Can the Australian Constitution Protect Speech About Religion Or by Religious Leaders?

Can the Australian Constitution Protect Speech About Religion or by Religious Leaders?

Mitchell Landrigan

A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy

Faculty of Law November 2014

Abstract

This thesis considers whether speech about religion or the speech of religious leaders may, if burdened, be protected under Australia’s Constitution. Such ‘burdens’ may include religious tolerance laws, blasphemy law or defamation laws if those laws limit constitutionally protected speech about religion or by religious leaders.

Two elements of the Constitution - one written and one implied from its provisions - could protect burdened speech about religion or by religious leaders. First, section 116 of the Constitution, which prohibits the Commonwealth from making laws for proscribed purposes, including prohibiting the free exercise of religion. Secondly, the implied freedom of political discourse. In relation to the implied freedom of political discourse, the High Court has recognised that Australians must be able to communicate effectively about government and political matters so that they can make the electoral choices prescribed for them in the Constitution. If religious leaders speak about ‘government or political matters’ in the way that the High Court conceives of that phrase, then the religious leaders’ expression may, if burdened, fall within the protective scope of the implied freedom of political discourse.

This thesis examines these two areas of constitutional law. It explores the objectives of section 116. It reviews the debates about the aims of section 116 as these were described during the Australian Constitutional Conventions in the 1890s. The thesis analyses the High Court’s decisions under section 116 and assesses what kind of constitutional protection section 116 provides for speech about religion. In relation to the implied freedom of political discourse, this work reviews the decided cases on the implied freedom (and the literature) and considers whether speech about religion or by religious leaders could constitute speech about government and political matters in the way the High Court has described government and political matters.

The thesis then applies the tentative conclusions about the protective scope of the implied freedom of political discourse, to three detailed case studies. These case studies involve actual instances of speech by religious leaders and the leader of a religious lobby group. The studies assess whether the speech in each instance could fall within the protective scope of the implied freedom of political discourse if the speech was subject to a burden.

Acknowledgements

It would not have been possible to write this dissertation without the support of several people. Professor George Williams, my supervisor, provided clear direction, careful insights, patient feedback and prompt reviews of drafts. Always approachable, Professor Williams was (and is) encouraging without ever being pressuring and - critically - provided a strong sense of focus for the research. Most importantly, he helped me to maintain my interest in the research from start to finish, so much so that the thesis actually became more and more enjoyable to write. Professor Williams supervised my research throughout the preparation of the thesis without the aid of a co-supervisor, which makes me all the more thankful for his dedicated research supervision.

The academic staff of the Faculty of Law, UNSW, provided me with terrific feedback on draft chapters and carefully examined my progress with the PhD research at our annual panel reviews. Professor Andrew Lynch, in particular, read all the material I submitted at each annual review and provided me with encouraging insights, as well as - it should be said - many generous and carefully considered criticisms. His helpful feedback greatly improved the quality of this work.

My friend Dr Bill Lawton remained enthusiastic about my area of research from the outset. His insights into religious history and its relevance to this work have, not infrequently, been breathtaking in their interestingness. I will miss our regular breakfast conversations about the research.

My partner Philippa and my daughter Emma have been equally strong sources of encouragement. For the most part, the detail of this research has been something of a mystery to them. This, however, did not deter them from always expressing an interest in the research, even if it meant that (as it often did) I failed to be more sociable towards them while getting it done.

This work is dedicated to the memory of my grandmothers.

Contents

CHAPTER 1- INTRODUCTION ...... 1 I. THE ENQUIRY...... 1 II. RESEARCH FOCUS ...... 2 III. MATTERS OUTSIDE SCOPE OF RESEARCH ...... 4 A. Separation of Church and State ...... 4 B. Politicians and Other Political Figures ...... 5 C. State and Territory Laws - and Laws in Other Jurisdictions ...... 5 D. Proportionality and a Critique of Rationale for the Implied Freedom ...... 6 IV. METHODOLOGY ...... 6 V. THESIS OUTLINE ...... 9 CHAPTER 2 – ORIGINS AND OBJECTS OF SECTION 116 ...... 12 I. AIMS OF CHAPTER ...... 12 Preamble and Section 116 ...... 12 Existing Literature ...... 12 Specific Questions ...... 13 Chapter Overview ...... 14 II. RELIGIOUS CONTEXT: 1788 – 1890s ...... 15 III. THE DRAFTING OF SECTION 116 ...... 20 A. Constitutional Conventions ...... 20 B. Recognition Formally Proposed ...... 22 C. A Safeguard for Religious Freedoms? ...... 24 D. Recognition is Accepted ...... 29 E. Section 109 (116) is Accepted ...... 31 F. Arguments Against Section 116 ...... 33 IV. SECTION 116: DETAILED CRITIQUE ...... 37 A. Constitutional Significance of Recognition ...... 37 B. Objectives of Section 116 ...... 39 C. Eight Observations about Section 116 ...... 40 V. CONCLUSION...... 48 CHAPTER 3 – THE HIGH COURT AND SECTION 116 ...... 50 I. INTRODUCTION ...... 50 A. Conclusions from Chapter 2 ...... 50 B. Objectives of Chapter ...... 51 C. Chapter Overview ...... 52 II. A DEFINITION OF RELIGION ...... 53 A. A Tension: Religion and Free Exercise ...... 53 B. Scientology Case ...... 53 1. Indicia of a Religion ...... 55 2. Canons of Conduct and Belief in Supernatural ...... 58 3. Are All Religions Equal? ...... 59 III. WHAT IS THE FREE EXERCISE OF RELIGION? ...... 59

Early High Court Decisions ...... 60 Jehovah’s Witnesses Case ...... 64 Stolen Generations Case ...... 74 Reflections on High Court’s Free Exercise Jurisprudence ...... 85 IV. WHAT IS ESTABLISHMENT? ...... 90 V. RELIGIOUS OBSERVANCE AND TESTS ...... 96 A. Religious Observance ...... 96 B. Religious Tests ...... 98 VI. CONCLUSION...... 102 CHAPTER 4 – POLITICAL SPEECH, RELIGION AND RELIGIOUS LEADERS ...... 107 I. INTRODUCTION ...... 107 A. Conclusions from Chapter 3 ...... 107 B. Chapter Overview ...... 107 II. HIGH COURT AND POLITICAL SPEECH: EARLY VIEWS ...... 108 III. HIGH COURT AND POLITICAL SPEECH: LATER VIEWS ...... 113 IV. LANGE’S STRENGTHS AND LIMITATIONS ...... 128 Determining the Protective Scope of the Implied Freedom ...... 128 Whose Speech is Relevant? ...... 131 1. A Burden of General Application? ...... 132 2. NSW and Queensland Appeal Court Decisions ...... 136 3. Limitations of General Approach: Observations ...... 145 V. COMMENTATORS’ VIEWS ON ‘POLITICAL SPEECH’ ...... 150 VI. CONSTITUTIONAL LIMITATIONS? ...... 153 VII.WHAT IS SPEECH ABOUT REPRESENTATIVE AND RESPONSIBLE GOVERNMENT? ...... 157 VIII. CONCLUSION ...... 163 CHAPTER 5 - THREE CASE STUDIES ...... 167 I. INTRODUCTION ...... 167 A. Conclusions from Chapter 4 ...... 167 B. Chapter Overview ...... 167 II. CASE STUDY 1: WOMEN’S NON ORDINATION ...... 169 Overview ...... 169 Archbishop Herft’s Article ...... 171 Could the Archbishop’s Speech Fall Within the Protective Scope of the Implied Freedom of Political Discourse? ...... 173 1. Questions Raised by the Case Study ...... 173 2. Could Theophanous Protect the Opinion Piece? ...... 174 3. Could the Opinion Piece Satisfy the Lange View of Political Speech? ...... 180 4. Who was/is the Audience? ...... 184 5. Fringe Political Views ...... 185 6. Significance of Catch the Fire...... 190 Conclusion on Implied Freedom ...... 192 How Could Archbishop Herft’s Speech Constitute Political Speech? ...... 193 III. CASE STUDY 2: WARNINGS TO CATHOLIC POLITICIANS ...... 196 Overview ...... 196

SCNT: Policy Context ...... 197 1. Religion and Ethics of SCNT ...... 197 2. Commonwealth SCNT Legislation ...... 199 3. Cardinal Pell Voices Concerns at National Press Club ...... 201 4. Commonwealth Passes SCNT Legislation ...... 202 The (Burdened) Speech of the Catholic Bishops ...... 204 1. Cardinal Pell’s Warning to NSW Catholic Politicians ...... 204 2. Archbishop Hickey’s Warning to WA Catholic Politicians ...... 207 Could the Catholic Leaders’ Speech Fall Within the Protective Scope of the Implied Freedom? ...... 209 1. Could Theophanous Protect the Opinion Piece? ...... 209 2. Could Lange Protect the Speech (Could Contempt be a Burden under Lange?)? ...... 213 3. Conclusion on the Implied Freedom in Relation to the Archbishops’ Speech ...... 223 IV. CASE STUDY 3: A TWEET ABOUT GAY MARRIAGE ...... 225 A. The Tweet ...... 225 B. Overview ...... 227 C. Wallace and ACL as Public Contributors to Gay Marriage Debate: the Theophanous View of Political Speech ...... 228 1. Marriage Act Amendments 2004 ...... 228 2. Commitments by Senior Politicians ...... 229 3. ACL Urges Churches to Oppose Gay Marriage ...... 233 4. Would the Wallace Tweet Meet the Theophanous Description of Political Speech? .... 235 D. Could the Wallace Tweet Meet the Lange Description of Political Discourse? ...... 236 1. Too Offensive or Inane? ...... 236 2. Connection with Commonwealth Parliament ...... 239 3. Relevant to a Commonwealth Referendum? ...... 240 4. Could a Court Adopt the ‘General Approach’? ...... 242 5. Conclusion on the Wallace Tweet ...... 243 V. CASE STUDIES SUMMARY ...... 244 CHAPTER 6 – CONCLUSION ...... 246 I. RESEARCH QUESTIONS ...... 246 II. RESEARCH FINDINGS ...... 246 Chapter 2: Origins and Objects of Section 116 ...... 246 B. Chapter 3: The High Court’s Interpretations of Section 116 ...... 248 C. Answering the Section 116 Question ...... 252 D. Chapter 4: Political Speech, Religion and Religious Leaders ...... 253 E. The Case Studies ...... 255 F. Answering the Implied Freedom of Political Discourse Question ...... 256 APPENDIX ...... 258 REFERENCES ...... 260

CHAPTER 1- INTRODUCTION

I. THE ENQUIRY

Australian religious leaders contribute to public debate and they sometimes use what seems like political language. For example, in 2006, commenting on the Australian Greens’ policy on climate change, former Sydney Catholic Archbishop Cardinal George Pell said:

In the past, pagans sacrificed animals and even humans in vain attempts to placate capricious and cruel gods. Today they demand a reduction in carbon dioxide emissions.1

Yet, religious leaders in Australia arguably have no legal right to speak publicly about religious or political matters. As a result, if their speech is subjected to a burden2 - under, say, defamation, religious tolerance, antidiscrimination, contempt or blasphemous libel laws - then interesting questions may arise about what, if any, legal or constitutional protections could overcome such burdens and protect the religious leaders’ speech.

Two elements of the Constitution of the Commonwealth of Australia - one written and one implied from its provisions - could protect the speech or expression of religious leaders if their speech is burdened. This thesis therefore examines these areas of constitutional law and considers whether these protections may apply to the burdened speech of religious leaders if they express religious viewpoints or viewpoints based on their religious perspectives.3

1 Cardinal George Pell, Islam and Western Democracy, Legatus Summit, Naples, Florida, USA, 4 February 2006, http://web.archive.org/web/20060605154745/http://www.sydney.catholic.org.au/Archbishop/Addresses /200627_681.shtml, viewed 27th May 2014.

2 Any reference to a burden in the thesis is a reference to a burden either current or proposed and could be a legislative, executive, common law or Parliamentary burden.

3 Where I refer in the thesis to the speech of religious leaders, unless the context demands otherwise, this refers to the speech of religious leaders insofar as they express religious viewpoints or viewpoints based on their religious perspectives. The thesis is not concerned with the views expressed by religious leaders that have no connection whatsoever with their religious beliefs. I acknowledge that speech which religious leaders express is not necessarily solely the preserve of religious leaders. Ordinary citizens might wish to express religious views about the same topics as religious leaders and similar constitutional questions may arise for the protection of such speech as in the case of religious leaders. However, I choose to focus on the speech of religious leaders because of their (potentially) prominent

The first potential constitutional protection is in section 116 of the Constitution. Section 116 states that the Commonwealth of Australia shall not make any law for: ‘establishing any religion’; ‘imposing any religious observance’; or ‘prohibiting the free exercise of any religion’. Section 116 also states that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’ and thus section 116 proscribes use of religious tests as a qualification for holding office under the Commonwealth.

The second feature of the Constitution which may protect the speech of Australian religious leaders is the implied freedom of political discourse.4 The High Court of Australia has recognised that Australians must be able to communicate effectively about government and political matters so that they can make the electoral choices prescribed for them in the Constitution.5 It follows that, if religious leaders discuss ‘government or political matters’ in the way that the High Court conceives of that phrase, then their expression may, if burdened, fall within the protective scope of the implied freedom of political discourse.

II. RESEARCH FOCUS

The thesis asks whether the Constitution can protect speech6 about religion7 in Australia, especially by religious leaders.8 An obvious question to ask before considering whether the

contributions to public discourse in Australia and because of the possible protection for the speech of religious leaders under the High Court’s jurisprudence as contributors to public discourse.

4 Unless otherwise stated, where I refer to the implied freedom, this is a reference to implied freedom of political discourse.

5 See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’). According to the High Court’s unanimous decision in Lange (as varied by McHugh J in Coleman v Power (2004) 220 CLR 1), a law which burdens communication about government or political matters is invalid unless it is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of representative and responsible government provided for in the Constitution. These two steps (the first relating to whether the speech is about government or political matters, and the second relating to proportionality) are the first and second stages or limbs of Lange.

6 Unless otherwise indicated, I refer to speech (whether about politics or about religion) as including all forms of expression: e.g., speaking, shouting, protesting, singing, marching, writing/publishing (via any media), advertising, broadcasting, praying, worshipping, wearing clothes; or wearing or carrying symbols, banners or slogans. For support for a broad definition of speech in a political communication context (including elements of speech about religion), see Levy v Victoria (1997) 189 CLR 579 (‘Levy’): ‘Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered’, 638 (Kirby J).

Constitution can protect the speech of religious leaders is whether, or to what extent, the Constitution can protect speech about religion.9 Specifically, therefore, this thesis inquires into the following questions:

1. what protection does section 116 of the Constitution provide for speech about religion?; and 2. in relation to the implied freedom of political communication, under what circumstances (if any) can speech about ‘government or political matters’ include speech about religion or by religious leaders?

Concerning the first question, I consider whether the constitutional drafters intended that section 116 would provide protection for expression about religion - and if so, under what circumstances, and in relation to what kind of expression, the clause would offer constitutional protection. Based on a review of the High Court’s interpretations of section 116 in the decided cases, I also examine what scope there is for section 116 to protect speech about religion according to the High Court.

With respect to the second question, I inquire into whether speech about religion or by religious leaders could constitute speech about ‘government or political matters’ in the way

7 I define religion as a belief in, or awareness of, the transcendent or spiritual. This is simpler than the High Court’s description of religion (see below) and I believe better reflects the fact that religion may not necessarily involve belief in the supernatural or adherence to canons of conduct; some religions may simply involve experiential awareness of the spiritual. See, by contrast, Church of the New Faith v Commissioner for Pay-Roll Tax (Vic) (1983) 154 CLR 120 (‘Scientology Case’) where Mason ACJ and Brennan J at 136 defined a religion according to a twofold test of ‘belief in a supernatural Being, Thing or Principle’; and ‘... some acceptance of canons of conduct in order to give effect to that belief’. Wilson and Deane JJ suggested in the same case at 174 that one indicium of religion is that ‘the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance’.

8 I refer to ‘religious leaders’ as those (often men) who lead sizeable groups of people in relation to a religion (as defined above in n7).

9 It is possible to conceive of three kinds of speech about religion. First, speech which is part of religious belief (e.g., acts of worship, expression of faith). Secondly, evangelism, proselytising or criticism of other religions. The first two kinds of speech may overlap, e.g., evangelicals may regard speech aiming to win over converts or which involves criticisms of other religions, as an expression of religious belief. A third kind of speech about religion (which may overlap with the first) is speech which is part of the life of the individual and which may have, or may be perceived as having, religious significance, for example, the wearing of religious clothing: see Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth (1943) CLR 116 (‘Jehovah’s Witnesses Case’): ‘The wearing of particular clothes … not only in religious worship, but in the everyday life of the individual – may become part of religion’, 124 (Latham CJ).

3 the High Court has conceived of government and political matters in the decided cases.10 As the research will show, the constitutional touchstone of speech about government and political matters is speech about the systems of representative and responsible government in relation to the Commonwealth Parliament. Accordingly, the thesis includes a detailed analysis of what is meant by representative and responsible government in relation to the Commonwealth Parliament. The objective in doing so is to determine whether the implied freedom of political discourse can include speech about religion or by religious leaders.

The thesis also considers whether there are any potential constitutional obstacles - express or implied - to the implied freedom protecting speech about religion. One question that is addressed is: does the absence of an express constitutional power for the Commonwealth to legislate with respect to religion infer that the implied freedom cannot include speech about religion? Another subtly different inquiry is: does section 116 (which prohibits the Commonwealth from, inter alia, making any law for establishing any religion) imply that speech about religion cannot be part of the constitutionally implied freedom of political expression?

The final part of the research in this thesis applies the findings from the research in Chapter 2 to Chapter 4 to three detailed Case Studies which involve hypothetically burdened speech coming from a religious perspective. These are real and contemporary examples of speech by religious leaders (one Case Study involves the speech of a religious lobbyist), in which it is relatively easy to demonstrate that the relevant speech could be subject to a burden. The Case Studies allow me to test the veracity of the conclusions about the constitutional protections for speech by religious leaders where their speech comes from a religious perspective or reflects religious viewpoints.

III. MATTERS OUTSIDE SCOPE OF RESEARCH

A. Separation of Church and State This thesis focuses on the scope of the Constitution to protect speech about religion, particularly by religious leaders, under section 116 and the implied freedom of political

10 Except to a very limited extent, the thesis does not conduct research into the second limb of Lange on the question of proportionality (see n5).

4 discourse. Except insofar as may be implied by the research into section 116 and the implied freedom, the thesis does not consider issues relating to the separation of church and state.

B. Politicians and Other Political Figures This work does not focus on politicians who discuss religion or religious belief. It does not consider the speech of people with strong religious affiliations who happen to be serving politicians,11 nor does it review the expression of those who are primarily involved in charitable work and who carry a religious title to add emphasis to the urgency or credibility of their work.12 Rather, this research focuses on the public speech of religious leaders (most commonly men) such as Muftis, Deans, Bishops and Cardinals and those who may lobby on behalf of religious organisations.13

C. State and Territory Laws - and Laws in Other Jurisdictions This work examines the scope of section 116 of the Constitution and the implied freedom of political discourse to protect expression about religion. The research does not examine the laws of the states or territories of Australia insofar as these laws may protect speech about religion or politics.14 Nor, except on a very limited basis, does the thesis review any laws or other protections in jurisdictions outside Australia.15

11 For example, NSW MLC Reverend Fred Nile.

12 For example, World Vision CEO Reverend Tim Costello.

13 As will be seen, one of the Case Studies looks at the speech of a leader of a religious lobby group.

14 See, for example, Charter of Human Rights and Responsibilities Act 2006 (Vic), section 14 (‘freedom of thought, conscience, religion and belief’) and section 15 (‘freedom of expression’). Section 15(3) notes that special duties and responsibilities attach to the right of freedom of expression and that the freedom may therefore be subject to lawful restrictions relating to respecting the rights and reputations of other people or for the protection of national security, public order, public health or public morality. See also Human Rights Act 2004 (ACT), section 14 (‘freedom of thought, conscience, religion and belief’) and section 16 (‘freedom of expression’).

15 See for example, Universal Declaration of Human Rights (1948), Article 18 (right to freedom of thought, conscience and religion) and Article 19 (right to freedom of opinion and expression). In New Zealand, the Bill of Rights Act 1990 provides that everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form (section 14); and that everyone has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private (section 15). South Africa acknowledges a general right to freedom of expression (including for the press and other media) except in the case of propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm: see Bill of Rights (1996) (SA), s.16, Chapter 2, Constitution of the Republic of South Australia. The Charter of Rights and Freedoms (1982) (Canada) guarantees

D. Proportionality and a Critique of Rationale for the Implied Freedom The thesis does not conduct detailed research into the second limb of Lange on the question of proportionality.16 Insofar as this thesis examines the implied freedom of political discourse, it does not critique its doctrinal or constitutional basis.17 It instead examines the law as it has been articulated by the High Court in relation to the protective scope of the implied freedom, namely, by reference to how the High Court has interpreted the concept of speech about government and political matters.

IV. METHODOLOGY

The thesis reviews literature relating to the sociological situation in Australia at the time up to the 1890s Constitutional Conventions, a study which briefly contextualises the Convention Debates in relation to section 116’s objectives. As far as can be accomplished with a relatively brief contextualising discussion, this review describes the place of religion in Australian life from European settlement until the 1890s.18

Canadians the ‘fundamental freedoms’ of: a) conscience and religion; b) thought, belief, opinion and expression, including freedom of the press and other media of communication; c) peaceful assembly; and d) association. These freedoms are ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’: sections 1 and 2. The United Kingdom, through the Human Rights Act (1988) (UK) provides that every person has ‘the right to freedom of thought, conscience and religion …’ which includes the right to ‘change … religion …’ and ‘freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance’: see Schedule 1, Article 9(2) – Freedom of Thought, Conscience and Religion. These freedoms are subject to ‘such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’.

16 See n5 in relation to proportionality.

17 See, however, Allistair Patrick Brooker v The Police [2007] NZSC 30 (Supreme Court of New Zealand): Elias CJ, Blanchard, Tipping, McGrath and Thomas JJ. Thomas J at [237]-[238] said of the High Court of Australia’s decision in Australian Capital Television Pty Ltd v Commonwealth of Australia (1992) 177 CLR 106 (‘ACTV’), ‘I have no quibble with the High Court’s discovery that the Court’s jurisdiction to preserve representative government is implied in the country’s then 92 year old constitution. But the exercise of the jurisdiction in that case represents a provocative lack of judicial restraint. Democracy demands a free flow of ideas, but it is difficult to accept that legislation which seeks to provide a more level playing field in the public expression of those ideas is damaging to the preservation of representative government. Indeed, it may credibly be argued that such a measure would be beneficial in achieving a more truly representative democracy … the Court pursued the right to freedom of expression with misplaced and disproportionate zeal’.

18 I acknowledge that Aboriginal spirituality existed in Australia for thousands of years before white settlement.

The records of the Convention Debates in relation to section 116 (as it became) are examined. The aim of this research is to understand the constitutional drafters’ intentions in relation to section 116 and, more specifically, to apprehend what protections the drafters expected that section 116 would provide for expression about religion. This part of the research also includes a study of the origins of the Preamble to the Constitution, to consider how the reference to the ‘blessing of Almighty God’ in the Preamble may have influenced the drafting of section 116.

The High Court decisions relating to section 116 are then reviewed. These cases include Krygger v Williams19 (‘Krygger’) Judd v McKeon;20 the Jehovah’s Witnesses Case;21 Kruger v Commonwealth22 (‘Stolen Generations Case’); the Scientology Case;23 Attorney General (Vic); Ex rel Black v The Commonwealth24 (‘DOGS Case’); and Williams v Commonwealth25 (‘Williams No 1’). The review of these High Court decisions builds on the earlier analysis of section 116, facilitates an understanding of the scope of section 116 to protect speech about religion based on the High Court’s interpretation of the clause and allows for a comparison of section 116’s objectives (insofar as can be understood from the Convention Debates) with the High Court’s jurisprudence on section 116.

The thesis then analyses the protective scope of the implied freedom of political discourse. Several High Court cases dealing with the implied freedom of political discourse are examined. These decisions include the joint judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd26 (‘Theophanous’) and the High Court’s unanimous judgment in Lange. I assess the differences between the decisions in Theophanous and Lange and consider how the differences between the judgments may affect courts’ understanding of the protective scope of the implied freedom. I also review - inter alia - the

19 (1912) 15 CLR 366.

20 (1926) 38 CLR 380.

21 n9.

22 (1997) 190 CLR 1.

23 n7.

24 (1981) 146 CLR 559.

25 (2012) 248 CLR 156.

26 (1994) 182 CLR 104

High Court’s decision in APLA Ltd v Legal Services Commissioner (NSW)27 (‘APLA’) and consider the implications of that case for whether the implied freedom might protect speech coming from a religious perspective. In the first Case Study, I analyse the reasoning of the Court of Appeal of the Supreme Court of Victoria in Catch the Fire Ministries Inc v Daniel Nalliah and Daniel Scot v Islamic Council of Victoria Inc and Attorney General for the State of Victoria28 (‘Catch the Fire’), a decision which applied the reasoning in APLA to the burdened speech of two Christian evangelicals. The High Court’s decision in Attorney General for the State of South Australia v Corporation of the City of Adelaide29 (‘AG v Adelaide’) is analysed and I investigate the implications of that decision for expression about religion.

In order to undertake a discrete inquiry into how some courts have identified ‘burdens’ with respect to the implied freedom of political discourse, I examine some state Supreme Court decisions. These cases include Sunol v Collier No 230 (‘Sunol v Collier’) and Owen v Menzies; Bruce v Owen; Menzies v Owen31 (‘Owen v Menzies’). These decisions by - respectively - the Courts of Appeal of the Supreme Courts of NSW and Queensland involve speech coming from what might arguably be described as an extreme religious perspective. I analyse the courts’ reasoning in these cases and critique the decisions (including by reference to decisions of the High Court), particularly insofar as the decisions may tend to favour a ‘general approach’ to identifying a burden on political expression rather than considering whether there is potentially a burden on the ‘political’ speech of the plaintiff.

The academic literature on the implied freedom of political discourse is reviewed. Given the relatively large amount of material published on the implied freedom, the literature reviewed is necessarily somewhat selective and includes material which deals primarily with the protective scope of the implied freedom - that is, about what is meant by government and political matters. Drawing on this literature, the thesis considers whether the Constitution

27 (2005) 224 CLR 322.

28 (2006) 206 FLR 56.

29 (2013) 249 CLR 1.

30 (2012) 260 FLR 414

31 (2012) 265 FLR 392

8 itself might imply any limitation or restriction on the protective scope of the implied freedom of political discourse applying to speech about religion.

The thesis examines in some detail what the High Court means by speech about representative and responsible government in relation to the Commonwealth Parliament. This part of the research is conducted by reference to the High Court’s reasoning in the implied freedom of political discourse cases as well as by considering the text and objectives of section 7 and section 24 of the Constitution.

I then address three Case Studies. These studies involve real and contemporary instances of speech coming from a religious perspective (by religious leaders and the leader of a religious lobby group), which arguably touch on political topics. The studies relate to the hypothetically burdened speech of a Perth Anglican Archbishop, two Catholic Archbishops and the head of the Australian Christian Lobby. In each instance, I assume that the speech of the person expressing the view is subject to a hypothetical burden. The rationale for assuming there is such a burden is explained, as is the nature of the burden. In the Case Studies, I consider whether the relevant speech could fall within the protective scope of the implied freedom of political discourse. These illustrations provide an opportunity to review whether there might be any inherent, unobvious or unforeseen limitations in relation to the implied freedom of political discourse protecting speech about religion, including by religious leaders. As will be seen, the Case Studies do not consider section 116. The reasons for this will become apparent later in the thesis.

V. THESIS OUTLINE

Chapter 2 addresses the following questions: first, what were the constitutional founders’ objectives in drafting what was to become section 116 of the Constitution?; and, secondly, how effective was section 116 likely to be in protecting speech about religious belief?

To address these inquiries, Chapter 1 provides the historical and socio-political background to the 1890s Constitutional Conventions. It examines the extent to which the constitutional drafters appeared to intend that the Constitution would, or may, protect expression about religious belief under section 116. This review of the constitutional debates takes a legal perspective and examines the Convention Debates relating to section 116 and - because of its relevance to the debates about section 116 - the Preamble.

Chapter 3 explores the extent to which the High Court’s decisions under section 116 have borne out the hypotheses in Chapter 2. The Chapter reviews how the High Court has described the concept of the ‘free exercise’ of religion under section 116, a matter of some significance for understanding whether section 116 can protect expression which is part of religious belief. Chapter 3 explores how the High Court has defined ‘religion’, how it has interpreted the concept of ‘establishment’ of religion and the High Court’s reasoning in relation to religious observance and religious tests. It considers the implications of the High Court’s reasoning under those limbs of section 116 for the protection of expression about religious belief. At the end of Chapter 3, I then draw some conclusions about the scope of section 116 to protect expression about religion.

Chapter 4 seeks to answer the following questions: first, what is speech and government and political matters according to the High Court?; secondly, can the implied freedom of political discourse protect speech about religion from a burden?; and, thirdly (and related), can the implied freedom of political discourse protect speech by religious leaders from a burden? To address these questions, the Chapter analyses a number of High Court decisions, including Lange and Theophanous. The Chapter reviews NSW and Queensland Supreme Court decisions which suggest that the protective scope of the implied freedom may be defined by reference to the general effect of the law on burdening political expression rather than by reference to the speech of the plaintiff. I critique the suggested approach in those State Supreme Court cases.

Chapter 4 explores whether there are, or may be, any constitutional limitations to the protective scope of the implied freedom of political discourse including expression about religion. The Chapter also considers in detail what it means for the protective scope of the implied freedom to include speech about representative and responsible government in relation to the Commonwealth Parliament and what this concept means with respect to speech about religion. It then draws some conclusions in relation to the questions posed at the start of the Chapter.

Chapter 5 consists of a detailed review of three separate Case Studies. The Case Studies allow for an assessment of whether the reasoning in the earlier parts of the thesis about the protective scope of the implied freedom for speech about religion or by religious leaders is valid and/or whether there are any limitations in the research methodology that may require a different approach.

The Conclusion to the thesis follows.

CHAPTER 2 – ORIGINS AND OBJECTS OF SECTION 116

I. AIMS OF CHAPTER

Preamble and Section 116 Two clauses in the Constitution refer to aspects of religion and these are the key provisions of the Constitution discussed and analysed in this Chapter. First, the Preamble of the Constitution refers to ‘blessing of Almighty God’.1 The phrase ‘blessing of Almighty God’ does not directly confer any specific constitutional rights on any person or specifically grant or limit the powers to, or of, any government. Secondly, section 116 prohibits the Commonwealth (though not the states) from making laws for: establishing any religion; imposing any religious observance; prohibiting the free exercise of any religion; and the clause also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Section 116 is the only clause in the Constitution which specifically purports to protect religious freedoms. This Chapter focuses on these constitutional provisions, and chiefly on section 116, in order to consider whether, and to what extent, section 116 was intended to protect speech about religion.

Existing Literature There is a considerable amount of literature relating to the origins of section 116. For example, the historian Ely has reviewed the history to the origins of section 116 and analysed the relationship between the recognition clause in the Preamble and the drafting of section 116.2 Ely claims that section 116’s main proponent, Henry Bournes Higgins, intended the clause to be a safeguard against the Commonwealth using the Preamble as a constitutional foothold to legislate with respect to religion.3 By contrast, Beck has researched the origins of

1 I use the term ‘recognition’ to describe acknowledgement of God in the Preamble of the Constitution and the word ‘recognitionists’ to describe those advocating some mention of god.

2 See generally, Richard Ely (1976), Unto God and Caesar, Melbourne University Press.

3 See generally Ely, ibid. See also e.g., JA La Nauze (1972), The Making of the Australian Constitution, Melbourne University Press, 229; Stephen McLeish (1992), Making Sense of Religion and the

12 section 116 from a legal perspective and has drawn subtly different conclusions to Ely about the intended aims of section 116.4 Beck suggests that Higgins intended that section 116 would limit the Commonwealth’s legislative powers over religion independently of any inference that could be drawn from the words of the Preamble.5

In this Chapter, I advance the research conducted by others and consider in detail what the intended scope of section 116 was in relation to protecting speech about religion. I do this from a legal perspective and - in this Chapter - do so independently of any detailed reference to the High Court’s interpretations of section 116 in the decided cases, except insofar as the High Court cases might, from time to time, help to illuminate the constitutional drafters’ intentions in drafting section 116. Chapter 3 then undertakes a detailed analysis of the High Court’s decisions under section 116.

Specific Questions

In this Chapter, with respect to section 116 of the Constitution (1086, 1097, 109A8 and 1159 in earlier drafts) I ask:

 what were the drafters’ objectives in relation to section 116 of the Constitution?;  was section 116 intended to protect speech about religion?

Some challenging considerations arise from these questions. For example: whose interests was section 116 intended to protect?; what is a religion?; what are the limits of section 116?; what was section 116 intended to protect against?; and, if the Commonwealth has no

Constitution: A Fresh Start for Section 116, 18(2) Monash University Law Review 207, 221; George Williams and David Hume (2013), Human Rights Under the Australian Constitution (2nd ed), Oxford University Press, 257; see also Attorney General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 (‘DOGS Case’), where at 612, Mason J noted: ‘Mr HB Higgins thought that the reference to Almighty God in the preamble might have yielded by implication a power in the Commonwealth Parliament to legislate upon the topics mentioned in the section’.

4 Luke Beck, Higgins’ Argument for Section 116 of the Constitution, (2013) 41 Federal Law Review 393.

5 Ibid, 394.

6 See John M. Williams (2005), The Australian Constitution – A Documentary History, Melbourne University Press, 579.

7 Ibid, 608.

8 Ibid, 937.

9 Ibid, 1139.

13 specifically enunciated legislative powers in relation to religion, then what was the purpose of section 116?

This investigation necessarily involves a review of the origins of recognition in the Preamble. As will be seen, opinions differ as to the significance of the influence of the Preamble on the drafting of section 116. By exploring the religious and political context to the Convention Debates, it also is possible to understand what perspectives or biases motivated the delegates to the Constitutional Conventions to argue for the inclusion of section 116 (and to some extent, the Preamble) in the Constitution.10 The Chapter looks at the framers’ views about the objectives of section 116 in order to try to understand the purposes of section 116 and to try to comprehend what mischief or mischiefs the drafters believed section 116 could address.11

Chapter Overview In order to provide some religious context to the Constitutional Conventions, Section II briefly describes religion in Australia from European settlement until the end of the 19th Century. Section III considers how (and why) the early drafts of the reference to Almighty God in the Preamble emerged. It also traces the drafting of section 116 in detail and reviews the arguments presented during the Constitutional Conventions in favour of, and against, the inclusion of section 116 (as it became) in the Constitution.

