The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Australian Constitution

Publication Date01 September 2016
DOI10.1177/0067205X1604400307
Date01 September 2016
AuthorLuke Beck
SubjectArticle
THE CASE AGAINST IMPROPER PURPOSE AS THE
TOUCHSTONE FOR INVALIDITY UNDER SECTION 116 OF
THE AUSTRALIAN CONSTITUTION
Luke Beck*
ABSTRACT
Section 116 of the Australi an Constitution limits the ability of the Commonwealth to
legislate in respect of religion. It provides: ‘The Co mmonwealth shall not make any law
for establishing any religion, or for i mposing any religious observance, or for prohib iting
the free exercise of any religion, and no religious test shall be require d as a qualification
for any office or public trust under the Commonwealth.’ The limited case law on s 116
holds that the word ‘for’ means ‘f or the purpose of’ such that improp er legislative
purpose is the test for invalidity rather than a consideration of whet her an impugned
law has the effect of doing one of the thin gs prohibited by s 116. This article argues that
the ‘for the purpose of’ interpretation is misconceived and therefore that the improper
purpose test is wrong.
I INTRODUCTION
Section 116 of the Australi an Constitution limits the a bility of the Commonwealth to
legislate in respect of religion. It provides: ‘The Co mmonwealth shall not make any law
for establishing any religion, or for i mposing any religious observance, or for prohibiting
the free exercise of any religion, and no religious test shall be required a s a qualification
for any office or public trust under the Commonwealth.’ The limited case law on s 116
holds that the word ‘for’ means ‘f or the purpose of’ such that improper legis lative
purpose is the test for invalidity r ather than a consideration of whet her an impugned
law has the effect of doing one of the thin gs prohibited by s 116. This article argues that
the ‘for the purpose of’ interpretation is misconceived and therefore that the improper
purpose test is wrong.
The difference between these two competing interpretations is significant in principle
and in effect. As a matter of principle, getting the details of constitutional interpretation
correct is important in its o wn right and as a means of presenting a coherent analysis of
the law. In practice, the difference between the two interpretations affects the scope of
the limitation imposed by s 116 on Commonwealth le gislation. The ‘for the pur pose of’
interpretation has the consequence, for example, that laws that seriously interfere with
the free exercise of religion will not be invalid if that is an unintentio nal by-product of
* BJuris, LLB (Hons1) UNSW, LLM, PhD, Sy dney. Lecturer, School of Law, Western Sydney
University.
506 Federal Law Review Volume 44
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the pursuit of some other legislative purpose. A ‘with respect to’ interpretation has the
consequence that such laws , even though enacted in pursuit of some other legislative
purpose, will be invalid. The ‘with respect to’ interpretation thus offers a much broader
protection of religious freedom than does the ‘for the purpose of’ interpretation.
The article begins in part II by examining the significa nce attributed to purpose in
the High Court’s case law on s 116. Part II shows how two competing interpretations of
the word ‘for’‘for the purpose of ’ and ‘with respect to’have emerged in the case law
and examines the reasonin g offered by the High Cour t for the eventual adoption of the
purposive interpretation. Part III of the article then examines the drafting history of s
116 and argues that the framers of the Constitution did not use the word ‘for’ with any
intention of importing a pu rposive element into s 116 and that the use of the wor d ‘for’
turns out to be an accident of drafting. In part IV, the article argues that the improper
purpose test is inconsistent with the general purposes prompting the inclusion of s 116
in the Constitution. The framers of the Constitution were seeking to limit the scope of the
subject matters with respect to which the Comm onwealth might legislate. Part V argues
that the purposive interpretation of the word ‘for’ is inconsistent with the High C ourt’s
contemporary approach to constitutional interpretat ion, which holds that prohib itions
on power should not be interpreted narrowly or restrictively but rather interpreted with
all the generality which the langua ge used will admit. In Part VI, the article argues that
the improper purpose test suffers from analytical problems in practice because recent
High Court case law suggests that a law has the p urpose of doing all the things it in fact
does or is likely to do. Par t VI also shows how a number of judges who adopted the
purposive interpretation have in their application of that test focused on the effects of
impugned laws. Part VII offer s some concluding observations about how the word ‘for’
in s 116 should be understood.
II THE COMPETING JUDICIAL INTERPRETATIONS OF ‘FOR’
The High Court’s analysis of the significance of the word ‘for’ has been neither clearly
reasoned nor consistent in the sma ll number of cases concerning s 11 6 that have come
before the court. In general, however, two competing interpretations of the significance
of the word ‘for’ emerge from the case law. The first interpretation holds that laws with
respect to one or more of the things prohibited by s 116 will be invalid. The second
interpretation holds that only laws with the purpose of doing one or more of the t hings
prohibited will be invalid. This secti on of the article charts the emergence of these
interpretations in the High Court’s case law.
A The Significance Attributed to Purpose in the Case Law
The High Court has dealt with four cases concerning the first three clauses of s 116, and
each of them suggests something about the significance of an improper legislative
purpose to s 116 analysis. Those cases will be c onsidered in turn.
1 Krygger v Williams
The first case, Krygger v Williams,1 concerning a claim under the free exercise clause, was
decided in a way suggesting that the High Court was adopting the ‘wit h respect to’
interpretation. The Defence Act 1903 (Cth) required boys aged between 14 and 18 years
to undergo 64 hours of military tr aining each year. Failure to attend training was an
1 (1912) 15 CLR 366 (‘Krygger’).

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