Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It provides: ‘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 limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things 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 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.
The Australian Constitution contains two provisions concerning religion: a reference to “Almighty God” in the preamble and a provision denying the Federal Parliament power to legislate in respect of religion. The inclusion of those two provisions by the National Australasian Convention, which met from 1897 to 1898 to draft the Australian Constitution, was in large measure a result of political campaigns undertaken by competing religious groups. The first group, the Councils of Churches in each colony representing the main Protestant denominations, agitated for a constitutional “recognition” of God. The second group, the Seventh Day Adventists, campaigned against any constitutional recognition of God and for the inclusion of a provision limiting the Federal Government's power in respect of religion. The Adventists held fears that constitutional “recognition” of God would empower the federal parliament to pass nation‐wide Sunday observance laws. This article explores the theological and legal thinking of the Seventh Day Adventists to explain how they came to believe what, on a strict legal analysis, was highly implausible.
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