Section IV addresses the above two specific questions in detail: namely, what were the drafters’ objectives in relation to 116?; and was section 116 intended to protect speech about religion? The segment draws together the principles from the material considered earlier in the Chapter and proposes some conclusions about the drafters’ original objectives in respect of section 116, including whether and to what extent the provision was intended to provide, or was ever capable of providing, a constitutional safeguard for expression about religion. The Conclusion to the Chapter follows.

10 This historical perspective may be considered important for those who believe section 116 should be interpreted and applied in a way that is consistent with its original constitutional objectives.

11 The High Court took such an approach in Cole v Whitfield (1988) 165 CLR 360 when interpreting section 92 of the Constitution. The Court noted that ‘reference to the history of s. 92 may be made, not for the purpose of substituting for the meaning of the words used the scope and effect - if such could be established - which the founding fathers subjectively intended the section to have, but for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged’, 385 (Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

II. RELIGIOUS CONTEXT: 1788 – 1890s

In this section, I briefly describe the religion(s) of the people who founded the Australian State, that is, I look at religion in Australia after European settlement.12 White settlers arrived in Australia in 1788 with a quasi-established religion, the Church of England.13 The mainly Christian European settlers were not a homogenous religious group. Even Anglicanism, the initially dominant and quasi-established sect had rivalry first with the Presbyterians, then with the Roman Catholics, and by the time of the settlement of South Australia by a large number of humanists and nonconformists.

There was a predominantly Christian flavour to the religion of the European settlers, even though - perhaps ironically - Christianity was not necessarily popular amongst the early settlers. Religious participation in the United Kingdom in the late 18th Century was low; this was primarily due to the failure of the Church of England to relate to Britain’s ‘new urban poor’.14 Those transported to Australia were, in the main, part of a doctrinally disaffected cultural group, religiously inarticulate as having been ‘beyond the ministrations of organized religion while in England’15 and staying largely outside organised religious groups after transportation. If the white settlers did care about religion, it was typically a ‘… reaction against a moribund State church that, through its neglect of emerging urban working classes

12 Although I do not discuss the spirituality of Aborigines in any detail in this Chapter, I acknowledge that it existed in Australia for thousands of years before European settlement. Aboriginal spirituality has been described as the foundational spirituality of Australia: see generally Terry Lovat Australia's Multi-Religious Heritage: The South Asian Connection, Working Paper No.5.

13 The Church Act 1836 (NSW) sought to disestablish the Church of England but the Governor in NSW didn't specifically declare this to be the case and so none formally occurred. It would seem that by the late 1800s, the prevalence of other (Christian) religions in Australia would have meant that it was generally accepted that there was no longer an ‘established’ Church of England in Australia by that time. In Wylde v Attorney General (NSW) (ex rel Ashelford) (1948) 78 CLR 224 (‘Wylde’) Dixon J, at 284, advised that, with time, the Church of England came to be no longer regarded as 'established' in NSW, but the steps towards its disestablishment were neither clear nor obvious. His Honour wrote at 284 that the ‘… the better opinion appears to be that the Church of England came to New South Wales as the established Church and that it possessed that status in the colony for some decades.’

14 Gary Bouma (2006), Australian Soul – Religion and Spirituality in the Twenty-first Century, Cambridge University Press, 39.

15 Ibid, 45.

15 had fuelled anticlerical attitudes’.16 The majority of Australian colonialists were passively antagonistic religious reactionaries.

Australia attracted many of Britain’s clerical failures.17 Yet, not all clergy arriving in Australia were poorly trained. The Irish, for example, were often well educated and many had attended continental universities. As time passed, the English clergy tended to come to Australia on limited missionary service from which they could return home ‘covered in glory’ and sometimes returned to England for much coveted Bishoprics.

The first chaplain appointed to the colony in New South Wales was Reverend Richard Johnson (1753-1827)18, an Anglican clergyman who, after arriving in Sydney, conducted public services based on the religious rites contained in the (Anglican) Book of Common Prayer.19 Selected for the post by two Christian evangelical leaders - William Wilberforce and John Newton (Newton being of anti-slavery and Amazing Grace fame)20 - Johnson was a member of the Eclectic Society (the precursor to the Church Missionary Society).

Reflecting the practices of English clergymen (who commonly performed the role of chaplain and judge), the early Australian magistracy often presided over religious ceremonies. One Anglican clergyman, Reverend Samuel Marsden, was of particular note for melding the role of magistrate and clergyman. Marsden arrived in Australia in February 1794. An Anglican chaplain in New South Wales from 1794 to 1836 (formally promoted to senior chaplain in 1810), Marsden was appointed a magistrate in the Parramatta District in 1795. Marsden became known in Australia as the ‘whipping parson’ because of his ‘dual role as cleric and

16 Ibid.

17 Patrick O’Farrell, ‘The Cultural Ambivalence of Australian Religion’, Australian Cultural History, Ed. F. B. Smith and S. L. Goldberg. Cambridge: Cambridge University Press, 1988: 8, cited in Debra Bruch (2006), The Australian Aborigines’ Struggle Against Authority: An Historical Perspective on Government, Military, and a Corrupted Christianity in Jack Davis’ No Sugar: The Journal of Religion and Theatre volume 5, No 1, 2006: http://www.rtjournal.org/vol_5/no_1/bruch.html, viewed 3rd December 2006.

18 Johnson was appointed as Chaplain on 24th October 1786.

19 Tom Frame (2006), Church and State – Australia’s Imaginary Wall, UNSW Press, 25.

20 See Phillip Jensen (2008), Defining the Evangelical, Southern Cross, 12 August 2008, http://www.sydneyanglicans.net/indepth/Chapters/defining_the_evangelical/, viewed 28th September 2008.

16 magistrate and his reputation for sentencing miscreants to the lash’.21 Becoming a wealthy NSW landowner courtesy of colonial land grants and several land purchases of his own (by 1807, he owned 3000 acres), Marsden was stood down from office for one of his whippings.22 Marsden considered that the Aborigines’ ‘want of reflection’ represented a barrier to Christian missionary work,23 yet he was later instrumental in leading Christian missions to New Zealand.

By the early 1800s, there was strong denominational competition amongst the churches in Australia. Tasmania had a Catholic priest by 1821; by 1823, a Presbyterian minister was resident in Hobart. In 1828, approximately 30 per cent of the Australian population was Irish (mostly Roman Catholic); Scottish Presbyterians made up a large share of the free settler population and by 1830, all the major British denominations had despatched their representatives to Australia.24 Missions and protectorates - often formed under (Christian) religious auspices - were established throughout Australia during the 1830s and 1840s by various denominations and many Aborigines were sent to them.25

Two Spanish Benedictines - Rosendo Salvado and Joseph Serra - created a Benedictine mission for Aborigines in 1846 in New Norcia, north of Perth. Clergy of various denominations built missions in various remote parts of Australia, including Cairns26 and in Western Arnhem Land, including: the Lutheran Church (Finke River Mission, 1877); Roman

21 See Bouma n14, 45. Marsden did, however, inquire of his mentor Reverend Miles Atkinson, lecturer of Leeds and Vicar of Kippax (then one of the largest congregations in England) how far the duty of a clergyman was ‘incompatible with the duty of a civil magistrate’: see Michael Gladwin – Marsden’s Generals, in Launching Marsden’s Mission – The Beginnings of the Church Missionary Society in New Zealand, viewed from New South Wales (2014), (P.Bolt and D. Pettett eds), Latimer Publications, and specifically footnote 34 on p.23.

22 State Library of NSW, online collection http://www.sl.nsw.gov.au/discover_collections/history_nation/religion/foundations/macquarie.html, viewed 1st September 2009.

23 Indigenous Gentiles: human unity and missions Chapter 6. The 'Faculty of Faith': Evangelical missionaries, social anthropologists, and the claim for human unity in the 19th century, http://epress.anu.edu.au/foreign_bodies/mobile_devices/ch06s02.html, viewed 23rd July 2012.

24 Frame, n19, 48.

25 http://encarta.msn.com/encyclopedia_761568792_13/australia.html, viewed 1st October 2008.

26 See Ernest Gribble (1930), Forty Years with the Aborigines, Angus & Robertson, Sydney, 122, cited in Philip Freir (2008), Kapargloo – a pattern for Anglican Arnhem ‘Land Industrial Missions’, in One Land, One Saviour, Carroll and S.Etherington (2008) (eds.), 163.

Catholic Church (Rapid Creek, 1882; Daly River, 1886); and Anglican Church (Kaparlgoo, 1889).27 The protectorates were created under British legislation requiring the protection of indigenous peoples throughout the British Empire.28 Many Aborigines lived under the influence of these missions which in the early 20th century became the main conduit for Aboriginal children being fostered or adopted into white families.

In the latter part of the 1800s, a new scientifically-based thread of evolutionary theory emerged courtesy of the research of Charles Darwin, who visited in Australia on The Beagle in 1836 aged in his 20s.29 Darwin spent a total of 61 days in Australia visiting Sydney, Bathurst, Hobart Town in Tasmania and King George’s Sound in Western Australia30 exploring and collecting various animals and insect specimens.31 Inspired by the seeming absurdity of Australian wildlife, Darwin speculated about a new subject of interest: Origin of Species.32 He did not raise the topic again during his voyage33 and his seminal work on natural selection On the Origin of Species was not published until 1859. Secular groups explored Darwin’s ideas, such that by the 1870s, many scientists began to accept the scientific veracity of the theory of evolution even though there was little consensus at that time about the significance of natural selection. Darwin’s theories - plainly - ran counter to the creationist teachings of most of the mainstream Christian churches.

By the mid-1890s, socioeconomic conditions in Australia had deteriorated and the country fell into a deep economic depression. This had a striking effect on the relationship between Australian churches and wider Australian society. The harsh domestic economic

27 Gribble cited in Freir, ibid, 161-2.

28 http://encarta.msn.com/encyclopedia_761568792_13/australia.html, viewed 1st October 2008.

29 Darwin, National Museum Australia, http://www.nma.gov.au/exhibitions/darwin/darwin_and_australia, viewed 23rd August 2012.

30 Ibid.

31 Radio National, Ockham’s Razor, ‘Charles Darwin in Australia’. http://www.abc.net.au/radionational/programs/ockhamsrazor/charles-darwin-in-australia/3165690, viewed 23rd August 2012.

32 Comparing Australian wildlife with wildlife elsewhere in the world, Darwin wrote in his diary ‘An unbeliever in everything beyond his own reason might exclaim “surely two distinct creators must have been at work; their object however has been the same and certainly the end in each case is complete.”’ Australia – the Land Where Time Began, http://austhrutime.com/darwin.htm, viewed 23rd August 2012.

33 Australia – the Land Where Time Began, ibid.

18 circumstances - exacerbated by falling British and European demand for Australian wool, poor seasonal climate conditions and increased difficulties in raising or renewing loans - resulted in severe stresses in Australian society.34 These conditions, in turn, brought about significant changes in the social structures that the economy had, until that time, supported.35 The scale of the depression and the extent of the social dislocation it caused meant that many of the social remedies that came to be conceived of, especially by church leaders, had a more intensely moral dimension.36

Until that time, churches had often sought to ameliorate the consequences of social hardship by working through denominationally-badged welfare charity agencies. In Sydney, for example, the areas around the Rocks, Pyrmont and Darling Harbour were focuses for outreach via Christian organisations such as Sydney City Mission (established 1862), the Salvation Army (1882) and the Central Methodist Mission (1884).37

The depth of the economic slowdown in the mid-1890s meant that many church agencies came to see the management of social hardship as beyond their means (or methods).38 The churches could flounder or find new ways to reassert their relevance. Though overwhelmed by the scale of the economic downturn and the magnitude of the changes to industrial conditions, many clerics and church laypeople came to assert that the economic breakdowns were by-products of moral failings. Linking social decay with backsliding (and citing examples such as desecration of the Sabbath and alcoholic intemperance), many clergy formed or took part in public societies which were established for the purpose of denouncing such evils and persuading legislatures to enforce salutary controls.39

The harsh economic conditions thus gave the churches some of the moral authority that they perhaps lacked in such significant measure before that time. Arguably, a by-product of the

34 Ely (1976) n2, 4.

35 Ibid.

36 Ibid.

37 State Library NSW, Discover Collections, http://www.sl.nsw.gov.au/discover_collections/history_nation/religion/city_missions/index.html, viewed 23rd August 2012.

38 Ely (1976) n2, 5.

39 Ibid.

19 churches’ enhanced moral authority was deeper suspicion of the practices of non-mainstream religions. It was in this socio-religious context that Australia’s Constitutional Conventions of, first, 1891 and then, secondly, 1897-8 (each further described in Section III) took place.40

III. THE DRAFTING OF SECTION 116

A. Constitutional Conventions Australia’s Constitution was drafted during two separate Conventions, the first of which took place in Sydney in 1891 (‘First Convention’). The aim of the First Convention was to put a draft constitution to a referendum in each colony in order to then have the Constitution enacted by the Imperial Parliament.41 The proposal, however, lapsed in NSW without going to a referendum and the draft did not proceed further.

Nevertheless, at the First Convention, the Tasmanian Unitarian42 and Attorney General Andrew Inglis Clark43 presented a complete draft constitution,44 clause 46 of which stated:

The Federal Parliament shall not make any law for the establishment or support of any religion or for the purpose of giving any preferential recognition to any religion or for prohibiting the free exercise of any religion.45

Clause 81 of Inglis Clark’s draft provided:

40 By the late 1800s, with the emergence of the prominent theosophist and women’s rights activist, Annie Besant and the Theosophical Society, Eastern religion also surfaced in Australia: see Jill Roe (1986) Beyond Belief: Theosophy in Australia, 1879-1939, NSW University Press.

41 See 1891 Australasian Federation Conference at http://parlinfo.aph.gov.au – viewed 3rd August 2012.

42 Unitarians do not necessarily believe in the divinity of Jesus, and believe in the single personality of God, in contrast to the doctrine of the Trinity (Jesus, Father and Holy Spirit as coequals).

43 He was described as a romantic and a poet: see William G Buss, Andrew Inglis Clark’s Draft Constitution, Chapter III of the Australian Constitution, and the Assist from Chapter III of the Constitution of the United States, (2009) 33(3) Melbourne University Law Review 719, 719. Inglis Clark later became puisne judge of the Tasmanian Supreme Court and, after that, senior judge of the Tasmanian Supreme Court. He was twice passed over for appointment to the High Court of Australia.

44 Inglis Clark was a delegate to the First Convention but for reasons that were never entirely clear, he chose not to attend the Second Convention, nor did he play an active part in supporting the referendum to ratify the draft Constitution prepared at the Second Convention: Buss, ibid, 721.

45 See John M. Williams n6, 86.

No Province [State] shall make any law prohibiting the free exercise of any religion.46

Inglis Clark modeled substantial parts of his draft constitution on the US Constitution47 and the above-mentioned clauses resemble the wording of the First Amendment.

The First Convention’s Constitutional Machinery Committee (‘Machinery Committee’) rejected clause 46 of Inglis Clark’s draft and there was little opportunity to debate the clause.48 Edmund Barton (later Prime Minister and High Court judge), a member of the Machinery Committee, later explained that the former clause was considered unnecessary because religion was not one of the designated subjects about which the Commonwealth could legislate.49 The Machinery Committee reasoned that, because a power to make laws relating to religion was not one of the Commonwealth’s expressly designated powers, there was no point in placing such a prohibition in the Constitution.50 By contrast, the Machinery Committee approved Inglis Clark’s latter clause (clause 81) without it even being discussed at the Convention.51

The drafting process began afresh in 1895 after the Premiers of the colonies agreed to form a popularly elected Convention (‘Second Convention’). This time, the aim was to produce a further draft Constitution to be put before the people in each colony at referenda. The

46 Ibid, 90.

47 Buss n43, 721.

48 Richard Ely (1975), Andrew Inglis Clark and Church-State Separation, 8(3) Journal of Religious History 271, 285.

49 Ely (1976) n2, 3.

50 Barton explained in 1898 that ‘the reason why the prohibition in the first draft of the Bill … was confined to the states was that it could not, by any possibility, be concluded that it was necessary to extend such a provision to the Commonwealth, because no power was given to the Commonwealth to deal with the matter of religion’: Australasian Federation Convention Debates Melbourne 8th February 1898, 661. This reasoning seemed to gloss over the point acknowledged by participants in later Convention Debates (including Barton himself), that the Commonwealth might be able make a law relating to religion as a law with respect to a matter or purpose within power.

51 There was a minor editorial amendment: replacing the phrase ‘No Province shall ….’ With ‘A State shall not’. Accordingly, clause 16, Chapter V of the Commonwealth Bill of 1891 read ‘A State shall not make any law prohibiting the free exercise of any religion’, wording which was adopted verbatim at the Adelaide session in 1897: see John Quick and Robert Garran (1901), The Annotated Constitution of the Australian Commonwealth Volume 2, Angus & Robertson, Sydney, 951; and The Draft Bill to Constitute the Commonwealth of Australia, reprint available at http://purl.library.usyd.edu.au/setis/id/fed0007, viewed 16th December 2012. See also See John M. Williams, n6, 432.

21 delegates to the Second Convention revived the draft Constitution adopted by the First Convention and - led by Edmund Barton - sought to include in it drafting changes and negotiated compromises. The Second Convention met in Adelaide and Sydney in 1897 and then in Melbourne in 1898.52

B. Recognition Formally Proposed Adelaide hosted the first session of the Second Convention, where the recognition of God was formally proposed as part of the Constitution. Yet, even before the recognition clause was considered in full Convention sittings, concerns emerged about the legal implications of recognising God in the Preamble of the Constitution.53 There were petitions on behalf of religious minorities. On 6 April 1897, for example, Vaiben Solomon54 presented a petition to the Convention on behalf of 1201 electors from four colonies; the petition expressed concerns about ‘religious persecution’.55 Solomon’s petition questioned, perhaps for the first time, how the Constitution would protect the religious susceptibilities of minorities. The petition implicitly raised a secondary question, namely how would the religious interests of minorities be balanced against the potentially competing religious interests of the wider community?

52 The sessions took place without any representatives from Queensland and with parliamentary representatives, rather than popularly elected delegates, from Western Australia. The revised draft Constitution was later put to referenda in NSW, South Australia, Tasmania and Victoria (not Queensland or Western Australia) and, while securing majority support in the four colonies, votes did not reach the 80,000 needed in NSW as required by the NSW Parliament. The draft was then amended in 1899 and was again put to voters in the colonies (this time also including Queensland and Western Australia) in 1899 and 1900. While a majority of voters in each colony supported the draft, voting was voluntary and large sections of the community (e.g. women and Aborigines) were excluded from voting and overall voting numbers were low. The draft Constitution then still had to be debated by, and enacted by, the British Parliament. It completed its passage through the British Parliament on 5th July 1900, then received royal assent and came into force on 1st January 1901.

53 See, for example, letter to The West Australian, Friday 30 July 1897, from W.A.Colcord (North Fitzroy), p 3: ‘the constitution is civil … it cannot properly, therefore, deal with religious matters … a religious clause in the constitution, therefore, would lay the foundation for religious legislation’, record available at http://trove.nla.gov.au/ndp/del/Chapter/3180514?searchTerm=constitution%20and%20religion&search Limits=l-availability=y|||l-australian=y, viewed 16th December 2012.

54 Premier of South Australia for a week from 1 December 1899 – 8 December 1899.

55 I have not been able to establish who the signatories were in Solomon’s petition. The petitioners asked that no clause be included in the Constitution if the clause could be construed as a basis for the Commonwealth exercising power over religion and the submission sought a declaration that neither the Commonwealth government nor any state parliament should be able to make any law with respect to religion or to prohibit its free exercise: Australasian Federation Convention 1897, 6th April 1897, 405.

There were, by contrast, several requests for a recognition clause. Tasmanian Premier Sir Philip Fysh sought recognition on behalf of 119 members of churches in Tasmania.56 Dr John Quick, a Methodist lawyer,57 presented a petition on behalf of members of the Wesleyan Church, Bendigo, asking that the Constitution acknowledge a ‘Supreme Ruler’ in the Preamble and that the daily sessions of both Houses of Parliament be opened with prayer.58 George Reid presented a petition from 1,007 members of the Salvation Army which likewise asked that the Preamble recognise the ‘Supreme Ruler of the world’.59

Quick presented the ‘recognition’ issue to the Constitutional Committee.60 Specifically, he moved to amend the draft Preamble to declare that the people of the colony, in agreeing to form an indissoluble Commonwealth, were ‘invoking Divine Providence’.61 His motion was defeated, but the loss evinced a response from, notably, the Victorian Council of Churches, who on 17 April 1897, forwarded a petition to the Convention asking ‘… to grant that at least the first and chief prayer … as to the national recognition of God … be granted, so that God’s name might be glorified’.62

The recognition issue was raised again - this time in full Convention - on 22 April 1897. In order to make the cause seem ecumenical,63 the Victorian Protestant Simon Fraser64 invited the South Australian Roman Catholic Patrick McMahon Glynn to raise the issue. Glynn then presented a carefully prepared speech to the Convention. Glynn asserted that religion was the

56 Australasian Federation Convention 1897, ibid.

57 Quick was later knighted (on 1 January 1901) and was elected unopposed as the first Federal member for Bendigo (a seat he held until 1913). He had won the Legislative Assembly seat of Sandhurst (Bendigo) in 1880 (he held it in 1883 and retained it again in 1886 but lost it after a redistribution in 1889): see Australian Dictionary of Biography, http://adbonline.anu.edu.au/biogs/A110327b.htm, viewed 6th May 2011.

58 Australasian Federation Convention 1897, 6th April 1897, 405.

59 Ibid.

60 Ely (1976) n2, 31-2. The Constitutional Committee was one of three committees (along with a Finance Committee and a Judiciary Committee) established to expedite the preparation of a working draft of the Constitution

61 Ely (1976), ibid, 32-3.

62 The Council also made personal representations to some, maybe even all, members of the Victorian delegation: Ely, ibid.

63 Ely, ibid, 33.

64 Grandfather of later Australian Prime Minister Malcolm Fraser.

23 foundation of civil society, a foundation which he suggested, without irony, was proved better by feelings than by actual knowledge.65 He asked the Convention to ‘grant the prayer of [the ‘recognition’] petition … in a hope, that the justice that we wish to execute may be rendered certain in our work, and our union abiding and fruitful by the blessing of the Supreme Being’.66 Glynn’s amendment failed, 17 votes to 11.67

Debate on Glynn’s proposal included the following contribution from Edmund Barton (apparently to cheers from some of the members of the Convention68), in which Barton set out his own views of the relationship of the sacred to the secular:

The whole mode of government, the whole province of the State, is secular … The whole duty is to render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.69

Barton’s view could hardly have been more different to Glynn’s perspective. According to Barton, unless there was an ‘established’ church in Australia (which clearly Barton believed even by this time there was not) religion belonged in the private square. The Adelaide session concluded on 23 April 1897 without any recognition clause being accepted, although the session agreed to include Inglis Clark’s amended 1891 provision as section 109.70

C. A Safeguard for Religious Freedoms? By the end of May 1897, the Councils of Churches of NSW, Victoria, Tasmania and South Australia had committed themselves to lobbying for recognition of God in the Constitution. Their activities included collecting signatures to petitions, writing to the press, holding protest meetings, canvassing the views of members of Parliament and sending delegations to

65 Australasian Federation Convention Debates, Adelaide 1897, 22nd April 1897, 1185.

66 Ibid.

67 Australasian Federation Convention Debates, Adelaide 22nd April 1897, 1189.

68 Adelaide Advertiser, 23rd April 1897, in Ely (1976) n2, 33.

69 Australasian Federation Convention Debates, Adelaide 22nd April 1897, 1187.

70 See Quick and Garran n51, 951. The Constitution Bill approved by the Convention on 23 April 897 included section 109 (renumbered from section 108 in earlier drafts of the Constitution Bill at that Convention), which simply provided that ‘A State shall not make any law prohibiting the free exercise of any religion’.

24 various leading government ministers.71 While there was vigorous debate about the recognition clause in some colonial parliaments, there seemed little doubt that the Convention would recommend the inclusion of recognition of some sort in the Preamble.

There was, however, a slight change of emphasis in the content of the requests in the recognitionists’ petitions after the Adelaide session. Perhaps as a result of Barton’s contributions in Adelaide, the recognition proposals that were submitted no longer suggested that the Australian people would be, by accepting Federation, performing an act that was religious and political in nature.72 Rather, the petitioners’ language encouraged the mindful honouring of god.73 There was, in short, less concern about physical acts of reverence and a greater focus on a worshipful mindset. This alteration in terminology perhaps reflected tacit acceptance by the petitioners that religion and secular activities belonged in separate spheres.74

During the late afternoon of the Melbourne Convention session on 7 February 1898, an amended clause 109 arose for discussion.75 Henry Bournes Higgins, a Victorian barrister (later a High Court judge) cautiously mentioned to the other delegates the particular concerns that the Seventh Day Adventists held about Sunday observance: the Adventists could not afford to take two holidays a week (Saturday was their day of rest) and they were worried that a law requiring them to rest on Sundays could be enacted as a result of recognition.76 Sir Edward Braddon asked Higgins why the words in the Preamble could not be left out.77 Higgins responded by saying that he was willing to support the inclusion of appropriate

71 Ely (1976) n2, 37.

72 Ibid 41.

73 The petitioners sought acknowledgment or dependence on god (i.e., not invoking god). The suggested wording included: ‘acknowledging the Almighty God as the Supreme Ruler of the universe’ (NSW and South Australia)’; ‘in reliance on the blessing of Almighty God’ (Victoria); and ‘Duly acknowledging Almighty God as the Supreme Ruler of the Universe, and the source of all true Government’ (Tasmania). Texts of the petitions set out in proceedings Sydney Convention 1897, 81-82.

74 Ely (1976) n2, 41.

75 Australasian Federation Convention Debates Melbourne 7th February 1898, 654. Ely (1976) n2, 55, suggests that it was probably at the Sydney Convention that Higgins placed on the notice paper his proposal to amend clause 109 of the draft Constitution.

76 Australasian Federation Convention Debates Melbourne 7th February 1898, 656.

77 Ibid.

25 words in the Preamble for the sake of securing votes for the Constitution, but, he said, the words in the Preamble needed a countermeasure.78

To improve the drafting of clause 109, Higgins requested that, after the word ‘not’, there be included the words ‘nor shall the Commonwealth’; and after the word ‘religion’, the phrase ‘or imposing any religious test or observance.’ be inserted.79 The clause would then state ‘A state shall not nor shall the Commonwealth make any law prohibiting the free exercise of any religion or imposing any religious test or observance’. Braddon, however, then moved two specific amendments, one on behalf of Tasmania and one of his own.80 Expressing concerns about the implications of clause 109, Braddon noted that the limitation on laws prohibiting the free exercise of religion could make some practices lawful which should be banned. He singled out the practices of the ‘Hindoos’, claiming that

One of their religious rites is the ‘suttee,’ and another is the ‘churruck,’ - one meaning simply murder, and the other barbarous cruelty, to the devotees who offer themselves for the sacrifice.81

Braddon thus acknowledged that some religious practices may offend wider social norms. This prompted a concurring interjection from Dr John Cockburn (from South Australia82) who said ‘the Thugs are a religious sect’.83 ‘Yes’, continued Braddon and

if this is to be the law, these people will be able to practise the rites of their religion, and the amendment I have to suggest is the insertion of some such words as these:

‘But shall prevent the performance of any such religious rites, as are of a cruel or demoralizing character or contrary to the law of the Commonwealth.’ 84

78 Ibid.

79 Ibid.

80 Ibid, 657.

81 Ibid.

82 Later Premier of South Australia for a short time.

83 Australasian Federation Convention Debates, Melbourne 7th February 1898, 657.

Braddon thus suggested that Higgins’ clause needed a qualifier to ensure that the Commonwealth could prohibit religious actions which were unacceptable or offended Commonwealth laws.85 The South Australian John Gordon concurred.86 Though not necessarily explicitly, Braddon had raised the question of how the Constitution could balance legal protection for expression of non-mainstream religious beliefs with the values and norms (secular or religious) of the wider population.

On the morning of 8 February 1898, Higgins requested another amendment to clause 109 such that the clause would not include any reference to religious tests, but would include an additional ‘no establishment’ provision, and would state ‘A State shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance’.87 Higgins’ amendment drew immediate comment from the NSW delegate, Richard O’Connor, who intimated that any reference to the Commonwealth was unnecessary since the Commonwealth lacked any power to make laws about religion.88

Josiah Symon (chair of the Judiciary Committee) also believed the clause (109) was mostly unnecessary, but he emphasised the importance of people being able to freely express their faith. He stated

what we want in these times is to protect every citizen in the absolute and free exercise of his own faith, to take care that his religious belief shall in no way be interfered with … 89

Symon recommended that clause 109 be scrapped and replaced with a narrower provision which limited any prohibition to that of imposing a religious test.90 Symon also considered

84 Ibid.

85 Ibid.

86 Gordon explained that, ‘… we ought to safeguard it [expression about religion] to this extent, directly the exercise of religious observances injures the community or any person in the community, I think that both the state and the Commonwealth ought to have the right to interfere’: ibid, 658-59.

87 Ibid, 658.

88 Ibid. O’Connor seemed implicitly to accept that the states would have such power.

89 Ibid, 659.

90 Ibid, 660.

27 that if there was to be a constitutional clause dealing with religion and its free exercise, there had to be greater clarity about what was meant by ‘religion’ and its ‘free exercise’.91 It seems that Symon, like Gordon, was aware of the practices of the faith healers and was concerned that the Commonwealth should not be restricted from regulating their conduct. The narrowing of the draft clause 109 as recommended by Symon reduced the scope of the religious protections available to the faith healers.

Barton, however, spoke out strongly against Higgins’ revised clause, stating, in prosaic fashion, that ‘we can do remarkably well without the clause at all’.92 He asserted that the mere inclusion in the Preamble of a clause in the Constitution acknowledging the existence of a deity would be insufficient to induce the High Court to hold that this imported a power on the part of the Commonwealth to do anything with respect to religion.93 Barton also contended that ‘under a Constitution like this, the withholding of a power from the Commonwealth is a prohibition against the exercise of such a power’.94 Barton’s claim begged the question of whether the Constitution would withhold such power from the Commonwealth, especially, as Barton was to later acknowledge, the Commonwealth’s other powers may be wide enough to allow it to make laws with respect to religion.

Higgins’ amendment to clause 109 was eventually rejected on the voices95 as was an amendment proposed by the Tasmanian House of Assembly to add the words ‘Nor appropriate any portion of its revenues or property for the propagation or support of any religion’.96 Eventually, the entire amended clause 109 that Higgins had proposed failed.97

91 Ibid. Symon also pondered - incisively - whether a clause that prevented the Commonwealth passing a law interfering with the free exercise of religion might implicitly allow the Commonwealth to pass a law targeted at the practices of persons of no religion: ibid.

92 Ibid, 662.

93 Ibid, 661.

94 Ibid.

95 Ibid, 664.

96 Ibid.

97 Ibid.

Shortly after his February 8 defeat, however, the persistent Higgins placed a new amendment of clause 109 on the notice paper.98

D. Recognition is Accepted When recognition was considered at the Melbourne Convention on 2 March 1898, it was again Glynn who presented the motion.99 This time, Glynn’s proposal was more moderate than the earlier draft he had submitted: he proposed to alter the Preamble to declare that the people of the various colonies ‘humbly relying on the blessing of Almighty God’ agreed to unite in one indissoluble Federal Commonwealth. In an impassioned plea, referring to religion being ‘the bond of society’, Glynn urged delegates to agree to include the ‘mark of the Omnipotent’ in the Preamble.100

Despite Glynn’s pleadings, Higgins said he regretted being unable to support the amended draft.101 While noting that the reworded provision was not ‘quite so objectionable’,102 Higgins contended that there was still no sufficient safeguard against the Commonwealth passing religious laws.103 To support his position, Higgins built on arguments he had raised in earlier debates but which he now pressed with greater urgency.

In the February 1898 Melbourne session, Higgins had alluded to the 1892 US Supreme Court decision in Church of the Holy Trinity v United States104 (‘Holy Trinity’), where the US Supreme Court had described the US as ‘a Christian nation’.105 Higgins now explained that Holy Trinity had emboldened US Congress to pass a law which prohibited the opening of the Chicago World’s Columbian Exposition on Sunday notwithstanding the absence of any

98 Ely (1976), n2, 76.

99 See Australasian Federation Convention Debates Melbourne 2nd March 1898, 1732. See also Diary 2nd March 1898, Glynn Papers, MS 558 ANL, in Ely, ibid, 68. Ely suggests that the recognitionists likely preferred using Glynn to put forward their position because he gave their cause an interdenominational flavor.

100 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1733.

101 Higgins had also opposed recognition in Adelaide.

102 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1734.

103 Ibid.

104 143 US 457 (1892).

105 Australasian Federation Convention Debates Melbourne 8th February 1898, 1734.

29 recognition of deity in the US Constitution and even though the US Congress lacked any specific law making power over religion.106 Higgins quite likely deliberately over-emphasised the significance of this decision. As Beck notes, the US Supreme Court did not find or even hint in Holy Trinity that the supposedly Christian character of the country gave rise to any legislative power.107 Though probably overstating the influence of the Supreme Court decision (and the effect of the legislation108), Higgins’ line of argument was nevertheless clear: if the Australian Constitution included any form of recognition, then there must be a clause preventing the Commonwealth passing laws about religion.

Quick disputed the realism of Higgins’ warning and expressed doubt that, ‘speaking in ordinary language’,109 the words ‘humbly relying on the blessing of Almighty God’ 110 could ever imply that Australia was necessarily a Christian nation.111 Quick emphasised the relatively simple and unsectarian nature of the wording in the Preamble. 112 He also queried whether recognition of a deity in the Preamble could confer on the Commonwealth Parliament any power to legislate on any religious matter.113

Although continuing to oppose the recognition clause, Barton noted that the form of the clause Glynn proposed was ‘the least objectionable which could be devised’.114 Seeming to echo Higgins’ concerns, Barton also said that, if there was a danger of religious laws even in the absence of recognition of a deity in the Preamble, ‘that danger, by every consideration of experience or common sense would be increased by putting in [such] an express amendment which might be construed as a peg on which to hang such further decision or such further

106 Ibid. Higgins claimed that the 1892 Congress decision to tie a Sunday closing condition to an offer of financial aid to the World Fair was religiously motivated in that it was based on the earlier declaration in Holy Trinity that the US was a Christian nation.

107 Beck n4, 403.

108 See Tony Blackshield, Religion and Australian constitutional law, in P.Radan, D.Meyerson and R.F.Croucher (eds.) (2005), Law and Religion, Routledge, 82-3.

