Higgins' Argument for Section 116 of the Constitution

Abstract

<jats:p> 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. </jats:p>

Religious Freedom and Education in Australian Schools

“…Attorney-General (Vic); Ex rel Black v Commonwealth ('DOGS Case') (1981) 146 CLR 559, 605. A vast scholarly literature has developed around the interpretation of s 116: see, e.g., (Aroney et al 2017;Babie 2007Babie , 2011Babie , 2015Babie , 2017Babie , 2018Babie , 2020Babie and Bhanu 2018;Babie and Rochow 2010;Babie et al 2019;Babie and Krumrey-Quinn 2014;Barker 2015aBarker , 2015bBarker , 2020bBarker , 2020dBeck 2016a, Beck 2016bBeck 2013;Krieg and Babie 2013;Langos and Babie 2020). (Tasmanian Constitutional Law Reform Project 2021).…”