conforming to the idea of establishment held by one of the
uniting churches – the Free Church of Scotland – in its subordinate standard. And that
idea of establishment was given in the Westminster Confession of Faith – the definitive
statement of English-speaking Calvinism adopted in 1643. The determination of the
Westminster Confession’s understanding of establishment in Overtoun was a question
of fact,67 and its use as a precedent in the DOGS Case was a somewhat careless judicial
59
60
61
62
63
64
65
66
67
DOGS (1981) 146 CLR 559, 607.
See text accompanying nn 81-84 below.
DOGS (1981) 146 CLR 559 , 616.
For an account of this tension, see Reid Mortensen, ‘The Duty of Obeying the Law: the
Court of Session, the Kirk and the Disruption of 1843’ in Gabriel Moens (ed), Constitutional
and International Law Perspectives (University of Queensland Press, 2000) 230.
The UK Parliament later abdicated this lawmaking power in the Church of Scotland Act
1921 (UK), s 1.
[1904] AC 515.
DOGS (1981) 146 CLR 559, 582.
Ibid 653.
See General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515, 646, 656,
677, 694.
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method.68 It means, though, that the Westminster Confession provides one of the
possible glosses on the meaning of ‘establishing’ in the Australian Constitution.
B The nonconformist69
As early as 1962, as a Labor senator for New South Wales, Lionel Murphy had
argued for an interpretation of section 116 that assumed the separation of church and
state.70 It is not therefore surprising that, as a High Court judge in the DOGS Case, he
accepted the DOGS organisation’s argument that the establishment clause required the
separation of church and state. Murphy J’s primary legal reason for endorsing ‘strict
separation’ in DOGS was the US Supreme Court’s establishment clause interpretation. He
held that the First Amendment’s establishment clause prohibited state financial assistance
for religious schools, and therefore that section 116’s establishment clause prevented the
Commonwealth from providing any assistance to a religious school. The legislation
therefore offended the establishment clause, and was invalid.71
But, even if American decisions were relevant in interpreting section 116, Murphy
J’s recourse to them was selective. First, and most significantly, he did not apply ‘the three
pronged test’ of Lemon v Kurtzman,72 which the US Supreme Court had set as the
paradigm for establishment clause interpretation (until at the earliest 1983). The tests
were:
First, the statute must have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion … finally, the statute must
not foster an excessive government entanglement with religion.
The third ‘entanglement prong’ was the leftover of the earlier ‘wall of separation
between church and state’ that the Supreme Court had read into the establishment clause
in Everson v Board of Education.73 There is no reference to Lemon v Kurtzman in Murphy
J’s judgment. Wilson J did address the three prongs of Lemon, but he then held that they
were inapplicable. He nevertheless applied them in obiter dicta, and held that, in
intentionally advancing public educational objectives, the legislation had a secular purpose
and a primary secular effect. In addition, he thought that the administrative arrangements
between the Commonwealth and religious schools did not amount to an ‘entanglement’ of
government and religion.74 Therefore, to Wilson J, even if applying some concept of the
separation of church and state, the legislation would have been valid.
68
69
70
71
72
73
74
Gibbs J thought that the idea of establishment discussed in Overtoun was an inappropriate
interpretation of the establishment clause: ibid, 596-7. For the implications of the AngloCalvinist understanding of an establishment, and its role in Scots Presbyteranism, see Rowland
Ward, The Westminster Confession for the Church Today (Presbyterian Church of Eastern
Australia, 1992) 164-6.
See Mortensen, Judicial In(A)ctivism, above n 53, 61-3. Murphy J also seems to have
thought it was a British legal understanding of ‘establishment’: DOGS (1981) 146 CLR 559,
624.
Commonwealth of Australia, Parliamentary Debates (Senate) (Canberra 1962) xxii 1225-9.
Senator Murphy argued, seemingly on the basis of Torcaso v Watkins 496 US 488 (1961), that
section 116’s test clause prohibited the Royal Australian Navy from asking questions about
servicemen’s religious affiliation. Torcaso, despite its addressing a religious test, was actually
decided on the basis of the First Amendment’s establishment clause.
DOGS (1981) 146 CLR 559, 622-3, 632-3.
403 US 602 (1971).
330 US 1 (1947).
DOGS (1981) 146 CLR 559, 656-7.
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Secondly, despite holding that ‘[t]he United States’ decisions on the establishment
clause should be followed’,75 not a single American decision that Murphy J cited
supported his conclusion that ‘religion should be unaided by the Commonwealth’.76 They
were certainly there to be found77 – even if not in the numbers commonly supposed. But
Murphy J’s precedents dealt with completely different issues: voluntary religious
education in schools, property tax exemptions for churches, Sunday trading, and school
prayer.78 A free exercise clause decision was cited.79 The one decision that Murphy J
referred to that did deal with state funding of students at religious schools was Everson v
Board of Education,80 and in Everson the Supreme Court upheld state support of children
in church schools!