109 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1736.

110 Ibid.

111 Ibid.

112 Ibid.

113 Ibid, 1737.

114 Ibid, 736-7.

30 enactment’.115 Yet, rather than directly expressing support for Higgins, Barton focussed on the US jurisprudence Higgins cited. He criticised as untenable the mode of argument the US Supreme Court employed in Holy Trinity.116 Barton then concluded his submissions by declaring that legislation in relation to religious matters should be left to the states.117 After further contributions to the debate, Glynn’s amendment was agreed to on the voices.

E. Section 109 (116) is Accepted As mentioned, soon after his defeat on 8 February 1898, Higgins lodged a proposal to further amend section 109.118 This proposal arose for discussion later in the morning of 2 March 1898.119 Higgins now explained that, although the US courts had held that the United States are able to make laws for the purpose of imposing Sunday observance, he wished to ‘preserve to the individual states the absolute power of regulating all observances of this sort.’120

When introducing the clause on this occasion, Higgins advised that, although the Constitution acknowledged god in a way which, based on some US precedents, would involve ‘certain inferential powers’,121 he believed that this in no way conferred law-making powers on the federal Parliament with respect to religion, not even tacitly.122 He thus accepted that recognition granted the Commonwealth no power to make laws for religion. Higgins’s rationale for including clause 109 did not explicitly depend on recognition giving the Commonwealth any explicit or even implicit powers over religious affairs. Instead, Higgins contended that the new clause would remove any doubt about whether the Commonwealth could rely on the Preamble to legislate with respect to such matters. If, as he had argued (whether accurately or not), the US Supreme Court could declare the US a Christian nation

115 Ibid, 1737.

116 Ibid, 1738.

117 Ibid.

118 Ely (1976) n2, 76.

119 This time, the text said: ‘The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth’: Australasian Federation Convention Debates Melbourne 2nd March 1898, 1769.

120 Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1769-70.

121 Ibid, 1769.

122 Ibid.

31 without recognition, then it was important for the Australian drafters to limit any powers the Commonwealth may have over religion in a Constitution which did include recognition.

To support clause 109, Higgins commented that most of the suggested wording in clause 109 was already in the US Constitution either as originally drafted or as altered by amendment.123 The establishment and free exercise clauses of section 109 generally reflected the wording of the First Amendment while the final sub-clause - the clause about religious tests - had its counterpart in paragraph 3 of Article VI of the US Constitution.124 Noting the important exception - the phrase relating to religious observance (a provision which had obvious significance for the Adventists) - Higgins claimed these additional words, not being in the US Constitution, were especially necessary because of the Convention’s support for recognition.125 At the same time, Higgins pleaded that there could not be ‘an overriding Commonwealth law’ that would interfere with the power of the states to legislate in relation to religion.126 The states, in other words, would have legislative power in relation to religion:

123 Ibid.

124 For ease of comparison between the Australian Constitution and US provisions, I set them out below. Section 116 of the Australian Constitution (as it became) states:

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 First Amendment by contrast declares:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Paragraph 3 of Article VI of the US Constitution states:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Aside from Holy Trinity, key US Supreme Court decisions at the time of the Australasian Federation Convention Debates included Reynolds v United States 98 U.S. 145 (1879) (‘Reynolds’) and Davis v Beason 133 US 333 (1890) (‘Davis v Beason’). In each of Reynolds and Davis v Beason, the US Supreme Court held (at the time) that Congress lacked power to legislate over religious opinion but it could reach actions that violated social duties or which were subversive of good order.

125 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1769.

126 Ibid, 1770.

32 a concession. Higgins was thus now emphatic about preserving the states’ rights to make laws in relation to religion, conceding that his earlier draft ‘went too far’.127

F. Arguments Against Section 116 Barton unsurprisingly opposed Higgins’ amended clause. In an implicit plea to enlightenment, Barton had urged the Convention delegates to recognise that, as Australia became more secular, the chances of religious persecution would correspondingly diminish (whether under the Commonwealth or the laws of a state).128 Barton, however, changed his line of argument. Echoing the concerns Braddon had expressed on 7 February 1898, Barton noted that the Commonwealth may, for example, need to regulate religious practices in association with areas such as immigration, emigration and naturalisation if these religious practices were abhorrent to a civilized community.129 Barton thus appeared to believe that there was a risk that the ‘free exercise’ limb of clause 109 could prevent the Commonwealth exercising such legislative power. Asked by Higgins whether the Commonwealth did have those powers under the existing draft, Barton responded

I am not sure that it has not. I am not sure that it has not power to prevent anything that may seem an inhuman practice by way of religious rite. 130

Despite the difficulty of interpreting the multiple negatives, it seems Barton was satisfied that the Commonwealth could regulate inhumane religious practices under a law enacted with respect to a matter or purpose within power. Higgins interpolated, saying that he wished to leave such matters to the states.131 In an important response, Barton stated that when a power to make laws is given to the Commonwealth

127 Ibid.

128 Ibid.

129 Ibid, 1771-72.

130 Ibid, 1772.

131 Ibid.

we should take care not to take away an incident of it which may be necessary for the Commonwealth to use by way of regulation132 and Barton repeated his claim that the establishment of any religion was ‘entirely not to be expected’.133

Symon, by contrast, claimed that ‘[i]t is part of the unwritten law of the Constitution that a religion shall not be established.’134 Barton replied that no matter what may be the result of any US decision, he doubted whether any member of the US Congress would suggest that Congress had the power to establish any religion and he was sure the US Supreme Court would not say so.135 Barton also commented that the only aspect of the draft clause with merit was the provision prohibiting religious tests.136 Yet, on the basis that he thought such a test was simply not possible, Barton confirmed that he would vote against the whole clause.137

Symon later moved a further amendment to section 109: under his truncated draft of section 109, the Commonwealth would be unable to impose any religious test as a qualification for any office of public trust under the Commonwealth.138 Symon had argued for a similarly narrow clause on 8 February 1898 which could have applied to both the Commonwealth and the states.139 Symon had thought that the free exercise clause might protect inhumanities and

132 Ibid.

133 Ibid.

134 Ibid. On this reasoning, the Constitution may include an implied freedom against establishment of any religion, independently of any specific constitutional clause. See Blackshield, n108, 81.

135 Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1772.

136 Ibid.

137 Ibid.

138 Emphasis added. Symon recommended that ‘… all the words down to “and” be omitted, with a view to the insertion in lieu thereof of the following:-“Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any office of public trust under the Commonwealth.”’ The draft section 109 (and section 116) did not refer to a power of the Commonwealth and stated that ‘… no religious test shall be required as a qualification for any office or public trust under the Commonwealth’: Ibid, 1775-6. Emphasis added.

139 Australasian Federation Convention Debates, Melbourne 8th February 1898, 660. There (660), Symon is recorded as saying ‘I think that the object we have in view will be sufficiently met if we prohibit the imposition of any religious test as a qualification for any public office of trust’.

34 cruelties committed in the name of religion.140 Apparently now satisfied that either the Commonwealth or a state could effectively legislate to prevent such acts, Symon affirmed that he regarded the other provisions of the draft of 109 as unnecessary.141 Regarding it as ‘embodied in the Constitution as part of the unwritten law that no church establishment should prevail and that religious freedom shall be observed’,142 Symon said that recognition might allow the Commonwealth to apply a religious test when appointing officers to a position of public trust under the Commonwealth. Like Higgins, but with a more narrowly targeted concern, Symon was also concerned that the words in the Preamble might ‘overspread’ the Constitution.143 Symon’s proposed draft thus aimed to address that specific concern.144

O’Connor, by contrast, completely opposed Higgins’ amendment. He now explained the particular danger he saw in Higgins’ proposal. His argument was an elaboration of the contention Cockburn had already expressed - namely, that preventing the Commonwealth from making laws in relation to religion tended to suggest that the Commonwealth was empowered to deal in other respects with religious observances.145 O’Connor was concerned that limiting the Commonwealth’s legislative powers with respect to particular aspects of religion might suggest that the Commonwealth could legislate about aspects of religion over which it was not specifically precluded from exercising jurisdiction.146 He did concede, however, that, under the Constitution as then drafted, the Commonwealth might ‘impose any form of oath which it thought fit as a qualification for office’.147

Higgins was the last person to speak on 2 March 1898. With 5pm approaching, Higgins said:

140 Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1775.

141 Ibid, 1776.

142 Ibid, 1777.

143 Ibid, 1776.

144 Symon’s wording differed from the draft incorporated as the last limb of section 109 the Constitution Bill in that his wording would limit the powers of the Commonwealth rather than merely applying under the Commonwealth and it referred to office of public trust rather than office or public trust. ‘Office or public trust’, is consistent with Article VI of Paragraph 3 of the US Constitution.

145 Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1778.

146 Ibid.

147 Ibid, 1779.

You have put in the Preamble a religious recital which is not in the Constitution of the United States of America, but you have not put in the safeguard against religious intolerance which they have there.148

Higgins thus claimed that he saw clause 109 as a safeguard against religious intolerance. He continued, referring to the 36,000 ‘distinct signatures’ he had received149 and urged his colleagues to reassure those persons that their interests would be protected.150 The first question for the delegates to decide was whether Symon’s clause should replace that of Higgins.151 By 22 votes to 19, the members voted in favour of Higgins.152 Glynn, who introduced the recognition motion, preferred Higgins’ clause.153 The second question for the delegates was whether to insert Higgins’ proposed new clause. This time, Higgins won more comfortably, by 25 votes to 16.154

Before the Convention rose, there was a further amendment to section 109 and it was renumbered to section 115.155 On 17th March 1898, summarising the evolution of the recognition clause and what was now a draft of section 115 of the Constitution, Barton drew particular attention to the ‘important’ clauses of recognition and section 115.156 Barton explained that recognition of a Supreme Being in the Preamble was the result of public agitation which then led to concerns (based on US jurisprudence) that the additional words

148 Ibid.

149 Ibid, 1779. Higgins had earlier referred to 38,000 signatures. On the latter occasion, Higgins did not mention that the signatures were only from Victorians. Presumably, Higgins wanted to suggest that there was more widespread opposition towards recognition than merely from the people of a single state - his own - Victoria. Ely (1976) n2 points out that Higgins got the number wrong both times and the overall total (nationally) was likely no more than 25,000: 86.

150 Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1779.

151 Ely (1976) n2, 86.

152 Ibid.

153 Ibid.

154 Ibid.

155 It then read ‘The Commonwealth shall not make any law for establishing an 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’: Australasian Federation Convention Debates Melbourne 17th March 1898, 2474, see John M. Williams n6, 1139.

156 Australasian Federation Convention Debates, Melbourne 17th March 1898, 2474.

36 might result in the Commonwealth infringing religious liberties.157 Accordingly, Barton explained, the Convention had agreed to a clause which would prevent the Commonwealth exercising such powers in relation to religion but which would not interfere with the powers of the states.158

IV. SECTION 116: DETAILED CRITIQUE

A. Constitutional Significance of Recognition The Constitution, as Barton noted, came to include two clauses with religious elements, one, the Preamble, relating to recognition of a deity and the other, section 116 (as it became after being renumbered), preventing the Commonwealth (but not the states) making laws in relation to religion. Section 116 also came to prohibit any religious test being required for any office or public trust under the Commonwealth.159 Both clauses were substantially a product of lobbying. Yet, it was a particular branch of religion - the Adventists - who argued for the protections in section 116. Their primary interest was to ensure that the Commonwealth could not introduce laws for Sunday observance. Like the Jews, the Adventists rested on Saturdays (and needed to work on Sundays).

Ostensibly, the Preamble did not even recognise any particular deity let alone authorise any legislative power. Glynn, as noted, even suggested with a hint of hubris, that the clause could become a ‘pledge for religious toleration.’ Yet, there were perhaps good reasons for believing that Christianity might influence the interpretation of the Constitution. For example, even after it was plain that section 116 would become part of the Constitution, two leading

157 Ibid.

158 Ibid. It therefore seems that, while Barton believed that recognition conferred no legislative power on the Commonwealth (and he voted against Higgins’ proposal), he also came to the view that the clause would counter the possibility that recognition might allow the Commonwealth to interfere with religious liberty. Later, on 19 April 1898 at Sydney Town Hall, Barton declared that ‘God means to give us this Federation’: Sydney Morning Herald, 20 April 1898, in Ely (1976) n2, 105-6, footnote 10. Emphasis added. When the Imperial Parliament debated the Federation Bill during May and June 1900, there were no changes to section 115 except that it was renumbered to section 116: see John M. Williams n6, 1230.

159 The final draft of the fourth limb of section 116 differed from the wording Symon proposed in two respects. First, Symon had recommended that the limb would apply to limit the power of the Commonwealth; and secondly, his drafting would have applied to an office of public trust under the Commonwealth. (Emphases added).

37 constitutional figures (Quick and Garran) claimed that the ‘fundamental principles of the Christian religion will continue to be respected, although not enforced by Federal legislation’.160 These respected lawyers asserted that Christianity would have an ongoing role in the Federation, albeit apparently not being enforceable by Federal law.

It was otherwise common ground amongst Convention delegates that recognition itself conferred no substantive law making powers on the Commonwealth in relation to religious affairs. At face value, it would seem difficult to infer law making power from the words in the Preamble

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: …161

What is more, as far as my research reveals, no one sought to draw any inference about legislative power from the italicised words which also appear in the Preamble

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-- 162

The reference to the ‘Lords Spiritual’, is to the bishops of the Church of England (26) who serve in the House of Lords along with the Lords Temporal.

The point Higgins actively pursued (and which ultimately proved to be highly persuasive) was a more nuanced position, namely, that recognition raised doubts about whether there could be a constitutional foothold for the Commonwealth to enact religious laws. When skilfully conflated with references to decisions of the US Supreme Court (albeit, as Beck notes, with Higgins perhaps overstating the significance and ramification of its decision in

160 See Quick and Garran n51, 952, also cited in McLeish n3, 221.

161 Preamble to Commonwealth Constitution.

162 Ibid.

Holy Trinity), those doubts led to some delegates having concerns about whether Australia needed a specific clause to prevent the Commonwealth making laws for religious purposes. Hence, section 116 potentially served to ensure that if the Constitution was wide enough to authorise legislation dealing with religion (whether by reason of the Preamble or otherwise), then section 116 could act as a check on those powers.

Barton’s counter-response to these concerns was to point to enlightenment. At least initially, he considered that any new clause to protect religious freedoms was unnecessary. In his view, as Australia became more secular, it was increasingly unlikely that any government would make laws to establish any religion. Yet it was difficult for even a masterful debater like Barton to refute the argument that the new clause could remove doubt about the Commonwealth’s ability to make religiously-based laws, particularly given that Barton recognised that the Commonwealth could make laws in relation to religion if the laws were also with respect to a matter or purpose within power.

For some other delegates, the introduction of section 116 raised fresh concerns about what might be implied by such constitutional constraints on the Commonwealth’s existing lawmaking powers. More specifically, if the Commonwealth lacked specific power to make laws about religion and recognition conferred no legislative power on the Commonwealth, then what was the source of the Commonwealth’s legislative power to enact laws relating to religion that gave rise to the need for section 116 of the Constitution? Further, what of the possibility, which Symon alluded to (to which there was no answer recorded), that the Commonwealth might be able to pass a law which interfered with the practices of persons of no religion?

B. Objectives of Section 116 It is clear from the Convention Debates that, to the extent that section 116 could protect religious freedoms, it did in some way aim to protect those persons whose religious interests might not be obvious, i.e., the religiously marginalized and religious minorities. It is noteworthy that, during the Conventions, several delegates sought to represent the interests of religious minorities. For example, Solomon’s petition of 6 April 1897163 was made on behalf

163 In which, as noted, Solomon sought a declaration to the effect that neither the Commonwealth government nor any state parliament should be able to make any law with respect to religion or to prohibit the free exercise of religion.

39 of a small group of Victorians who were concerned about possible religious persecution.164 Similarly, those whom Higgins represented - the Adventists - were, though active and effective lobbyists in the US, an otherwise small and politically benign group in Australia, particularly when compared with the larger Catholic and Protestant religious movements in Australia; in March 1897, the Adventists’ publication The Gleaner even referred to concerns about ‘the majority’s’ interpretation of Christianity.165 While Symon agitated for a provision confined to religious tests, he urged that the Constitution should protect ‘every citizen in the absolute and free exercise of his own faith.’166 Bernard Wise likewise expressed a concern that a law dealing with Sunday observance, which might reflect the wishes of a majority of people, could nevertheless be distasteful and persecuting to a minority.167

These were pleas to protect the interests of minorities and suggest that section 116 was not merely conceived of as a constitutional means to support majority (Christian) religious beliefs and practices. At the same time, there appears to have been widespread - albeit mostly implicit - acceptance amongst Convention delegates that any protection for religious interests would not be absolute. The new constitutional clause would protect expression of religious faith only to the extent that expression of those beliefs conformed to accepted social standards. This caveat about social norms potentially raised its own set of complex questions, about how society might view the practices of lesser-known religions whose adherents’ beliefs were not necessarily well understood.

C. Eight Observations about Section 116 By way of further analysis, I make eight observations about the possible purposes the Convention delegates had in mind when drafting section 116. In doing so, I seek to explain whether section 116 was intended to protect expression about religion.

My first (and lengthiest) point is this. Although I have stated the point before, it is worth explaining the matter in further detail, for the topic is subtle and may easily be

164 Australasian Federation Convention, 1897, 6th April 1897, 405.

165 The Gleaner, Volume 1 (9) 1897, Melbourne, in Adventists Archives at http://www.adventistarchives.org/doc_info.asp?DocID=105870, viewed 25th August 2012.

166 Australasian Federation Convention Debates Melbourne 8th February 1898, 658-59. Emphasis added.

167 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1773-4. Emphasis added.

40 misunderstood. Higgins like most other delegates appeared to believe that recognition per se granted the Commonwealth no power to make laws for religion. He nevertheless argued that section 116 would remove doubt about whether the Commonwealth could legislate with respect to such matters. This begged the question of whether there ever was a doubt about the Commonwealth having the powers of religion which so concerned Higgins. Beck has demonstrated that Higgins’ real concern was that the Commonwealth’s express legislative powers were already wide enough to allow the Commonwealth to make laws in respect of religion and section 116 (as it became) was a constitutional mechanism which could limit the scope of those powers.168

Barton originally said recognition had little more than symbolic significance169 but even Barton later implied that the words in the Preamble might result in the Commonwealth taking action against religious liberty.170 Symon, by contrast, was more forthright in his views about the limitations on the Commonwealth’s powers. He regarded it as part of the unwritten law of the Constitution that no church establishment shall prevail and that religious freedom shall be observed.171 On this reasoning, even without section 116, there could be an implied limitation on the Commonwealth interfering in religious matters.172

The ultimately agreed wording of section 109 (section 116) - with its specific constraints on the Commonwealth’s lawmaking powers - reflects this tension and perhaps implies some uncertainty about the rationale for section 116.173 Although it is hard to find any precise comment to this effect, the tenor of the debate about religion during the Conventions is consistent with it being the delegates’ widely held view that any enactment of religiously based laws by the Commonwealth - assuming these laws were not within another legislative head of power - would be unconstitutional per se. On this reasoning, if it were assumed that

168 See generally, Beck n4.

169 Quick and Garran noted that ‘[if] it [the Federal Parliament] is not granted the power to deal with religion, it cannot legislate concerning religion’: Quick and Garran, n51, 952, also cited in McLeish n3, 221.

170 Australasian Federation Convention Debates, Melbourne 17th March 1898, 2474.

171 Australasian Federation Convention Debates Melbourne 2nd March 1898, 1772.

172 See Blackshield n108, 81.

173 Section 116 also remains curiously positioned in Part V of the Constitution relating to states’ rights.

41 recognition conferred no legislative power on the Commonwealth, then it might be unnecessary to limit the Commonwealth’s powers over religion.174 More troublingly, a clause like section 116 might imply that the Commonwealth had powers it lacked. But section 116 made sense if it was actually believed - as Barton himself implied (and as Higgins appears to have understood, without articulating as much) - that the Commonwealth might be able to legislate in relation to religion if it exercised that power with respect to a matter or purpose within power.

It also appears that some Convention delegates wanted to be sure that section 116 would not unduly constrain the Commonwealth from exercising its legitimate legislative authority with respect to religious affairs. The drafters of section 116 thus faced a difficult tension. On the one hand, they could seek to preserve the Commonwealth’s legislative powers over religion - assuming these existed - to the extent these fell within a head of constitutional power. On the other hand, doing so might limit the scope of section 116 to protect religious freedoms.175 It is at least possible that the seemingly narrowly targeted wording of section 116 reflects an intention by the drafters to not limit the Commonwealth’s legitimate powers over religious affairs. On this reasoning, section 116 might be viewed as a kind of negotiated compromise, ostensibly protecting religious freedoms while not encroaching on the Commonwealth’s powers to make laws about religious matters to the extent that the Commonwealth actually had such powers.

Secondly, and related to the first point, the phrases in section 116 implied that the objectives of any legislation infringing section 116 would have to be non-trivial, i.e., for establishing, for imposing, for prohibiting and, finally, requiring (a religious test). Additionally, the word

174 Delegates accepted that the Commonwealth could make laws for religion and take executive action if authorised under the Constitution. As Edmund Barton pointed out, the Commonwealth could regulate religious practices in association with areas such as immigration and naturalisation if these religious practices happened to be abhorrent to a civilised community.

175 Even though Quick and Garran did not believe the Commonwealth could exercise a power over religion in the absence of a head of legislative power, they did regard it as appropriate for religion and more specifically Christianity to have a role in new Federation: see e.g., Quick & Garran, n51, 952, also cited in McLeish, n3, 221. It is possible that such thinking fortified for the secularists like Higgins the importance of section 109 acting a kind of safety net for secularism. Arguably, these kinds of pro- Christian claims agitated Higgins to exaggerate the implications of the US Supreme Court’s decision in Holy Trinity and to warn of the dangers of such religious reasoning seeping into the interpretation of Australia’s Constitution, particularly as the Australian Constitution, unlike the US’s, made mention of God in the Preamble.

‘for’ preceded the first three limbs of section 116 (i.e., for establishing any religion; for imposing any religious observance; or for prohibiting the free exercise of any religion) while there is no such preposition in the First Amendment.176 The inclusion of the word for arguably (though not necessarily) implied that, if legislation were to offend section 116, then that law would need to have a discernible purpose (i.e., ‘for’) and it would need to be for a substantive end (‘establishing’, ‘prohibiting’).177 On the repetition of the word ‘for’, Barton apparently suggested that the word ‘for’ was to protect states’ rights, which might connote a broader - rather than narrower - prohibition on Commonwealth law-making powers under section 116.178 There are scant details, however, about the original rationale for repeating ‘for’ in section 116179 and Blackshield suggests that it is unlikely that such modest prepositional usage was intended to bring about any significant constitutional reasoning.180 Yet, section 116 almost seems on its face to be drafted as though it was intended to be difficult to satisfy.181

Thirdly, aside from the last limb of section 116,182 unlike the (eventual) scope of the First Amendment183 the Australian clause could circumscribe the powers of the Commonwealth and

176 It appears that the word ‘for’ was only intended for the establishment provision and entered the free exercise and observance clauses after changes by the Drafting Committee which merely sought uniform drafting. There are otherwise no recorded details relating to the rationale for repeating the word ‘for’, which, as McLeish notes, has subsequently proved to be of considerable importance: McLeish, ibid.

177 To be more specific, section 116 constrains the Commonwealth from making laws about religion only if the Commonwealth makes laws for establishing any religion; for imposing any religious observance; or for prohibiting the free exercise of any religion or requiring a religious test as a qualification for any office or public trust under the Commonwealth. Emphases added.

178 McLeish n3, 221.

179 Ibid.

180 See Blackshield n108, 86.

181 Viewed through a lens of potentially ungenerous judicial interpretation, even the notion of the ‘free exercise of religion’, might suggest there would not be constitutional protection for laws conflicting with a person’s religious conscience. There might also be a question about whether practices which are a required part of religious participation can be freely exercised.

182 That is, ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ This clause is not expressed only as a limit on Commonwealth laws: see George Williams and David Hume n3, 257.

183 Several decades after Australia’s Federation, the US Supreme Court began to apply First Amendment law (relating to Congress) to religious laws of the US states. See e.g., Everson v Board of Education 330 U.S. 1 (1947). This is under the principle called incorporation.

43 not the states.184 The new clause would not prevent the states making laws for or about religion for the purposes proscribed by section 116: hence, for example, individual states could be free to enact laws for Sunday observance.185 There is, again, in this respect, a hint of political compromise in the provision. Higgins’ earlier drafts included constraints on the lawmaking powers of the states in relation to religion. This was also the case for Symon’s original narrowly targeted clause dealing with religious tests. Yet the constraints on states’ powers were omitted from later drafts. It is not entirely clear why the same framers who urged some form of religious protection in the Constitution were willing to countenance that the states retained full legislative capacity in this regard. Perhaps they considered that religious matters were generally a domestic concern which the states (rather than the Commonwealth) were best placed to deal with. There may have been a perception that restricting governments’ legislative powers over religion at state and Commonwealth levels would make constitutional change unachievable. Restricting the powers of the Commonwealth but not the states may have been a pragmatic way to secure at least some constitutional restrictions on government interference with religious matters.

The absence of any direct limitation on the lawmaking powers of the states with respect to religion makes it difficult to argue that there was intended to be a general constitutional position of state neutrality in relation to religion in Australia. Those who might be inclined to plead strict church-state separation would have to confront the reality that the Constitution, from its inception, did not prevent the states (and probably not the territories either) from making laws for or about religion. The discussion in this respect amongst the Convention delegates suggests there was some acknowledgment that state governments would have power to make laws for religion although admittedly the delegates’ focus (perhaps because of the Adventists’ specific interests) tended to be on laws relating to Sunday observance. It was, for example, generally accepted that the states’ powers with respect to religion would be

184 The clause could possibly apply to the territories, although that position seemed less certain: see Lamshed v Lake (1958) 99 CLR 132, 143. The 1988 referendum in Australia included a proposal to amend section 116 so that the protections it conferred against Commonwealth legislation would also apply against state and territory legislation. It was also proposed that the legislation would remove the word ‘for’ from section 116. The referendum failed in all states: see Blackshield n108, 102.

185 Whether it would be politically palatable for state government to make such laws, or whether the laws would be constitutionally valid under state constitutions are questions that I do not consider here. Yet, delegates such as Kingston apparently considered it appropriate for states to deal with religious matters such as the affairs of special races, these apparently being ‘purely a domestic concern’: Ely n2, 84.

‘plenary’ and would be trimmed only to the extent that it was necessary to do so for the effective functioning of the Commonwealth government. 186 And there remained the possibility - which attracted relatively little comment - that the Commonwealth’s powers might be wide enough to allow it to make laws in relation to religion irrespective of any powers that may or may not be implied from the reference to God in the Preamble.

Fourthly, the new clause would apply to the making of laws about religion, i.e., it appeared that it would not purport to apply to standing orders, parliamentary rules, or even the exercise of executive power. On the one hand, statute is by far the largest source of Commonwealth executive power and a constitutional safeguard directed towards the Commonwealth’s legislative powers could potentially act as a significant constraint. On the other hand, if there were concerns about the Commonwealth inhibiting peoples’ religious freedoms, a broader rather than narrow limitation on Commonwealth power - say, applicable to executive decisions or rules of Parliament - might have been considered necessary to prevent the Commonwealth making laws about religion. Here though, again, perhaps the drafters assumed that the absence of any specific constitutional power by the Commonwealth over religion would act as a self-limiting constraint on it exercising executive power over religion. By limiting the operation of the clause to apply to the making of laws, the drafters, either deliberately or tacitly, left it open to the Commonwealth to introduce quasi-laws (like parliamentary standing orders) which could allow acts of religious reflection (such as Parliamentary prayers) without the quasi-laws infringing section 116.187

Fifthly, there was no suggestion from Convention delegates that participation in religious activities or expressing one’s religious beliefs would ever be a substantive positive right;188 citizens would, instead, have a right not to have the Commonwealth make laws for the purposes proscribed by section 116.189 Depending on the facts in issue in a case and the kind

186 See Barton, Australasian Federation Convention Debates, Melbourne 2nd March 1898, 1738.

187 Religious leaders seized on this aspect of section 116 soon after federation and quickly urged parliament to introduce prayers into daily sessions (see Ely (1976) n2, 111-2), a practice which continues today.

188 See Carolyn Evans, (2012), Legal Protections of Religious Freedom in Australia, Federation Press, 73.

189 In the DOGS Case’, n3, Stephen J at 347 wrote that section 116 is ‘… not, in form, a constitutional guarantee of the rights of individuals …. instead it takes the form of express restriction upon the exercise of Commonwealth legislative power’. French CJ made a similar observation in a 2013 paper: ‘… s 116 does not create a justiciable individual right to the free exercise of religion. However, an

45 of speech involved, the other limbs of section 116 could also serve to protect expression about religion, or expression that is part of the practice of religion. Conceivably, for example, a law for ‘establishment’ of any religion, or for imposing any religious observance, could suppress expression that is part of the practice of a religion or suppress speech about religion itself. Even the final limb of section 116 could potentially offer some protection for expression about religion (or about having no religion) if a religious test were required for the taking any office or public trust under the Commonwealth.

To the extent the Convention delegates considered expression about religion at all, they focussed on expressions of faith, a concept which was not confined to the utterance of words. It seemed that section 116 could be a safeguard not only for verbal speech about religion but also for nonverbal acts. The clause could even potentially protect the freedoms of those who wished to take part in religious gatherings, associations or worship for religious purposes assuming that the plaintiff could satisfy the threshold requirements in section 116.

Sixthly, I have located no discussion during the Convention Debates about what constituted a ‘religion’.190 The question ‘what is a religion?’ seems to have been barely considered. Without clear guidance from the High Court, the absence of a definition of a religion could make it difficult to discern the difference between the exercise of a religion and, say, participating in a cultural practice. Symon, perhaps attempting to address concerns about the ‘reach’ of section 116, argued that definitional clarity was needed about the term ‘religion’ and he specifically sought clarification about what was meant by religion’s ‘free exercise’. Delegates were certainly aware of religions such as Christianity, Hinduism and presumably Judaism too. Yet, the task of defining religion was - by implication - left to the High Court to resolve.

Seventhly, Barton referred to abhorrent religious practices: he also expressed concern that the ‘free exercise’ aspect of section 116 might prevent the legislature from regulating religious

individual, the subject of a law prohibiting the free exercise of his or her religion, could challenge the validity of that law in proceedings arising under it’. See Robert French (2013), 14 May 2013, Perth, address to WA Society of Jewish Jurists and Lawyers Inc, Religion and the Constitution, available at http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj14may13.pdf, viewed 29th June 2014. See also, generally, Michael Eburn, ‘Religion and the Constitution – an Illusory Freedom’ (year uncertain) Volume 8 Australian Religious Studies Review No 2, 77-85.

190 Yet, section 116 uses the word religion or religious four times.

46 acts of a cruel or inhuman kind and was keen to ensure that section 116 did not prevent the Commonwealth from prohibiting socially harmful actions in the name of religion. It appears that Higgins agreed with Barton that the free exercise clause could lead to arguments that the Commonwealth was unable to regulate socially unacceptable acts, although it seems that both men were satisfied that section 116 would not prevent the Commonwealth from regulating socially unacceptable religious behaviour.191 Likewise, Braddon, Gordon and Symon had in mind specific some religious customs - such as the practices of the ‘Hindoos’ and the acts of faith healers - that they believed section 116 should not protect.

Notwithstanding their concerns about specific antisocial religious practices, the Convention delegates’ familiarity with sects and minority interests and their belief that ‘acceptable’ exercises of faith could attract constitutional protection suggests they believed that section 116 could potentially protect those people practising emerging religions: ‘no one [said Symon] ought to be allowed to interfere with the faith of these people - the creed they profess.’192 As suggested, these potential protections came with a caveat: expression of those kinds of religious beliefs would need to conform to the wider interests of the community.

This gave rise to a conundrum, one which the drafters did not ever fully deal with (or even expressly acknowledge): the same clause that would protect religious freedoms could only do so insofar as those freedoms conformed to the majority’s values. Acts of physical harm, or violent acts in the name of a god were plainly not intended to fall within the scope of the protective freedom under section 116; those acts could not reasonably be considered to be in the wider community’s interests. Yet, it remained uncertain, how (or if) section 116 could protect religious practices regarded as borderline illegal, harmlessly immoral or confronting. Consider, say, worshippers who administered illegal, but harmless, drugs as part of an ostensibly god-supported ‘religious experience’ carried out with authentic religious belief or polygamy - could these kinds of expression receive constitutional protection?

An eighth and final point is this: it is an observation which is implicit in much that I have written in this Chapter. Speech about religion - and particularly about Christianity - was an integral part of the discourse at the Conventions. Churches contributed to the Convention

191 The two men clearly disagreed, though, about whether the clause was needed at all.

192 Australasian Federation Convention Debates, Melbourne 8th February 1898, 659. Emphasis added.

Debates and aimed to shape constitutional arguments; bishops sent petitions to colonial parliaments. Christians argued against other Christians. Men tried to shape constitutional outcomes to conform to their own religious beliefs.193 Men such as Bernard Wise sought to defend the interests of religious minorities, as did Higgins representing the interests of the Adventists. At the same time, individuals like Barton contributed in their own way to the discourse of the day by seeking to advance the awareness of secular freedoms for Australians. Barton proved that religious debate could incorporate discussions about secular values.

V. CONCLUSION

The questions I asked at the beginning of this Chapter were:

 what were the drafters’ objectives in writing, section 116 of the Constitution?; and  was section 116 intended to protect speech about religion?

In relation to the first question, section 116 emerged to deal with a potential problem of the Commonwealth enacting laws tending to favour Christianity. It was - arguably - feared that recognising the Almighty in the constitutional Preamble could lead to the Commonwealth relying on the Preamble to exercise legislative power over religion. Higgins, the main proponent of section 116 (as it became), likely overplayed that concern. Doubts were expressed about whether section 116 was needed at all given that several Convention delegates queried how the mere mention of a deity in the Preamble could confer on the Commonwealth any religious lawmaking powers.

Section 116 does not appear to have been intended to be broad in scope. The first three limbs would explicitly apply only to Commonwealth powers (not to the states and perhaps not even the territories). It was not drafted to reflect strict state neutrality with respect to religion: the states would have plenary powers over religion and their powers would be limited by section 116 only to the extent necessary for the effective functioning of the Commonwealth government. The Commonwealth could introduce quasi-laws about religion (such as

193 Quick, as noted, presented the ‘recognition’ issue to the Constitutional Committee on 8 April 1897. The Protestant delegate Simon Fraser and the Catholic representative Patrick McMahon Glynn worked together to raise the issue of recognition at the Melbourne Convention on 22nd April 1897.

