Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom
| Author | Alex Deagon |
| Published date | 01 March 2018 |
| Date | 01 March 2018 |
| DOI | http://doi.org/10.22145/flr.46.1.5 |
| Subject Matter | Article |
LIBERAL ASSUMPTIONS IN SECTION 116 CASES AND
IMPLICATIONS FOR RELIGIOUS FREEDOM
Alex Deagon*
ABSTRACT
It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the
Australian Constitution have been interpreted narrowly by the High Court of Australia.
However, there has been limited examination of theoretical assumptions or perspectives
which may have consciously or unc onsciously informed this interpretation. This article
argues the High Court has adopted liberal assumptions about the nature of religion and
its relationship to the state in the Section 116 cases. These liberal assumptions are a sharp
distinction between ‘private’ religious and ‘public’ non-religious exercise, that re ligious
freedom is subject to state determinations of what is required for neutrality between
religions, and religious freedom is subject to state determinations of what is required for
social order. The article proceeds to consider the implications of these assumptions for
Section 116 cases in terms of a narrowing of religious freedom and a broadening of state
power, and suggests awareness of these issues may produce a more nuanced approach
to Section 116 in the future.
I INTRODUCTION
This article explores the jurisprudence underlying High Court decisions relating to the
free exercise and establishment clauses in Section 116 of the Australian Constitution. It
suggests the High Court has adopted and applie d particular assumptions in its
interpretation of s 116. The article identifies these assu mptions: firstly, that there exists
a sharp distinction between ‘private’ religious a nd ‘public’ non-rel igious exercise;
secondly, that religious freedom is subject to state determinations of what is required for
neutrality between religions; and thirdly, that religious freedom is subject to state
determinations of what is required for social order. These assumptions are analysed and
the article argues they are l iberal in nature, reflecting the general liberal understanding
of the relationship between religion and the state. This relationship can be termed as the
‘separation of church and state’.
1
* Lecturer, Faculty of Law, Queensland University of Technology. I wish to than k Professor
Nicholas Aroney for helpful feedback on earlier drafts of this article, and the anonymous
reviewers for their generous engagement.
1
See, eg, Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford University
Press, 2nd ed, 2013) 51–87. The ‘liberal’ idea is discussed further in Section II.
114 Federal Law Review Volume 46
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It is important to identify that any version of ‘separation betwee n church and state’
enshrined in Australian law is provided by s 116. As Stephen J noted in Attorney-General
(Vic); Ex rel Blac k v Commonwealth, s 116 ‘cannot readily be viewed as the repository of
some broad statement of principle concerning the sep aration of church and state, from
which may be distilled the detailed consequences of such separation’.
2
Beck usefully
clarifies that ‘in A ustralia, at the federal level, the constitutional “separation of Church
and State” means only the legal effect of s 116’.
3
Consequently, religious freedom in
Australia and its appropriate relationship to the state is provided precisely thro ugh the
legal effect given to s 116—or, more specifically, the interpretation of s 116 by the High
Court.
If any extant (e.g. liberal) assumptions about the relationship between religion and
the state are explicitly or implicitly, consciously or unconsciously, critically or
uncritically, assumed and integrated into interpretation of s 116 by the High Court, the
effect would be to mold the section to fit these assumptions. This, in turn, means
Australia has a particular liberal version of ‘separation of church a nd state’ where there
is a kind of inverse relationship bet ween religious freedom and state power. As s 116 is
a limit on Commonwealth power, it therefore follows that if a narrower interpretation
of s 116 arises out of these liberal a ssumptions, Commonwealth legislative power will
be less limited. For example, that might explain why the free exercise clause has been
interpreted narrowly rather than broadly. As ‘free exercise’ is interpreted narrowly by
the High Court in accordance with certain liberal assumptions, state power
correspondingly expands, leading to the restrictions on religious freedom we see in the
cases. The article concludes by suggesting that identification of this ‘inverse relationship’
might persuade the High Court to develop a free exercise jurisprudence which is more
consistent with Australia’s international commitments to religious freedom.
This article will only address the cases explicitly co nsidering the free exercise and
non-establishment clauses.
4
It is not primarily concerned with evaluating the validity of
the assumptions, though it will identify potential issues along the way.
5
The focus is on
identifying what the assumptions are and how they are present and operative in the
cases, indicating they are liberal, and considering t he implications for interpretation of
‘establishment’ and ‘free exercise’ in the context of expanding state power and
2
(1981) 146 CLR 559, 610–12 (‘DOGS’).
3
Luke Beck, ‘Clear and Emphatic: The Separation of Church and State Under the Australian
Constitution’ (2008) 27(2) University of Tasmania Law Review 161, 164.
4
Krygger v Williams (1912) 15 CLR 366 (‘Krygger’); Adelaide Company of Jehovah’s Witnesses Inc.
v Commonwealth (1943) 67 CLR 116 (‘Jehovah’s Witnesses’); DOGS (1981) 146 CLR 559; Church
of the New Faith v Commissioner of Pay-Roll Tax (Vic) (1983) 154 CLR 120 (‘Church of the New
Faith’) (which considers the definition of religion in a way which is applicable to the free
exercise clause); Kruger v Commonwealth (1997) 190 CLR 1 (‘Kruger’).
5
For detailed discussions surrounding the validity of such liberal assumptions see, eg, Ahdar
and Leigh, above n 1; Gavin D’Costa et al (eds), Religion in a Liberal State (Cambridge
University Press, 2013); Steven Smith, Foreordained Failure: The Quest for a Constitutional
Principle of Religious Freedom (Oxford University Press, 1995); Bryan McGraw, Faith in Politics:
Religion and Liberal Democracy (Cambridge University Press, 2010); Michael McConnell, ‘Why
Protect Religious Freedom’ (2013) 123(3) Yale Law Journal 770; Christopher Eberle, Religious
Conviction in Liberal Politics (Cambridge University Press, 2002); Alex Deagon, ‘Liberal
Secularism and Religious Freedom in the Public Space: Reforming Political Discourse’ (2018)
41(3) Harvard Journal of Law and Public Policy (forthcoming).
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