Higgins' Argument for Section 116 of the Constitution
| Date | 01 September 2013 |
| Author | Luke Beck |
| DOI | 10.22145/flr.41.3.1 |
| Published date | 01 September 2013 |
| Subject Matter | Article |
CONSTITUTION
Luke Beck*
ABSTRACT
The argument that led to the inclusion of s 116 of the Constitution, a provision that
provides a limited guarantee of religious freedom in Australia, has not been properly
understood. The standard account of the argument presented by the proponent of the
clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential
power to legislate with respect to religion could be drawn from the religious words of
the constitutional preamble. This article argues that the standard account of Higgins'
argument is wrong and that the substance of Higgins' concern was a realisation that
the Commonwealth's enumerated powers were wide enough to authorise legislation
dealing with religion.
I INTRODUCTION
The argument that led to the inclusion of s 116 of the Constitution, a provision that
provides a limited guarantee of religious freedom in Australia, has not been properly
understood. The provision states: '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.' The clause was
proposed and pursued by Henry Bournes Higgins at the Constitutional Convention of
1897–8 at which the Constitution was drafted. The argument Higgins presented
appears, on first inspection, to be rather odd. Relying on cases and events in America,
the nature of which he misrepresented to the Convention, Higgins appeared to argue
that the reference to 'Almighty God' in the constitutional preamble might give rise to a
Commonwealth power to legislate in respect of religion. At first glance, the argument
_____________________________________________________________________________________
*
BJuris, LLB(Hons) UNSW, LLM Syd, PhD Candidate, Postgraduate Fellow and Associate,
Constitutional Reform Unit, Sydney Law School, The University of Sydney. This article is a
revised version of a paper presented at the University of Sydney Postgraduate Law
Conference, Sydney Law School, 1 November 2012. The author thanks Helen Irving, Anne
Twomey and the anonymous referees for comments on earlier versions of this article.
394
Federal Law Review
Volume 41
____________________________________________________________________________________
appears to be sophistry. Indeed, the Convention's leader, Edmund Barton, described it
as 'far-fetched'.1
This article argues that Higgins' argument was neither sophistry nor far-fetched. It
argues that the fundamental concern underlying Higgins' argument, which in reality
had little to do with the preamble, reflects what would now be considered an orthodox
approach to constitutional interpretation. Although presented in a spectacularly
confused manner, the true substance of Higgins' argument was that although the
Commonwealth was not granted any express power to legislate with respect to
religion, those powers that the Commonwealth was expressly granted were wide
enough to authorise legislation respecting religion.
The article begins by setting out the standard account of Higgins' argument for
s 116 as presented by various scholars and judges. It then briefly surveys the political
background to s 116, which provides the context in which Higgins presented his
argument. That background involves the political campaigns for and against the
inclusion of a reference to 'Almighty God' in the constitutional preamble as well as
Higgins' broader motives in introducing a provision prohibiting laws touching
religion. The article then sets out Higgins' argument as he presented it to the
Convention. Next, the article closely examines the evidence — American case law and
legislation — on which Higgins based his argument. The article then examines
Higgins' thinking on two matters: what he knew about the American case law and
legislation on which he based his argument and how he understood the nature of
constitutional grants of legislative powers. Finally, bringing together the analysis
presented so far, the article presents an alternative reading of Higgins' argument for s
116 to that presented by the standard account.
II
THE STANDARD ACCOUNT OF HIGGINS' ARGUMENT
What might be called the 'standard account' of Higgins' argument for s 116 goes
something like this. The insertion of the words 'humbly relying on the blessing of
Almighty God' in the preamble to the Commonwealth of Australia Constitution Bill
(Imp) might be taken as the basis for an implication that, notwithstanding the absence
of an express power to legislate with respect to religion, the Commonwealth was
indeed empowered to legislate with respect to religion. A provision such as s 116 is
therefore necessary to prevent any such implication being drawn or to counteract any
such implication.
This is how Edmund Barton, the Leader of the Convention and later the first prime
minister and a justice of the High Court, seems to have understood Higgins' argument.
At the close of the Constitution Convention, Barton summarised the key parts of the
draft Constitution. Referring to the preamble and to s 116, he said:
While, therefore, a concession has been made to the popular opinion that some
reverential expression should be embodied in the preamble, due care has been taken by
the Convention that no reliance upon that provision, and no far-fetched arguments based
_____________________________________________________________________________________
1
Official Report of the National Australasian Convention Debates, Melbourne, 17 March 1898,
2474.
2013
Higgins' Argument for Section 116 of the Constitution
395
____________________________________________________________________________________
upon it, shall lead to any infraction of religious liberty under the laws of the
Commonwealth which we hope to create.2
It is also the account presented by Quick and Garran in their Commentaries on the
Constitution of the Commonwealth of Australia:
Referring to [the preamble], it was stated by Mr Higgins that, although the preamble to
the Constitution of the United States contained no such words as these, it had been decided
by the courts in the year 1892 that the people of the United States were a Christian
people; and although the Constitution gave no power to Congress to make laws relating to
Sunday observance, that decision was shortly afterwards followed by a Federal
enactment declaring that the Chicago Exhibition should be closed on Sundays. This law,
he said, was passed simply on the ground that among Christian nations Christian
observances should be enforced. If, then, such Federal legislation could be founded on a
Constitution which contained no reference whatever to the Almighty, how much more
likely was it that the Federal Parliament might, owing to the recital in the preamble, be
held to possess power with respect to religion of which we have no conception.
Consequently, argued Mr Higgins, the power to deal with religion in every shape and
form should be clearly denied to the Federal Parliament.3
Later commentators have also presented the same account of Higgins' argument. In
an article in 1963, Clifford Pannam wrote: '[The religious words in the preamble],
Higgins claimed, would inferentially give the Commonwealth government power to
regulate religion.'4 In 1972, JA La Nauze wrote in The Making of the Australian
Constitution:
If, as [Higgins] argued, the American courts could decide that the United States was a
Christian country though its Constitution made no mention of God, the addition to the
preamble now gave some positive warrant to Australian courts to rule likewise and so to
justify intolerant or restrictive legislation.5
The Final Report of the Constitutional Commission in 1988 cited Pannam's article as
authority for the proposition that Higgins 'maintained, on the basis of what he said
was American experience, that without a suitable restriction on the power of the
Commonwealth, the mention of "Almighty God" in the preamble might result in the
High Court holding that the Commonwealth could make laws about religion.'6 In 1992,
Stephen McLeish wrote in an article that Higgins '[feared] that a reference to religion in
the preamble could indicate an implicit federal power to make laws respecting
religion'.7 Joshua Puls in a 1998 article wrote that Higgins 'was concerned to ensure
that a reference to God did not indicate an implicit federal power to make laws with
_____________________________________________________________________________________
2 Ibid.
3
John Quick and Robert Randolph Garran, The Annotated Constitution of the Commonwealth of
Australia (Angus & Robertson, 1901) 952.
4
Clifford Pannam, 'Travelling Section 116 with a US Road Map' (1963) 4 Melbourne
University Law Review 41, 53.
5
JA La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972)
229.
6
Commonwealth, Final Report of the Constitutional Commission (Australian Government
Publishing Service, 1988) vol 1, 610.
7
Stephen McLeish, 'Making Sense of Religion and the Constitution: A Fresh Start for Section
116' (1992) 18 Monash University Law Review 207, 219.
396
Federal Law Review
Volume 41
____________________________________________...
To continue reading
Request your trial