Parliamentary rules relating to prayers). What is more, section 116 would only protect religious freedoms (including in relation to expression about religion) affected by Commonwealth laws. This was a seemingly narrowly targeted protection for religious freedom.

The answer to the second question is necessarily related to the answer to the first. Despite its potentially limited protective scope, the evidence from the Convention Debates suggests that section 116 was intended to protect speech that is part of the practice of religion: as Symon put it, the Constitution should protect ‘every citizen in the absolute and free exercise of his own faith.’194 Yet, any plaintiff seeking to claim constitutional protection for expression about religion or of religious belief would need to address some potentially difficult threshold legal considerations (legislation for etc.), as well as, potentially, then having to persuade a court of the merits of complex legal questions such as, for example, whether the expression amounted to an ‘exercise’ of a religion (which presumably would involve establishing a nexus between the religious beliefs and the expressive act). Additionally, it appeared to be the case that any expression of religious belief (or about religion) would not be a substantive positive constitutional right. Rather, citizens would have a right not to have the Commonwealth make laws for the purposes proscribed by section 116.

A further constitutional caveat was that the protective reach of section 116 would extend only to religious practices which conformed to social norms, a limitation which, as suggested, could pose difficult legal demands on those who might seek protection for the expression of non-mainstream, religious beliefs. This was something of an irony, for it seems that those practicing minority religions were precisely the kinds of people for whom some delegates considered that section 116, with its admittedly seemingly restrictive protective scope, might offer constitutional protection.

194 Australasian Federation Convention Debates Melbourne 8th February 1898, 658-59.

CHAPTER 3 – THE HIGH COURT AND SECTION 116

I. INTRODUCTION

A. Conclusions from Chapter 2 Chapter 2 noted that section 116 - the only clause in the Constitution to specifically aim to protect religious freedoms - is potentially limited in scope. For example, section 116 applies to Commonwealth laws and not to exercises of executive power. It limits the powers of the Commonwealth to make laws, but it does not apply to the states.1 Though the approach was not necessarily endorsed at the Convention Debates, a restrictive reading of the term ‘for’ might lead to an interpretation that only legislation for a specific purpose proscribed by section 116 - i.e., for that named objective - could fall within the section 116 prohibitions. Yet, there are no particular indications from the Convention Debates that delegates favoured a narrow interpretation of section 116. Section 116 does not confer a substantive legal right on any person to hold religious beliefs or to express religious opinions.2 Any constitutional ‘right’ under section 116 is, instead, incidental, in the sense that it flows from the limitations on the Commonwealth’s powers to enact laws for the purposes set out in section 116 or to require a religious test as a qualification for office or public trust. Chapter 2 also indicated

1 A 1988 referendum which would have amended the Constitution to apply the provisions of s 116 to the states and territories failed. The proposal would have extended section 116 to all government acts and not only laws. The proposal did not achieve a majority in any state and only 30.8% of voters supported the amendment: see Carolyn Evans (2009), Legal Aspects of the Protection of Religious Freedom in Australia, paper presented at Centre for Comparative Constitutional Studies, Melbourne Law School, 28, available at https://www.humanrights.gov.au/sites/default/files/content/frb/papers/Legal_%20Aspects.pdf, viewed 11th July 2014. The Labor government in 1944 introduced the Constitution Alteration (Post-War Reconstruction and Democratic Rights) Act 1944 (Cth). Aside from giving the Commonwealth the power to legislate over 14 specific areas, the legislation contained two provisions, one preventing state and Commonwealth governments from abridging the freedom of speech in order to protect against the perceived threat of imposed socialism, and the other extending section 116 to the states. That referendum failed, achieving only a slim majority in South Australia and Western Australia: see Paul Babie and Neville Roschow (undated, circa 2010), Feels Like Déjà vu: Religious Freedom under a Proposed Australian Bill of Rights, 9, available at http://www.iclrs.org/docs/Babie%20and%20Rochow.pdf, viewed 11th July 2014.

2 In Attorney General (Vic); ex rel Black v The Commonwealth (1981) 146 CLR 559 (‘DOGS Case’), Wilson J stated, 652: ‘[Section 116] does not form part of a Bill of Rights. The Plaintiff’s claim that it represents a personal guarantee of religious freedom loses much of its emotive and persuasive force … [when it is recognised that] s 116 is a denial of legislative power to the Commonwealth and no more.’

50 that, according to the constitutional founders, section 116 was intended to protect expression about religion only if that speech was not at odds with widely held social norms. This qualification could limit the scope of section 116 to protect expression about non-mainstream religious beliefs.

B. Objectives of Chapter Building on the research in Chapter 2, this Chapter examines the High Court cases from the perspective of whether section 116 of the Constitution can protect speech about religion.3 Before undertaking this task, it is important to recognise that speech about religion may be intertwined with other religious freedoms. This may make it difficult to distinguish one religious freedom from another. For example, speech about religion may also be regarded as part of freedom of religious association. To characterise legislation which restricts speech about religion as only a law for prohibiting religious speech (assuming any such legislative intention can reasonably be discerned) might risk overlooking the law’s related effects on limiting association amongst religious believers.

This in turn suggests three points. First, and perhaps most obviously, to the extent that there are any legislative limitations on speech about religion, these constraints may possibly stifle other, related, religious freedoms. Secondly, focussing on whether a law has a singular objective, or trying to discern the dominant or main purpose of the law, may come at a risk of overlooking any of the law’s related effects on restricting religious freedoms. Thirdly, a priori, it would seem to be important for any court considering such matters, including the High Court, to not take a narrow view of the object (or effect) of laws in relation to limiting religious freedoms lest in doing so the court may overlook the wider or related effects of the laws on limiting those freedoms.

This Chapter reviews the High Court section 116 cases from the above-mentioned perspective. While the ‘free exercise’ limb of section 116 would seem to most be the likely clause for protecting speech about religion, the other clauses of section 116 may be relevant to the constitutional protections for such expression. For example, laws concerning the establishment of religion, or requiring religious observance or religious tests may impose

3 It is assumed that, to the extent there is any constitutional protection for speech about religion under section 116, these protections could protect speech by religious leaders where the speech comes from a religious perspective or is motivated by a religious viewpoint.

51 limitations on speech about another religion. Any constitutional protections under the other limbs of section 116 may bolster or augment (or supplement) the constitutional protections for speech about religion under the free exercise limb. As a result, although this Chapter focuses in large part on the free exercise clause of section 116, it considers the other limbs of section 116 insofar as the principles from the High Court’s decisions under those other limbs might be relevant and informative in relation to offering constitutional protection for speech about religion.

C. Chapter Overview The structure of this Chapter is as follows. Section II analyses the High Court’s decision in Church of the New Faith v Commissioner for Pay-Roll Tax (Vic)4 (‘Scientology Case’). While not a section 116 decision, the High Court set out its views in that case about what constitutes a religion. Those legal principles may affect the scope of the protections provided under section 116 in relation to expression about religion and other protections under section 116.

Section III seeks to identify what is meant by the free of exercise of religion under Australian constitutional law, especially in relation to speech about religion. Section III A analyses the High Court’s early judgments under section 116 in relation to the free exercise of religion. Section III B examines the High Court’s decision in the free exercise decision in Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth5 (‘Jehovah’s Witnesses Case’). Section III C considers Kruger v Commonwealth6 (‘Stolen Generations Case’), a case concerning, inter alia, a claim under section 116 in relation to the free exercise of religion by Australian Aboriginals. Section III D reflects on the free exercise cases decided by the High Court and draws some tentative conclusions about the scope of section 116 to protect speech about religion.

Section IV discusses the High Court’s interpretation of the concept of ‘establishment’ of religion in the DOGS Case.7 Section V assesses the High Court’s judgments in relation to the

4 (1983) 154 CLR 120

5 (1943) 67 CLR 116.

6 (1997) 190 CLR 1.

7 n2.

52 religious observance and religious tests clauses, including, in respect of the latter, in Williams v Commonwealth8 (‘Williams No 1’). The Conclusion to the Chapter sets out some findings about section 116’s scope to protect speech about religion, based on the review of the High Court’s decisions.

II. A DEFINITION OF RELIGION

A. A Tension: Religion and Free Exercise There may be a tension between the constitutional definition of religion and the legal scope of the free exercise of religion.9 All things being equal, if religion is broadly defined, then constitutional protection for the ‘free exercise’ of religion may legalise a wider range of practices than would a more narrowly defined conception of religion. What is more, unless the ‘free exercise’ of religion is qualified in some way, a broad definition of religion could result in section 116 protecting forms of expression which are regarded as criminal or socially harmful.10 The High Court’s decision in the Jehovah’s Witnesses Case (reviewed in Section III B) arguably highlights this tension.

B. Scientology Case The High Court considered the question of what constitutes a religion in the Scientology Case.11 While relevant to the interpretation of religion under section 116, the case was not pleaded under section 116. What is more, the case was decided after several other High Court section 116 judgments (considered in Section III A and Section III B) in which the High Court expressed its views on the scope of the freedoms under section 116 without necessarily articulating a detailed understanding of what constitutes a religion. The

8 (2012) 248 CLR 156.

9 Section 116 uses the term religion or religious four times but does not define religion. For convenience, section 116 is again set out here: 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.

10 As seen, the Australasian Federation Convention Debates did consider concerns about whether section 116 could potentially authorise socially harmful practices without generally dwelling on what constitutes a religion.

11 n4.

Scientology Case is, as a result, perhaps more illuminating in relation to how the High Court conceives (or did conceive of) a religion than it is in defining the scope of the constitutional freedoms for religion and religious speech under section 116. Nevertheless, the Scientology Case, and specifically the High Court’s conception of a religion, may have important implications for its own decisions, and those of other courts under section 116, including in relation to what is meant by a religion concerning constitutional protections for speech about religion.

In issue in the Scientology Case was whether the Church of the New Faith, which promoted Scientology, could claim to be a religious institution in order to be entitled to a tax exemption under a provision of the Victorian tax legislation. Section 10 of the Payroll Tax Act 1971 (Vic) (‘Payroll Tax Act’) provided that the ‘wages liable for payroll tax under this act do not include wages paid or payable ... (b) by a religious or public benevolent institution, or a public hospital’.

The Commissioner for Taxation in Victoria assessed that the Church of the New Faith was liable for the payroll tax on the basis that it was not a ‘religious institution’. After appealing the Commissioner’s decision unsuccessfully to the Supreme Court of Victoria and then likewise unsuccessfully to the Full Court of the Supreme Court of Victoria, the Church of the New Faith sought leave to appeal to the High Court of Australia, which granted special leave to appeal and allowed the appeal.

Each litigant pleaded their case before the High Court as though the relevant legal question was whether Scientology was a religion. The legal question for the Commissioner for Taxation was, however, whether the Church of the New Faith was, during the relevant period, a religious institution.12 While appreciating that the question before the court was not ‘what is a religion?’ but ‘what is a religious institution?’ four of the five High Court judges sitting in the Scientology Case sought to define ‘religion’. The High Court unanimously upheld the

12 The differences between the practices of a religion and a religious institution per se can be readily appreciated. A religious institution may promote certain tenets - say, welfare, caring for the poor, or, depending on its branch in an organisation, a mix of profit and non-profitable purposes - while the practices of a religion may be quite different, possibly involving experiential beliefs, collective worship, gatherings or, by contrast, silent, personal prayer. To equate a religious institution with the religion it supports overlook the objectives of the relevant institution and to erroneously equate the organisation’s objectives with the beliefs and practice of its worshippers. See Bruce Kaye ‘An Australian Definition of Religion’ 1991 UNSW Law Journal 332, 334.

54 appeal and set aside the decision of the Victorian Supreme Court. All five judges of the High Court concluded that Scientology is a religion. Accordingly, the decision - ostensibly about the interpretation of payroll tax legislation - has implications for cases brought pursuant to section 116 of the Constitution in relation to what is meant by a ‘religion’.

In their joint judgment, Mason ACJ and Brennan J advised that the arguments put to the High Court about whether Scientology is a religion tended to conceal the factors relevant to the character of the corporation, namely, the purposes for which the corporation was maintained and its activities as a corporation.13 Mason ACJ and Brennan J apprehended that the High Court could not fully address the question of whether Scientology was a religion because the litigants did not allow the courts to examine certain important tenets of Scientology.14 As a consequence, their Honours noted that the issue for the High Court was whether the ‘beliefs, practices and observances which were established by the affidavits and oral evidence as the set of beliefs, practices and observances accepted by Scientologists are properly to be described as a religion’.15

1. Indicia of a Religion Having made the aforementioned observations, Mason ACJ and Brennan J suggested a twofold test for identifying a religion. First, their Honours held that there must be ‘belief in a supernatural Being, Thing or Principle’; and secondly, there must be ‘acceptance of canons of conduct in order to give effect to that belief.’16 Their Honours noted that these criteria may vary in their relative importance; and, furthermore, that ‘there may be a different intensity of belief or of acceptance of canons of conduct among religions or among the adherents to a religion.’17

While observing that the case was ‘not concerned with a personal freedom of religion ... [but] ... with an exemption of a religious institution from a fiscal burden imposed upon other

13 Scientology Case n4, 129.

14 Ibid, 130.

15 Ibid. Emphasis added.

16 Ibid, 136.

17 Ibid.

55 institutions’,18 their Honours also noted that ‘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’.19 With echoes of the Convention Debates, their Honours suggested that any rights and freedoms under section 116 of the Constitution would not extend to canons of conduct which may offend against the ordinary laws of Australia. It is not entirely clear why their Honours considered it necessary to include this qualification in relation to the definition of a religion. The case before the High Court was not about freedom of religion nor even about section 116. Their Honours’ qualification seemed to conflate the definition of a religion with the scope of religious freedoms without the context of any balancing exercise under section 116, as may be required in relation to, say, what constitutes a religion and what is meant by the free exercise of that religion.20

In a separate joint judgment in the Scientology Case, Wilson and Deane JJ acknowledged that there was no necessary association between ‘the adjective religious in the phrase “religious institution” ... and what can be identified as a particular religion’.21 Their Honours also reasoned that that there ‘may be grounds for attributing a wider meaning to the word “religion” in the context of ... [section 116] ... than in the context of a statutory exemption from payroll tax’.22 Their Honours did not offer any further explanation as to why religion might have a wider meaning under section 116 than under the payroll tax legislation. Wilson and Deane JJ nevertheless further held that ‘religion’ is not defined by static criteria, rather

The most that can be done is to formulate the more important of the indicia or guidelines by reference to which that question falls to be answered. Those indicia must, in the view we take, be derived by empirical observation of accepted religions. They are liable to vary with changing social conditions and the

18 Ibid, 132.

19 Ibid, 136. Emphasis added.

20 Militant Islam, for example, is not necessarily any less of a religion just because it may happen to embrace threats or practices of violence.

21 Scientology Case n4, 165. Emphasis added.

22 Ibid, 173.

relative importance of any particular one of them will vary from case to case.23

Their Honours thus hinted that the indicia or guidelines relevant to identifying a religion may depend on the particular question in issue before a court. Yet, their Honours referred in this part of their judgment to observations about accepted religions. The reference to ‘empirical observation of accepted religions’ may allow relatively limited scope for constitutional recognition of fringe or nonmainstream belief systems as ‘real’ religions, particularly those which may not be capable of empirical observation.

Wilson and Deane JJ held, further, that the indicia of religion may vary with changing social conditions and that the relative importance of any particular one of those indicia may vary from case to case. Their Honours identified what they described as typical features of a religion, namely:

... belief in the supernatural ... belief that reality extends beyond that which is capable of perception by the senses ...;

... the ideas relate to man’s nature and place in the universe and his relation to things supernatural ....;

... the ideas are accepted by adherents as requiring or encouraging them to observe particular standards or codes of conduct or to participate in specific practices having supernatural significance;

... however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or identifiable groups ...;

[a perhaps more controversial ... indicium] ... the adherents see the collection of ideas and/or practices as constituting a religion.24

23 Ibid. Emphasis added.

24 Ibid, 174.

Like Mason ACJ and Brennan J who suggested that there must be ‘some acceptance of canons of conduct in order to give effect to [the participants’] belief’, Wilson and Deane JJ held that, in a religion, adherents tend to ‘observe particular standards or codes of conduct or to participate in specific practices having supernatural significance’.25

2. Canons of Conduct and Belief in Supernatural The reference to ‘canons of conduct’ (per Mason ACJ and Brennan J) and ‘standards or codes of conduct ... [or participation in] specific practices having supernatural significance’ (Wilson and Deane JJ) suggested that, in their Honours’ view, religions necessarily comprise behavioural or moral standards. This reflects a theistic - or Abrahamic - conception of religion and may exclude other generally recognised religions. For example, Mahayana Buddhism involves the pursuit of individual enlightenment without behavioural standards and is plainly a religion but would not be a ‘religion’ based on their Honours’ criteria.26

The four judges also indicated that belief in the supernatural is an identifier of religious commitment. This descriptor seems to require that there be belief in a supernatural entity or a supernatural world. Buddhism, for example (a religion) - which may be conceived of as a path to enlightenment attained by gaining insight into the ultimate nature of reality - may involve no belief in the supernatural and would not necessarily qualify as a religion according to the judges’ description of religion.27

None of the four judges mentioned thus far in the Scientology Case had any difficulty in identifying Scientology as a religion. Wilson and Deane JJ noted that the ideas and tenets of Scientology involved a belief in the supernatural and man's relation to things supernatural.28 Their Honours found that its adherents accepted the tenets of Scientology as relevant to determining their beliefs, their moral standards and their way of life and took part in specific practices and participated in services and ceremonies with particular significance.29 In

25 Ibid.

26 Mahayana does, however, encourage followers to take Bodhisattva vows and promise to work for the enlightenment of sentient beings.

27 In the Jehovah’s Witnesses Case n5, Latham CJ, 124, noted ‘Buddhism, one of the great religions of the world, is considered by many authorities to involve no conception of a God’.

28 Scientology Case n4, 176.

29 Ibid.

Australia, the judges noted, thousands of adherents called themselves Scientologists; they comprised an organized group and considered Scientology to be a religion.30

3. Are All Religions Equal? In contrast to the principles set out by the other four judges in the Scientology Case, Murphy J declined to attempt any definition of religion. Murphy J in the Scientology Case expressed a similar view to that which he had earlier set out in Attorney-General (NSW) v Grant31 (‘Grant’) namely, that judges should not seek to determine matters of religious doctrine and practice. His Honour held in Church of the New Faith that any attempt to define religion posed a threat to religious freedom, finding that:

... judges must resist the temptation to hold that groups or institutions are not religious because claimed religious beliefs or practices seem absurd, fraudulent, evil or novel; or because the group or institution is new, the number of adherents small, the leaders hypocrites, or because they seek to obtain the financial and other privileges which come with religious status. In the eyes of the law, religions, are equal.32

As noted, the High Court articulated its understanding of the definition of a religion in the Scientology Case many years after some of its earlier free exercise decisions under section 116. The High Court’s free exercise cases are examined in Section III.

III. WHAT IS THE FREE EXERCISE OF RELIGION?

The free exercise limb of section 116 provides that

30 Ibid.

31 (1976) 135 CLR 587. In Grant, members of the Presbyterian Church opposed the Presbyterian Church of Australia combining with the Congregational Union of Australia and the Methodist Church of Australasia under the name of the Uniting Church in Australia. The petitioners contended that their General Assembly had no power to make such changes and that the union was invalid. It was clear that the Presbyterian Church of Australia Act 1971 (NSW) governed the arrangements. Yet, Murphy J, at 612, refused to consider the issues at all, finding that courts should not decide questions of church doctrine because to do so would exceed the judicial sphere and interfere with religious freedom.

32 Scientology Case n4, 150.

The Commonwealth shall not make any law for … prohibiting the free exercise of any religion …

It is this limb of section 116 which plaintiffs (including religious leaders) would most likely rely upon to seek protection for speech about religion, although, as noted, it is not necessarily the only limb in section 116 that could provide such protection.

Early High Court Decisions The High Court first considered the free exercise limb of section 116 in 1912 in Krygger v Williams33 (‘Krygger’). Edward Krygger was a young Jehovah’s Witness who declined to participate in peacetime military training because he claimed the training conflicted with his conscience and the Word of God. Krygger believed that the military training was as sinful as gambling

To me it is 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.34

Krygger was convicted under section 135 of the Defence Act 1903 (Cth) (‘Defence Act’) for failing without lawful excuse to take part in military training. A magistrate committed him to confinement under the custody of a Sergeant Major for 64 hours.35 Krygger argued that the conviction infringed his right under section 116 of the Constitution to freely exercise his religion and he appealed his case to the High Court.36

33 (1912) 15 CLR 366.

34 Ibid, 367-368.

35 Ibid, 368.

36 Section 125 of the Defence Act allowed those who objected to military service because of their religious beliefs to be, as far as possible, assigned to non-combatant duties during peacetime but it also required such persons to participate in military training. Section 61 of the Defence Act allowed an exemption from military service during wartime to persons who ‘satisfy the prescribed authority that their conscientious beliefs do not allow them to bear arms’. The conscientious objection immunity did not, however, extend to duties of a non-combatant nature. Section 138 of the Defence Act provided a specific release from obligations of military training to students at a theological college. That exception applied for so long as the person continued their studies and, as Krygger was not a theological student, the immunity did not apply to him.

Sitting as a High Court of two, Griffith CJ and Barton J dismissed Krygger’s claim. Griffith CJ held that the right to ‘freely’ exercise religion under section 116 applies to laws that prohibit ‘the doing of acts which are done in the practi[c]e of religion’.37 As if to emphasise the point, Griffiths CJ commented that ‘[requiring] a man to do a thing which has nothing at all to do with religion’ could not affect a person’s free exercise of religion.38 The second High Court judge, Barton J, also dismissed Krygger’s claim. His Honour held that Krygger had failed to demonstrate that he could not exercise his religion freely if he had to do the necessary military drill.39 Barton J described Krygger’s constitutional objection - bluntly - as, ‘as thin as anything of the kind that has come before us’.40

Although appointed to the High Court in 1906 (six years before Krygger), it was not until twenty years after his appointment to the High Court, in Judd v McKeon41 (‘Judd v McKeon’), that Henry Bournes Higgins - by this time, Higgins J of the High Court - had the opportunity to address the misgivings he had about the High Court’s interpretation of the free exercise clause in Krygger. Ernest Edward Judd was convicted on a charge of failing to vote at an election of Senators for New South Wales (without a valid and sufficient reason), contrary to section 128A of the Commonwealth Electoral Act (1918). A socialist, Judd objected to voting because he claimed all the participating candidates and Parties supported capitalism. His Socialist Party also considered the forfeiture of candidates’ deposits - £25 - to be an unjust bar to the fielding of socialist candidates. Judd presented a twofold argument to the High Court. First, he claimed, the provisions of section 128A were beyond the powers of the Commonwealth. Secondly, that his reason for failing to vote was a valid and sufficient reason under section 128A of the Commonwealth Electoral Act.

37 Krygger n33, 369. Griffiths CJ characterised Krygger’s claim as ‘… an objection to being trained so that in time of war he may be competent to assist in saving life’: ibid.

38 Ibid. Griffiths CJ also adjudged, ibid, that, while ‘a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds ... it does not come within the prohibition of section 116’.

39 Ibid, 371-2.

40 Ibid, 373.

41 (1926) 38 CLR 380.

In a High Court consisting of six judges, in Judd v McKeon (Knox C.J., Isaacs, Higgins, Gavan Duffy, Rich and Starke JJ42), Higgins J (alone) would have allowed the appeal. It is debatable whether Higgins J’s judgment has any strong precedential value as his Honour was the only judge to consider section 116 and the case was not pleaded under section 116. Yet, Higgins J’s views are potentially significant, as one important element of his Honour’s opinion (namely, the view that section 116 can protect encroachments on religious belief, and not merely acts done as part of the practice of religion) was later affirmed by Latham CJ in the Jehovah’s Witnesses Case.43

In Judd v McKeon, Higgins J indicated that a religious duty to not vote would be a valid and sufficient reason to refuse to do so because of section 116.44 Higgins J also held that, if abstention from voting were part of Judd’s religious duty as it appeared to the mind of the elector, then section 116 would protect that duty as a valid and sufficient reason for Judd’s failure to vote.45 Higgins J’s reference to a religious duty ‘as it appeared to the mind of the elector’ appeared to contrast, unsubtly, with Griffith CJ’s suggestion in Krygger that the free exercise limb of section 116 applied to laws concerning acts done in the practice of religion. What is more, Higgins J’s words implied that the free exercise clause might protect people against legislative encroachments on their religious beliefs (perhaps even socialist beliefs) rather than only acts done in the practice of religion. On this reasoning, if a Commonwealth law required a person to do something that conflicted with that person’s religious conscience (as had occurred in the earlier decision in Krygger), then section 116 could possibly provide constitutional protection against the person having to comply with such a legal requirement.

As if to accentuate the significance of his Honour’s judgment, Higgins J distinguished the facts in Judd v McKeon from the High Court’s earlier decision in Krygger.46 Higgins J did so on the basis that the conscientious objection immunity under the Defence Act in Krygger did

42 Knox CJ, Gavan Duffy and Starke JJ published a joint judgment.

43 n5.

44 n41, 387. Emphasis added. Higgins J, however, concurred with the other judges in finding that that there was no reason of substance put to the High Court as to why section 128A was beyond the powers of the Commonwealth Parliament.

45 Ibid.

46 Judd v McKeon, ibid, 389-90.

62 not make it a lawful excuse to fail to undertake non-combatant military training whereas in Judd v McKeon the Commonwealth Electoral Act contained no limitation about what constituted a ‘valid and sufficient reason’ for failing to vote.47 With regard to Griffiths CJ’s suggestion in Krygger that the young Jehovah’s Witness in that case had objected to being trained so as to, in time of war, be competent in saving life, Higgins J stated that a man ‘may … assist the operations of a combatant force as much by doing its fatigue duty as by standing in the firing line’.48 Higgins J pointedly added that the words ‘valid and sufficient reason’ under the Commonwealth Electoral Act ought not to be interpreted with a ‘niggardly spirit, but liberally’49 and he said that it is not for the courts to -

... say what political or social opinions are to be treated as reasonable ... The fact that the elector entertains scruples which we do not share, or which our imagination cannot grasp, is not a ground for saying that the scruples are either invalid or insufficient from the elector’s standpoint.50

The reference to ‘scruples … which our imagination cannot grasp’ was perhaps a reference to spiritual beliefs and it is possible that his Honour intentionally hinted that socialism might, at least in the mind of the person holding those beliefs, be a religion or akin to a religion. Whatever Higgins J’s motivation for using the words, his Honour clearly believed that section 116 had a wider scope to protect religious expression than did Griffiths CJ in Krygger. Higgins J also clarified that section 116 could confer constitutional protection on a person who would otherwise have to act in a way that conflicted with their religious beliefs.

His Honour’s views in relation to section 116 were not, however, supported by any other judge in Judd v McKeon and Judd did not even plead his case by reference to section 116. For these reasons, notwithstanding Higgins J being a well-known architect of section 116 and his views on the scope of the protections under section 116 in this case therefore being of considerable interest, his Honour’s judgment in Judd v McKeon is arguably of limited

47 Ibid, 390.

48 Ibid.

49 Ibid.

50 Ibid.

63 authority. Yet, his Honour’s judgment takes on more significance if viewed in the light of later High Court judgments. For example, as will be seen, there are similarities between the aspects of Higgins J’s opinion in Judd v McKeon relating to encroachments on religious belief and Latham CJ’s judgment in the Jehovah’s Witnesses Case (considered below).

Jehovah’s Witnesses Case Some 17 years after Judd v McKeon, at the height of the Second World War in 1943, the High Court again considered the free exercise limb of section 116 in the Jehovah’s Witnesses Case.51 The decision remains one of the most significant High Court cases in relation to the Australian constitutional jurisprudence on the free exercise of religion. The case involved a wartime challenge to the National Security (Subversive Associations) Regulations (Cth) (‘Regulations’).52 If, under the Regulations, an association was declared unlawful, then the association could be dissolved and its property occupied and forfeited. The plaintiff - the Adelaide Company of Jehovah’s Witnesses Inc. - occupied land and buildings known as Kingdom Hall in Adelaide.53 It used the hall as a venue for meetings of Jehovah's Witnesses.54 Religious services were held in the hall; members of the church heard about the doctrines, beliefs and teachings of Jehovah's Witnesses.55 The members sang hymns and said prayers.56

On 17 January 1941, the Governor General made a declaration under Regulation 3 about the Australian Watchtower Bible and Tract Society of New South Wales, the trustees of which managed the operations of the plaintiff. The declaration was to the effect that the Jehovah’s Witnesses were prejudicial to the defence of the Commonwealth and the efficient prosecution

51 n5.

52 The Regulations were made under the National Security Act 1939-40 (Cth) (‘National Security Act’). Regulation 3 provided: ‘Any body corporate or unincorporate, the existence of which the Governor General ... declares to be in his position, prejudicial to the defence of the Commonwealth or the efficient prosecution of war, is hereby declared to be unlawful’, ibid 134 (Latham CJ). The grounds of plaintiff’s challenge were that the Regulations: were beyond the powers of section 51(vi) of the Constitution and the National Security Act; infringed the free exercise clause of section 116 of the Constitution; and conferred judicial power contrary to s.71 of the Constitution. I focus on the section 116 part of the claim.

53 Ibid, 117.

54 Ibid.

55 Ibid.

56 Ibid.

64 of war.57 On the same day as the Governor General made the declaration under the Regulations, a Commonwealth officer attempted to occupy the Kingdom Hall and sought to prevent the adherents from participating in any meeting.58 The plaintiff applied for an injunction to restrain the Commonwealth, its servants and agents from continuing the trespass upon the company’s property and claimed damages for trespass.

A High Court comprising five judges - Latham CJ; Rich, Starke, McTiernan and Williams JJ - heard that Jehovah's Witnesses considered the British Empire and other organised political bodies to be the organs of Satan. The Court learnt that Jehovah's Witnesses believed they could play no part in the world’s political affairs and could not interfere with war between nations.59 The Jehovah’s Witnesses understood that Jesus Christ would overthrow satanic governments and establish Christ’s kingdom on earth: if there was a conflict between the laws of ‘Almighty God’ and the ‘laws of man’, the Jehovah’s Witnesses were required to obey God's law.60 The Jehovah’s Witnesses did not, however, engage in any overtly hostile acts. Their attitude to the war was one of strict neutrality. Based on this evidence, the Commonwealth alleged that the Jehovah's Witnesses ‘proclaim[ed] and [taught] matters [that were] prejudicial to the defence of the Commonwealth and the efficient prosecution of the war … [but it was otherwise recognized that] … their doctrines or beliefs [were] but primitive religious beliefs’.61

The High Court judges held that the critical provisions of the Regulations were invalid as either being beyond the Commonwealth’s defence power under section 51(vi) of the Constitution or ultra vires the National Security Act.62 Yet, all five High Court judges held that the Regulations did not infringe section 116. Accordingly, while finding in the plaintiff’s favour, the entire High Court denied any operative role for section 116 in respect of the Regulations.

57 Ibid, 118.

58 Ibid.

59 Ibid.

60 Ibid.

61 Ibid, 119. Emphasis added.

62 Latham CJ, Starke and McTiernan JJ held that the Regulations did not infringe section 71 of the Constitution (Williams J dissenting).

Latham CJ delivered the most lengthy and comprehensive judgment in the Jehovah’s Witnesses Case; one commentator describes Latham CJ’s judgment as ‘the most sustained judicial exegesis of section 116.’63 Latham CJ explained that section 116 is an ‘overriding provision’ - one which does not ‘compete with the other provisions of the Constitution … [but which] prevails over and limits all provisions which give power to make laws’.64 Latham CJ also advised that section 116 proclaims not only toleration of all religions but the principle of toleration of the absence of religion.65 His Honour held that section 116 is:

not required for the protection of the religion of a majority ... [for the] religion of the majority of the people can look after itself … Section 116 is required to protect the religion (or absence of religion) of minorities, and in particular, of unpopular minorities.66

The emphasised wording is consistent with the views of the constitutional framers who believed that section 116 could protect the religious interests of minority groups, even unpopular minorities. Yet, in the above passage, Latham CJ appeared to go a step further than perhaps even the constitutional drafters (and earlier High Court decisions on the free exercise of religion under section 116) by suggesting that section 116 could protect against legislative intrusions into people’s freedom from religion.

Another implication of Latham CJ’s reasoning (at least at this point) was that, similar to the views Higgins J expressed in Judd v McKeon, section 116 could protect against a legislative encroachment on religious conscience. This followed logically from Latham CJ’s finding that the free exercise clause could protect a belief in the absence of religion. If section 116 could provide constitutional protection in relation to the absence of religion, then, as a matter of logic, the clause could protect against persons having to act in a way which conflicted with

63 See Tony Blackshield, Religion and Australian constitutional law, in P. Radan, D.Meyerson and R.F.Croucher (eds.) (2005), Law and Religion, Routledge, 87.

64 Jehovah’s Witnesses Case n5, 123. Latham CJ also stated, ibid, that ‘[t]he Constitution … contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion.’

65 Ibid. Emphasis added.

66 Ibid, 124. Emphasis added.

66 their conscience based on religious belief. Yet, his Honour appeared to be at pains to point out that section 116 did not only protect religious belief. Latham CJ wrote:

It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of s.116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.67

Much of the remainder of Latham CJ’s judgment in the Jehovah’s Witnesses Case gave the free exercise clause of section 116 a more modest operation. What might be seen as a far- reaching interpretation by his Honour about the scope of section 116 to protect expression about religion must be seen in the light of Latham CJ’s subsequent findings about the limits of the constitutional protection under section 116 and his Honour’s conclusion that section 116 in no way restricted the Governor General’s powers to declare unlawful the Adelaide Company of Jehovah’s Witnesses Inc.