C An absence of meaning
The DOGS Case is not the High Court’s finest moment.81 The judgments of Gibbs
and Stephen JJ are really the only ones that reflect the court’s own standards of judicial
orthodoxy. But even in those judgments there is a fundamental problem of construction –
the approach taken by all judges of the majority has made the establishment clause
meaningless.
As early as the High Court’s 1943 judgment in Adelaide Company of Jehovah's
Witnesses v Commonwealth,82 section 116 was treated as a limitation on Commonwealth
power. It was not treated as declaratory of Commonwealth power. The result was that
each clause of section 116 had to be able to limit some actions that, if that clause were not
to exist, would otherwise be something that the Commonwealth had power to do.
Accordingly, the DOGS majority’s national church interpretation of the establishment
clause can only give effect to the requirement that the clause be a limitation on
Commonwealth power if, without an establishment clause, the Commonwealth was able
to create a national church or religion. The problem is that there seems to be no power or
combination of powers in the Australian Constitution that would enable the
Commonwealth to construct a national religion of the dimension and reach, and with the
incidents of, the Church of England. Indeed, given the rights of the English church’s
leadership to sit in Parliament, a religious establishment of that kind is only possible in
Australia with a constitutional amendment. Even a milder establishment like the Church of
Scotland seems to be outside Commonwealth power. This arises because, first, as Wilson
J implicitly noted in DOGS, the Commonwealth has no express power over religion and,
secondly, it cannot even constitute or regulate a religious corporation.83 Furthermore, as
Wilson J explicitly recognised in DOGS, it is hard to see how, without those powers, the
Commonwealth could rely on other powers to create a national church or religion.84 At
75
76
77
78
79
80
81
82
83
84
Ibid 632.
Ibid 632.
Eg, Lemon v Kurtzman, 403 US 602 (1971); Committee for Public Education and Religious
Liberty v Nyquist, 413 US 756 (1973); Sloan v Lemon, 413 US 825 (1973).
Illinois (ex rel McCollum) v Board of Education, 333 US 203 (1948); McGowan v Maryland,
366 US 420 (1961), Engel v Vitale, 370 US 421; Walz v Tax Commission, 397 US 664
(1970).
Reynolds v United States, 98 US 145 (1898).
330 US 1 (1947).
Mortensen, Judicial In(A)ctivism, above n 53, 61.
(1943) 67 CLR 116, 123; see also 156 (‘Jehovah’s Witnesses’).
DOGS (1981) 146 CLR 559, 654; Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR
330, 393; R v Federal Court of Australia; ex parte Western Australian National Football League
(Inc) (1979) 143 CLR 190, 234.
DOGS (1981) 146 CLR 559, 654.
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least as the establishment clause was read in DOGS, it is a declaratory provision. In other
words, it means nothing.
D Preposition, purpose and effect
In Jehovah’s Witnesses, Latham CJ held that, in considering whether a law was ‘for
prohibiting the free exercise of any religion’ and so invalid under the free exercise clause,
the preposition ‘for’ indicated that ‘the purpose of the legislation may properly be taken
into account’.85 This has encouraged suggestions that Latham CJ’s judgment narrowed the
operation of section 116.86 However, emphasis must be given to Latham CJ’s use of the
word ‘may’. This does not suggest that a court takes into account only the purpose of
legislation when deciding whether it offends the free exercise clause. To the contrary,
Latham CJ said:87
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.
In early free exercise clause adjudication, the High Court had not questioned that
facially-neutral laws might offend section 116 on the basis of their effect on religious
practice. In Krygger v Williams,88 the Defence Act 1903 (Cth) required compulsory
military training.89 The appellant refused to attend drill, because he believed it was a sin
for him to prepare for war and ‘God makes no allowance for sin’. He claimed that section
116 exempted him from any obligation to attend drill. The High Court rejected the claim,
on the (contestable) grounds that the appellant’s objection – according to Griffith CJ – had
‘nothing at all to do with religion’90 and – according to Barton J – was ‘absurd’.91 That
aside, no judge questioned that a free exercise clause claim was possible under defence
legislation that was not passed intentionally to prohibit religious practice. Even stronger in
this respect is Jehovah's Witnesses itself, where the actual process of enquiry directly
assumed that section 116 controlled the effect of legislation. The National Security
(Subversive Associations) Regulations 1940 (Cth) challenged in Jehovah’s Witnesses had
a neutral purpose, and did not in express terms operate to limit religion at all. They
nevertheless were invoked to dissolve the Adelaide Company of Jehovah’s Witnesses, and
so impose a serious ban on the practice of religion. However, the High Court proceeded on
the assumption that the regulations could have offended the free exercise clause, because
all judges thought it necessary to examine the permissible limits to the protection of
religion under the free exercise clause, and to determine whether the regulations could be
considered valid within those limits. Williams J even held that one facially-neutral
regulation did offend the free exercise clause.92
85
86
87
88
89
90
91
92
Jehovah's Witnesses (1943) 67 CLR 116, 132 (emphasis added).
