As will have been observed by those who have read the previous chapter, "Our English Heritage", the law has accorded to the Parliament of the Uni­ted Kingdom a measure of supremacy. In doing so, it did not necessarily depart from Biblical faith: after all, the Roman emperor was described as Su­preme by the apostle Peter (I Peter 2:13). But once Christianity ceased to be regarded as an integral part of the law of England, the assertion of parlia­mentary supremacy necessarily introduces tensions between the claims of Parliament and the claims of Christ to be Lord (John 13:13).

In Australia, the Parliaments of each of the States and the Commonwealth are in a position somewhat different from that of the United King­dom Parliament. Each of the Australian Parliaments derives its authority from the United Kingdom Parliament. They are, however, in no sense del­egates of it and have inherited British concepts of parliamentary supremacy but the plenitude of power each enjoys is subject to limitations imposed by written constitutions¹. The courts will hold to be invalid laws which transgress the limits but they will not otherwise decline to give effect to laws. The judges may think a law to be undesirable but it has not been thought to be their function to upset it for that reason alone. That is what parliamentary su­premacy is largely about.

It is not within the province of the present article to examine the State Constitutions but our examination of the Australian, or Commonwealth, Constitution immediately demonstrates an awareness that the supremacy of the newly-created Parliament was to be exercised under God. The Commonwealth Constitution was brought into being by section 9 of an Imperial statute, assented to on 9th July, 1900 and cited as the Commonwealth of Australia Constitution Act. The preamble to that statute begins with these words:

"Whereas the people of New South Wales, Vic­toria, South Australia, Queensland; and Tas­mania, humbly relying on the blessing of Al­mighty God, have agreed to unite in one indis­soluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established..." Western Australian readers will be heartened to learn that special provision was made for their col­ony by section 3 of the statute but the important point at this stage is that expression was being made of a people's reliance on Almighty God. "This ap­peal to the Deity was inserted in the Constitution at the suggestion of most of the Colonial Legislative Chambers, and in response to numerous and largely signed petitions received from the people of every colony represented in the Federal Convention" which framed the text that was submitted to the Im­perial Parliament for enactment². The significance of the reference to the Almighty is as much philo­sophical as historical. At the philosophical level, it is cherished by many as an affirmation of the truth that our Parliament, our Courts and the Executive could "have no power... except it were given... from above" (John 19:11). Organs of government may not recognize the significance of the preamble. Modern revisionists may seek to modify it. But, for all that, the words stand as a historic monument to the overwhelming recognition of Almighty God as the foundation of the political union. At the ethical level, the philosophical and historical levels are transcended to produce an unassailable justification for opposition to any brand of totalitarianism. Power is not total; it is exercisable only under One who is all-powerful, the Almighty.

Totalitarianism, of course, may take many forms and the Commonwealth Constitution, the document set out following section 9 of the Imperial statute to which we have referred, has been carefully crafted to prevent the accretion to any one organ of government, or to government as a whole, of undue power. The primary purpose of this chapter is to focus on the means whereby it has been sought to limit governmental power so as to prevent an en­croachment on religious freedom but it will assist, we hope, to first offer a rudimentary outline of the context in which that matter is addressed. In what follows, references to sections will be to the pro­visions of the Commonwealth Constitution itself, and not to the provisions, often for convenience called the covering clauses, of the statute establish­ing it.

Chapter I of the Constitution is divided into five Parts. Part I deals with some introductory matters, the most important being those pertaining to the office of the Governor General, who is the Queen's representative. Part II deals with the membership and election of the upper of the two Houses of Parliament, known as the Senate. Part III deals with the other House, the House of Representatives. Parts IV and V deal with both of these Houses, which, of course, are together called the Parliament of the Commonwealth.. The latter Part is particu­larly important because it spells out the subjects on which the Parliament may make laws. The powers are widely construed but it is the case that the Parliament must be able to rely on some head of power, either expressed or implied, or some combi­nation of powers, to support its legislation: other­wise the legislation will be adjudged invalid by the High Court. In this respect, the Commonwealth Parliament is rather different from its State counter­parts which need not to demonstrate any head of power, although there are a few matters which are beyond their reach; we shall have occasion presently to make brief reference to some such matters.

Chapter II of the Constitution makes some fur­ther provisions about the Governor General and also deals with the armed forces and Ministers of the Crown. Chapter III deals with the establishment and jurisdiction of federal courts, most notably the High Court of Australia, which today is the final in­terpreter of the Constitution and what is authorized or prohibited thereby.