There was something of an inevitability in Latham CJ qualifying his reasoning in this way. With his Honour’s apparently generous view of the potential scope of section 116 in relation to guaranteeing the free exercise of religion, it seemed highly likely that Latham CJ would have to at some point interpret the operation of the ‘free exercise’ clause in less liberal fashion so as to not allow section 116 to become a carte blanche source of legal freedom for all actions undertaken pursuant to religious beliefs. The wide scope of section 116 suggested thus far by Latham CJ could, unless narrowed, trigger a risk that section 116 might come to

67 Ibid. Emphasis added in final sentence.

67 protect the socially harmful actions of, in Latham CJ’s words, ‘unpopular [religious] minorities’.68

An obvious way for Latham CJ to narrow the protective scope of section 116 was for his Honour to find ways to circumscribe the notion of what actually constitutes the free exercise of religion, which is what Latham CJ appeared to do in the latter part of his judgment. Referring to the early Christians, Anabaptists, the Jehovah’s Witnesses, Mormonism, Hinduism, the Shinto religion, the Thugs of India (referred to in the Convention Debates) and the widespread acceptance of polygamy in many religions, Latham CJ noted the difficulties of separating religious belief and practice from religion and ethics. 69 Observing that the early Christians refused to take part in the worship of the Emperor as being divine (just as Christian converts in Korea declined to take part in the Shinto ceremonial70), Latham CJ wrote

In each case the State view is that the ceremony which has been made obligatory is merely political in character—a form of "saluting the flag"—but the other view of the question is that it is something which requires a true believer to abjure part of his cherished faith. 71

Put another way, state laws which ostensibly have only political consequences may require a person to act in a way which conflicts with their religious values. Section 116, his Honour implied, might protect a person from being required to obey a law which conflicted with their faith. Politics, Latham CJ also held, should be agnostic as to religious beliefs:

Section 116 … is based upon the principle that religion should, for political purposes, be regarded as irrelevant. It assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion.72

68 Ibid.

69 Ibid, 125.

70 Ibid, 126.

71 Ibid.

72 Ibid.

To this point, Latham CJ was still affirming the protections for expression about religion under section 116. Now, however, Latham CJ began to draw firmer boundaries around section 116. His Honour noted the folly of assuming, for the purposes of section 116, that citizens of all religions would be good citizens. Specifically, as Latham CJ noted, such a view of section 116 could allow any person, by

describing (and honestly describing) his beliefs and practices as religious [to] exempt himself from obedience to the law.73

Having mentioned that ‘at all periods of human history, there have been religions which have involved practices which have been regarded by large numbers of people as essentially evil and wicked’74 and thereby gesturing towards a more confined operation of section 116, Latham CJ asked whether section 116 protected any religious practice irrespective of the political or social effect of the belief or practice. While not specifically concluding that the Commonwealth should have power to prohibit religious practices merely because large numbers of people regard the practices as ‘evil and wicked’, Latham CJ indicated his reluctance to decide that a constitutional guarantee should protect all such practices. His Honour discerned, for example, that ‘the complete protection of all religious beliefs might result in the disappearance of organized society’75 and that even the concept of ‘free’ invariably involves reasonable limits (for example, ‘free speech’ his Honour said, means speech that is subject to the laws of defamation, blasphemy and sedition).76

Surveying the US Supreme Court’s interpretation of the similarly worded free exercise clause of the First Amendment, Latham CJ noted that the US Court had rejected the idea that freedom is an absolute concept and had recognised the right of the state to ensure orderly living notwithstanding the existence of a constitutional right to freedom of religion.77 The

73 Ibid.

74 Ibid, 125.

75 Ibid, 126.

76 Ibid, 127.

77 Ibid, 127-8. Latham CJ referred to this principle as the doctrine of accommodation. His Honour, 128, cited Cox v. New Hampshire (1941) 312 U.S. 569, noting that it was said in that case, 574, that ‘One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions.’

69 approach of reconciling the constitutional freedom of religion with orderly living made it possible, his Honour said, for the US courts to accord a measure of practical protection to religion ‘without involving the community in anarchy’.78

In short, according to Latham CJ, the freedoms under section 116 were not absolute and it was for a court to determine whether the law ‘unduly’ interfered with freedom of religion.79 His Honour stated that:

... the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community.80

By this stage of his judgment, Latham CJ had sowed enough doubt about the scope of section 116 to allow him to plausibly find against the Jehovah’s Witnesses in relation to their claim under section 116. Latham CJ’s analysis - and, in particular, the notion of there being no undue interference with religious freedoms - suggested that, in his Honour’s view, the restrictions on the Jehovah’s Witnesses’ religious freedoms imposed under the Regulations were not disproportionate to the public policy justification for those restraints.

Concerning the Jehovah’s Witnesses’ claim under section 116, Latham CJ held that there was no need for any argument to demonstrate that the doctrine that the Commonwealth is an organ of Satan was prejudicial to the defence of the Commonwealth81 (how this doctrine was prejudicial was something that his Honour did not explain). The Governor General was, according to Latham CJ, justified in deciding that the plaintiff association compromised the defence of the Commonwealth. His Honour concluded that it was within the power of the

78 Jehovah’s Witneses Case, ibid, 131.

79 Ibid. Emphasis added.

80 Ibid.

81 Ibid, 146.

Commonwealth to terminate the existence of subversive bodies82 and that the exercise of that power with respect to the Adelaide Company of Jehovah’s Witnesses Inc. did not infringe section 116 of the Constitution.83

The other High Court judges’ decisions were comparatively brief and even more forthright in dismissing the Jehovah’s Witnesses’ section 116 claim. Rich J had little difficulty in finding consistency between the Regulations and section 116 of the Constitution.84 Like Latham CJ, Rich J reasoned that section 116 does not protect conduct which offends against ordinary laws. More specifically, Rich J held that

freedom of religion is … subject to powers and restrictions of government essential to the preservation of the community.85

With reference to the plaintiffs, Rich J noted that

[f]reedom of religion may not be invoked to cloak and dissemble subversive opinions or practices and operations dangerous to the common weal.86

Starke J similarly held that section 116 did not

protect unsocial actions or actions subversive of the community [and is subject to such limitations as] … are reasonably necessary for the protection of the community and in the interests of social order.87

82 Ibid, 147.

83 Ibid.

84 Ibid, 149.

85 Ibid.

86 Ibid, 149-50.

87 Ibid, 155. Starke J summarised the tension between the Commonwealth’s lack of express power to legislate with respect to religion and the constitutional protections under section 116 as follows: ‘The Commonwealth is prohibited from making any law for the establishment of any religion or prohibiting the free exercise thereof. The Parliament is given no express power to legislate with respect to religion, but it has many other legislative powers. And those other powers cannot be exercised in contravention of the provision for religious liberty or freedom protected and guaranteed by the Constitution’: ibid, 154. Emphasis added.

On the question of whether the Regulations infringed section 116 of the Constitution, Starke J held that, if the Regulations had been intra vires (his Honour found they were not), then the Regulations would not have

transcended [the] limits of what was reasonably necessary for the protection of the community and in the interests of social order.88

By considering whether the Regulations were ‘reasonably necessary for the protection of the community’, Starke J, like Latham CJ, implied that the Court’s task was to balance the restriction on religious freedom with the public policy rationale for the restraint. Yet, on the question of whether the Regulations infringed section 116, Starke J’s conclusion was ‘no’.89 Starke J described the Regulations as ‘arbitrary, capricious and oppressive … [and as having] little, if any, real connection with the defence of the Commonwealth or the efficient prosecution of the war’.90 His Honour held, furthermore, that the Regulations were beyond the power conferred upon the Governor-General in Council by the National Security Act.91 Starke J even adjudged that, even if the Regulations were enacted by Parliament, then they would likely have exceeded the powers conferred upon the Parliament by the Constitution.92 His judgment noted that the Regulations would circumscribe the doctrines of a declared body whether they be

religious, political, economic or social, innocent or injurious [and] whether they be or be not prejudicial to the defence of the Commonwealth or the efficient prosecution of the war.93

Starke J accordingly held that the Regulations were invalid in their entirety but his Honour stopped short of making this finding on constitutional grounds.94 Rather, while finding that

88 Ibid.

89 Ibid, 156.

90 Ibid, 154.

91 Ibid.

92 Ibid.

93 Ibid, 153.

94 See ibid, 154.

72 the Regulations were ultra vires the powers conferred on the Governor General, Starke J held that it was ‘[u]nnecessary to answer’95 whether the Regulations exceeded the powers conferred by the Constitution.

McTiernan J took a narrow view of the operation of section 116. Dismissing the plaintiff’s section 116 claim, his Honour wrote that it was not ‘… the real object of the Regulations to arm the Executive with power to prohibit or restrict the exercise of any religion’.96 On McTiernan J’s reasoning, section 116 implied the need for an inquiry as to the object of the relevant legislation, namely, whether it really aims to prohibit the free exercise of religion. While his Honour found that the relevant Regulations did not evince a legislative purpose such as to infringe section 116,97 McTiernan J nevertheless concluded that relevant parts of the Regulations were beyond the Commonwealth’s defence power. 98

For Williams J, by contrast, the wartime context to the Regulations was all-important in relation to the plaintiff’s claim that the Regulations infringed the plaintiff’s right to religious freedom under section 116.99 In language which seems to be at odds with Latham CJ’s proposition that section 116 is an overriding provision which does not compete with other provisions of the Constitution, Williams J held that the courts must determine the operation of section 116 by reference to the other constitutional powers conferred upon the Commonwealth as a ‘practical instrument of Government’.100 According to Williams J, during wartime, section 116 would confer only such religious freedoms as would apply in a commonwealth that would survive the ordeal of war.101 Williams J held, moreover, that military laws which are necessary to preserve the existence of the Commonwealth and which incidentally prevent the free exercise of religion will not necessarily infringe section 116.102 His Honour suggested, by example, that at a time of war, military authorities may

95 Ibid, 156.

96 Ibid. Emphasis added.

97 See ibid, 156-7.

98 Ibid, 157.

99 Ibid, 159-61.

100 Ibid, 159.

101 Ibid, 160.

102 Ibid.

73 conceivably need to take possession of churches in order to defend Australia and that such actions would not, in that context, necessarily infringe the free exercise prohibition.103 Williams J thus concluded that the relevant parts of the Regulations did not infringe section 116. Yet Williams J held that the Regulations were ultra vires the regulatory power conferred by the National Security Act and were beyond the Commonwealth’s power to legislate with respect to the defence power in section 51(vi) of the Constitution.104

Stolen Generations Case In 1997, a High Court comprising six judges - Brennan CJ; Dawson, Toohey, Gaudron, McHugh and Gummow JJ - considered the free exercise clause in the Stolen Generations Case.105 The case concerned - inter alia - a constitutional challenge by Northern Territory Aboriginals to the validity of a Northern Territory Ordinance, the Aboriginals Ordinance 1918 (NT) (‘Ordinance’). Enacted in 1918, the Ordinance was amended in 1939 and again in 1953.

The Ordinance appointed the Chief Protector of Aboriginals as the legal guardian of every Aboriginal child in the Northern Territory and gave discretion to the Chief Protector to undertake the care, custody and control of any Aborigines. The Chief Protector could cause any Aborigine to be kept within the boundaries of any reserve or Aboriginal institution.

The plaintiffs, Aborigines from the Northern Territory, were removed from their parents and families when they were young children and were then detained in Aboriginal institutions or reserves. Their removals occurred between 1925 and 1949 and the last detention ended in 1960. The plaintiffs argued that the Ordinance limited their free exercise of religion in contravention of section 116 of the Constitution. They also contended that the Ordinance infringed their freedom of association and movement, freedoms which they argued were derived from the implied freedom of political discourse.

103 Ibid.

104 Ibid, 167.

105 n6. The High Court decided the Stolen Generations Case in the same year that it decided Lange. Aside from a claim under section 116, the plaintiffs in Stolen Generations Case raised a claim based on freedom of association and movement which was said to be derived from the implied freedom of political communication.

The year of the enactment of the Ordinance - 1918 - was significant. Sixteen years before the Stolen Generations Case, the High Court decided the DOGS Case106 (discussed in more detail in Section IV), a case about Commonwealth funding of private schools, where the relevant legislation was challenged under the establishment clause of section 116.107 The DOGS Case had at least one important implication for the way the High Court might view the plaintiffs’ pleadings in the Stolen Generations Case. In the DOGS Case, Barwick CJ had adjudged that the relevant time for determining the validity of a law challenged under section 116 is ‘the time of its making, of its passage, by Parliament.’108 His Honour reached this conclusion after observing that section 116 prohibits the Commonwealth ‘making’ laws for religion. For the plaintiffs in the Stolen Generations Case, Barwick CJ’s judgment in the DOGS Case potentially implied that a law would not infringe section 116 if that law was appropriate for the circumstances at the time of its making.

Perhaps influenced by Barwick CJ’s judgment, the High Court’s reasoning in relation to the plaintiff’s free exercise claim in the Stolen Generations Case hinged, in large part, on the question of whether the Ordinance was ‘for’ the purpose proscribed by section 116.109 As will be seen, in separate judgments (and in slightly different ways), Brennan CJ, Toohey and Gummow JJ held that the relevant law in the Stolen Generations Case was not made ‘for’ a purpose proscribed by section 116. Dawson J’s comments, though obiter, suggest that his Honour would have reached a similar conclusion.110 Gaudron J was alone amongst the High Court judges in the Stolen Generations Case to not rule out the plaintiffs’ petition that the Northern Territory Ordinance could breach section 116, but her Honour said she was not

106 n2.

107 The DOGS Case related to the establishment element of section 116 rather than the free exercise of religion clause which was central to the plaintiffs’ arguments under section 116 in the Stolen Generations Case.

108 n2, 581. See Blackshield, n63, 103.

109 Each of the six High Court judges in the Stolen Generations Case published separate judgments.

110 McHugh J did not consider section 116 in detail, but his Honour agreed with Dawson J that the power to legislate under section 122 of the Constitution was not limited by section 116.

75 satisfied, on the evidence, that the plaintiffs’ practices amounted to a ‘religion’ under section 116.111

To elaborate, Brennan CJ wrote that, to infringe section 116, legislation must ‘have the purpose of achieving an object which section 116 forbids’.112 Because none of the impugned provisions of the Ordinance were for the purpose of preventing the free exercise of religion, Brennan CJ held that the plaintiffs’ claim failed under section 116.113

Dawson J similarly rejected the plaintiffs’ claim that the Ordinance infringed section 116. The plaintiffs had argued that section 116 narrowed the scope of section 122 of the Constitution by limiting the Commonwealth’s power with respect to it making laws for religion in a territory.114 The thrust of the plaintiffs’ contention was that the Northern Territory did not have the same constitutional powers as the Australian states to make laws about religion. Dawson J, however, rejected this argument, finding that:

there is no reason to suppose that the Commonwealth was to be inhibited in a way in which the States are not in its capacity to legislate for the government of any territory.115

His Honour noted that, if he were wrong in reaching the above conclusion, then he would take the view that the ‘Ordinance contains nothing which would enable it to be said that it is a law for prohibiting the free exercise of any religion’.116 In this obiter comment, Dawson J

111 Also the only High Court judge to do so in the Stolen Generations Case, Gaudron J concluded that the Ordinance did infringe the plaintiffs’ implied freedom of association and movement.

112 Stolen Generations Case n6, 40.

113 Ibid. In relation to the implied freedom claim, while Brennan CJ (like Gummow J) expressed reservations about whether the Constitution includes an implied freedom of association, his Honour considered it unnecessary to resolve this question. Brennan CJ, like Gummow J, considered that, even if there were such a limitation on legislative power, the purposes of the Aboriginals Ordinance were not inconsistent with such a limitation: ibid, 45.

114 Section 122 provides that the Parliament ‘may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.’

115 Stolen Generations Case n6, 60.

116 Ibid, 60-1. On the implied freedom of movement and association claim, Dawson J wrote that freedom of communication and ‘such other rights to freedom of movement and association as may be suggested [are grounded in] the system of representative government for which the Constitution specifically

76 arguably implied that section 116 would confer constitutional protection only if the Ordinance was directed to a purpose that offended section 116.117

For similar reasons to those of Brennan CJ, Toohey J rejected the plaintiffs’ claim that the Ordinance infringed section 116. Like Brennan CJ, Toohey J held that section 116 requires that the law in question be a law ‘for’ prohibiting the free exercise of religion. Quoting the High Court’s judgments in the DOGS Case, and the Jehovah’s Witnesses Case, Toohey J stated:

Section 116 is ‘directed to the making of law’. It is not dealing with the administration of a law. The use of the word ‘for’ indicates that ‘the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character’ …

It does not follow that there is only one purpose to be discerned in a law; there may be more than one. The question should therefore be asked: was a purpose of the Ordinance to prohibit the free exercise of the religion of the Aboriginals, to whom the Ordinance was directed? It may well be that an effect of the Ordinance was to impair, even prohibit the spiritual beliefs and practices of the Aboriginal people in the Northern Territory, though this is something that could only be demonstrated by evidence. But I am unable to discern in the language of the Ordinance such a purpose.118

provides’: ibid, 69. His Honour reasoned that no such implication could arise for the territories, because, in his view, ‘[n]o system of government, elected or otherwise, is prescribed for [them]’: ibid, 69-70. McHugh J agreed with Dawson J on this point, although McHugh J stated even more emphatically that freedom of movement and association are part of the political processes which the Constitution prescribes: ibid, 142. Yet, McHugh also noted that, from the time the 1918 Ordinance was enacted until its repeal in 1957, Northern Territory residents had no part to play in the constitutionally prescribed system of government or in the procedure for amending the Constitution. The Northern Territory, his Honour found, had no constitutional right during that time to elect or vote for a member of the Senate or the House of Representatives. McHugh also noted that, at no time during the life of the 1918 Ordinance did an ‘aboriginal native of Australia’, who was resident in the Northern Territory and subject to the 1918 Ordinance, have any right to vote in federal elections: ibid, 143.

117 McHugh J agreed with Dawson J’s reasons for rejecting the plaintiffs’ claim under section 116.

118 Stolen Generations Case n6, 86.

As can be seen from the above passage, Toohey J’s exploration of legislative purpose was more nuanced than that of Brennan CJ. In Toohey J’s view, a law may have more than one purpose; further, if a court could identify among multiple potential purposes of a law any purpose of prohibiting the free exercise of religion, then the law may be invalid for that reason as infringing section 116.119 Further, according to Toohey J, extraneous evidence about purpose may be relevant to a claim made under section 116; a court may evince legislative ‘purpose’ from admissible supporting evidence.120 Yet, it appears from his Honour’s judgment that even evidence of an effect of prohibiting the spiritual beliefs and practices of Aboriginals may not be sufficient to prove an infringement of the free exercise clause. Instead, there must be such a purpose. His Honour held that he could not discern any proscribed purpose from the Ordinance. In the absence of additional probative evidence about the objective or objectives of the Ordinance, Toohey J held that the plantiffs’ claim under section 116 of the Constitution failed.

Compared with the other High Court judges, Gaudron J was prepared to give section 116 a relatively wide operation. Yet, her Honour was not convinced that the plaintiffs’ practices amounted to an exercise of ‘religion’ under section 116 and Gaudron J therefore rejected the plaintiffs’ section 116 claim. Referring to Latham CJ’s judgment in the Jehovah's Witnesses Case,121 Gaudron J held that section 116 is:

... a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions.

119 Ibid.

120 His Honour noted that ‘in their written submissions the plaintiffs have referred to official reports and correspondence which, they say, evidence the very purpose of the policy embodied in the Ordinance as the removal of half-caste children to prevent them from assimilating the “habits, customs and superstitions of the full-blooded aboriginals”. Assuming that the material in question is admissible in the construction of the Ordinance, it cannot be relied upon in the proceedings as they are now before the Court. The possibility of sustaining the claim by reference to extrinsic material does not warrant giving a qualified answer to so much of Question 1 as is relevant to this head of the plaintiffs' claim. As the matter has come before the Court, the claim under ‘free exercise of religion’ must fail and the question answered accordingly’: ibid, 86-7.

121 n5.

It prevails over and limits all provisions which give power to make laws.122

The above quoted passage suggests there are broad protections under section 116. Yet, Gaudron J noted (citing Stephen J in the DOGS Case) that section 116 of the Constitution is ‘not in form, a constitutional guarantee of the rights of individuals’123 but is a limitation on Commonwealth power. Referring to powers left to the states to make laws about religion under section 116, Gaudron J also noted that the states:

… are completely free to enact laws imposing religious observances, prohibiting the free exercise of religion or otherwise intruding into the area which s 116 denies to the Commonwealth. It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right. It follows, in my view, that s 116 must be construed as no more than a limitation on Commonwealth legislative power. More precisely, it cannot be construed as impliedly conferring an independent or free-standing right which, if breached, sounds in damages at the suit of the individual whose interests are thereby affected.124

It followed on this reasoning that, even a successful plea under section 116 could not give rise to an action in damages. Describing section 116 as a provision which ‘prevails over and limits all provisions which give power to make laws’,125 Gaudron J contrasted the ‘limited guarantee of religious freedom effected by section 116 of the Constitution’ with what her Honour described as the ‘universal’ constitutional freedom of political communication (and movement).126

122 Stolen Generations Case n6, 123.

123 Ibid, 124-5.

124 Ibid, 125. Emphasis added.

125 Ibid, 123 citing Jehovah’s Witnesses Case n5, 123 (Latham CJ).

126 Ibid, 125. Her Honour noted that freedoms of movement and of political communication are ‘… universal, in the sense that they necessarily operate without restriction as to time or place. That being so, they necessarily restrict State legislative power and thus, may be described as giving rise to general,

Gaudron J commented on the High Court’s narrow interpretation of the free exercise clause in Krygger. 127 Her Honour observed - referring to Griffith CJ’s judgment in that decision - that the phrase 'prohibiting the free exercise of religion’ might suggest that section 116 is concerned only with laws which, in terms, ban religious practices or forbid the free exercise of religion.128 Gaudron J noted two considerations - ‘one textual, the other contextual’129 - which, in her Honour’s view, told against construing section 116 so narrowly:

First, s 116 speaks of the exercise of religion, and it follows, as Latham CJ pointed out in Adelaide Co of Jehovah's Witnesses Inc … that "it is intended to protect from the operation of any Commonwealth laws acts which arc done in the exercise of religion". The contextual consideration is that, putting s 122 to one side, the Commonwealth has no power to legislate with respect to religion (509), and, thus, a law which, in terms, prohibits religious practice would, ordinarily, not be a law on a subject matter with respect to which the Commonwealth has any power to legislate. These considerations provide powerful support for the view that s 116 was intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it. 130

The footnote reference in the above quoted passage (‘509’) is to page 154 of the Commonwealth Law Reports account of Starke J’s judgment in the Jehovah’s Witnesses Case.131 At that page, Starke J observed that the Commonwealth has no ‘express’ power to legislate with respect to religion. Gaudron J did not use the word ‘express’ when citing

although as earlier indicated, not absolute freedoms’: ibid. It seems from this reasoning that, according to Gaudron J, the implied freedom of political communication could override the rights arguably left to the states under section 116 to make laws in relation to religion.

127 n33. Ibid.

128 Ibid, 130.

129 Ibid, 131.

130 Ibid. Emphasis added.

131 n5, 154.

Starke J’s judgment. Immediately after referring to Parliament’s lack of express power over religion in the Jehovah’s Witnesses Case, Starke J, at page 154, noted that Parliament

… has many other legislative powers. And those other powers cannot be exercised in contravention of the provision for religious liberty or freedom protected and guaranteed by the Constitution. But liberty and freedom in an organized community are relative and not absolute terms.132

Accordingly, Starke J wrote that, despite the Commonwealth’s lack of express powers over religion, its ‘many other legislative powers’ could - but for section 116 - allow the Commonwealth to limit religious freedoms. Starke J’s account indicates that, insofar as the free exercise clause is concerned, section 116 can protect people from encroachments on their religious freedoms if these constraints arise from the Commonwealth’s use of its ‘other’ legislative powers. This is a more subtle account of the Commonwealth’s legislative powers in relation to religion than Gaudron J’s suggestion that the Commonwealth has no power to legislate with respect to religion. Starke J’s description is also consistent with the tenor of Barton’s observations during the Convention Debates that the Commonwealth could regulate, say, inhumane religious practices under a law enacted with respect to a matter or purpose within power. If, however, the Commonwealth law went too far in limiting religious freedoms, then section 116 could provide constitutional protection.

Despite these slight differences, it is clear that Gaudron J, like Starke J, accepted that section 116 could afford constitutional protection in relation to the exercise of the Commonwealth’s ‘other legislative powers’ where there was a disproportionate legislative intrusion into the exercise of religious freedom. If the contrary assumption were correct (namely, that the Commonwealth had no legislative power in relation to religious matters), then section 116 may have no function to perform: a law for prohibiting the free exercise of religion could not be within legislative power.

Seen in this light, Gaudron J’s observations about section 116 extending to Commonwealth laws which operate to prevent the free exercise of religion are potentially very significant. Her Honour’s judgment implies that section 116 looks to the effect a law has on limiting the

132 Jehovah’s Witnesses Case, ibid (Starke J).

81 free exercise of religion and not the narrower legalistic question of whether the law is, or was, ‘for’ a purpose that is proscribed by section 116. As if to make the point very clear, Gaudron J distinguished laws that operate of their own force to prevent the free exercise of religion and those which authorise acts to prevent the free exercise of religion.133 Her Honour held that both kinds of laws may infringe section 116.134 Gaudron J suggested that this distinction reflected the ‘need to construe constitutional guarantees liberally’, for:

… s 116 extends to laws which prevent the free exercise of religion. And the need to construe guarantees so that they are not circumvented by allowing to be done indirectly what cannot be done directly has the consequence that s 116 extends to provisions which authorise acts which prevent the free exercise of religion, not merely provisions which operate of their own force to prevent that exercise.135

On this reasoning, laws which authorise acts preventing the free exercise of religion may infringe section 116 even though, on their face, they are not directed at prohibiting the free exercise of religion.136

Consistent with her Honour’s view that laws may infringe section 116 even though those laws appear to be neutral with respect to religious objectives, Gaudron J also held that the scope of section 116 is not confined to laws which only have a single express purpose of offending one of section 116’s limbs.137 Similarly to Toohey J’s reasoning in the Stolen Generations Case, Gaudron J held that the terms of section 116 are ‘… sufficiently wide to encompass any law which has a proscribed purpose’.138 On this basis, according to Gaudron

133 Stolen Generations Case n6, 132.

134 Ibid.

135 Ibid.

136 Extrapolating this reasoning to another limb of section 116 - say, establishment - a Commonwealth law might, on this reasoning, infringe section 116 as being a law for establishment of religion if the law authorises or has the practical effect of establishing religion even though, in its terms, or on its face, the law appears to have no such obvious purpose.

137 Stolen Generations Case n6, 133.

138 Ibid. Emphasis in original judgment.

J, a law may infringe section 116 where any of its purposes is to prohibit the free exercise of religion. Concerning the plaintiff’s free exercise claim, Gaudron J also noted that

[a]s with the implied freedom of political communication and the implied freedoms of movement and association, a law will not be a law for "prohibiting the free exercise of any religion", notwithstanding that, in terms, it does just that or that it operates directly with that consequence, if it is necessary to attain some overriding public purpose or to satisfy some pressing social need.139

Her Honour thus suggested that, under the free exercise clause of section 116, the judicial task was to balance the constraints on religious freedoms with the public interest justification for the restriction. This methodology has some similarities with the approach suggested by Latham CJ (and Starke J) in the Jehovah’s Witnesses Case.

On the specifics of the plaintiffs’ section 116 claim, her Honour accepted that the Ordinance could infringe section 116 of the Constitution. Yet, Gaudron J also considered that, on the evidence before the High Court, it was not possible to conclude whether the Ordinance breached section 116. Noting that ‘factual issues [about the free exercise of religion] … cannot presently be determined’140, her Honour held that:

… if Aboriginal people had practices and beliefs which are properly characterised as a religion for the purposes of s 116, and if, as would seem likely, those practices were carried out in association with other members of the Aboriginal community to which they belonged or at sacred sites or other places on their traditional lands, removal from their communities and their traditional lands would, necessarily, have prevented the free exercise of their religion.141

139 Ibid, 133-4.

140 Ibid, 132.

141 Ibid.

It followed that, according to her Honour, the forced removal of Aboriginal communities from sacred sites and traditional lands would ‘necessarily’ infringe the free exercise limb of section 116 of the Constitution if the practices of the Aboriginal people at such sites and on traditional land could properly be characterised as a religion. Yet, Gaudron J was not satisfied on the evidence before the High Court that the practices and beliefs of the plaintiffs were a ‘religion’. It appears that her Honour was not convinced that there was a sufficiently close connection between the plaintiffs’ practices and their traditional land and communities insofar as the practices might constitute an exercise of religion, despite there being judicial authority to the effect that Aboriginal belief systems are religions.142 Arguably, the judicially proposed notion of a religion suggested in the Scientology Case143 - referring to canons or standards of conduct - was of little assistance in identifying Aboriginal indigenous practices or customs as a religion. A spiritual connection with the land, lacking any connection with ‘doctrine’, may not meet this description of religion.144

Gummow J published a separate judgment. In contrast to Gaudron J, his Honour did not doubt that ‘systems of faith and worship of Aboriginal people’ was a religion under section 116.145 Like Brennan CJ, Gummow J held that the preposition ‘for’ in section 116 (‘for’ prohibiting the free exercise of any religion’) directs attention to the purpose of the law.146 Yet, according to Gummow J, the question for the High Court to consider in relation to the application of section 116 to the Ordinance was

… whether the Commonwealth has made a law in order to prohibit the free exercise of any religion, as the end to be

142 see, e.g., Scientology Case n4, 151 (Murphy J); and Western Australia v Ward (2002) 213 CLR 1, 249 (Kirby J). See also É. Durkheim, The Elementary Forms of the Religious Life, New York: Free Press, 1965 [1912], 2. Her Honour, 130, acknowledged cases which recognised Aboriginal beleifs as religious beliefs and her Honour cited Milirrpum v Nabalco Pty Ltd (1971) FLR 141, 167 (Blackburn J) and Aboriginal Legal Rights Movement Inc v South Australia (1995) 64 SASR 551, 555 (Debelle J).

143 n4.

144 That said, Gaudron J did not cite the Scientology Case. In fact, no member of the High Court in the Stolen Generations Case cited the Scientology Case.

145 Stolen Generations Case n6, 160.

146 Ibid.

achieved. ‘Purpose’ refers not to underlying motive but to the end or object the legislation serves.147

Gummow J also seemed to suggest that legislation which, on its face has a particular object or purpose may have a different actual purpose and if so, it may be legitimate for a court to assess the ‘ulterior’ purpose of that legislation in relation to a possible breach of section 116. While finding that the Ordinance did not reveal any specific purpose of prohibiting the free exercise of religion, Gummow J also held that a law may be demonstrated to have a purpose that is prohibited by section 116 by consideration of ‘extraneous matters indicating a concealed means or circuitous device to attend that end’.148 Yet, Gummow J was not prepared to uphold the plaintiffs’ claim that the Aboriginals Ordinance infringed section 116.

Reflections on High Court’s Free Exercise Jurisprudence The High Court has considered free exercise claims in a number of contexts, including interference with religious conscience and limitations on meeting, movement and association. Yet, the High Court’s jurisprudence in relation to the free exercise clause suggests that section 116 offers relatively limited constitutional protection for speech about religion whether by religious leaders or otherwise. As described, in Krygger, Griffith CJ appeared to distinguish acts done as part of the practice of religion from acts done outside the practice of religion; his Honour suggested that section 116 could provide protection for the former but not necessarily the latter. This reasoning tends to imply that section 116 has limited scope to protect a person from being compelled to take actions which conflict with their religious beliefs: an act undertaken outside the practice of religion - even a compulsory one - might not constitute an act done as part of the practice of religion.

Higgins J’s remarks in Judd v McKeon - plainly directed towards the High Court’s decision in Krygger - suggested that his Honour believed that section 116 could protect people against having to carry out actions which conflicted with their religious beliefs. His Honour also intimated that the religious protections under section 116 might apply to beliefs or doctrines such as socialism. Despite Higgins J’s undoubted authority as an expert in the interpretation of section 116 (he played an instrumental role in the Convention Debates in advocating

147 Ibid, 160.

148 Ibid, 161.

85 religious freedoms for the Adventists), his Honour’s views in Judd v McKeon are perhaps of limited judicial authority and arguably are primarily of background interest. Higgins J was alone amongst the High Court judges in Judd v McKeon to address a constitutional argument relating to section 116. Further, and perhaps most tellingly, the plaintiff in that case - Judd - did not raise a claim under section 116 in his pleadings. Yet, as also demonstrated, Latham CJ in the later Jehovah’s Witnesses Case confirmed that section 116 can protect against legislative encroachments on religious conscience and his Honour confirmed the correctness of Higgins J’s views in this regard in Judd v McKeon. Seen in this way, Higgins J’s judgment in Judd v McKeon perhaps takes on greater constitutional significance.

Arguably, Latham CJ gave a quite generous interpretation to the free exercise clause in the Jehovah’s Witnesses Case. Yet, in its application, the High Court gave the free exercise clause a narrow interpretation. The entire High Court rejected the plaintiff’s arguments that the Regulations infringed section 116 notwithstanding that all the High Court judges concluded that the Regulations were either beyond the Commonwealth’s constitutional defence power or ultra vires the National Security Act. As noted, Latham CJ initially suggested that section 116 could potentially provide broad constitutional protection for expression about religion (and that it may even protect freedom from religion). His Honour also implied that section 116 offers generous protections. His Honour, however, then qualified the scope of section 116’s protections. Latham CJ claimed, for example, that the ‘the complete protection of all religious beliefs might result in the disappearance of organized society’149, which suggested that his Honour may have been of the view that even religious belief, without action, could be so detrimental to society as to fall outside section 116’s protections.150

Yet, the High Court in the Jehovah’s Witnesses Case approached the free exercise clause of section 116 in a more subtle way than the High Court did in the very early free exercise

149 Jehovah’s Witnesses Case n5, 126. Emphasis added.

150 It is conceivable, though by no means certain, that the High Court’s findings about the invalidity of the Regulations in the Jehovah’s Witnesses Case (i.e., not within power under section 51(vi) of the Constitution or the National Security Act) allowed the High Court to be more laissez faire about whether the Regulations infringed section 116. Having concluded that the Regulations were invalid, either for ‘head of power’ reasons or as ultra vires the National Security Act, a finding by the High Court that the Regulations infringed section 116 would have offered the Jehovah’s Witnesses no additional legal remedy.

86 decision in Krygger.151 Latham CJ’s consideration of whether the Regulations ‘unduly’ fettered religious freedoms suggested a proportionality test.152 Even in Starke J’s judgment in the Jehovah’s Witnesses Case, there were hints that Starke J might seek to balance the restriction on religious freedoms with the objective justification for the laws.

The Stolen Generations Case decided more than three decades after the Jehovah’s Witnesses Case intimated that, in some respects, the High Court had returned to favouring a narrow interpretation of the free exercise clause. For example, Brennan CJ held that for section 116 to apply, the law must have the purpose that section 116 forbids. This was an ungenerous reading of the free exercise clause. Dawson J’s comments, though obiter, suggest he was of a similar view to Brennan CJ.

Gaudron J indicated, and Toohey J implied, that section 116 might protect the free exercise of religion if the relevant Commonwealth legislation exhibited any relevant prohibited purpose. Their Honours suggested they favoured a less narrow reading of the free exercise clause than that suggested by other High Court judges. What is more, Gaudron J explained that section 116 may look to the effect that a law has on limiting the free exercise of religion and not the narrower question of whether the law is, or was, ‘for’ a purpose proscribed by section 116. Gaudron J also would have allowed the plaintiffs’ section 116 claim had her Honour been satisfied that the plaintiffs’ practices amounted to the free exercise of religion. Gummow J, further, reasoned that the ostensible purpose of legislation may differ from its ulterior purpose.