Cf PJ Hanks, F Gordon and G Hill, Constitutional Law in Australia (3rd ed, Sydney, 2012) 612.
Jehovah's Witnesses (1943) 67 CLR 116, 122-3.
(1912) 15 CLR 366 (‘Krygger’); and see also ‘The “Conscience Plea” Overruled by the High
Court’, The Age, 16 October 1912, 8.
Defence Act 1903 (Cth), ss 125 and 135.
Krygger (1912) 15 CLR 366, 369.
Ibid 372.
Jehovah's Witnesses (1943) 67 CLR 116, 131-2, 149, 15, 160.
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It was in the DOGS Case that the idea first emerged that section 116 does not speak
to the effect of legislation that is not purposely directed at, say, establishing or prohibiting
the free exercise of any religion. The majority could not resolve whether, to violate the
establishment clause, ‘establishing any religion’ had to be the only purpose, or merely a
primary or significant purpose. However, they did recognise that the Commonwealth
could indirectly promote or advance any religion, when that was incidental to the principal
purpose it was pursuing.93 It is a surprising conclusion. A law (or collection of laws) that
has the effect of creating a national church, but that was not deliberately intended to create
one, would not violate the establishment clause.
This is precisely the aspect of DOGS that the New South Wales courts explored
early in the litigation in Hoxton Park, but which may be subject to reconsideration. Hoxton
Park involves the challenge of a residents’ group in Sydney to the building of an Islamic
school by the Australian Federation of Islamic Councils. Amongst other claims, the
residents invoke the establishment clause to argue that federal funding of the school would
be unconstitutional. In early stages in the Supreme Court, Rein J dismissed the
establishment clause argument on the ground that, in effect, the case was governed by
DOGS. To be invalid, the funding had to have the sole purpose of creating a national
religion.94 The suggestion that this funding was creating a national religion because the
AFIC aimed to establish schools across the nation was dismissed as ‘nonsensical’ – as
nonsensical as the suggestion that funding Catholic schools established Catholicism as the
national religion.95 However, the residents also argued that, as the school building project
included the building of a mosque, this was more arguably and directly an establishment
of religion. Rein J also rejected this, presumably because that was only incidental to the
government’s principal purpose of funding schools.96 While Rein J’s decision stands, the
federal funding of a mosque in the building project was a point that the Court of Appeal
thought contestable – and not covered by DOGS.97 It referred the question back to the
Supreme Court, and so the validity of federal funding for schools that potentially covers
the building of places of worship remains open.98
Despite the different approach that the High Court had taken to the free exercise
clause’s impact on the effect of legislation in Jehovah’s Witnesses, the DOGS
interpretation of the preposition ‘for’ inevitably saw lower courts extend it to the free
exercise clause.99 However, this is one of the DOGS hurdles to a successful section 116
challenge that has shown early signs of fracture. The DOGS approach to the word ‘for’
was applied to the free exercise clause by the High Court itself in 1997 in Kruger v
Commonwealth.100 Amongst other things, the claim in Kruger was that the removal of
aboriginal children from their tribal communities prevented them from practising their
customary beliefs at sacred sites and on traditional lands.101 This claim failed, and a
significant reason for this was the DOGS interpretation of the word ‘for’. However, the
majority accepted Gummow J’s view that ‘for’ did not limit a court to assessing
Parliament’s motives for passing legislation, but allowed it to consider the objects or ends
of the legislation. If necessary, a court could take extraneous considerations into account
93
94
95
96
97
98
99
100
101
DOGS (1981) 146 CLR 559, 579, 583-4, 604, 615-16, 653.
Hoxton Park I [2010] NSWSC 1312, [31].
Ibid [34].
Ibid [35].
Hoxton Park II [2011] NSWCA 363, [36]-[37].
See Hoxton Park III [2014] NSWSC 372; Hoxton Park IV [2014] NSWSC 433.
Minister for Immigration & Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578,
584-5, 578.
(1997) 190 CLR 1, 73 (‘Kruger’).
Ibid 7, 13-14; see also Reid Mortensen, ‘Interpreting a Sacred Landscape: Aboriginal
Religion and the Law in Australia in the 1990s’ in E Caparros and L Christians (eds),
Religion in Comparative Law at the Dawn of the 21st Century (Bruyent, 2000) 281, 285.