Chapter IV of the Constitution is headed "Fin­ance and Trade". Included within it are two of the provisions most often litigated in the High Court, sections 90 and 92. The former section gives exclu­sive authority to make laws about customs and ex­cise to the Commonwealth Parliament: it therefore is one of the prohibitions we have earlier noted on the types of laws which may be made by State Parliaments. The other section, 92, is binding on both the Commonwealth Parliament and its State counterparts: it is a virtual guarantee of the freedom of trade between the States. Chapter V deals mainly with the rights of the States on federation: it con­tains both protections and prohibitions. Included amongst those is a provision (section 109) designed to ensure that, should both the Commonwealth Parliament and a State Parliament enact a law on the same subject, only one of those laws, that of the Commonwealth, will operate: in the asbence of some sort of resolution, a person might well have found himself required to obey two irreconcilable laws. The Chapter also aims, in section 117, to pro­tect Her Majesty's subjects from discrimination on the ground of the particular State in which any of them happens to reside. It also deals with a matter to which most of the remainder of our discussion will be devoted: religious freedom. Before coming to that, however, we should complete the constitu­tional survey by commenting that there remain three further chapter$, all of short compass, dealing with the creation of new States, the seat of the federal government and the referendum requirements for the alteration of the Constitution.

It might not be out of place to remark, in pass­ing, as was noted in an article entitled Constitutional Conundrum by Philip Chubb published in the maga­zine Time Australia on 10th November, 1986, that the referendum provisions do not, on one view, rep­resent the only mechanism for constitutional altera­tion. Legislation enacted by the Commonwealth and Imperial Parliaments to sever many of the remain­ing constitutional links with the United Kingdom, cited as the Australia Act 1986, has, on that view, the potential to render obsolete the referendum pro­visions, though not without united State and Com­monwealth parliamentary action. It remains to be seen whether the legislation will be used to this end, though the contemporary concern for constitutional reform leaves no room for complacency.

From this survey, brief though it has been, it will have become apparent that, unlike the constitu­tions of many modern nations, ours contains few guarantees of individual rights. There are some, scattered throughout the text, but essentially they take the form of restrictions on law-making power rather than fortresses to shield the individual.

We may now begin our consideration of re­ligious freedom under the Commonwealth Consti­tution. Section 116 of that document 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.

Although all limbs of that provision are potenti­ally important, the one most likely to be encoun­tered and with which we shall be concerned in the present discussion is the guarantee of "the free exer­cise of any religion". The first Australian cases³ was Krygger v. Wil­liams in 1912⁴. The Defence Act imposed obliga­tions on all male inhabitants of the Commonwealth in respect of military training. The defendant gave the following evidence:

"Attendance at drill is against my conscience and the word of God. If thine enemy smite thee on the one cheek turn to him the other is part of my religion. The Lord Jesus Christ has pur­chased me with His own body. He delivered me and gave me power to become a son of God, and left me a free agent to choose whether to serve Him or not. Anything therefore such as compulsory military training is anti-Christ, and is not following the Lord Jesus. Therefore I can have no part in the matter whatever. I put mili­tary training on the same footing as gambling. To me it is as much a sin in the sight of God as gambling, racing, or any other sin; no matter what it might be God makes no allowance for sin. If I went to military training I would be pro­hibited from the free exercise of my religion. My object in life is to follow the Lord Jesus Christ the same as the Apostles did, and when I have been thoroughly taught, to go forth and do the same works as Jesus did — destroy the works of the Devil, not with armies and navies, but with the power of the Word. Military train­ing would cut me off from God. Sixty-four hours drill a year would prohibit the free exer­cise of my religion."⁵

There can be little doubt that, regardless of his theological soundness, the young man who gave this evidence, under the pressure of a criminal prosecu­tion, spoke from deep conviction. Yet to no avail. Sir Samuel Griffith, the Chief Justice of the day, narrowly circumscribed religion and, in so doing, the operation of section 116, as the following ex­cerpt from his judgement shows:

"To require a man to do a thing which has nothing at all to do with religion is not prohibit­ing him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere. The constitutional objection entirely fails".⁶

Nothing more was heard of section 116 until, acting under defence regulations in the Second World War, Commonwealth officers excluded the Adelaide Company of Jehovah's Witnesses from Kingdom Hall on the basis that they were preju­dicial to the defence of the Commonwealth and the efficient prosecution of the war, largely because of their refusal to give allegiance to any human auth­ority. Now, although the Jehovah's Witnesses ulti­mately won this case on other grounds, their appeal to section 116 was unanimously rejected by the High Court. Mr. Justice Rich⁷ said:

"In one sense the provision is very wide and in another narrow. It is wide in the area of re­ligious faith which it seeks to protect, but it may be said to be narrow in its description of the kinds of laws which it disallows as impinging upon the freedom of faith".