It might, in this light, be possible to discern from three of the six High Court judges in the Stolen Generations Case an interpretative approach suggesting that the High Court does not necessarily endorse a narrow construction of section 116. The High Court could, on Gaudron J’s reasoning, even consider the effect of a law on limiting the free exercise of religion.

There is other High Court authority for a similar proposition in relation to legislative purpose, albeit in a separate field of constitutional law. In the implied freedom of political discourse

151 n33.

152 In Halliday v Commonwealth of Australia (2000) 45 ATR 458, in relation to claim by applicants that the GST laws offended the free exercise clause of section 116, the Federal Court (Sundberg J) used similar language, concluding that there was no ‘no undue interference’ with religion: 465. Emphasis added.

87 case - Australian Capital Television Pty Ltd v Commonwealth (No 2)153 (‘ACTV’) - Mason CJ employed reasoning in respect of legislative purpose that could be applicable under section 116. His Honour suggested that, if a law imposes an excessive restriction in an ancillary way - that is, the law goes further than is reasonably required for the Commonwealth’s purposes - then it may be implied that the purpose was to impose the restriction and therefore the law was for that purpose:

If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication.154

This reasoning could be relevant to section 116. The existence of a disproportionate burden could indicate that the purpose and effect of the restriction is, in fact, to impair the free exercise of religion.155 On this line of argument, a law could be said to be for restricting the free exercise of religion in two possible respects, one direct and the other indirect. First, and perhaps most obviously, a Commonwealth law could be for prohibiting the free exercise of religion if that is the plain intent of the law on its face. Secondly, a law could be for prohibiting the free exercise of religion if that is the indirect purpose of the law, in the sense that the law restricts the free exercise of religion and the restriction is greater than is reasonably required to serve the law’s legitimate aims. This reasoning could apply equally to the establishment and religious observance clauses of section 116 such that a Commonwealth law could be for establishing any religion or for imposing any religious observance if that was the intention or design of the law or it was the indirect purpose of the law as described above.

153 (1992) 177 CLR 106.

154 Ibid, 143-4.

155 See Michael Eburn, ‘Religion and the Constitution – an Illusory Freedom’ (year uncertain) Volume 8 Australian Religious Studies Review No 2, 77-85, 81. See Street v Queensland Bar Association (1989) 148 CLR 461, where, at 488, Mason CJ noted that forbidding ‘all persons from wearing a turban is on its face a prohibition applicable to all persons without distinction, but in effect is a discrimination based upon religious grounds because its only impact will fall upon adherents of a creed or religion which requires the wearing of turbans’.

Even this argument, built on an analogy with Mason CJ’s views in ACTV, may, however, be a difficult one to sustain. Mason CJ’s above views in ACTV did not relate to section 116. For the argument to be considered persuasive, the High Court would need to accept that the reasoning from one area of constitutional law can apply to the other. Further, a number of High Court decisions have endorsed a narrow reading of the word ‘for’ in section 116.156 As will be seen in the High Court’s decision in the DOGS Case (considered in more detail in Section IV), a majority of the High Court adopted a particularly narrow reading of the establishment clause by reference to the meaning of the word ‘for’. The High Court today may be reluctant to deviate from a relatively consistent thread of section 116 judgments which have favoured a narrower view of section 116, focussing on evidence of a single or predominant legislative purpose and not an implied purpose or effect.

As the law stands, despite there being hints of judicial flexibility in the High Court’s judgments, the free exercise limb of section 116 appears to offer limited constitutional protection for speech that is part of the practice of religion. It is possible that section 116 may offer even more limited protection for speech that is not part of the practice of religion and which is merely about or just peripherally relevant to the practice of religion. For example, it could be argued that harsh criticism of religions is not part of the exercise ‘of’ religion (or is not part of the practice of religion) and is therefore outside the scope of the free exercise protection under section 116. If this argument were accepted, then such an interpretation of the free exercise clause of section 116 might mean that laws such as religious tolerance legislation (assuming the Commonwealth enacted them) could a priori survive constitutional challenge under section 116 if the laws regulate harsh or vilifying criticism of religious beliefs. Such an interpretation of section 116 might have concerning implications for religious leaders who use their leadership positions to harshly criticise those who belong to other religions and yet who may regard delivering such criticism as a necessary part of their religious belief and expression. This is currently an untested and uncertain area of law.

Questions also remain unanswered - barely having been addressed - about how the High Court might grapple with the distinction between religion and cultural practice. It also

156 In Jehovah’s Witnesses Case, n5, Latham CJ stated, 132, that ‘the word “for” shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the proscribed character’.

remains unclear whether the High Court would employ a proportionality test when deciding a free exercise case (and/or under the other limbs of section 116), although there appear to be sufficiently clear invitations in the judgments of Latham CJ in the Jehovah’s Witnesses Case and Gaudron J in the Stolen Generations Case, for the High Court to adopt such a test should it be so inclined or persuaded.

Based, however, on the current state of the free exercise jurisprudence, the existence of any potentially wider constitutional protection for speech about religion under section 116 would depend on how the High Court has interpreted the other limbs of section 116. The other limbs of section 116 might bolster or augment the constitutional protections available under section 116 for speech about religion. The Chapter therefore turns its attention to the case law concerning the other clauses of section 116: establishment, observance and religious tests.

IV. WHAT IS ESTABLISHMENT?

The first limb of section 116 states:

The Commonwealth shall not make any law for establishing any religion …

This clause could provide constitutional protection for speech about religion (or even expression about atheistic views) if a state-sanctioned religion interferes with the holding or expression of those kinds of beliefs.

In 1981, the High Court considered the establishment limb in the DOGS Case.157 In issue in the DOGS Case was whether Commonwealth Government funding of church schools amounted to the establishment of a religion under section 116 of the Constitution. Commonwealth statutes allowed the Commonwealth Government to make grants to the states on the condition that the states paid money to non-government schools to finance the schools’ educational programs including by constructing buildings. The recipients of the funding included schools owned and run by the Catholic Church or its agencies. The Defence of Government Schools organization (‘DOGS organisation’) asked the High Court to declare

157 n2.

90 that state aid to church schools breached the establishment limb of section 116. By six judges to one (Barwick CJ; Gibbs, Stephen, Mason, Aickin and Wilson JJ; Murphy J dissenting), the High Court rejected the argument that the funding amounted to the establishment of a religion in breach of section 116 of the Constitution.

Barwick CJ gave a narrow construction to section 116. According to his Honour, for a law to infringe section 116, as establishing a religion, the law must ‘have that objective as its express and … single purpose.158 His Honour adjudged that a law which establishes a religion ‘will inevitably do so expressly [and not constructively]’.159 Barwick CJ further suggested that establishment

… involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority 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.160

His Honour compared section 116 with the First Amendment.161 Urged by counsel for the DOGS organisation to consider the similarities between the First Amendment and section 116, Barwick CJ instead noted the divergence in the texts, particularly between the word ‘respecting’ in the American text (above) and the word ‘for’ in section 116 of the Australian Constitution. His Honour adjudged that it was ‘… unsatisfactory to attempt to apply to

158 DOGS Case, ibid, 579. Emphasis added.

159 Ibid.

160 Ibid, 582.

161 By contrast to section 116 of the Constitution, which uses the word ‘for’ (i.e., ‘The Commonwealth cannot make any law for establishing any religion; or for imposing any religious observance, or for prohibiting the free exercise of any religion …’), the First Amendment does not use that preposition and instead uses the word ‘respecting’, providing that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances’.

[Australia’s] text the meaning and operation given to the relevant portion of the Bill of Rights’.162

Gibbs J interpreted the prohibition on establishment to mean that the Commonwealth cannot make any law for ‘conferring on a particular religion or religious body the position of a state (or national) religion or church’.163 When Gibbs J compared section 116 with the First Amendment, his Honour considered that the word ‘for’ (section 116) pointed to the purpose of the law rather than its relationship with a particular subject matter. His Honour also determined that, in contrast to the First Amendment (which refers to establishment of religion), the words of section 116 (which mentions establishing any religion) suggested ‘the establishment of one particular religion rather than of religion more generally …’164

Though also in the majority, Stephen J was more expansive than the other majority judges about the meaning of ‘establishment’. Stephen J adjudged establishment to be an imprecise concept. Using fittingly imprecise language to explain his position, Stephen J held that establishment had ‘no single characteristic [but rather is] the sum total of all the mutual relations for the time being between Church and State’.165

In comparing section 116 with the First Amendment, Mason J166 agreed with Barwick CJ that the word ‘for’ is more limiting than the word ‘respecting’ in the First Amendment.167 Referring in more detail than Barwick CJ to the differences in terminology between section 116 and the First Amendment, Mason J held that:

"for" connotes a connection by way of purpose or result with the subject matter which is not satisfied by the mere circumstance that the law is one which touches or relates to the

162 DOGS Case n2, 579.

163 Ibid, 604.

164 Ibid, 598. Emphasis added.

165 Ibid, 606.

166 Aickin J agreed with Gibbs CJ and Mason J.

167 DOGS Case n2, 615.

subject matter. In this respect the first prohibition in s.116 is narrower than its American counterpart.168

Mason J distinguished a constitutional grant of legislative power from a prohibition on the exercise of legislative power.169 Referring to the distinction between a grant of legislative power and a constraint on the exercise of legislative power, Mason J suggested that the High Court should give a somewhat narrow construction to section 116 because it amounted to a constraint on legislative power.170 Dixon CJ had suggested in Lamshed v Lake171 that ‘for’ means ‘with respect to’172 which arguably suggested that ‘for’ in section 116 might refer to something more general than a specific ‘purpose or result’. Mason J, however, distinguished Lamshed v Lake on the basis that the case in question before the High Court involved a prohibition on the exercise of legislative power.173

Given Mason J’s reasons for interpreting section 116 in this way, it is curious to find that Barwick CJ in fact rejected any interpretational distinction based on whether a constitutional provision amounts to a grant of legislative power or a restriction on power. In contrast to Mason J on this point, Barwick CJ considered that there was:

… no reason why the words of the Constitution should not be given their full effect, whether they be expressed in a facultative or prohibitory provision [and in any case] the emphatic universality of the language of s116 seems to me to brook no restraint sought to be imposed by any such doctrine as the submission propounds.174

168 Ibid, 615-6.

169 This distinction emerged from the contrast Dixon CJ drew between these concepts in Wragg v New South Wales (1953) 88 CLR 353, 386.

170 DOGS Case n2, 615.

171 (1958) 99 CLR 132.

172 Ibid, 141.

173 DOGS Case n2, 615-6.

174 Ibid, 577.

The language in this passage, particularly the mention of the ‘emphatic universality of the language of section 116’, contrasts sharply with Barwick CJ’s view that section 116 requires a law for establishing a religion to ‘have that objective as its express and … single purpose’.

Wilson J similarly adopted a narrow view about the scope of section 116 to protect against the establishment of religion. While acknowledging that ‘the precise status, responsibility and privileges that attend such establishment may vary a good deal’,175 Wilson J held that there was ‘… intent to adopt a narrow notion of establishment namely, that which requires statutory recognition of a religion as a national institution’.176 It is not clear whose ‘intent’ Wilson J referred to; based on my research, no such clear intent is evident from the Convention Debates. Concerning establishment under section 116, Wilson J held that, while a ‘constitutional grant of plenary legislative power should be construed with all the generality which the words used will admit … the same [could not be said of] a provision [like section 116] which proscribes power’.177 His Honour thus wrote that establishment:

…involves the deliberate selection of one to be preferred from among others, resulting in a reciprocal relationship between church and state which confers and imposes rights and duties upon both parties. … It identifies a relationship which goes much deeper than financial assistance, whether casual or regular, from time to time, because it is expressive of a duty to maintain and support, or, in other words, a duty to "promote religion" … Conversely, correlative to the right in the church to the protection and patronage of the state, the church is under a duty to pray for the civil magistrate and faithfully to conform to the church's doctrine and standards.178

Thus, according to Wilson J, the provision of governmental financial aid to a religious institution would not by itself suffice to ‘establish’ a religion: the relationship between church and government must be ‘much deeper than financial assistance’. The above passage seems

175 Ibid, 653.

176 Ibid. Emphasis added. See also 612, 616 (Mason J).

177 Ibid.

178 Ibid.

94 to evoke the language of a quasi-contractual relationship to describe establishment. It refers to a ‘reciprocal relationship between church and state which confers and imposes rights and duties upon both parties’.

In his dissenting judgment, Murphy J offered persuasive reasons to reject the majority’s narrow interpretation of establishment. Murphy J held that the Commonwealth’s funding of the church schools did infringe the establishment prohibition in section 116. As his Honour noted

The fact is that under the Commonwealth laws vast sums of money are being expended for the support of church schools. The result of the capital grants Acts is that great and increasing sums are being given to churches to acquire property, which can then lawfully be used for religious purposes apart altogether from schooling. Although the States Grants (Schools Assistance) Act 1978 forbids approval of projects (for grants) "if the sole or one of the principal objects" is "to provide facilities for use, wholly or principally, for in relation to religious worship" (s.15), this does not prevent a grant for a project as long as religious worship is not the sole or principal object, or one of the principal objects and the Act does not prevent subsequent use of the property for any purpose, even exclusive use for religious worship …. There is nothing in the challenged Acts to restrict similar use of other property obtained with moneys given to the churches pursuant to these Acts. The effect of the Grants Acts is that the wealth of the churches is increased annually by many millions of dollars of taxpayers' moneys. They have the effect of establishing religion.179

Murphy J thus focussed on the practical effect of the law, namely, that the Commonwealth grants allowed churches to use large sums of money for religious purposes. His Honour’s purposive approach to section 116 did not concentrate only on the written objects of the relevant legislation; it also addressed the practical outcomes and effects of the law. Murphy J

179 Ibid, 632-3. Emphasis added.

95 considered that the practical outworking of the law was that it increased the wealth of the churches which allowed them to pursue religious objectives.

Murphy J also rejected the argument that the establishment prohibition in section 116 applied only to either the establishment of one national church or to preferential treatment of any religion. His Honour instead reasoned

A reading of s.116 that the prohibition against "any law for establishing any religion" does not prohibit a law which sponsors or supports religions, but prohibits only laws for the setting up of a national church or religion, or alternatively prohibits only preferential sponsorship or support of one or more religions, makes a mockery of s.116. Jefferson warned against this tendency. "Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction" (Jefferson, Writings (Washington ed., 1859), p. 506). We should heed his warning.180

Murphy J was, however, a lone dissenting judge in the DOGS Case. His Honour’s views did not have the support of the other members of the High Court.

V. RELIGIOUS OBSERVANCE AND TESTS

A. Religious Observance Section 116 provides that:

The Commonwealth shall not make any law for … imposing any religious observance.

This clause, like establishment, could protect speech about religion by preventing the Commonwealth from making laws which require religious observance.

In the 1982 decision R v Winneke; Ex parte Gallagher181 (‘Winneke’), the High Court (Gibbs CJ, Mason, Murphy and Wilson JJ)182 examined a requirement to take an oath or affirmation.

180 Ibid, 633.

181 (1982) 152 CLR 211.

If a witness declined to take an oath in Royal Commission proceedings, the Royal Commissions Act 1902 (Cth) - a Commonwealth law - required the witness to explain their decision. The High Court generally decided the issue on the basis of whether there was a conflict between state and Commonwealth laws under section 109 of the Constitution. Yet, Murphy J (dissenting from the making of the order refusing the application for relief) considered that the prohibition on imposing religious observances under section 116 prevented the imposition of oaths for judicial and similar proceedings. His Honour held that the Royal Commissions Act infringed section 116:

Its provisions which deal with oath-taking infringe the constitutional prohibition. The mandate against laws imposing any religious observance protects believers as well as non- believers; it may be a more serious interference with the freedom of religion to impose a religious observance on believers than on non-believers.

… Consistently with s. 116 no one can be required by any law of the Commonwealth to state or explain his reasons for declining to take an oath; his religious beliefs or lack of belief cannot be examined and he cannot be called upon to state, explain or justify them, as conscientious or otherwise. In short, s. 116 guarantees that a person cannot be required by or under any law of the Commonwealth to take an oath or to state that he conscientiously objects to taking an oath. A witness before a Royal Commission under the Act may lawfully decline to take an oath and lawfully decline to state why he declines to take an oath.183

For Murphy J, the critical feature of the case was that a witness had to explain any decision they made to not take an oath. Such a person had to, in Murphy J’s words, ‘state, explain or justify [their beliefs] as conscientious or otherwise’. From his Honour’s perspective, this

182 Aickin J heard the case but died before judgment was given in the case.

183 Winneke n181, 229.

97 obligation amounted to a legislative requirement of religious observance and the Royal Commissions Act infringed section 116.

In a manner similar to his Honour’s approach in the DOGS Case, Murphy J accordingly focussed on whether the Royal Commissions Act had the practical effect of imposing a requirement for religious observance. It is difficult to find fault with Murphy J’s reasoning that the law imposed such a requirement. The legislation required a witness to explain their beliefs. What is more, Murphy J’s decision is arguably not controversial once it is appreciated that the legislation in question required a witness to explain the rationale for exercising a conscientious choice to not take an oath. Yet, his Honour’s was - again - a single view, dissenting in the result. The other High Court judges did not consider the application of section 116 to the facts in the case.

B. Religious Tests

The final clause of section 116 states:

… no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

This clause could protect speech about religion (or potentially secular expression) by prohibiting any requirement of a religious test as a qualification for holding an office or public trust under the Commonwealth. Unlike the other limbs of section 116, this clause does not limit the powers of the Commonwealth with respect to the making of laws.184

184 Stephen J in the DOGS Case n2, 605, noted the distinction between this and the other limbs of section 116 when his Honour observed that this clause prohibits the imposition, whether by law or otherwise, of religious tests for the holding of Commonwealth office. As observed in Chapter 2, the text of this clause as it appeared in section 109 and ultimately in section 116 of the Constitution departed from the wording originally submitted by Josiah Symon during the Convention Debates. After initially recommending that a truncated clause for protecting religious freedom should apply to both the Commonwealth and the states, Symon proposed the following wording: ‘Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any office of public trust under the Commonwealth Reference’. Symon’s proposed text differed from the draft adopted in section 109 (and section 116) in that his draft would have specifically limited the powers of the Commonwealth and it referred to any ‘office of public trust’ under the Commonwealth rather than an ‘office or public trust’.

The High Court first considered the religious tests clause in an unreported 1950 judgment delivered by Fullagar J (sitting as a Court of Disputed Returns) in Crittenden v Anderson.185 Anderson was a practising Catholic who had been elected to the House of Representatives. Crittenden argued that Anderson’s election infringed section 44(i) of the Constitution.186 Crittenden claimed that Anderson’s Catholicism meant that Anderson acknowledged allegiance, obedience or adherence to a Papal State. Fullagar J, however, dismissed Crittenden’s contention. Fullagar J observed that section 116 of the Constitution, and not section 44(i), was relevant when the right of a member of a religious body is challenged on the ground of their religion.187 His Honour also noted that it would not be possible to give effect to Crittenden’s contention without the imposition of a religious test.188

The High Court again considered the religious test clause in Church of Scientology v Woodward.189 Woodward was the Director General of the Australian Security Intelligence Organisation (‘ASIO’). The Church of Scientology, claimed that Woodward had caused or permitted ASIO to communicate security assessments to Commonwealth Ministers about current or potential Commonwealth employees.190 It was alleged that the security assessments claimed the persons represented security risks because of their membership of the Church of Scientology.191 The Church claimed that the assessments meant ASIO required a religious test as a qualification for Commonwealth office. Aickin J, however (sitting alone on the High Court), dismissed the claim, noting that

185 Crittenden v Anderson (unreported, High Court of Australia, Fullagar J, 23 August 1950), referred to in ‘An Unpublished Judgment on s 116 of the Constitution’ (1977) Australian Law Journal 171.

186 Section 44(i) disqualifies any person who is ‘under any acknowledgement of allegiance, obedience, or adherence to a foreign power’ from being elected to or sitting in Parliament.

187 Crittenden v Anderson n185, 171.

188 Ibid.

189 The case was decided on 9 November 1979 and reported as an appendix in (1982) 154 CLR 25.

190 Ibid, 26.

191 Ibid.

[t]he provision of information to a prospective employer cannot be regarded as the imposition of a religious test by the provider of the information.192

In 2012, in Williams v Commonwealth193 (‘Williams No 1’), the High Court again considered the religious tests clause. Williams argued, inter alia, that the Commonwealth’s funding of a school chaplaincy program at the school that his four children attended (Darling Heights State Primary School, Queensland) infringed the no religious test guarantee. The school chaplain at the school was approved by Scripture Union Queensland. Williams argued that a relationship of supervision and control existed between the Commonwealth and Scripture Union Queensland. The Commonwealth, by contrast, contended that the chaplains did not hold an office under the Commonwealth. The seven judge High Court concluded that the Commonwealth lacked power to enter into the chaplaincy funding arrangements. This finding was, however, unrelated to the plaintiff’s section 116 ‘no religious test’ action which the High Court unanimously dismissed.

Only three of the seven High Court judges addressed Williams’ section 116 claim in any detail and they did so only relatively briefly. In their joint judgment, Gummow and Bell JJ (with whom French CJ, Hayne, Crennan and Kiefel JJ agreed) held that the school chaplain had no contractual or other relationship with the Commonwealth.194 The reasoning of Gummow and Bell JJ implies that, for an arrangement to infringe the religious tests clause, the Commonwealth must be able to exercise legal or quasi-legal control over the person appointed to the office.195

With respect to the phrase ‘under the Commonwealth’, Gummow and Bell JJ wrote that

192 Ibid, 83.

193 (2012) 248 CLR 156.

194 Ibid, 223.

195 This language is reminiscent of that of Wilson J in the DOGS Case where his Honour intimated that a quasi-contractual relationship must exist between church and state for there to be any establishment (see pp.94-95 of thesis).

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the force of the term “under” indicates a requirement for a closer connection to the Commonwealth than that presented by the facts of this case.196

Their Honours did not explain why the term ‘under’ required a closer relationship in relation to what constitutes a religious test than that which was in evidence before the High Court. Nor did their Honours provide any guidance about how close the connection must be with the Commonwealth to constitute an office under the Commonwealth.

In a separate judgment, Heydon J likewise rejected Williams’ claim under section 116. After observing (without elaborating by reference to further evidence) that the words of section 116 suggested that ‘an office is a person who holds an office which is in direct relationship with the Commonwealth and to which qualifications may attach before particular appointments can be made or continued’197, Heydon J held that

The Commonwealth has no legal relationship with the ‘çhaplains’. It cannot appoint, select, approve or dismiss them. It cannot direct them. The services they provide in a particular school are determined by those who run that school. The provision of those services is overseen by school principals.

In the result, the plaintiff’s construction of s 116 is an unattractive one. Under that construction, whenever the Commonwealth enters a contract under which services are to be provided by a party with whom it is to have no legal relationship, under which particular standards are stipulated, and under which reporting obligations are created to ensure compliance with those standards, that party would hold an office under the Commonwealth.198

His Honour did not explain why a legal relationship with the Commonwealth is necessary for there to be ‘an office’ under this clause. Nor, however, did his Honour explain why the

196 Williams No 1 n193, 223.

197 Ibid, 334-5.

198 Ibid, 335.

101 factors that the plaintiff pointed to as constituting a relationship of supervision and control did not constitute a legal relationship.

VI. CONCLUSION

Having reviewed the High Court cases under section 116 and (in Chapter 2) considered the constitutional drafters’ objectives in relation to section 116, it is now possible to draw some conclusions about section 116’s scope to protect expression about religion.

The first three limbs of section 116 apply to laws made by the Commonwealth. Being limited to protecting religious freedoms under Commonwealth laws, section 116 appears to have an inherently narrow operation. As a kind of jurisprudential overlay, the High Court has, from time to time, placed weight on the meaning of the preposition ‘for’ in section 116. Notwithstanding that some High Court judges appear to accept that Commonwealth legislation may have multiple purposes (or may be administered for different purposes from those objectives which existed at the time of the making of the law), the generally prevailing thread of judicial authority to date is that, for a Commonwealth law to infringe section 116, the law must, in some way, reflect a purpose, and perhaps even a predominant one, that is proscribed under section 116.

A possible implication of the High Court’s relatively narrow interpretation of the scope of the religious freedoms under section 116, is that the Commonwealth may avoid an infringement of section 116 simply by ensuring that the relevant Commonwealth law evinces no overtly religious objectives. Legislation which avoids an inference of a purpose that is prohibited by section 116 may, by itself, go some considerable way to avoiding an infringement of one or more of the clauses of section 116.

It is not, however, only in relation to the implications of the word ‘for’ that the High Court has seemingly given section 116 a confined operation. Although it was early in the High Court’s section 116 jurisprudence (and the case had a wartime context, which might lead to a more restrictive interpretation of religious freedoms than might occur during peacetime), Griffith CJ, one member of the two judge High Court in Krygger, advised that the free exercise clause of section 116 could only protect religious freedoms in respect of acts undertaken as part of the practice of religion. On this reasoning (if it were applied today by the High Court), acts that are compelled by a Commonwealth law which conflict with

102 religious belief may not quality for constitutional protection if they are outside the practice of religion.

Higgins J in Judd v McKeon saw the free exercise limb as having a less confined operation than did Griffith CJ in Krygger - one which could protect against legislative encroachments on religious conscience. Latham CJ affirmed in the Jehovah’s Witnesses Case that section 116 can protect against infringements on religious belief and not merely acts carried out as part of the practice of religion. Yet, in the Jehovah’s Witnesses Case, Latham CJ and all four other members of the High Court concluded that the National Security (Subversive Associations) Regulations did not infringe the free exercise clause of section 116. While the High Court found in favour of the Jehovah’s Witnesses on other grounds, there seemed in the Jehovah’s Witnesses Case to be a persuasive case for the High Court to conclude that section 116 could protect the religious practices of the plaintiffs.

The Jehovah’s Witnesses engaged in no overtly hostile acts. It is not obvious how the Jehovah’s Witnesses’ teachings posed any realistic threat to the security of the Commonwealth even during wartime. The group seemed to be a prototype unpopular but otherwise harmless minority (hardly fitting to be described as subversive to fit the title of the Regulations). These were the kind of believers who Latham CJ, at least earlier in his judgment, suggested section 116 could protect. Even the Crown conceded that the Jehovah’s Witnesses held merely primitive religious beliefs. No judge in the Jehovah’s Witnesses Case referred to the Jehovah’s Witnesses for what they were. While having possibly alarming, somewhat disconcerting and even perhaps radical teachings, the Jehovah’s Witnesses were a religious family with relationships forged by common beliefs, teachings and language.

Latham CJ and Starke J in the Jehovah’s Witnesses Case suggested, in slightly different ways, that constitutional claims under section 116 involve a balancing exercise: a weighing of the proportionality of the restriction on religious freedom with the objective justification for the restraint. Some 34 years later, in the Stolen Generations Case, Gaudron J similarly noted that a law may not infringe section 116 even if it restricts the free exercise of religion if the law is necessary to satisfy some public purpose or pressing social need.199 Her Honour also indicated that the constitutional analysis under section 116 may involve considering the effect

199 The converse proposition is that section 116 may provide constitutional protection for the free exercise of religion if the restraint on religion is disproportionate to its ostensible aims.

103 of a law on preventing the free exercise of religion and not merely whether the law has that particular purpose.

It is conceivable that a future High Court could approach the analysis under the free exercise limb of section 116 by assessing the proportionality of the restriction on religious freedoms, a methodology that is supportable by reference to the judgments in the Jehovah’s Witnesses Case and the Stolen Generations Case. The Stolen Generations Case - and particularly the judgment of Gaudron J in that case - also offers some judicial support for the High Court to, if it chooses, review the effect that a law has on limiting the free exercise of religion and not merely whether the law is, palpably, ‘for’ a proscribed purpose.

The High Court has, nevertheless, been relatively conservative in its definition of religion. For example, in the Scientology Case, a majority of the High Court defined religion by reference to, inter alia, canons of conduct and belief in the supernatural, criteria which may, ironically, be irrelevant to some widely accepted religions (Buddhism for example). In the Scientology Case, Wilson and Deane JJ also suggested that a religion must be capable of empirical observation, begging the question of whether religion could ever consist of belief alone without there also being overt evidence of a corresponding practice. On infrequent occasions, High Court judges have suggested that it may be appropriate to accept a wider view of religion but such a view could not at this stage be said to be settled law. For example, Kirby J in Western Australia v Ward proposed that section 116 ‘speaks to all Australians and of all religions [and is] not restricted to settlers, their descendants and successors, nor to the Christian or other organised institutional religions’.200 Murphy J in the Scientology Case acknowledged that Aboriginal belief systems are religions.201 Despite Murphy J’s reasoning, when the High Court considered a free exercise claim by Aboriginals in the later Stolen Generations Case, Gaudron J (the only judge to find that the Ordinance potentially contravened section 116) was not satisfied on the evidence before her Honour that the practices and beliefs of the Aboriginal plaintiffs were a religion.

In relation to the prohibition on ‘establishment’ of religion, a majority of the High Court in the DOGS Case described ‘establishment’ as akin to compulsory involvement in a national

200 n142, 249.

201 n4, 151.

104 religious institution, similar to religious conscription. Murphy J (dissenting) in the DOGS Case recommended a purposive approach to section 116 (similar to the recommendations of Gaudron J in the Stolen Generations Case under the free exercise limb) - an approach which concentrates on the practical effect of a Commonwealth law with respect to ‘establishing’ religion and not necessarily on a more narrowly focussed inquiry into legislative purpose. Murphy J’s opinion in the DOGS Case was, however, that of a single dissenting judge and it would arguably be a significant deviation from precedent for the High Court to follow his Honour’s (dissenting) reasoning.202

The High Court has also given a narrow interpretation to the fourth limb of section 116, relating to a religious qualification for an office or trust under the Commonwealth. Its reasoning to date suggests that the provision could only be infringed where there is something akin to a legal relationship between the Commonwealth and the person appointed to the relevant office. On this view, there is relatively little scope for the courts to recognise indirect or more distant forms of control as constituting any ‘office’ under the Commonwealth.

The High Court jurisprudence suggests that, overall, section 116 provides relatively weak protections for speech about religion. Latham CJ’s judgment in the Jehovah’s Witnesses Case and Gaudron J’s decision in the Stolen Generations Case may invite a future High Court to balance the limitation on religious freedoms with the public policy justification for the law under the free exercise clauses, that is, to analyse the free exercise clause of section 116 by using a proportionality test. Other High Court judgments (e.g., Murphy J in the DOGS Case in relation to establishment) imply the possibility of a more flexible interpretation of section 116. This approach does not necessarily require proof of a single legislative purpose but could consider whether a law may comprise multiple purposes, or may have an effect which is different to the stated objectives of the law. It is possible that, over time, the High Court

202 In Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 26 FLR 256 (‘Hoxton Park Residents’), Basten JA in the Court of Appeal of NSW (Allsop P and Beazely JA agreeing with Basten JA) wrote that ‘developments in constitutional law since Black was decided in 1981 may allow submissions to be made supporting a more flexible approach to the constraints on legislative power expressly identified in s 116. Thus [High Court], authority in relation to protection for freedom of political communication, an implied constraint on legislative power, demonstrates a willingness to derive greater assistance from the United States Supreme Court in respect of matters relevant to the structure and scope of government: 166.

105 may come to interpret section 116 in accordance with these more nuanced analyses. At this stage, however, these approaches could not be said to be settled law.

Based on the review in this Chapter of the High Court’s section 116 decisions, it would seem that if the Constitution is to provide substantive protection for speech about religion (or by religious leaders), then that protection must come from a constitutional protection other than under section 116. The only other known constitutional provision which might offer such protection for speech about religion is the implied freedom of political discourse. The next Chapter therefore considers whether, and under what circumstances, speech about religion, or by religious leaders, may fall within the protective scope of the implied freedom of political discourse.

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CHAPTER 4 – POLITICAL SPEECH, RELIGION AND RELIGIOUS LEADERS

I. INTRODUCTION

A. Conclusions from Chapter 3 Chapter 3 concluded that section 116 provides limited protection for speech about religion. In this Chapter, I ask how the High Court’s guidance about ‘political speech’ under the implied freedom of political discourse might apply to expression about religion or by religious leaders. Implicit in this investigation is an inquiry into whether speech about religion or by religious leaders is so qualitatively different to expression about ‘government or political matters’ (as defined by the High Court in relation to the implied freedom of political discourse) that the implied freedom may not protect such speech. Specifically, I seek to answer the following questions:

 what is ‘political speech’?; and  can the implied freedom of political discourse protect speech about religion (or by religious leaders) from a burden1 either current or proposed?

Answering the first question is a prerequisite to addressing the second question and requires analysis of the underlying legal principles in the relevant High Court cases on the implied freedom of political discourse.

B. Chapter Overview The structure of this Chapter is as follows. Section II studies some of the earlier High Court decisions in relation to characterising political speech for the purposes of the implied freedom of political discourse and Section III considers the more recent High Court cases on the implied freedom of political discourse.

1 I do not in this Chapter consider in detail whether ‘political’ speech might be subject to any particular burden. That analysis is undertaken in Chapter 5.

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Section IV A discusses the strengths and limitations of the High Court’s conception of political speech in relation to the implied freedom of political discourse. It notes a possible ongoing tension between the kinds of government and political matters referred to in Theophanous v Herald & Weekly Times Ltd2 (‘Theophanous’) and Lange v Australian Broadcasting Corporation3 (‘Lange’). Section IV B critiques in some detail an approach to identifying a burden on political speech which considers whether the law in question generally burdens political expression rather than the political speech of the plaintiff. This methodology has been used in the Courts of Appeal of the Supreme Courts of NSW and Queensland and arguably has some support in some High Court judgments. As will be seen, this approach may raise some acute methodological difficulties in relation to deciding the critical threshold question of whether the communication at issue in a case is ‘political communication’.

Section V discusses the views of several experts in relation to defining political speech. In Section VI, I review whether there are any constitutional limitations to political speech applying to expression about religion. Section VII explores in detail what it means for the protective scope of the implied freedom of political discourse to include speech about government and political matters. The Conclusion follows and answers the aforementioned primary questions.

II. HIGH COURT AND POLITICAL SPEECH: EARLY VIEWS

In Nationwide News Pty Ltd v Wills4 (‘Nationwide News’) and Australian Capital Television v Commonwealth5 (‘ACTV’), the High Court recognised an implied constitutional freedom in relation to speech about government and political matters. In 1994, in Theophanous,6 the High Court offered more detailed insights into what ‘political speech’ means. Writing a joint

2 (1994) 182 CLR 104

3 (1997) 189 CLR 520.