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to determine whether the Parliament was using ‘a concealed means or circuitous device’ to
escape the application of the free exercise clause.102 This was a slightly broader view of
section 116 than was taken in DOGS, but in Kruger it still did not see the legislation struck
down. According to Gummow J, the legislation ‘no doubt may have had the effect’ of
prohibiting the practice of the child’s religion, but this was not its object.103 Gaudron J
dissented on this very point.104 Despite accepting the majority view that the free exercise
clause only restricted legislative purposes, Gaudron J thought that the legislation
prevented the child from participating in religious tribal practices, and on that ground was
invalid.105 In Hoxton Park, the New South Wales Court of Appeal thought that Kruger
might justify some reconsideration of the DOGS Case.106 That litigation is still on foot.107
A more expansive approach to the establishment clause remains possible.
E Prohibited law
The third hurdle raised in the DOGS Case, and the most credible, is that the bans of
the establishment, observance and free exercise clauses apply only to a ‘law’. Section 116
states that ‘[t]he Commonwealth shall not make any law’ for any object prohibited by the
establishment, observance or free exercise clause.108 These limitations therefore apply
generally to all federal legislation, including any passed under the specific powers given to
the Commonwealth Parliament in sections 51 and 52. In DOGS, section 116 was held to
be capable of limiting the powers that the Parliament has to appropriate money under
section 81 and to make State grants under section 96.109 It is now settled that section 116
applies to legislation passed under the Territories power in section 122.110 In DOGS,
Barwick CJ recognised that the ban on any ‘law for establishing any religion’ brought
subordinate legislation and executive administration, like proclamations, statutory rules
and by-laws, into the compass of section 116. He added that, to the extent that
Commonwealth legislation authorised executive action that violated the standards of the
establishment clause, the parent legislation itself would be invalid. The dependent
executive action would also be invalid.111 Ample examples exist of courts considering that
executive action authorised by federal statute was capable of offending section 116. In an
obiter dictum in Colonial Sugar Refining, Griffith CJ thought that section 116 could
constrain a Royal Commission appointed under the Royal Commissions Act 1902 (Cth).112
Jehovah’s Witnesses dealt with regulations made under the National Security Act 1939
(Cth).113 In the Lebanese Moslem Association Case, the Federal Court held that migration
legislation could not authorise a ministerial decision for prohibiting the free exercise of
102
103
104
105
106
107
108
109
110
111
112
113
Kruger (1997) 190 CLR 1, 160-61.
Ibid 161.
Ibid 133-4.
Ibid.
Hoxton Park II [2011] NSWCA 363, [36].
Hoxton Park IV [2014] NSWSC 433.
Emphasis added.
DOGS (1981) 146 CLR 559, 576, 593, 618 621, 651. See also Hoxton Park II [2011] NSWCA
363, [26].
Lamshed v Lake (1958) 99 CLR 132, 143, 152, 154; Teori Tau v Commonwealth (1969) 119
CLR 564, 567, 571; DOGS (1981) 146 CLR 559, 621, 649; Kruger (1997) 190 CLR 1. Cf
Porter v R; ex parte Yee (1926) 37 CLR 432, 448; Harry Gibbs ‘Section 116 of the Constitution
and the Territories of the Commonwealth’ (1947) 20 Australian Law Journal 375; CumbraeStewart, above n 31; Clifford Pannam ‘Section 116 and the Federal Territories’ (1961) 35
Australian Law Journal 209.
DOGS (1981) 146 CLR 559, 580-1. Cf Hoxton Park II [2011] NSWCA 363, [27]; Hoxton Park
III [2014] NSWCA 372, [37]; Cumbrae-Stewart, above n 31, 208.
(1912) 15 CLR 182, 194.
Jehovah’s Witnesses (1943) 67 CLR 116.
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The Establishment Clause: A Search for Meaning
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any religion. Therefore, section 116 had immediate application to an order to deport an
Imam, even though in that case the court held that the decision did not actually offend the
demands of the free exercise clause.114
The understanding that the establishment, observance and free exercise clauses speak
only to laws, and executive action authorised by laws, may be the lowest of the hurdles
raised by the DOGS Case to a successful challenge under section 116. It is nevertheless
the principal reason why the challenge in Williams was limited to the religious test clause.
