THE ESTABLISHMENT CLAUSE: A SEARCH FOR MEANINGnot help the court come to that conclusion. Only the...

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

* 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.

1 (2012) 288 ALR 410 (‘Williams’). 2 Ibid 416. 3 Ibid 416. 4 Ibid 416. 5 Williams v Commonwealth [2011] HCATrans 198, 10. 6 Williams (2012) 288 ALR 410, 446.

110 University of Queensland Law Journal 2014

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 Ibid 446. 8 Ibid 460. 9 Ibid 537. 10 Ibid 562. 11 Ibid 495. 12 Ibid 495. 13 Ibid 532. 14 Attorney-General (Victoria) (ex rel Black) v Commonwealth (1981) 146 CLR 559 (‘DOGS’). 15 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.

16 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’).

17 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’).

Vol 33(1) The Establishment Clause: A Search for Meaning 111

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 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’).

19 Ibid 1770. 20 143 US 457 (1891). 21 Ibid 465, 471; see also Zorach v Clauson 343 US 306, 313 (1952). 22 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. 23 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.

24 Richard Ely, Unto God and Caesar (Melbourne University Press, 1976) 26-30.


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 Ibid 1, 76-88; John Andrew La Nauze, The Making of the Australian Constitution (Melbourne

University Press, 1972) 229. 26 Ely, above n 24, 87; Official Record, above n 18, 1769, 1778. 27 See Higgins, above n 23. 28 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth

(Sydney, 1901) 951. 29 Stephen McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section

116’ (1992) 18 Monash University Law Review 207, 222-3. 30 William Harrison Moore, The Constitution of the Commonwealth of Australia (Charles F.

Maxwell, 2nd ed, 1910) 55.


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 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.

32 (1912) 15 CLR 182. 33 Ibid 194. 34 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.

35 Mauger v Mauger (No 1) (1966) 10 FLR 285, 302; Kiorgaard v Kiorgaard and Lange [1967] Qd R 162, 165-7.

36 (1972) 19 FLR 296.


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 Ibid 302. 38 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.

39 Unreported, High Court of Australia, 5 March 1982. 40 (1987) 11 Fam LR 435, 440. 41 [1988] FLC 91-171 (76-024). 42 See Anthony Dickey, Family Law (Law Book Co., 5th ed, 2007) 311-12. 43 (1917) 23 CLR 546; cf. Michael Blakeney ‘Sequestered Piety and Charity - A Comparative

Analysis’ (1981) 2 Journal of Legal History 207, 220-3. 44 1 Edw VI c 14. 45 (1917) 23 CLR 546, 568. 46 Ibid. 47 [1985] 1 NSWLR 525.


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 Ibid 544. 49 Michael Hogan, The Catholic Campaign for State Aid (1978) 1-6; The Sectarian Strand

(Penguin, 1987) 94, 251-5. 50 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).

51 Australian Constitution, ss 81, 96, 122.


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 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. 53 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’).

54 Elaine Thompson, ‘The “Washminster” Mutation’ (1980) 15(2) Politics 34, 38. 55 See Reid Mortensen, ‘The Unfinished Experiment: A Report on Religious Freedom in

Australia’ (2007) 21 Emory International Law Review 167, 167, 173-4. 56 DOGS (1981) 146 CLR 559, 577-8, 654. 57 For recent criticism of this approach, see Commonwealth v Australian Capital Territory

[2013] HCA 55, [20]-[23]. 58 [1907] 2 KB 112, 126.


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 DOGS (1981) 146 CLR 559, 607. 60 See text accompanying nn 81-84 below. 61 DOGS (1981) 146 CLR 559 , 616. 62 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.

63 The UK Parliament later abdicated this lawmaking power in the Church of Scotland Act 1921 (UK), s 1.

64 [1904] AC 515. 65 DOGS (1981) 146 CLR 559, 582. 66 Ibid 653. 67 See General Assembly of the Free Church of Scotland v Overtoun [1904] AC 515, 646, 656,

677, 694.


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 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 Anglo-Calvinist 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.

69 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.

70 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.

71 DOGS (1981) 146 CLR 559, 622-3, 632-3. 72 403 US 602 (1971). 73 330 US 1 (1947). 74 DOGS (1981) 146 CLR 559, 656-7.


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 Ibid 632. 76 Ibid 632. 77 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). 78 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).