As to the width of section 116, Chief Justice Sir John Latham said:

"It would be difficult, if not impossible, to de­vise a definition of religion which would satisfy the adherents of all the many and various re­ligions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of con­duct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religions conflicts have been concerned with matters of ritual and observance. Section 116 must be re­garded as operating in relation to all these as­pects of religion, irrespective of varying opin­ions in the community as to the truth of particu­lar religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance."⁸

As to its narrowness, he proceeded:

"The word 'free' is used in many senses, and the meaning of the word varies almost indefinitely with the context. A man is said to be free when he is not a slave, but he is also said to be free when he is not imprisoned, and is not subject to any other form of physical restraint. In another sense a man is only truly free when he has free­dom of thought and expression, as well as of physical movement. But in all these cases an ob­ligation to obey the laws which apply generally to the community is not regarded as inconsist­ent with freedom. Freedom of speech is a highly valued element in our society. But freedom of speech does hot mean that an individual is at liberty to create a panic in a theatre by raising a false alarm of fire, as was pointed out in the United States of America in the case of Schenck v. United States (1919) 249 U.S. 47, at p.52 [63 Law.Ed.470, at p.473]. In James v. The Com­monwealth [1936] A.C. 578; 55 C.L.R. 1., the Privy Council dealt with the meaning of the words "absolutely free" in s.92 of the Constitu­tion. It was there said: "Tree" in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law, as was pointed out in McArthur's Case (1920) 28 C.L.R. 530. Free Love, on the contrary, means licence or libertinage, though, even so, there are limita­tions based on public decency and so forth. Free dinner generally means free of expense, and sometimes a meal open to anyone who comes, subject, however to his condition or behaviour not being objectionable. Free trade means, in ordinary parlance, freedom from tariffs" [1936] A.C., at p.637; 55 C.L.R., at p.56. Thus there is no dictionary meaning of the word "free" which can be applied in all cases."⁹

The High Court was acutely aware that some have felt it a religious duty to kill and rob. Or to suicide. The way in which the problem has been re­solved is possibly best summarized in the following passage from the judgment of Mr. Justice Starke:

"The liberty and freedom predicated in s.l16 of the Constitution is liberty and freedom in a community organized under the Constitution. The constitutional provision does not protect unsocial actions or actions subversive of the community itself. Consequently the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and the duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order. Therefore there is no difficulty in affirming that laws or regulations may be lawfully made by the Commonwealth control­ling the activities of religious bodies that are se­ditious, subversive or prejudicial to the defence of the Commonwealth or the efficient prosecu­tion of the war".¹⁰

Several of the cases have involved conflicts be­tween adherents of different denominations of the Christian religion. Thus, in 1966 the Supreme Court of Queensland upheld the validity of a child custody order in favour of the mother but giving the father access on condition that he did not seek to inculcate in the children the beliefs of the Exclusive Brethren. It was held that this condition did not interfere with his exercise of his own, as distinct from the chil­dren's, religion¹¹.

In 1972 the Supreme Court of New South Wales found that the interests of the children of a broken home would be best served by placing them in the custody of a Jehovah's Witness father and that, in reaching that decision, the Court had to look not at the worth of the religious beliefs but the welfare of the child based on all available informa­tion, including the external effect the religion could be expected to have on the child.¹². The case was followed by the Family Court in a 1978 dispute be­tween a nominal Catholic and a Jehovah's Witness, although this time the Jehovah's Witness lost¹. In a somewhat amusing dictum, the Court made it clear that it is no part of the judicial function to rule that one form of religion is to be preferred to another:

"There may be many paths to the top of the mountain. Some would say there is only one. Some would say there is no path. Some would say there is no mountain.⁴.

An unusual case arose in 1977 where a Jewish husband, resident in Australia, petitioned the Family Court of Australa for dissolution of his marriage to a lady resident in Israel. The divorce was granted on condition that the husband procure for his wife a divorce by a rabbinical court which would be recog­nized in Israel. It was held that this involved no in­fringement of section 116 because public policy dictated that the wife should be as free of the mar­riage as the husband¹⁵.