4 (1992) 177 CLR 1.

5 (1992) 177 CLR 106.

6 n2.

108 judgment, Mason CJ, Toohey and Gaudron JJ (in the majority, with Deane J) said political speech includes:

... discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices.7

Left unaltered by later High Court judgments, this description of political discussion would indicate that the implied freedom of political discourse applies to speech about the political views and public conduct of all persons involved in activities that have become the subject of political debate. This could include the speech of religious leaders to the extent they engage in, or contribute to, topics of public debate, all the more so if the religious leaders are widely recognised as contributors to topics of public discourse. The Theophanous judgment continues to be a persuasive judgment, being jointly written by three judges in a majority High Court decision and at no time being expressly overturned.

Even though the application of the implied freedom to state political matters was not directly in issue in Theophanous (it was a defamation action brought against a newspaper by a Commonwealth politician)8 Mason CJ, Toohey and Gaudron JJ indicated that the implied freedom could not be confined to matters about the Commonwealth government, holding that

7 Ibid, 123.

8 Defending the defamation suit, Herald & Weekly Times argued that Australian defamation law should be modified by a public figure defence analogous to the doctrine the US Supreme Court developed in New York Times Co v Sullivan (‘Sullivan’) 376 US 254 (1964). In Sullivan, the US Supreme Court had proposed an ‘actual malice’ standard for public figures, which requires that the defendant in a defamation or libel case establish that the publisher of the statement either knew that the statement was false or acted in reckless disregard of its truth or falsity. Mason CJ, Toohey and Gaudron JJ adopted a modified version of the test in Sullivan, requiring the publisher to act reasonably, either by checking the accuracy of the relevant material or by otherwise establishing that it was justified in publishing the allegedly defamatory material without taking adequate steps to check the veracity of the impugned material: 137.

109 it would be ‘unrealistic’ to attempt to confine the freedom to matters relating to the Commonwealth government.9

The question of whether the implied freedom applied to state political affairs was considered by the High Court in another defamation case - Stephens v West Australian Newspapers Limited10 (‘Stephens’) - decided shortly after Theophanous. Stephens concerned six members of the Legislative Council of Western Australia who took an overseas trip as members of a Standing Committee on state government agencies. The West Australian newspaper implied that the six state politicians wasted public money on the overseas trip in order to investigate matters which it was claimed could have been conducted in Western Australia.11

Consistent with the view they expressed in Theophanous, Mason CJ, Toohey and Gaudron JJ jointly held in Stephens that the implied freedom also applied to state political affairs.12 Deane J, the fourth member of the High Court’s majority (as he had been in Theophanous), noted that state laws may burden freedom of communication on Commonwealth or state matters.13 Brennan J, dissenting, could not see any obvious connection between the political affairs of the Commonwealth and the Western Australian politicians.14 His Honour held that the publication of the material was unaffected by the implied freedom of political discourse.15 In doing so, Brennan J hinted that the implied freedom applied to Commonwealth political matters and state political affairs only insofar as the latter related to Commonwealth powers.

After the High Court’s majority decisions in Theophanous and Stephens, it may have seemed that the implied freedom could apply to a wide range of ‘political matters’, including expression of religious views voiced in the public sphere, or the speech of religious leaders who contribute to public debate. Yet, in some of the High Court cases that followed - in large

9 Theophanous, ibid, 122.

10 (1994) 182 CLR 211.

11 Ibid, 237 (Brennan J).

12 Ibid, 232. In their joint judgment in Stephens, Mason CJ, Toohey and Gaudron JJ accepted that a constitutional defence could be available to the defendants under the Commonwealth Constitution and/or under the Constitution of Western Australia: 233-4.

13 Ibid, 257.

14 Ibid, 235.

15 Ibid.

110 part due to the influence of McHugh J16 - the High Court began to more closely link the application of the implied freedom to the text and structure of the Constitution. The Court also began to assess more rigorously whether the protective scope of the implied freedom of political discourse conformed to the systems of representative and responsible government as these systems operated under the Constitution.

In 1997, in the High Court’s landmark decision in Lange, it was unanimously held that Theophanous and Stephens precluded any further unqualified operation of the law of defamation with respect to political discussion and thereafter the High Court required recognition of the implied freedom in defamation suits concerning publications about political matters.17 The High Court described the test for identifying whether a law is consistent with the implied freedom of political discourse in the following terms:

When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ...? If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid. 18

16 See e.g., McGinty v Western Australia (1996) 186 CLR 140, 234 (McHugh J).

17 Lange n3, 556.

18 Ibid, 567-8. Emphasis added.

111

The italicised question in the above passage - the first step in the Lange test - asks whether a law effectively burdens communication about government or political matters either in its terms, operation or effect. The answer to this question depends, in large part, on what is meant by ‘government or political matters’.

In addressing the issue of what is meant by ‘government or political matters’, the High Court in Lange held that the protective scope of the implied freedom of political discourse applies to communications that are relevant to people making informed voting choices19 (i.e., representative government). Yet, the judges also found that the implied freedom of political discourse extends to communications about responsible government, stating that:

… [the implied freedom] necessarily implies a limitation on legislative and executive power to deny the electors and their representatives information concerning the executive branch of the government throughout the life of a federal Parliament. Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.20

Responsible government therefore comprises speech relating to the actions of the Commonwealth government and its ministers, including through departments, statutory authorities and public utilities over which ministers have responsibility.

Lange emerged as authority for the proposition that communication about ‘government or political matters’ includes speech that facilitates informed voting choices and discourse which is relevant to the effectiveness of the government, including through its statutory authorities and public utilities. Yet, Lange did not overrule Theophanous. The cases arguably stand for different propositions, with the earlier High Court case possibly allowing greater latitude to recognise as ‘political’ speech, the contributions of those (e.g., church leaders) who enter into, or contribute towards, public debate. Whether the cases are substantively

19 Ibid, 560.

20 Ibid, 561.

112 dissimilar on closer analysis is a question I consider further in section IV A. Before doing so, I review the High Court’s later decisions concerning the protective scope of the implied freedom of political discourse.

III. HIGH COURT AND POLITICAL SPEECH: LATER VIEWS

In later implied freedom cases, the High Court ruled, for example, that speech was not limited to the written or spoken word and may even possibly include public acts of prayer.21 Still later, the High Court would recognise street preaching,22 sending offensive letters about war23 and making donations to political Parties24 as forms of political expression.

In APLA Ltd v Legal Services Commissioner (NSW)25 (‘APLA’), the High Court heard a challenge to restrictions on the advertising of legal services by regulations introduced under NSW legislation, namely the Legal Profession Act 1987 (NSW). The case was important in establishing what kind of speech does not constitute political expression. The applicants in

21 See e.g., Levy v Victoria (‘Levy’) (1997) 189 CLR 579, 631 Kirby J. In Levy, 613, Toohey and Gummow JJ recognised that speech under the constitutional freedom is not limited to the spoken word.

22 Attorney General for the State of South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1 (‘AG v Adelaide’).

23 Monis v R (2013) 249 CLR 92 (‘Monis’), 177 (Hayne J).

24 Unions NSW v State of New South Wales (2013) 304 ALR 266 (‘Unions NSW’) (Commonwealth Law Reports citation not available at time of submission). Other (non-High Court) cases where Australian courts have held that the speech can fall within the protective scope of the implied freedom include Gibson v Commissioner of Police [2007] NSWCA 251 (6 September 2007, Court of Appeal, Supreme Court of NSW) The NSW Court of Appeal held that laws which restricted public protests relating to the joint Australian and US operations in Iraq and Afghanistan, the joint Australian and US nuclear agreement and ‘Work Choices’ fell within the first limb of Lange. See also Sellars v Coleman (2000) 158 FLR 269 (Supreme Court of Queensland, 21 November 2000). The Crown accepted that a Townsville Council by-law burdened political expression by prohibiting any public address in a mall without a permit. However, a majority of the Supreme Court held that the by-law satisfied the second limb of Lange and special leave to appeal to the High Court was later refused. See too Becker v City of Onkaparinga (2010) 108 SASR 163 (Supreme Court of South Australia, Full Court, 14 October 2010). The respective litigants agreed that the display of various messages on blackboards, cardboard and shade cloth concerning the conduct of public officials, councils and politicians, reform with respect to child sex offences and to matters involving the Federal Government’s international relations record constituted political speech under the first limb of Lange. The Full Court nevertheless held that a Judge of the Environment Court had exercised the powers under section 85 of the Development Act 1993 (SA) consistently with the second limb of Lange.

25 (2005) 224 CLR 322, 351.

113

APLA argued that cl. 139 of the Legal Profession Regulation 2002 (NSW) (‘Legal Profession Regulation’)26 infringed the implied freedom of political discourse. By majority, the High Court upheld the validity of the clause.

The five majority judges - Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ - considered that Lange did not support the implied freedom protecting speech about the commercial matters that were the subject of Legal Profession Regulation. In a joint judgment, Gleeson CJ and Heydon J wrote that they did not accept that the Legal Profession Regulation infringed the implied freedom merely because the regulation might restrict the mentioning of some government or political issue or prohibit the naming of a particular politician.27 Their Honours explained that the implied freedom does not protect communications that are an essentially commercial activity.28 By this reasoning, it might also be said that the implied freedom does not protect communications that are essentially or predominantly religious in character.29

McHugh J in APLA, though dissenting, advised that the Lange freedom arises from the need to promote and protect representative and responsible government.30 Referring to the scope of the implied freedom of political discourse, his Honour described these twin governmental systems as necessitating:

… some level of communicative freedom in Australian society about matters relevant to executive responsibility and an informed electoral choice. 31

26 The Legal Profession Regulation 2002 (NSW) has since been repealed and replaced with the Legal Profession Regulation 2005 (NSW).

27 APLA n25, 351; see also 481 (Callinan J).

28 Ibid.

29 See Catch the Fire Ministries Inc v, Daniel Nalliah and Daniel Scot v Islamic Council of Victoria Inc and Attorney General for the State of Victoria (2006) 206 FLR 56 (‘Catch the Fire’), which is discussed in more detail in Chapter 5.

30 APLA n25, 362.

31 Ibid.

114

Accordingly, McHugh J confirmed that the implied freedom protects: first, discussion about the actions of government and; secondly, communication that facilitates the making of informed voting choices.32

In 2011, in Hogan v Hinch33 the High Court considered the application of the implied freedom of political discourse to Victorian state-based suppression orders. The Melbourne broadcaster, Derryn Hinch, was charged with contravening suppression orders made by the County Court of Melbourne. The High Court unanimously dismissed Hinch’s claim that the suppression orders infringed the implied freedom of political communication. French CJ described the implied freedom as protecting speech about matters ‘potentially within the purview of government’,34 which might, with flavours of the joint judgment in Theophanous, imply a more generous view of the scope of the implied freedom than might be otherwise suggested by the Lange decision. Referring to the ‘significant interaction between the different levels of government in Australia’, French CJ quoted the following passage in Lange when rejecting counsel’s contention that the implied freedom only applied to politics at the Commonwealth level:

… this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.35

French CJ also cited Lange to support his view that the implied freedom applied to other levels of government as well as the Commonwealth. His Honour considered this conclusion to be inevitable in view of the existence of national political parties operating at all levels of

32 In Aid/Watch Incorporated v Commissioner of Taxation (2010) 241 CLR 539 (‘Aid/Watch’), (a case about the tax status of a charity with political purposes), French CJ, Gummow, Hayne, Crennan and Bell JJ endorsed and reinforced the description of the scope of the implied freedom of political discourse in Lange. Their Honours wrote in their joint judgment in Aid/Watch that the constitutional principles of representative and responsible government determine the scope of the implied freedom in the Constitution and that these governmental mechanisms emerge from the Constitution and not exogenously of it: Aid/Watch 556.

33 (2011) 243 CLR 506.

34 Ibid, 544.

35 Hogan v Hinch, ibid, 543. See also Unions NSW n24, 274 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

115 government, the financial dependence of state, territory and local governments on federal funding and policies and the increasing integration of social, economic and political matters in Australia.36

Arguably, the above quoted Lange passage does not describe the jurisdictional scope of the implied freedom per se. The extract describes the extended (‘political’) category of qualified privilege that the High Court developed in Lange in relation to the law of defamation. On the other hand, if the High Court developed the concept of qualified privilege to ensure compliance with the Constitution, then it is perhaps harder to see why the constitutional protection should not extend to the same extent as the qualified privilege.37 French CJ, citing Lange, also described the implied freedom as protecting discourse bearing ‘... on the choice that the people have to make in federal elections or in voting to amend the Constitution and on their evaluation of the performance of federal Ministers and their departments.’38 His Honour thus affirmed that the foundation of the implied freedom is in the Commonwealth systems of representative government and responsible government, and it may protect speech that is relevant to people’s choices with respect to those systems.39

In Wotton40, the plaintiff (Wotton), an Aboriginal and political protester, participated in a riot on Palm Island in 2004 following the death in custody of another Aboriginal man. Wotton challenged the provisions of the Corrective Services Act 2006 (Qld) (‘Corrective Services

36 Hogan v Hinch, ibid, 543-4.

37 Assuming that is, that the suppressed speech is sufficiently relevant to the systems of representative and responsible government in the Commonwealth Parliament.

38 Hogan v Hinch n33, 543. French CJ thus mentioned that the protective scope of the implied freedom of political discourse can include speech that is relevant to Commonwealth referenda. I do not in this Chapter seek to analyse whether there is likely to be any material difference between speech that is relevant to representative or responsible government and speech which is relevant to Commonwealth referenda. In my view, speech which is relevant to Commonwealth referenda is also likely to be relevant to representative or responsible government in the Commonwealth Parliament. Whether or not referenda are successful, constitutional questions put to referenda are likely to be, or become, relevant to voter’s electoral choices or ministerial responsibility.

39 The other six judges in Hogan v Hinch - Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ - published a joint judgment concurring with French CJ in the result. While their Honours were prepared to accept that the Victorian legislation may offend the implied freedom, their Honours held in relation to the second limb of Lange that the legislation did not display any ‘direct’ burden upon that communication, as opposed to an incidental one: ibid, 555. The High Court would soon return to this theme in Wotton v Queensland (2012) 246 CLR 1 (‘Wotton’).

40 Wotton, ibid.

116

Act’) (which imposed limits on his speech as a parole condition) on the basis that the provisions impermissibly burdened freedom of political communication. The High Court unanimously dismissed Wotton’s application, reasoning that the relevant provisions of the state legislation complied with the constitutional limitation upon the legislative power of the state.

In a joint judgment, French CJ, Gummow, Hayne, Crennan and Bell JJ (with whom Kiefel J generally concurred), described their task in Wotton as that of analysing the nature of any restraint that the implied freedom of political communication imposed upon the legislative power of the Queensland Legislature and examining whether the Corrective Services Act conformed to that restraint.41 Their Honours differentiated this exercise from that of assessing an alleged ultra vires exercise of discretionary power under legislation, a claim which the judges held lies in administrative law review of that decision.42

Concerning the first limb of Lange (i.e., whether the expression was ‘political speech’), the joint judgment held that the affected speech was relevant to the Commonwealth tier of government: their Honours found that the public discussion of matters relating to Aboriginal and Indigenous affairs, including perceived or alleged injustices, involves communication at a national level, rather than a purely state level.43 The five judges also noted that law enforcement and policing depends on cooperation between federal, state and territory police forces and that the interaction between those services and Aboriginal people is a matter of national rather than purely local political concern.44 Their Honours thus emphasised the connections between the state laws and the federal system of government.

41 Ibid, 9.

42 Ibid, 13-14.

43 Ibid, 15.

44 Ibid. Examining the second limb of Lange, the five judges referred to the distinction the High Court made in Hogan v Hinch (n33) namely, between a law which only incidentally restricts political communication and a law which prohibits or regulates communications which are political or are a necessary ingredient of political communication: Wotton, ibid, 16. Stating that the Queensland laws in this instance were in the former category, the five judges held that the burden upon communication is more readily seen to satisfy the second limb of Lange if the law is of the former rather than the latter description: ibid.

117

In 2013, the High Court decided AG v Adelaide’.45 Caleb and Samuel Corneloup, members of Street Church (Caleb was President), preached the Christian gospel in Rundle Mall, a central retail area in Adelaide. A City of Adelaide by-law prohibited, inter alia, any person from ‘preaching’, ‘canvassing’ or ‘haranguing’ on any street or thoroughfare in the City of Adelaide without a permit from the Council. The Corneloup brothers challenged the by-law in the District Court of South Australia on the bases that the relevant provisions of the by-law were: first, outside the by-law making power of the primary legislation; and, secondly, infringed their implied freedom of political discourse. After the brothers’ initial legal success in the District Court46 and then after they successfully defended an appeal by the City of Adelaide in the Full Court of the South Australian Supreme Court,47 a majority of the High Court48 allowed an appeal by the Attorney General for South Australia. The High Court reversed the decision of the Full Court and upheld the validity of the City of Adelaide by-law.

Before the High Court, the Solicitor General for South Australia conceded that the provisions of the City of Adelaide by-law could burden communications about political communications.49 The concession potentially limited the opportunity for the High Court to

45 n22. The High Court in AG v Adelaide consisted of six judges.

46 Finding in the brothers’ favour, Judge Stretton in the District Court held that the by-law was not authorised under the relevant primary legislation. His Honour did not consider it necessary to review whether the by-law also infringed the implied freedom: see Corneloup v Adelaide City Council (2010) 179 LGERA 1 (25 November 2010).

47 On appeal, the Full Court of the South Australian Supreme Court held (unanimously) that the by-law was a valid exercise of the power under the primary legislation but that the by-law did infringe the implied freedom. It thus also found in the brothers’ favour: see The Corporation of The City of Adelaide v Corneloup (2011) 252 FLR 418.

48 Before the High Court, the Corneloups argued that the by-law was ultra vires the primary legislation; that proper procedural steps were not followed in the making of the by-law; and that the by-law infringed the implied freedom. French CJ, Hayne, Crennan, Keiefel and Bell JJ (the latter agreeing with Hayne J) held that the by-law was authorised under the primary legislation and that it did not infringe the implied freedom. Heydon J, dissenting, ruled that the by-law was not authorised under the primary legislation. I do not here review in detail the aspects of the decision relating to the claim that the by-law was not a valid exercise of power under the primary legislation.

49 See n22, 44 (French CJ). French CJ noted, 44, that preaching, canvassing, haranguing and the distribution of literature are all activities which may be undertaken in order to communicate to members of the public matters and which may be directly or indirectly relevant to politics or government at the Commonwealth level. Hayne J was prepared to assume that because the by-law prohibited certain conduct on a road without permission, it effectively burdened political communication: 62. Crennan and Kiefel JJ in a joint judgment noted that it was not disputed that the requirement to obtain a permit effected a burden on some communications of a political kind sought to be made in the process of preaching or canvassing: 86. Despite the Solicitor General’s concession in relation to the first limb of Lange, French CJ, Hayne, Crennan and Kiefel JJ (Heydon J not deciding on

118 determine whether a law which restricts preaching has such a slight or inconsequential effect on political speech as to not burden it.50 The concession also may have resulted in the High Court addressing whether the law generally burdened political speech and not whether the by-law burdened the political speech of the Corneloup brothers, an issue which is explored in more detail in Section IV B of this Chapter. Caleb Corneloup’s affidavit stated that his speech related to federal affairs (e.g., gay marriage, internet filtering, teenage binge drinking and abortion).51 These topics seem to be related to federal (or federal and state) politics. Caleb, however, preached about ‘the unscientific nature of evolution being taught in schools etc’, and the ‘supremacy of God over man’; his brother Samuel Corneloup described himself as an ‘expositor of the gospel’.52 Arguably, the brothers’ speech was peripherally connected with politics because - however well expressed - it was a message of Christian salvation. For this reason, it could be said that AG v Adelaide supports the view that political discourse can include expression of religious viewpoints — perhaps even evangelism — if the speech relates in some way to federal politics. Yet, because of the South Australian Solicitor General’s concession in that the by-law restricted political expression, the authority of AG v Adelaide appears to be somewhat limited in respect of the suggestion that political speech may include expression of religious viewpoints.53

this point and Bell J concurring with Hayne J) held that the subject provisions of the by-law were consistent with the second limb of Lange.

50 In Monis n23, published on the same day as AG v Adelaide, Crennan, Kiefel and Bell JJ noted, 212, that an ‘effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry’.

51 See affidavit cited by the District Court in Corneloup v Adelaide City Council n22. Caleb also claimed to be ‘working closely with and on behalf of Joseph Stephen … a candidate for “The Christian Democratic Party”’.

52 See ibid. Samuel Corneloup refused to apply for a preaching permit because he said it was against his religious beliefs to ask permission to do so. Street Church’s message was about the authority of the Christian Bible: see, e.g., Religions, Sects and Cults: Street Church Hits Adelaide (The Paranormal Guide Australia): http://www.youtube.com/watch?v=YjKkBSgDxYk, viewed 24th March 2013, but link no longer working.

53 The majority did not commit to a position of deciding whether the brothers’ speech was political speech. The ambiguity meant that the High Court did not have to explain how preaching a message about eternal life in Jesus Christ might relate to representative or responsible government in the Commonwealth Parliament.

119

The High Court published another implied freedom case - Monis54 - on the same day as AG v Adelaide. In Monis, the appellant Man Haron Monis was alleged to have sent letters and CDs to the families and relatives of those Australian soldiers who were killed during active duty in Afghanistan. The letters typically began by expressing condolences to the recipients and then described each deceased soldier in increasingly critical terms as, being amongst other things, murderers. Copies of some of the correspondence were sent to senior political leaders.

Monis was charged with offences under section 471.12 of the Criminal Code (Cth).55 A second appellant, Ms Amirah Droudis, was alleged to have aided and abetted Monis in relation to some of the same offences. After unsuccessfully trying to have the allegations against them quashed in the NSW District Court and then in the NSW Court of Criminal Appeal on the basis that section 471.12 of the Criminal Code infringed the implied freedom, Monis and Droudis lodged a further appeal with the High Court, arguing that the provision infringed the implied freedom of political discourse.

The High Court (consisting of six judges as it had done in AG v Adelaide) held unanimously that section 471.12 of the Criminal Code effectively burdened political communication.56 Yet, the six judges were evenly divided on the question of whether the law satisfied the test in the second limb of Lange. In three separate judgments, French CJ, Hayne and Heydon JJ decided that the law was inconsistent with the second limb of Lange (their Honours therefore declared section 471.12 invalid and would have granted the appeal). However, in a joint judgment, Crennan, Keifel and Bell JJ held that the law was consistent with the second limb of Lange and their Honours rejected the appeal.57

54 n23.

55 This provision prevents the use of a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. Twelve of the charges against Monis related to ‘offensive’ uses of the postal service, and one related to using the postal service to harass. The appellants did not pursue an appeal in relation to the alleged harassment offence. The appeal from the District Court (and the later appeal to the High Court) was concerned with the constitutionality of s 471.12 insofar as it concerned ‘offensive’ uses of a postal service.

56 See Monis n23, 133 (French CJ), 139 (Hayne J), 178 (Heydon J) and 212 (Crennan, Keifel and Bell JJ).

57 The appeal therefore failed. Section 23(2)(a) of the Judiciary Act (Cth) provides that where the High Court is evenly divided with respect to its opinion on a lower court’s decision, the decision of the lower court is affirmed. Had the appellants sought to challenge the validity of the legislation in the original jurisdiction of the High Court, the same decision would have resulted in their favour, since that decision would have been governed by s23(2)(b) of the Judiciary Act which provides that if judicial

120

French CJ noted that some ‘political’ communications may cause disgust, hatred or outrage.58 Hayne J similarly reasoned that constitutionally protected speech can be offensive; invective, his Honour held, as well as abuse, can be part of political discourse.59

On the question of what constitutes an effective burden on political speech, the Commonwealth Director of Public Prosecutions (as well as the Commonwealth and the States of Queensland, South Australia and Victoria) submitted to the High Court that some restraints on speech apply to such a narrow category of political communication that the burden cannot be inconsistent with the implied freedom of political discourse because it would not ‘effectively’ burden political communication.60 Dismissing this argument, Hayne J held that ‘effectively burden’ means no more than ‘prohibit, or put some limitation on, the making or content of political communications’.61

Having concluded that section 471.12 did place an effective burden on political discourse,62 Crennan, Kiefel and Bell JJ focussed on legal arguments relating to whether section 471.12 met the test in the second limb of Lange. The three judges considered that section 471.12 could be constitutionally valid if it did ‘not go too far’ in protecting people from receiving unsolicited offensive material in their ‘personal domain’.63 Noting that section 471.12 was not directed to limiting political communications and that it only incidentally burdened such speech64 (citing, inter alia, Wotton for the relevance of this point),65 Crennan, Kiefel and Bell JJ reasoned that the statute’s objective of protecting citizens from receiving offensive

opinion is divided in a case brought in the original jurisdiction of the High Court, then the Chief Justice’s judgment will prevail.

58 Monis n23, 131.

59 Ibid, 174.

60 See e.g., ibid, 143 (Hayne J).

61 Ibid, 142. See also French CJ at 130 and Crennan, Kiefel and Bell JJ at 212. Crennan, Kiefel and Bell JJ noted, however, that an ‘effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry’: ibid, 212.

62 Ibid, 212.

63 Ibid, 207.

64 Ibid, 212.

65 Wotton, n39, cited at Monis ibid, 212.

121 correspondence in the home or workplace was compatible with the implied freedom.66 Their Honours also noted that section 471.12 limited communications of a seriously offensive kind.67 Crennan, Kiefel and Bell JJ thus found that section 471.12 did not impermissibly burden freedom of political speech68 and held that the appeals should be dismissed.

In Unions NSW v State of New South Wales69 (‘Unions NSW’), the High Court was asked to decide whether sections 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (‘EFED Act’) impermissibly burdened the implied freedom of communication. Section 96D of the EFED Act provided that only a person elected on a roll for state, federal or local government elections could make a political donation to a political party. The EFED Act also capped the total expenditure that political Parties, candidates and third-party campaigners could incur for political advertising and related election material. To give effect to this cap, section 95G(6) of the EFED Act aggregated the amount spent on electoral communication by a political Party and by any affiliated organisation of that Party.70

Some of the plaintiffs intended to make political donations to the Australian Labor Party, the Australian Labor Party (NSW Branch) or other entities, and to incur electoral communication expenditure as defined under the EFED Act. Other plaintiffs were authorised to appoint delegates to the annual conference of the Australian Labor Party (NSW Branch) and to participate in the pre-selection of that Party's candidates for state elections.

The High Court (six judges) unanimously held that section 96D and section 95G(6) effectively burden the implied freedom of communication on government and political matters and that the provisions of the EFED were invalid as infringing the implied freedom. While the Court accepted that the EFED Act had purposes connected with anti-corruption (more specifically, promoting the actual and perceived integrity of the Parliament of NSW,

66 Monis, ibid, 214.

67 Ibid, 216.

68 Ibid.

69 n24.

70 Under the EFED Act, an ‘affiliated organisation’ of a party was defined as a body or organisation ‘authorised under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both).’

122 the government of NSW and local government bodies within NSW)71, it did not believe that section 96D or 95G(6) were either connected with those purposes or had any other legitimate end.72 Nor did the High Court accept, as the defendant (NSW) argued, that there was any constitutional principle to the effect that the states could legislate to affect the Constitution, including in relation to its implications.73

The defendant (NSW) also argued before the High Court the implied freedom of political discourse might not apply to restrictions arising in the course of a state election. Further, it argued, communications of that kind might not illuminate the choice to be made by electors at a federal level or the opinions they may form as to governance at the federal level.74 The High Court, however, dismissed these arguments. It held that there was significant interaction between the different levels of government in Australia which is reflected in communication between people about those different levels of government.75 It referred to section 96 of the Constitution76 (which provides for funding by the Commonwealth for the states), the use of cooperative executive and legislative arrangements77 and the existence of national political parties operating across the federal divide at all tiers of government78 as evidence necessitating that a wide view be taken of the operation of the freedom of political communication.79 While finding that the relevant provisions of the EFED Act impermissibly

71 See Unions NSW n24, 270 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

72 In a separate (concurring) judgment, Keane J noted that section 96D proscribed some sources of funding for political communication and thereby favoured other sources in relation to the flow of political communication. This, his Honour held, was apt to distort the flow of political communication within the Commonwealth: ibid 295. Keane J also held that section 95G distorted the free flow of political communication by ‘favouring entities … who may support a political party but whose ties are not such as to make them affiliates under the rules of that party even though they may promulgate precisely the same political messages’: 301.

73 Ibid, 276 Emphasis added.

74 Ibid, 272.

75 Ibid, 273 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

76 Ibid, 273.

77 Ibid, 274.

78 Ibid.

79 Ibid.

123 burdened freedom of political communication, the High Court also noted that the implied freedom is not a personal right.80

In the most recent High Court decision on the implied freedom of political discourse - Tajjour v State of New South Wales81 (‘Tajjour’) - the High Court heard a challenge to the constitutional validity of section 93X of the Crimes Act 1900 (NSW) (‘Crimes Act’), which prohibits consorting.82 Three plaintiffs (Tajjour, Hawthorne and Forster) brought proceedings in the NSW Supreme Court seeking a declaration of invalidity in relation to section 93X of the Crimes Act on the basis that the consorting laws infringed the implied freedom of political discourse. Two of the plaintiffs (Tajjour and Hawthorne) further alleged that section 93X infringed an implied freedom of association and that section 93X was inconsistent with Australia’s obligations under the International Covenant on Civil and Political Rights (‘ICCPR’). The proceedings were removed to the High Court on the application of the NSW Attorney General. A majority of the High Court held that section 93X effectively burdened the implied freedom of communication about government and political matters83 but that the provision was reasonably appropriate and adapted to serve the legitimate end (the prevention

80 Ibid, 275, 276. It nevertheless acknowledged that electors may have a legitimate interest in governmental action and policy: ibid, 267.

81 [2014] HCA 35, 8 October 2014 (unreported at the time of submission).

82 Section 93X of the Crimes Act provides that a person who habitually consorts with convicted offenders, after having received a warning in respect of each of those offenders, is guilty of an offence. Section 93W further states that ‘consort’, relevantly, means consort ‘in person or by any other means, including by electronic or other form of communication’. Under section 93Y of the Crimes Act, some forms of consorting (e.g., with family members or for training or education) may be disregarded if the accused can satisfy the court that the consorting was reasonable in the circumstances.

83 French CJ found that section 93X impermissibly burdened the implied freedom on government and political matters: 23-25. Hayne J found (33) that section 93X effectively burdened the constitutional freedom but that section 93X did not go beyond the limit on legislative power fixed by the Lange principle and was therefore not invalid (39). Crennan, Kiefel and Bell JJ published a joint judgment in which their Honours held that section 93X effectively burdened relevantly political communications (44) but also that section 93X had only an incidental effect on the freedom and did not infringe the second limb of Lange: 49. Gageler J found that section 93X impermissibly burdened the implied freedom of political discourse in its application only to an association for a purpose of engaging in communication about government and political matters. His Honour also held that section 93X could be read down so as to not apply in such circumstances: 59, 64. Keane J held that section 93X did not effectively burden communications on government and political matters because, if personal interactions between individuals were confined to communications on government and political matters, then that activity would not amount to consorting (constituted by deliberately seeking ‘interactions of personal intimacy apt to generate criminogenic tendencies’): 80. Thus, six of the seven High Court judges (Keane J dissenting on this point) held that section 93X did effectively burden communications about government and political matters.

124 of crime) in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.84

Six of the seven High Court judges (French CJ; Hayne, Crennan, Kiefel, Bell, Gageler JJ), concluded there was an effective burden on political expression. Their Honours reached this conclusion notwithstanding that there was no direct evidence presented to the High Court about whether section 93X affected or limited any communication on any governmental or political matter by or amongst the plaintiffs, by the plaintiffs with others, or by others.85 The consorting law prohibitions applied to ‘convicted offenders’ (those guilty of an indictable offence)86 irrespective of jurisdiction and to personal interactions and electronic communications.87 It seems that the obviousness of the restriction on communication and the number of potential persons involved meant that the High Court was willing to conclude that the consorting laws amounted to an effective burden on relevantly political speech notwithstanding the absence of direct evidence in that respect.88

84 The High Court unanimously rejected Tajjour and Hawthorne’s claim that the ICCPR (the provisions of the ICCPR not being incorporated in Commonwealth legislation) constrained the power of a state parliament to enact contrary legislation. On Tajjour and Hawthorne’s freedom of association claim, French CJ did not consider it necessary to answer this aspect of their claim. Hayne J noted that any freedom of association implied by the Constitution would only exist as a corollary to the implied freedom and that the same test of infringement and validity would apply: 39. Crennan, Kiefel and Bell JJ did not address the freedom of association point. Gageler J, like Hayne J, held that the Constitution included no implication of freedom of association that was independent of the implied freedom of communication on government or political matters: 50. Keane J rejected any claim by the plaintiffs that there was an implication of a right to association independent of the implied freedom of communication on government or political matters: 81.

85 See Tajjour n81, 29 (Hayne J), 63 (Gageler J) and 65 (Keane J).

86 Section 93W Crimes Act.

87 Section 93W Crimes Act, ibid. Prisoners would presumably be excluded from these numbers (as being incapable of consorting during imprisonment) but prisoners convicted of indictable offences of less than three years imprisonment would be entitled to take part in the voting process and would therefore potentially have a direct interest in exercising voting choices, even whilst in prison: see Roach v Electoral Commissioner (2007) 233 CLR 162.

88 There was, clearly, the potentiality for the law to restrict communications of some kind, including possibly political communications, by or amongst the 200,000 persons in NSW who fell within the definition of a convicted person under section 93W of the Crimes Act: see Tajjour n81, 56 (Gageler J), citing New South Ombudsman, Consorting Issues Paper: Review of the use of the consorting provisions by the NSW Police Force, November 2013, 21. This number nevertheless potentially overstates the number of people who could be caught by the consorting prohibition, given that the prohibition would only apply to a convicted person who had received a warning in respect of associating with or communicating with the other convicted persons

125

The High Court in Tajjour offered additional insights into what may, and may not, constitute an effective burden on speech about government and political matters. While finding that section 93X of the Crimes Act did effectively burden relevantly political expression, French CJ observed that ‘an effective burden is unlikely to be inferred simply from the forensic construction of casual connections between the law and some unlikely hypothetical restriction on the implied freedom’.89 Hayne J explained that (contrary to the submissions of New South Wales and some interveners) the assessment of whether there is an effective burden on political expression does not involve consideration of the extent of that burden.90 Instead, Hayne J held, the question for the first step in Lange is simply whether the law (or executive power)91 has the practical effect of burdening political communication.92 In their joint judgment in Tajjour, Crennan, Kiefel and Bell JJ (who also wrote a joint judgment in Monis)93 rejected the suggestion put by New South Wales that their Honours’ reasoning in their joint judgment in Monis called for a qualitative assessment of the degree of the restriction effected by a legislative provision.94 In finding that section 93X of the Crimes Act effectively burdened relevantly political communications, their Honours held that

…. the joint reasons [in Monis] were saying that it was only an effect which would not be regarded as a real effect that should not qualify as a burden.95

Gageler J made broadly similar observations to the other majority judges in Tajjour. His Honour, however, drew a distinction between circumstances where a burden might not be effective and those circumstances where there would be an effective burden on political discourse:

89 Tajjour n81, 19.

90 Ibid, 30.

91 See Tajjour n81, 68 (Keane J).

92 Tajjour, ibid, 30 (Hayne J).

93 In Monis n23, Crennan, Kiefel and Bell JJ noted in Monis that an ‘effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry’: 212.