79 Reynolds v United States, 98 US 145 (1898). 80 330 US 1 (1947). 81 Mortensen, Judicial In(A)ctivism, above n 53, 61. 82 (1943) 67 CLR 116, 123; see also 156 (‘Jehovah’s Witnesses’). 83 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.

84 DOGS (1981) 146 CLR 559, 654.


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 Jehovah's Witnesses (1943) 67 CLR 116, 132 (emphasis added). 86 Cf PJ Hanks, F Gordon and G Hill, Constitutional Law in Australia (3rd ed, Sydney, 2012) 612. 87 Jehovah's Witnesses (1943) 67 CLR 116, 122-3. 88 (1912) 15 CLR 366 (‘Krygger’); and see also ‘The “Conscience Plea” Overruled by the High

Court’, The Age, 16 October 1912, 8. 89 Defence Act 1903 (Cth), ss 125 and 135. 90 Krygger (1912) 15 CLR 366, 369. 91 Ibid 372. 92 Jehovah's Witnesses (1943) 67 CLR 116, 131-2, 149, 15, 160.


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 DOGS (1981) 146 CLR 559, 579, 583-4, 604, 615-16, 653. 94 Hoxton Park I [2010] NSWSC 1312, [31]. 95 Ibid [34]. 96 Ibid [35]. 97 Hoxton Park II [2011] NSWCA 363, [36]-[37]. 98 See Hoxton Park III [2014] NSWSC 372; Hoxton Park IV [2014] NSWSC 433. 99 Minister for Immigration & Ethnic Affairs v Lebanese Moslem Association (1987) 71 ALR 578,

584-5, 578. 100 (1997) 190 CLR 1, 73 (‘Kruger’). 101 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.


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 Kruger (1997) 190 CLR 1, 160-61. 103 Ibid 161. 104 Ibid 133-4. 105 Ibid. 106 Hoxton Park II [2011] NSWCA 363, [36]. 107 Hoxton Park IV [2014] NSWSC 433. 108 Emphasis added. 109 DOGS (1981) 146 CLR 559, 576, 593, 618 621, 651. See also Hoxton Park II [2011] NSWCA

363, [26]. 110 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; Cumbrae-Stewart, above n 31; Clifford Pannam ‘Section 116 and the Federal Territories’ (1961) 35 Australian Law Journal 209.

111 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.

112 (1912) 15 CLR 182, 194. 113 Jehovah’s Witnesses (1943) 67 CLR 116.


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 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.

115 See text accompanying nn 5-13 above. 116 Williams (2012) 288 ALR 410. 117 See text accompanying n 111 above. 118 See text accompanying nn 81-84 above. 119 See text accompanying nn 69-80 above.


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 anti-religious 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 DOGS (1981) 146 CLR 559, 627. 121 See text accompanying n 24 above. 122 521 US 203 (1997). 123 Ibid 232-3. 124 This position was confirmed in Zelman v Simmons-Harris, 536 US 639 (2002). 125 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’.

126 Puls, above n 31, 150 127 See Jeremy Patrick, ‘Religion, Secularism, and the National School Chaplaincy and Student

Welfare Program’ (2014) 33 University of Queensland Law Journal (this edition). 128 Ibid. 129 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.


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 non-religious 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 See text accompanying above nn 125-126. 131 Cf. Patrick, above n 127; Jimmy Neff, ‘Roger Williams: Pious Puritan and Strict

Separationist’ (1996) 38 Journal of Church and State 529. 132 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.

133 Ibid. 134 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.

135 Hoxton Park I [2010] NSWSC 1312. 136 See text accompanying above nn 34-48.


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 Quick and Garran, above n 28, 951. 138 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.

139 DOGS (1981) 146 CLR 559, 624. 140 Ibid 609-10 and 614. 141 Ibid 612, 613 and 617. 142 Ibid 653. 143 (1990) 92 ALR 187. 144 Ibid 191. 145 Ibid 191. 146 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.


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 Jehovah’s Witnesses (1943) 67 CLR 116, 122-3. 148 (1990) 92 ALR 187, 191. 149 Guidelines, above n 129, 12. 150 Patrick, above n 127. 151 Williams (2012) 288 ALR 410, 495. 152 Patrick, above n 127. 153 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.


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, non-religious 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 non-discrimination 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 Guidelines, above n 129, 15. 155 Ibid 15. 156 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.

157 Guidelines, above n 129, 15. 158 Ibid 15-16. 159 Ibid 15. 160 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


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.

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