The NSCP was created by contract, without legislative authorisation, removing any
potential to challenge it under, say, the establishment clause. The language of the religious
test clause, however, does not require a ‘law’ for the imposition of a prohibited religious
test, which is why it alone of the four clauses of section 116 was raised to challenge this
new development in the Australian religious settlement. As indicated earlier, it was bound
to fail.115 Although the establishment clause was unlikely to be raised in a challenge to the
validity of a contract, the actual ground on which the High Court invalidated the NSCP in
Williams v Commonwealth now improves the prospects of raising the establishment
clause. In the absence of legislative authority, the Commonwealth did not have power to
establish the NSCP under contract.116 The Commonwealth then moved quickly to salvage
a State schools chaplaincy program by securing the passage of the Financial Framework
Legislation Amendment Act 2012 (Cth) through Parliament. That legislation authorised a
restructured National School Chaplaincy and Student Welfare Program (NSCSWP). There
is now therefore a strong argument that the NSCSWP is executive action authorised by
legislation, and capable of being addressed by section 116 in the terms outlined by
Barwick CJ in DOGS.117 There is therefore less opportunity to escape constitutional
limitations on the Commonwealth by contracting instead of legislating. Ironically,
although the establishment clause was not raised in either Williams itself or the second
Williams Challenge, the effect of the first decision is that the establishment clause must
now speak to a larger range of Commonwealth executive action.
IV CONCLUSION
If it were assessed purely on its merits, the DOGS Case should be ripe for
overruling. The ambiguities of Mason J’s judgment and the oddity of having the
Westminster Confession as a guide for interpreting the Australian Constitution are bad
enough. However, the major flaw arises in the most conventional of the judgments –
those of Gibbs and Stephen JJ. The clause means nothing118 – a point that strongly
suggests that DOGS must be wrong.
A Separation rejected
Murphy J’s dissent in DOGS also falls well short of exemplifying an acceptable
judicial method,119 but that in itself is not a reason to reject the concept of the
separation of church and state that, as a general proposition, he supported. There are
nevertheless other reasons to reject it. First, the ‘wall of separation’ only appeared in
US establishment clause interpretation in 1947. Murphy J’s claim that the concept of
114
115
116
117
118
119
Lebanese Moslem Association v Minister for Immigration & Ethnic Affairs (1986) 67 ALR 195;
Minister for Immigration & Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578,
579, 584.
See text accompanying nn 5-13 above.
Williams (2012) 288 ALR 410.
See text accompanying n 111 above.
See text accompanying nn 81-84 above.
See text accompanying nn 69-80 above.
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separation was ‘well settled … prior to the framing of the Australian Constitution’120 is
simply incorrect. True, some of those campaigning for religion clauses in the
Australian Constitution – such as the Seventh Day Adventists – supported the ‘wall of
separation’,121 but there is no reference to it in the Federation Debates. It cannot be
regarded as an accepted understanding of the establishment clause in 1900. Secondly,
the US Supreme Court itself has also discarded any concept of the ‘wall of separation’.
In Agostini v Felton,122 the Supreme Court accepted that violation of the ‘entanglement
prong’ of Lemon v Kurtzman was not itself a ground for constitutional invalidity.123
The entanglement prong was the leftover of the concept of the ‘wall of separation’, but
in Agostoni the court effectively had it swallowed by the ‘secular effect prong’ of the
Lemon test. The separation of church and state has therefore lost ground as a distinctive
standard of American constitutional law.124 In these circumstances, there is no
contemporary weight in the argument that separation is the definitive approach to the
establishment clause. Thirdly, the wall of separation stimulated protracted controversy
in the United States simply because it is potentially anti-religious. Separating the
religious from the sphere of government action privileges the non-religious or the antireligious in the public square. A separationist view of the establishment clause (with its
emphasis on denying benefits to religious groups) evidently creates a tension with the
free exercise clause (with its emphasis on accommodating religion-based claims).125 It
would certainly be better to read the two clauses as complementary, than in
competition with each other.126
Fourthly, the argument ‘that state neutrality towards religion protects religion
itself from being compromised by entanglement with the state’127 should be dismissed.
As this argument is developed by Jeremy Patrick, it is not one of neutral
evenhandedness. Indeed, in conditions of moral pluralism the term ‘neutrality’ is
problematic, and is probably aspiring to an impossible ideal. The argument is really
one of separation.128 There is no doubt that religionists, and religious groups, may
change their beliefs, practices or policies as a result of engagement with government. A
Christian chaplain under the NSCSWP may well suppress the expression of his beliefs
because of the weight of its ban on proselytising.129 This, of course, is what millions of
other religionists in private employment do every day because of employer
expectations, personal assumptions that religionists make about the moral confines of
an employee’s role, timidity, or even a religiously-motivated respect for others’ beliefs
or autonomy. However, to deny a religionist this role in the public square (and his right
to accept its restrictions on proselytising) ostensibly to protect his religious practice
meets at least three objections. It is discriminatory, paternalistic and, ironically,
120
121
122
123
124
125
126
127
128
129
DOGS (1981) 146 CLR 559, 627.
See text accompanying n 24 above.
521 US 203 (1997).
Ibid 232-3.
This position was confirmed in Zelman v Simmons-Harris, 536 US 639 (2002).