Further light was thrown on what falls within section 116 by the High Court in 1983 in the course of deciding the claim of a body of scientologists for exemption from pay-roll tax. The case did not di­rectly involve section 116 but the judgments are re­plete with "definitions" of "religion" which, it was recognized¹⁶, will find their place in the interpreta­tion of the Constitution. Here are some of them:

"We would therefore hold that, for the pur­poses of the law, the criteria of religion are two­fold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of can­ons of conduct in order to give effect to that be­lief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion."¹⁷

“The better approach is to state what is suf­ficient, even if not necessary, to bring a body which claims to be religious within the category. Some claims to be religious are not serious but merely a hoax... but to reach this conclusion re­quires an extreme case. On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious. Any body which claims to be religious and to believe in a supernatural Being or Beings, whether physical and visible, such as the sun or the stars, or a physical invisible God or spirit, or an abstract God or entity, is re­ligious. For example, if a few followers of as­trology were to found an institution based on the belief that their destinies were influenced or controlled by the stars, and that astrologers can, by reading the stars, divine these destinies, and if it claimed to be religious, it would be a re­ligious institution. Any body which claims to be religious, and offers a way to find meaning and purpose in life is religious. The Aboriginal re­ligion of Australia and of other countries must be included. The list is not exhaustive; the cate­gories of religion are not closed¹⁸.

To the extent that these passages are at variance with one another, the explanation lies in their form­ing parts of the reasons of different justices. The re­maining justices resisted the temptation to offer a third definition, preferring rather to look for in­dicia, gleaned from "empirical observation of ac­cepted religions", themselves liable to vary with changing social conditions"¹⁹.

Without setting out those indicia, it may be re­marked that one of them involved the observation of standards or codes of conduct. That, of course, is reminiscent of the second element in the first pas­sage reproduced above. Indeed, the justices who formulated that passage were at pains to point out that "religion encompasses conduct, no less than be­lief"²⁰ .Yet for them, it will be recalled, canons of conduct which offend against "the ordinary laws" are beyond the protection of the Constitution. They explain their view in the following passage:

"Conduct in which a person engages in giving effect to his faith in the supernatural is re­ligious, but it is excluded from the area of legal immunity marked out by the concept of religion if it offends against the ordinary laws, i.e. if it offends against laws which do not discriminate against religion generally or against particular religions or against conduct of a kind which is characteristic only of a religion"²¹.

The question of what religious conduct would fall prey to "ordinary laws" was to arise in stark form the following year in the Supreme Court of South Australia. The case was Grace Bible Church Inc. v. Reedman ²² and the facts are as stated in the judgment of Mr. Justice Zelling:

"(1) The appellant is an incorporated body and the church as part of its Christian ministry conducts a non-government school.

(2) The school is an unregistered school.

(3) Students are enrolled and receive instruction at that school.

(4) Students were enrolled and received instruction at the school on 25 February 1983...

"In addition, the appellant called Pastor Shriver, the pastor of the church, who gave evidence that the church refused to register the school be­cause his church was totally controlled by God and registration would mean that the church was con­trolled by another authority. He referred to a num­ber of parts of the Bible, but in particular he founded his views upon Romans 13, verses 1-7"²³.

The Church was appealing against its convic­tion for running an unregistered school. This was not the case of a school being unable to obtain reg­istration because of some deficiency in its curricu­lum or facilities but the case of a school for which no application for registration had ever been made. By way of explanation, the following passage from the judgment of Mr. Justice Millhouse is instructive:

"Pastor John Lazerne Shriver... who gave evi­dence in the Magistrates Court... said that no application had been made "because our church is totally controlled by God". In cross-examination he said, "... the reason [why we failed to register] is that God is sovereign". In his evidence, which is like a religious discourse, he made several references to the Bible (e.g. Colossians, ch 1, v 18: "He is the head of his body, the church; he is the source of the body's life. He is the first-born Son, who was raised from death, in order that he alone might have the first place in all things" - and Proverbs, ch 22, v 6: "Teach a child how he should live, and he will remember it all his life" — I have used today's [sic] English Version). Pastor Shriver also quoted Romans, ch 13 w 1-7. When asked, "Does it [that is the passage from Romans] not exhort the Christian to obey the State authority?" he answered: "Only in so far as that State authority is compatible with the authority of God"²⁴.

Notwithstanding this articulation of spiritual conviction, the Court upheld another kind of con­viction, that pertaining to the commission of a criminal offence, the conduct of an unregistered school. The faith had been reflected in conduct but the conduct fell to be rendered unlawful by a law which was evidently regarded as having as its sub­ject the matter of education, and not religion. It was specifically denied, not surprisingly in view of the legal history outlined in our last chapter on the English heritage, that there was an inalienable right of religious freedom in Australia. Though the pos­ition was regarded as "regrettable" by one of the justices, it was asserted that religious freedom was not complete under the law.