Wojciech Sadurski, ‘On Legal Definitions of “Religion”’ (1989) 63 Australian Law Journal
834, 840-1; see also Wojciech Sadurski ‘Neutrality of Law Towards Religion’ (1990) 12
Sydney Law Review 420. Cf Puls, above n 31, 159, who note that ‘if too strict a view is taken of
establishment, it would amount to hostility to religion’.
Puls, above n 31, 150
See Jeremy Patrick, ‘Religion, Secularism, and the National School Chaplaincy and Student
Welfare Program’ (2014) 33 University of Queensland Law Journal (this edition).
Ibid.
Ibid; Australian Government, National School Chaplaincy and Student Welfare Program
Guidelines
(December
2013)
<http://docs.education.gov.au/system/files/doc/other/nscswp_guidelines.pdf> (‘Guidelines’)
15.
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embeds a distinct preference for certain kinds of religious expression in the
constitutional settlement.
The discriminatory aspect of this argument has already been dealt with;130 the nonreligious are not excluded from public roles in the same way, and presumably would not
be subject to the same bans on proselytising for secular or Humanist moral positions. The
paternalism is revealed by the emphasis that this argument places on the protection of the
religious, and in doing so deny them even the capacity to choose whether to take on a
role that will adjust how they might give expression to their faith. As noted, religious
people do this every day when negotiating private employment and different social roles,
and do not necessarily believe that it inevitably compromises their faith. However, this
position also assumes the validity of certain religious positions and not of others. It
endorses a radical religious purity that holds that any association with government or the
broader public culture is morally tainting. Its origins actually lie in a seventeenth century
Puritan view of the different provinces of government and the religious.131 But it is not
the place of agnostic government that has to accommodate a high degree of moral
pluralism amongst its citizenry to prefer Puritanism’s view of the nature of the religious
life. To the contrary, Australian religious life is dominated by denominations and
traditions that are comfortable with association with government, and include those that,
historically, Puritanism was reacting against: the Catholic Church, the Anglican Church
and (despite inheriting aspects of the Puritan tradition) the Presbyterian-Uniting
Churches.132 Certainly, the dominance of government by this ‘religious oligopoly’133 is
something to be avoided, and something that the establishment clause should deter. But
to protect, say, an Anglican’s religious purity from contamination by the state because of
her church’s entanglement with government assumes a claim about the proper province
of the religious that most Anglicans would find puzzling.134 The point is that the
constitutional settlement should embody neither a Puritan nor an Anglican preference for
the nature of religious mission, but should allow religious groups a choice to engage with
government on terms equal to those of any non-religious elements of civil society. If a
religious group does not understand that mission and practice are compromised by an
association with government, or it wants to risk that compromise, the choice to do so
belongs to the group. While they may not ‘code’ their network of relationships with
government as grounded in choice, that is effectively how it happens.
B Non-discrimination
This leaves us with the principle of non-discrimination. If we could ignore the
presence in Australian jurisprudence of DOGS and Rein J’s decision in Hoxton Park,135
we would readily see the principle of non-discrimination as easily the dominant theme of
section 116 in adjudication,136 and with respectable early statements as to the effect of the
establishment clause at Federation. Quick and Garran’s belief that the establishment
130
131
132
133
134
135
136
See text accompanying above nn 125-126.
Cf. Patrick, above n 127; Jimmy Neff, ‘Roger Williams: Pious Puritan and Strict
Separationist’ (1996) 38 Journal of Church and State 529.
These effectively amount to Australia’s ‘religious oligopoly’: cf. James Richardson,
‘Minority Religions (Cults) and the Law: Comparisons of the United States, Europe and
Australia’ (1995) 19 University of Queensland Law Journal 183, 206.
Ibid.
See, eg, Articles of Religion, Article XXXVII; cf. Michael Jensen and Tom Frame, Defining
Convictions and Decisive Commitments – The Thirty-Nine Articles in Contemporary
Anglicanism (Barton Books, 2010) 90-2.
Hoxton Park I [2010] NSWSC 1312.
See text accompanying above nn 34-48.
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clause prevented ‘the erection of a State Church, or the concession of special favours,
titles, and advantages to one church which are denied to others’137 certainly needs
extension. It should be recast for religious groups other than Christian churches and for
the non-religious, but the spirit of even-handedness between religions and between the
religious and the non-religious remains evident.138 Four judges in DOGS considered a
principle of non-discrimination. Murphy J rejected it because it did not go far enough.139
Stephen and Mason JJ both noted that, in the 1890s, the First Amendment was
understood to require non-discrimination, even if this did not prohibit governmental
assistance for religious schools generally.140 Mason J also considered the importance of
religious equality in colonial Australia at considerable length. He even adopted Quick
and Garran's interpretation, but qualified it (without giving reasons why) by holding that
the concession of preferences to one religious group over another could only be invalid if
it created a national church or religion.141 Wilson J also identified in the establishment
clause a prohibition on the selection of one religious group for preferential treatment, but
again only to the extent that it created a national church.142 Their silence means we
cannot gauge why Stephen, Mason and Wilson JJ stepped back from the principle of
non-discrimination. Indeed, none could even explain why subordinating the principle of
non-discrimination to the national church interpretation was even necessary to the
decision in DOGS.
Quick and Garran also received support from French J in an establishment clause
challenge in the Federal Court in 1990. In Nelson v Fish,143 there was a challenge to the
federal Attorney-General Department’s refusal to register a religious group called ‘God's
Kingdom Managed by his Priest and Lord’ as a recognised denomination entitled to
solemnise marriages under the Marriage Act 1961 (Cth). The reason was that ‘God’s
Kingdom’ had only one congregation, and so did not satisfy departmental guidelines
issued under the Act. French J held that the guidelines did not offend the establishment
clause. He admitted that there could be some valid preference to one religion over another,
but the only preference he was prepared to identify as prohibited in the administration of
the Marriage Act was one which gave a particular denomination a monopoly to solemnise
legally recognised marriages.144 However, French J also approved Quick and Garran’s
interpretation of the establishment clause (although he did not refer to Mason J’s
qualification of this in DOGS). He nevertheless did not apply the principle of religious
equality to the administration of the Marriage Act, but only said that the Commonwealth
marriage power had to be interpreted broadly.145 The result is consistent with DOGS.146
137
138
139
140
141
142
143
144
145
146
Quick and Garran, above n 28, 951.
Cf Puls, above n 31, 158, where it is assumed that the DOGS majority adopted Quick and
Garran’s view. This is incorrect, and ignores the coordinating conjunction ‘or’ in Quick and
Garran’s definition: see text accompanying below nn 139-142.
DOGS (1981) 146 CLR 559, 624.
Ibid 609-10 and 614.
Ibid 612, 613 and 617.
Ibid 653.
(1990) 92 ALR 187.
Ibid 191.
Ibid 191.
An application for special leave to appeal against French J’s decision in Nelson v Fish was made
in the High Court. Special leave was refused on procedural grounds, but Deane J indicated he
was prepared to hear argument on the validity of the matrimonial legislation relating to
recognised denominations under the establishment and religious test clauses: D Solomon,
‘Marriage Act and Constitution Make Unhappy Bedfellows’, The Australian, 3-4 December
1988, 18.
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C The school chaplains program revisited
It would be rash, without a closer analysis of the NSCSWP, to attempt anything
more than a tentative evaluation of its compatibility with the establishment clause.
And, of course, as ‘an overriding provision’ no part of section 116 could become
relevant to the program unless there is, in the first place, a positive grant of power
allowing the Commonwealth to legislate in respect of chaplains, schools or
education.147 I bypass that important question.
The DOGS approach to the establishment clause would naturally see the clause
have no relevance to the NSCSWP. If the federal Parliament can provide funding for
religious schools, with no restrictions placed on the uses to which the funds can be
applied, then it must surely be able to provide funds for chaplains in State schools
subject to bans on proselytising. If the Hoxton Park litigation eventually concludes that
federal school funding can be used to build places of worship, this argument becomes
even stronger. The program cannot be regarded as substantially different from the
federal assistance provided in the DOGS Case or Hoxton Park, and is certainly not
likely to give the extent of support to religious mission and ministry as federal funding
of religious schools presently does. It does not come close to the creation of an
Australian national church or religion or, as French J framed it in Nelson v Fish, a
single denominational monopoly.148
The principle of non-discrimination is slightly more intrusive, and would be more
likely to shape conditions on which a State school chaplains program could be
conducted. First, there is the question of nomenclature. The NSCSWP provides for
employees called ‘chaplains’ or ‘student welfare workers’.149 Dr Patrick suggests that
the distinction between the two should be collapsed, and that the employees would be
best described just as ‘student welfare workers’.150 The proposal echoes Heydon J in
Williams, who thought that it would have been preferable to resort to mollifying role
descriptions ‘like “mentor” or “adviser” or “comforter” or “counsellor” or even
“consultant”’.151 The mollification, naturally, would be directed towards secularists and
anti-religionists, who have objected to State school chaplains named as such since the
NSCP. This is certainly a possible solution, given the willingness of Christian churches (in
particular) to describe ministerial roles in the language of the ‘non-religious’ – I do not use
the term ‘neutral’. It may not serve the political purposes of pork-barrelling the Christian
vote, providing funding for chaplaincy roles that churches had exclusively self-funded
before the NSCP was introduced.152 However, so long as the program does not express a
preference for the religious over the non-religious, it could be assumed that principles of
non-discrimination have been met by the simultaneous use of the terms ‘chaplains’ and
‘student welfare workers’. The inclusion of the non-religious designation therefore may
well have improved the viability of the NSCSWP after Williams.