The case we have just considered demonstrates another thing which it is vital to appreciate when considering section 116. The section is addressed to the Commonwealth. It will be recalled that it com­mences with the prohibition, "The Commonwealth shall not make any law". As the Supreme Court of South Australia was aware, it says nothing whatever about the States²⁵.

Predictably, it is from the States that some problems are now emerging. The Americans over­came this difficulty with the 14th Amendment but, in Australia, the States, with the exception of Tas­mania²⁶, are quite free to prohibit, as blatantly as they like, the free exercise of religion.

In their Annotated Constitution of the Austra­lian Commonwealth, Quick and Garran²⁷ point out that an earlier draft of the Commonwealth Consti­tution made section 116 binding on the States but that the clause was rejected. Apparently, nothing more happened along the lines of applying the sec­tion to the States until 25th September, 1975, when, at the Melbourne Session of the Australian Consti­tutional Convention, the then Prime Minister, Mr. Whitlam, suggested the inclusion in section 116 of a form of words which would have applied it to the States, as well as the Commonwealth²⁸. On 29th Oc­tober, 1976, the Hobart Session formally recom­mended this change, over objections based on the need for prayers in schools, compulsory blood transfusions and the banning of some sects. It may be of interest to note that politically conservative delegates were the main opponents.

Had the position rested there, the scope for the practical operation of section 116 would not have appeared promising. However, in a very recent case²⁹, the Federal Court of Australia was called upon to examine the legality of a refusal to grant to the Imam of a mosque in a Sydney suburb perma­nent residency and the constitutionality of an order deporting him. Some remarks of potentially far-reaching consequence fell from Mr. Justice Pincus of that Court. First, section 116 was held to apply to administrative action as well as the making of laws. Secondly, when the Constitution prohibits law "for" prohibitioning the free exercise of any re­ligion, it is not prejudicial only to measures which those responsible for them subjectively intend to in­terfere with religion. Thirdly, it is for the challenged authority to demonstrate not only that his or its ac­tions did not in fact transgress the constitutional bounds but also that the constitutional guarantee was conscsiously considered in initiating any action of which complaint is subsequently made. With re­spect to this last matter, his Honour said:

"It appears to me that, at the least, the guaran­tee [of religious freedom] must have required the respondent [the Minister for Immigration and Ethnic Affairs to take the following matters into account:

(1) That the respondent has no right so to ex­ercise his powers as to endeavour to put an end to expressions of a purely religious character on the part of the sheikh [the Imam], whether "fundamentalist" or other­wise. Reading the powers granted to the re­spondent under the [Migration] Act as sub­ject to s.l 16, it appears to me that the respon­dent is not entitled, by reason (wholly or in pan) of disapproval of such expressions, to take steps to bring them to an end.

(2) That the respondent's decisions must not be brought about by an opinion formed by him that the association's members [those at­tending the mosque] might be better served religiously by an Imam other than the one they have chosen"³⁰.

In the result, the Minister was ordered to recon­sider his decisions. So far as the law reports show, that is the first time in its history that the religious freedom guarantee has acted as a brake on govern­ment action.

In the subsequent appeal to the full court, how­ever, the brake was to be released³¹. Although Mr. Justice Jackson, who delivered the leading judg­ment, accepted, with qualification, the proposition that section 116 would apply to executive action and was prepared to assume that its effects might not be limited to actions actually intended to prohibit the free exercise of religion, his Honour rejected the proposition that the Minister had to demonstrate a conscious consideration of section 116. The test was whether the action complained of violated the sec­tion. Holding that it did not, his Honour referred to the word "prohibiting" in section 116 which, it was said, "appears... to mean a proscription of the right to exercise without impediment by or under Com­monwealth laws any religion which is the choice of the person in question"². In the Full Court's view, there was no prohibition, although the possibility was left open that a repeated refusal to allow any overseas ministers of a religion to enter or remain in Australia might constitute a prohibition. Our story is necessarily incomplete. We can say that, at the State level, religious freedom does not usually depend on constitutional law. It has tended to depend on the political realities of life, which have produced a variety of exemptions from the op­eration of laws. At the Commonwealth level, the limits of section 116 have yet to be discovered but the section cannot be lightly regarded. Who knows what excesses its very existence may have re­strained? Quite apart from section 116, it is perhaps too early to tell whether our religious freedom de­pends on what the late Mr. Justice Hutley called "inherited sentiments in its favour"³³ or whether, as was the thesis of the preceding article, our inherit­ance affords a surer basis than sentiment. For these matters we must wait, as "freedom slowly broadens down, from precedent to precedent"³⁴.