Secondly, there is the role that chaplains and welfare workers have of attending to
the ‘spiritual wellbeing’ of students.153 This was a prominent part of the NSCP. In the
147
148
149
150
151
152
153
Jehovah’s Witnesses (1943) 67 CLR 116, 122-3.
(1990) 92 ALR 187, 191.
Guidelines, above n 129, 12.
Patrick, above n 127.
Williams (2012) 288 ALR 410, 495.
Patrick, above n 127.
Guidelines, above n 129, 14, 51. Patrick notes the problems of conceptualising and
identifying the spiritual, and therefore that it is not possible to ‘know, in an epistemological
sense, whether any student is in real need of spiritual assistance or what form that assistance
should take’: above n 127. The term is bland, and rightly so, as it avoids corralling certain
kinds of belief (in ideas and things beyond the empirical) into the categories of world
religions and denominations.
128
University of Queensland Law Journal
2014
NSCSWP, ‘supporting students who express a desire to explore their spirituality’ and
‘providing services with a spiritual content’ are set beside ‘providing students, their
families and staff with support ... in difficult situations such as during times of grief or
when students are facing personal or emotional challenges’.154 The role also includes
‘running breakfast clubs’, ‘delivering peer leadership and support programmes’,
‘participation in school activities such as camps, sport, gardens etc’, ‘attending Parents
and Citizens’ … meetings’ and ‘mentoring/coaching’.155 It is evident that the
Government aimed to blend the ‘spiritual’ aspect of the role with broader, nonreligious support and counselling functions. In doing so, it improved the NSCSWP’s
compatibility with principles of non-discrimination, as it is much harder to argue that
the scheme is ‘a concession of special favours … and advantages’ to the religious that
are denied to the non-religious. Equally, the inclusion of ‘spirituality’ in the areas for
which chaplains and welfare workers can provide support concedes that this is a
dimension of the human condition that is important to the religious (in the broadest
sense) and does not limit the services to an empirical understanding of the human that
religious Australians regard as incomplete. In that respect, its recognition that some
parents may wish for spiritual support means that the program does not discriminate
against the religious.156
Thirdly, there is the ban on proselytising.157 This is supplemented by bans on
‘initiating faith discussions with a view to coercing or manipulating students to a
particular view or spiritual belief’ and ‘attempting to undermine students’ religious or
other beliefs’.158 There is a preference that chaplains not be involved in religious
education classes that are held in the school.159 These bans create no tension with the
free exercise clause, as the roles are not legally coerced but are voluntarily assumed.
And it is notable that the bans on proselytising apply to all chaplains and welfare
workers, and so would prohibit any attempts at promoting Humanist or anti-religious
positions as well as faith-based evangelism. The aim of the principle of nondiscrimination is to coordinate, sometimes through extremely messy arrangements,
Australia’s religious and moral pluralism and to assure equal access to the public
square. The State schoolyard is probably one of the most intensive physical
expressions of that ‘public square’. It is therefore necessary that government set terms
of cooperation that encourage people with profoundly different religious or moral
beliefs to coexist peacefully – particularly when it is partly funding the service. A ban
on proselytising seems central to that cooperation, and a fundamental expression of the
chaplain’s or welfare worker’s respect for the students, and for their parents’ beliefs as
to how best to inculcate faith, or to reject or ignore it.
There are no doubt other complications of the NSCSWP that could potentially rub
against constitutional principles.160 However, the Williams litigation itself forced a
154
155
156
157
158
159
160
Guidelines, above n 129, 15.
Ibid 15.
The inclusion of religious and non-religious dimensions in a program to ensure its
constitutionality echoes the US cases concerning Nativity scenes on public land, where the
display became permissible if secular symbols of Christmas (a decorated tree, Santa Claus)
were grouped around the Nativity scene: cf. Lynch v Donnelley, 465 US 668 (1984) with
County of Allegheny v American Civil Liberties Union, 492 US 573 (1989). Although these
cases have been lampooned, they remind us that government should be scrupulous in its
impartial treatment of different religious groups, and of the religious and non-religious.
Guidelines, above n 129, 15.
Ibid 15-16.
Ibid 15.
Patrick’s account of the NSCSWP usefully identifies a number of other issues that deserve
comment, including the means of parental consent for the chaplain’s or welfare worker’s
working with students; the criterion that, if a funding recipient is a religious group, it be ‘a
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The Establishment Clause: A Search for Meaning
129
rethinking of the State schools chaplains program and, in doing so, helped to improve
the even-handedness of the scheme. Hopefully, it will help to bring Australia’s
establishment clause jurisprudence to the same point.
recognised religion’; school-based selection of chaplains or welfare workers; and the
practical dominance of Christian denominations in the program: above, n 127.