94 See also Tajjour n81, 19 (French CJ), 30 (Hayne J), and 58 (Gageler J).

95 Tajjour, ibid, 42 (Crennan, Kiefel and Bell JJ).

126

Persons who cannot associate to play cards cannot discuss politics between hands. That is an effect on communication on governmental or political matter. But it is an effect which is properly described as adventitious, even if it might not in every conceivable circumstance be trivial. It does not amount to an effective burden.

In its application to an association formed for a purpose of engaging in communication on governmental or political matter, however, the prohibition imposed by that section will have the practical effect of preventing or impeding that purpose being realised. That effect on communication on governmental or political matter is qualitatively different. It does amount to an effective burden.96

Accordingly, similarly to the reasoning of French CJ (and broadly consistent with the reasoning of Hayne, Crennan, Kiefel and Bell JJ), Gageler J held that a law could effectively burden political expression if there was a more than trivial possibility of such an occurrence.97 Yet, his Honour seemed to leave open the possibility that a burden which placed only a very minor restraint on political speech might not be an effective burden. Crennan, Kiefel and Bell JJ had made a similar point in Monis.98

96 Ibid, 56-7. Emphasis added.

97 The different tests under the first limb of Lange in Tajjour may be summarised as ‘practical effect’ (Hayne J), or ‘real effect’ (Crennan, Kiefel and Bell JJ), or non-trivial possibility (Gageler J) of the law burdening political communications. Keane J, by contrast, held that section 93X did not effectively burden communications on government and political matters because such activity would not, properly described, amount to consorting: ibid, 80. His Honour also observed that the High Court held in APLA that the regulation in APLA which prohibited a barrister or solicitor publishing advertisements containing certain kinds of content was not a burden about political or governmental matter because the prohibition was upon communications which were essentially a commercial matter rather than upon communications about political or governmental matters: ibid, 78.

98 n23, 212.

127

IV. LANGE’S STRENGTHS AND LIMITATIONS

Determining the Protective Scope of the Implied Freedom Lange remains the High Court’s authoritative statement of the law relating to the implied freedom of political discourse. It can be reasoned from Lange that the scope of the implied freedom is not limited to the speech of individuals or non-corporations; the implied freedom may, for example, protect ‘political’ speech by media organisations who are reporting or commenting on others’ views,99 or who may be expressing their own ‘political’ opinions (or those of journalists, either freelance or employed).100 By the same reasoning, the implied freedom of political discourse may apply to speech of the delegates or leaders of organisations (perhaps even religious leaders) who - directly or indirectly; explicitly or implicitly - communicate about matters relevant to representative and responsible government on behalf of their people.

The protective scope of the implied freedom of political discourse can include a wide range of speech. Yet, Lange offers courts no bright line test in order to determine whether speech is ‘political’. Indeed, in Lange, the High Court sanguinely hinted that even it might be uncertain about the scope of the implied freedom, noting that ‘[w]hatever the scope of the implications arising from responsible government … , those implications cannot be confined to election periods relating to the federal Parliament’.101 This suggests there is at least some legal uncertainty about what kind of speech the implied freedom protects. This is to say nothing of the difficulties that litigants or commentators might face in predicting how courts might assess the second limb of Lange (as varied by McHugh J in Coleman v Power),102 namely, assessing whether the relevant legislation is reasonably appropriate and adapted to serve a

99 It has been held that the implied freedom may apply to the disclosure of a journalist’s source notwithstanding that there is a discretion as to the exercise of the power to require disclosure: see e.g., The Age Company Ltd v Liu (2013) 82 NSWLR 268, 289 (Bathurst CJ) (Beazley and JJ concurring).

100 Lange concerned speech by the Australian Broadcasting Corporation.

101 n3, 561. Emphasis added.

102 (2004) 220 CLR 1. In Coleman v Power, McHugh J, 50-1, recast the second limb of Lange, asking whether the relevant legislation is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of representative and responsible government provided for in the Constitution, a test that the other High Court judges adopted in the case: see Coleman v Power 78 (Gummow and Hayne JJ) and 86, 90 (Kirby J). Thus a majority of the High Court in Coleman v Power recast the second limb of Lange. The High Court affirmed this approach in Aid/Watch, n32.

128 legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution.

Another challenge in using Lange (and other High Court cases) to determine the protective scope of burdened political speech is that Lange purports to ground ‘political speech’ in the text and structure of the Commonwealth Constitution.103 While sourcing the implied freedom in the text of the Constitution does help to clarify its potential protective scope, the principle itself raises two important points. First, in several of its later decisions the High Court has sought to explain how speech affected by state laws relates to the federal system of government,104 but the High Court has not always done so. For example, in Levy (decided in 1997), there was no obvious ‘political’ connection between Victorian regulations prohibiting duck hunting and federal political affairs (and nor did the High Court seek to explain why there might be one). In Tajjour,105 the High Court did not explain how the NSW consorting laws would impose a burden on speech relevant to the Commonwealth Parliament.106 Secondly, while the implied freedom is said to be based in the words of the Constitution, there is relatively sparse guidance for defining ‘political speech’ in the text of the Constitution. It is unlikely that the words in the Constitution alone will ever provide a complete guide to assist courts in identifying the protective scope of the implied freedom.

There is also a remaining tension between the scope of the implied freedom as described in the joint judgment in Theophanous and the High Court’s later decision in Lange. In the High Court’s decision in Theophanous, Mason CJ, Toohey and Gaudron JJ indicated that political discussion includes all the speech that is relevant to the development of public opinion on the

103 That is, unless the implied freedom arises under a relevant state constitution. See e.g., Muldowney v State of South Australia (1996) 186 CLR 352 where, 367, Brennan CJ noted that the Solicitor-General for South Australia conceded that there was a constitutionally entrenched limitation upon state legislative power ‘in like manner to the Commonwealth Constitution’ and that that limitation precluded interference by an ordinary law with freedom of discussion about political affairs (quotation marks in Brennan CJ’s judgment referring to words of Solicitor-General).

104 See e.g., Hogan v Hinch n33, 543 (French CJ) and High Court’s joint judgment in Wotton n39. See also Coleman v Power n102, 45 (McHugh J) and 78 (Gummow v Hayne JJ) referring to the interdependencies of state and Commonwealth law enforcement. See also Unions NSW n24, 275-6 (French CJ, Hayne J, Crennan, Kiefel and Bell JJ).

105 n81.

106 This may be a function of there being no evidence led in the case about how the political expression of the defendants, or others, was effectively burdened by section 93X.

129 whole range of issues which an intelligent citizen should think about.107 At the time of the High Court’s decision in Theophanous, the Court had not universally agreed upon the proper basis for the implied freedom. While the High Court in Lange did not expressly overrule Mason CJ, Toohey and Gaudron JJ’s judgment in Theophanous,108 it is arguable that the subsequent clarification of the law in Lange narrowed its scope.109

Yet, despite their differences, both Theophanous and Lange indicate that the implied freedom of political discourse includes speech about representative government and responsible government. For example, the Theophanous joint judgment describes political speech in terms of the government’s ‘conduct’ and ‘policies’ (executive actions) as well as the ‘fitness for office of government ... and those seeking public office’ (voting choices).110 Similarly, the High Court in Lange held that the protective scope of the implied freedom includes communications that are relevant to: people making informed voting choices 111 and the actions (presumably the inactions too) of the Commonwealth government and its ministers, including through the ministers’ departments, statutory authorities and public utilities. 112 The High Court noted in Lange that ‘the conduct of the executive branch is not confined to ministers and the public service’.113 While it would be stretching the interpretation of these words to contend that the High Court in Lange recognised speech about, say, lobbyists (including religious leaders) or trade unions, as part of ‘political’ discussion,114 it would seem from this phrase in Lange that the High Court did not have a narrow conception of executive

107 Theophanous n2, 124.

108 In Brown v Members of the Classification Review Board (1998) 82 FCR 225 (‘Rabelais’), Heerey J, at 244, suggested that Lange qualified the definition of political speech that Mason CJ, Toohey and Gaudron JJ proposed in Theophanous.

109 Adrienne Stone claims this to be the case and contends that the current position of the Court, bringing the implied freedom back to the text of the Constitution, unduly narrows the kinds of communications it will protect: see Adrienne Stone ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’, (2001) 25 Melbourne University Law Review 374, 383.

110 Theophanous n2, 123.

111 Lange n3, 524.

112 Ibid, 561.

113 Ibid.

114 The joint judgment in Theophanous, by contrast, would likely support such an interpretation. As noted, Mason CJ, Toohey and Gaudron JJ, held in Theophanous (123) that political speech ‘... includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate’.

130 responsibility (i.e., speech about executive responsibility under the implied freedom of political discourse reaches beyond only discussion of ministers and public servants).

In subtly different ways, each joint judgment - Theophanous and Lange - describes the implied freedom in terms of speech about voting choices and executive responsibility. While there are obvious differences in the decisions (reflecting the High Court’s evolving reasoning in this field of law), this observation hints at there being possibly fewer differences between the Lange and Theophanous judgments than might initially meet the eye. It is even possible that a generous view of the kind of ‘political’ speech that is relevant to voting choices and responsible government might reveal additional concentricity between the Theophanous and Lange judgments. For example, it might be said that each judgment supports the view that the protective scope of the implied freedom extends to matters over which the government does not yet have responsibility. Additionally, if political discourse is viewed as dynamic, and if the Court accepts that the development of public opinion can, over time, influence voting choices or even the electorate’s expectations of standards of responsible government, then it may be possible to, in some way, further reconcile the two judgments.

Whose Speech is Relevant? The protective scope of the implied freedom of political discourse does not ultimately depend on how a person may want to characterise a particular communication.115 This principle is consistent with the implied freedom of political discourse not conferring a constitutional right to freedom of expression, a principle the High Court made clear in Lange and has emphasised in its more recent decisions.116

It is nevertheless realistic to expect that the courts will determine the protective scope of the implied freedom by reference to how the relevant burden affects expression (including, perhaps most obviously, with respect to the person who is alleging the limitation on their speech). It is also now clear, if there were doubt after Coleman v Power,117 that protected

115 See APLA n25, 451 (Hayne J) cited with approval in Monis n23 129 (French CJ). In Sunol v Collier No 2 (2012) 260 FLR 414 (‘Sunol v Collier’), Bathurst CJ, 421, noted that ‘the acts complained of may be of assistance in identifying the type of publications or speech which would generally fall within the challenged sections’.

116 Lange n3, 560. Unions NSW n24 275-6 (French CJ, Hayne, Crennan, Kiefel and Bell JJ) and 290/301 (Keane J). See also Tajjour n81, 19 (French CJ), 42 (Crennan, Kiefel and Bell JJ) and 68 (Keane J).

117 n102, 78 (Gummow and Hayne JJ).

131 political speech may include offensive discourse118 and/or views that some people consider lie at the fringe of political discussion.119 A related point is that a law may burden political speech in its terms, operation or effect even if the law burdens only some political discourse.120 Burdened political discourse may arguably include expression of religious viewpoints — perhaps even evangelistic messages — if the speech relates to federal politics.121

1. A Burden of General Application? NSW and Queensland appellate courts, drawing upon some of the language of the High Court, have assessed implied freedom claims by asking, in relation to the first limb of Lange, whether the law generally burdens political expression, rather than whether the law stifles the political speech of the plaintiff. This approach represents a subtle shift in methodology, which arguably avoids the need for the courts to inquire into whether the plaintiff’s burdened speech constitutes, or would constitute, political discourse. If the law could effectively burden political speech of some relevant kind, then that finding alone would be sufficient to bring that burden within the protective scope of the implied freedom of political discourse. The court would not, in such a case, have to decide whether the plaintiff’s speech was connected with voting choices or executive responsibility in the Commonwealth Parliament. Rather, the conclusion that the law could relevantly burden political discourse of some kind would be sufficient to bring the law within the first limb of Lange.

As noted at the beginning of this Chapter, the general approach may raise methodological difficulties in relation to answering the question of whether the communication at issue in a case is ‘political communication’. More specifically, the general approach suggests that

118 All six High Court judges in Monis, n23, concluded that s 471.12 of the Criminal Code burdened the defendant’s alleged offensive political speech.

119 See Monis n23, 134 (French CJ), 171 (Hayne J).

120 See Monis, ibid, 160 (Hayne J). As noted, however, Crennan, Kiefel and Bell JJ, held, 212, that an ‘effect upon political communication which is so slight as to be inconsequential may not require an affirmative answer to the first limb enquiry’.

121 AG v Adelaide n22, is arguably authority for this proposition. None of the majority judgments in AG v Adelaide expressed doubt about whether ‘preaching’ could be burdened political speech (Heydon J, the only dissenting judge in AG v Adelaide, did not dissent on this point). That said, as noted, the South Australian Solicitor General conceded that the City of Adelaide by-law burdened political speech and there was little analysis before the High Court on this point.

132 courts may resist undertaking an individual assessment about whether a communication is relevantly political and instead choose to answer a more abstract question of whether a law burdens political speech of some kind. The general approach methodology is thus directly relevant to the integrity of any decision about whether particular speech falls within the protective scope of the implied freedom of political discourse.

The source of this confusion seems to be the High Court’s insistence that the implied freedom exists in the nature of a limitation on legislative and executive power and not a personal right.122 Reflecting this principle, NSW and Queensland State Supreme Court of Appeal judgments suggest that the general approach has the advantage of reducing the courts’ susceptibility to confusing the constitutional freedom with a personal right. The basis for the Courts’ approach seems to be an interpretation of the judgment of Hayne J in APLA.123 Hayne J wrote in APLA that the central question in an implied freedom case is what a law does, and not how an individual might want to characterise a particular communication.124 Implying an objective test for identifying political speech, this approach, as Hayne J noted in APLA, is consistent with the constitutional freedom not conferring a right of political free speech, an uncontroversial and largely uncontested proposition.125

In Wotton,126 Kiefel J noted that, while the implied freedom is not a personal right

[t]he issues which the plaintiff identifies as those which he wishes to discuss may nevertheless assist in the identification of the area of communication which may be affected by the statutory provisions …127

122 See, for example, Tajjour n81, 42 (Crennan, Kiefel and Bell).

123 n25.

124 APLA, ibid, n25, 451 (Hayne J) cited with approval in Monis n23, 129 (French CJ).

125 See Lange n3, 560. See also Unions NSW n24, 275-6 (French CJ, Hayne, Crennan, Kiefel and Bell JJ), 290 and 301 (Keane J). See also Banerji v Bowles [2013] FCCA (Federal Circuit Court) 1052. The plaintiff, a public servant, argued that she could not be sacked for sending tweets under a pseudonym which were critical of the government’s immigration policies in breach of public service policies. The plaintiff contended that she had a protected constitutional right [para 99] to make the comments. Judge Neville did not decide whether the tweets constituted political expression but his Honour strongly rejected the suggestion that the implied freedom amounts to a right to free expression: see [para 102-3].

126 n39.

127 Ibid, 31.

133

This statement is slightly different to that of Hayne J in the earlier High Court decision in APLA.128 As noted, Hayne J in APLA indicated that the central question in an implied freedom case is what a law does and not how an individual might want to characterise a particular communication. With a nuance, Kiefel J’s approach in Wotton accepts that a key evidential question in any implied freedom claim will be how the burden affects the plaintiff’s expression. What is more, her Honour acknowledged that, under the first limb of Lange, the plaintiff’s evidence about the alleged burden on their speech may provide the court with useful guidance about the kinds of speech that may be burdened by the relevant law without that testimony necessarily being determinative of whether there is a burden on political expression or the plaintiff having a constitutional right to free expression.

In Unions NSW, French CJ, Hayne, Crennan, Kiefel and Bell JJ echoed Kiefel J’s sentiments in Wotton when their Honours stated

… identification of that limiting effect [the actual burden on the plaintiff’s expression] may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally.129

Based on the High Court’s view in Unions NSW, the effect of the burden on the plaintiff’s speech (which may be the only evidence led in proceedings) may be vital in understanding a law’s more general effect on burdening political expression.

The High Court’s decision in Unions NSW might have been thought to be the decisive view on the general approach. Five judges of the High Court recognised in Unions NSW that identification of the particular limiting effect on the plaintiff’s expression may aid the understanding of how a statutory provision affects the freedom more generally. This might be thought to amount to the High Court rejecting the purely general approach. Yet, in the High Court’s subsequent decision in Tajjour,130 six of the seven High Court judges concluded that section 93X of the Crimes Act effectively burdened relevantly political communications without there being any direct evidence before the High Court about how section 93X may

128 n25.

129 Unions NSW n24, 277.

130 n81.

134 burden the political speech of the plaintiffs.131 What is more, Crennan, Kiefel and Bell JJ wrote in Tajjour

… the correct approach to the question whether a legislative provision impermissibly burdens the freedom is to consider how the provision affects the freedom generally, rather than a particular person.132

Arguably, their Honours recommended asking, in relation to the first limb of Lange, whether the law generally burdens political expression, rather than whether the law stifles the plaintiff’s political speech. Further, French CJ, Hayne and Gageler JJ (who all found that there was an effective burden on relevantly political expression in Tajjour) did so without the High Court hearing any direct evidence about whether the applicable law in Tajjour burdened the plaintiffs’ political expression. The High Court’s approach to the evidence in Tajjour - and specifically the Court’s implicit willingness in that case to infer or impute the existence of an effective burden on political discourse in the absence of direct evidence - suggests that the High Court may, even in the near term, approach the analysis under the first limb of Lange by reference to whether the law in question generally burdens speech about political matters and not necessarily by reference to how the burden affects any political expression of the plaintiff.133

Conversely, there are considerations which suggest that the High Court has not endorsed the general approach. First, it might be said that the joint judgment of Crennan, Kiefel and Bell JJ in Tajjour tends to complement the above-mentioned joint judgment of French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW. In the joint judgment in the earlier case (Unions NSW), their Honours explained that, by understanding the limiting effect of a burden on the plaintiff’s expression, a court may be able to appreciate the wider implications of a burden on potentially relevant political speech. One plausible interpretation of the Tajjour joint

131 In Tajjour, ibid, 68-69, Keane J nevertheless endorsed the approach in the joint judgment in Unions NSW.

132 Tajjour, ibid, 42.

133 The High Court perhaps went close to doing so in AG v Adelaide (n22) where, ultimately, it was not clear whether the High Court considered whether the evangelist brothers’ speech was effectively burdened by the City of Adelaide by-law or whether the City of Adelaide by-law more generally burdened political expression (or both).

135 judgment is that it simply confirms that a court should not regard a particular person’s characterisation of speech (i.e., whether it is ‘political’) as determinative of whether there is a burden on relevantly political expression. Viewed from the perspective of some of the same High Court judges being involved in the joint judgments in both decisions, the Tajjour joint decision arguably makes a straightforward and uncontested proposition, namely, that the implied freedom of political discourse does not amount to a constitutional right.

Secondly, the factual circumstances in Tajjour are quite specific and point to an important difference with the state Supreme Court decisions which are reviewed below. In Tajjour, the consorting laws prohibited the applicants from consorting with up to 200,000 other similarly placed persons (in NSW alone),134 additionally, the prohibition applied to consorting ‘in person’ as well as by electronic means. Even though there was no evidence presented to the High Court about how the law constrained the men’s relevantly ‘political speech’ (or what the content of their burdened ‘political speech’ might be), there was - plainly - a burden on the men’s speech.

More generally, in view of the circumstances in Tajjour (including the wide reach of the law and the large number of persons susceptible to the limitation on their speech), it perhaps seemed plausible for the High Court to infer that the consorting laws could effectively burden relevantly political expression irrespective of whether the law actually burdened the political speech of the plaintiffs. By contrast, as will be seen, in the below-mentioned judgments of the NSW and Queensland Supreme Courts of Appeal, the Courts did hear direct evidence from plaintiffs about their allegedly burdened relevant political speech but the Courts did not appear to address that specific evidence when considering whether the speech fell within the protective scope of the implied freedom of political discourse. Further, it is not yet clear whether the High Court might support or reject such an approach.

2. NSW and Queensland Appeal Court Decisions As suggested, some state courts have taken the view that political speech under the first limb of Lange is defined by reference to the general effect of the law on burdening political

134 See Tajjour, n81, per Gageler J at 56, citing New South Ombudsman, Consorting Issues Paper: Review of the use of the consorting provisions by the NSW Police Force, November 2013 at 21. The prohibition applied to persons convicted of indictable offences (who had received a warning about consorting) irrespective of the jurisdiction in which the indictable offence occurred.

136 expression without the court having specific regard to whether there is any effective burden on the relevantly political expression of the plaintiff. If there is an affirmative answer to the question of whether a law can hypothetically burden political speech of some kind, then that answer alone is sufficient for the courts to deal with the first limb of Lange (and to then consider the second limb of Lange)135 irrespective of whether the plaintiff’s expression is relevant to voting choices or executive responsibility in relation to the Commonwealth Parliament.

As will be seen, these cases involve implied freedom of political discourse claims where the speech comes from what might be described as a ‘hard line’ religious perspective. The judges’ approach in these cases may even suggest that the courts may be reluctant to directly decide whether a plaintiff’s speech is relevantly ‘political’ if the plaintiff’s speech is considered to reflect an arguably radical religious viewpoint. To conclude that the relevant burden generally affects political speech may seem like a politically less contentious finding for a court to make than to affirm that the relevant speech falls within the protective scope of the implied freedom of political discourse.

In the NSW Court of Criminal Appeal in Monis v R136 (‘Monis NSWSC’) (before the decision was appealed to the High Court), Bathurst CJ, citing Hayne J in APLA, said:

The relevant questions raised by Lange focus on the validity of the law in question, not whether the activities of persons amount to a political or governmental communication. This follows also from the fact that the implied freedom is a limitation on legislative power, not the grant of an individual right.137

The passage implies that the courts should consider the effect that a law (or other alleged burden) has on political expression without addressing whether the speech of the plaintiff

135 That is, to assess whether the law in question (i.e., the law creating the burden) is reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution.

136 (2011) 256 FLR 28.

137 Ibid, 40.

137 amounts to a political communication.138 To the extent that this part of his Honour’s judgment suggests that courts can consider the first limb of Lange without any reference to whether the plaintiff’s speech is burdened political expression, the judgment is, I suggest, problematic.

Bathurst CJ made a similar observation in the later NSW Supreme Court of Appeal decision in Sunol v Collier No 2139 (‘Sunol v Collier’). In this case, the Court (Bathurst CJ, Allsop P and Basten JA) rejected a constitutional challenge to the validity of NSW homosexuality vilification laws. Sunol allegedly published material on websites which vilified gay people. The websites included the following statements (with the original spelling and syntax reproduced):

Sydney is wicked and Gods judgement is going to come upon this city, becauase of this sin from this event and other sins. If this event is not got ridden of emediataly without delay Sydney will find itself under attack by enemies and God will moove to punish the city and the people involved in such a wicked eveil blasfoumous event as the Mardi Gras

As for the discrimination laws and laws of villificastion. I am not willing to obey these and if I go to prison. I go to prison as a martyr for ! Jesus Christ and I use this to promote the truth of this event. i also st! r up those inside prison to break the faggots law as well without thinking and in complete and utter contempt of the law and those who prisoned me.

This event is getting so big and unruly God will coem down on it and wipe it off the face of the earth...they need not know that if they catch my taxi they support anti gay mrdi gras groups as that is where my money will go and who they will be supporting by using my services.140

138 The High Court did not criticise Bathurst CJ’s methodology on appeal in Monis.

139 n115.

140 Sunol v Collier, ibid, 418.

138

The material (which could reasonably be presumed to offend gay people and participants in Sydney Mardi Gras) was alleged to have breached section 49ZT of the Anti-Discrimination Act 1977 (NSW).141 Faced with prosecution under the antidiscrimination laws, Sunol challenged the constitutional validity of section 49ZT by arguing that the law unconstitutionally burdened his implied freedom of political speech.

Bathurst CJ and Allsop P (with Basten JA dissenting on this point) held that section 49ZT of the Anti-Discrimination Act 1977 (NSW) did effectively burden freedom of communication about government and political matters.142 In concluding that section 49ZT did burden political expression, Bathurst CJ described the approach under the first stage of Lange in the following terms:

… it is necessary to look at the challenged legislation itself to determine, first, whether it does effectively burden freedom of communication about government or political matters and secondly, if it does, whether the second question posed can be answered in the affirmative. Although the acts complained of may be of assistance in identifying the type of publications or speech which would generally fall within the challenged sections, the question posed must be answered by reference to the legislation itself rather than the acts complained of. This also follows from the fact that the implied freedom is a limitation on legislative power not an individual right.143

141 The provision states: ‘(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege … in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter’.

142 All three Supreme Court judges held, however, that the provision was reasonably appropriate and adapted to serve a legitimate end in a manner which was compatible with the maintenance of the constitutional system of government and therefore satisfied the test in the second limb of Lange.

143 Sunol v Collier, n115, 421 (Bathurst CJ). Emphasis added. See also Unions NSW n24, 277 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

139

Thus, Bathurst CJ seemed to qualify his Honour’s earlier reasoning in the NSW Court of Criminal Appeal in Monis NSWSC by acknowledging in the latter case that, under the first limb of Lange, the plaintiff’s speech may assist the court to identify the scope of any burden that the relevant the law places on political expression.

At first blush, Bathurst CJ’s approach in Sunol v Collier seems to be similar to the views of Kiefel J in Wotton and French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW. In each of those High Court cases, their Honours advised that the issues the plaintiff identifies as those which he/she wishes to discuss may assist in the identification of the area of communication which may be affected by the statutory provisions. However, Bathurst CJ in Sunol v Collier also explained:

Discussion of the position of minority groups in society and the extent to which their position should be enhanced or protected by legislation, including but not limited to anti-discrimination legislation, forms part of the fabric of political debate in this country at the present time and, in my opinion, is a matter which bears on the choice people have to make at federal elections or their evaluation of the performance of federal ministers or their departments. It has been recognised that political debate in this country takes place in a fashion that is generally robust, frequently insulting and sometimes acrimonious: Coleman v Power supra at [105], [237]-[239]. A law of the nature of the one in question can, in these circumstances, effectively burden freedom of communication about government or political matters.

… The potential liability to damages and injunctions which arises by virtue of s 108 of the Act could effectively burden such communication.

I appreciate that a different view was taken in Catch the Fire Ministries supra by Nettle JA at [113] (tentatively) and Neave JA at [203]: The legislation under consideration in that case related to incitement to hatred, serious contempt, revulsion or severe ridicule on the grounds of religious belief or activity. Whether or not that view is correct in relation to the conduct

140

considered in Catch the Fire Ministries, for the reasons given above it does not seem to me that the same conclusion should be reached in relation to s 49ZT of the Act.144

Thus, Bathurst CJ concluded - seemingly without addressing any of the content of Sunol’s (burdened) speech, and apparently without hearing further evidence on the point - that section 49ZT could effectively burden communications about the position of minority groups in Australian society and the extent to which their position should be enhanced or protected by legislation. Bathurst CJ determined that the law fell within the first limb of Lange without his Honour indicating whether he considered that Sunol’s expression was, itself, potentially constitutionally protected speech. Yet, other than by reference to Sunol’s claims that the legislation burdened his speech, it is not clear what evidence there was before the Court to support the finding that 49ZT generally limited discussion about the position of minority groups in society.

Basten JA, by contrast, reached a different conclusion to Bathurst CJ in Sunol v Collier in relation to whether section 49ZT effectively burdened political communication. Reasoning that the purpose and likely effect of section 49ZT was to ‘promote essential elements of the constitutional system of government’, Basten JA concluded that

… [t]hese elements include the maintenance of a society in which all persons may participate as equals and express their views publicly, as well as at the ballot box, without fear of being the subject of public utterances inciting hatred towards, or serious contempt for, or severe ridicule of them as homosexuals … Such persons may need to endure hostility, abuse and insult, so long as it does not rise to the proscribed level. Such constraints as s 49ZT imposes on political discourse do not effectively burden, but rather promote such discourse.145

144 Ibid, 424-5. His Honour drew the connection between the implied freedom and Commonwealth Parliament, by referring to the relevance of the speech to voters’ choices in federal elections and their evaluation of the performance of federal ministers or their departments.

145 Sunol v Collier, ibid, 434.

141

Basten JA accordingly drew a distinction between, on the one hand, those cases where it may be correct for the courts to focus on the conduct (or speech) in issue and, on the other hand, cases where it is appropriate for the courts to instead review the constitutional validity of a law by reference to the scope of its operation and possible points of intersection with constitutionally protected discourse. His Honour suggested that the courts could undertake the former kind of analysis where the conduct in question could fall outside the statutory prohibition while the latter approach is to be preferred where the plaintiff’s expression appears to fall squarely within the scope of the relevant prohibition. His Honour did not elaborate on the rationale for these suggested different approaches. While concluding that the law did not generally burden political speech, Basten JA - like Bathurst CJ - did not directly decide whether Sunol’s speech constituted burdened political expression.

In a subsequent Queensland appellate court decision, Owen v Menzies146 (‘Owen v Menzies’), the Court of Appeal of the Supreme Court of Queensland (De Jersey CJ, McMurdo P and Muir JA) considered, inter alia, whether section 124A of the Anti-Discrimination Act 1991 (Qld) (‘Queensland Anti-Discrimination Act’) was inconsistent with the implied protection of freedom of political communication.147 The Court unanimously held that the law did not burden political communication and that the law was consistent with the implied freedom of political communication.

Bearing strong similarities with the NSW Supreme Court of Appeal’s decision in Sunol v Collier, in Owen v Menzies Rhonda Bruce and Richelle Menzies alleged that Ronald Owen vilified them on the basis of their sexuality in contravention of section 124A of the Queensland Anti-Discrimination Act. Like the NSW Supreme Court of Appeal’s decision in Sunol v Collier, the speech that was said to be constitutionally protected in Owen v Menzies included speech reflecting harsh and offensive religiously-motivated views. The statements

146 (2012) 265 FLR 392.

147 The provision states: ‘(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group. (2) Subsection (1) does not make unlawful— (a) the publication of a fair report of a public act mentioned in subsection (1); or (b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter’.

142 made by Owen and which were alleged to breach the antidiscrimination laws included the following message displayed on a motor vehicle driven on public roads:

GAY RIGHTS? UNDER GOD’S LAW THE ONLY RIGHTS GAYS HAVE IS THE RIGHT TO DIE148

It was alleged that Owen also submitted a report to the Cooloola Shire Council in September 2005 which contained statements vilifying homosexuals including the following

... Sodomite’s (sic) cannot reproduce, their only means of recruitment to their way of life is by preying on the children of normal human beings ...149

Owen also participated in a television interview on Channel 7 in September 2005, in which he stated

I think it is a very perverse lifestyle. ... Can our health services cope with the sodomite’s epidemic? ... As you have prisoners who break the law lose certain rights and I do believe homosexuals lose rights. ... I think that they know they are going to die shortly I mean AIDS is pretty prevalent.150

Finally, during mid to late 2005, Owen caused a letter written by himself to be published on the website lockstockandbarrel.org entitled ‘No Human Rights For Non-Humans’ which included a number of statements vilifying homosexuals, including the following -

Any person who commits acts that no ignorant animal would commit declares war on his community, and therefore may be destroyed by any or all of that community ...151

Faced with the claims that his statements infringed the antidiscrimination laws, Owen (like Sunol) asserted that section 124A infringed the implied freedom of political communication.

148 Owen v Menzies n146, 401.

149 Ibid.

150 Ibid.

151 Ibid.

143

In reviewing whether section 124A of the Queensland Anti-Discrimination Act was consistent with the implied freedom of political communication, the Court of Appeal of the Supreme Court of Queensland reviewed, inter alia, the NSW Supreme Court of Appeal’s decision in Sunol v Collier. Chief Justice De Jersey did not regard it as necessary to reach a definitive view on whether section 124A of the Queensland Anti-Discrimination Act burdened political expression. Instead, his Honour considered that, whatever the Queensland Supreme Court’s findings might be in relation to the first limb of Lange, section 124A satisfied the second limb of Lange and it was therefore unnecessary to reach a conclusion in relation to the first limb of Lange.152 Muir JA did not regard it as essential to address the first limb of Lange at all, finding that, like De Jersey CJ, section 124A satisfied the criteria under the second limb of Lange.153

McMurdo P reviewed section 124A in detail. Noting the similarities between the challenged laws in Catch the Fire154 (which I review in Chapter 5, Case Study 1), Sunol v Collier and the matter before her Honour in Owen v Menzies, McMurdo P indicated that she favoured the findings in Catch the Fire and the judgment of Basten JA (dissenting) in Sunol v Collier.155 More specifically, her Honour held that section 124A did not, in its terms, operation or effect, effectively burden freedom of communication about government or political matters.156 In reaching the conclusion that section 124A did not effectively burden political communication, McMurdo P cited, inter alia, the above-quoted decisions of Hayne J in APLA and Kiefel J in Wotton.157 In doing so, McMurdo P noted that the implied freedom is not an individual right but constitutes an implied limitation on legislative power and stated

Determining whether s 124A burdens the constitutional freedom of communication about government or political matters involves a consideration as to how s 124A may affect the freedom generally …

152 Ibid, 395 (De Jersey CJ).

153 Ibid, 432 (Muir JA).

154 n29.

155 Owen v Menzies n146, 416.

156 Ibid.

157 Ibid, 415.

144

… I consider the terms of s 124A set parameters to enhance communications about government and political matters in a civilised, diverse democracy which values all its members, irrespective of race, religion, sexuality or gender identity …

I cannot see that the incitement of hatred towards, serious contempt for, or severe ridicule of others on the grounds of race, religion, sexuality or gender can amount to political and government communication of the kind contemplated by the implied freedom under a diverse, modern democracy.158

The emphasised words suggest that her Honour approached the task under the first limb of Lange by considering the general effect of section 124A on political discourse, i.e., not by reference to the evidence of the specific speech which Owen said was burdened by section 124A. As also indicated in the above passage, McMurdo P held that her Honour believed that section 124A established appropriate parameters for communications about government and political matters in a civilised democracy, these being the kinds of communications which value all members in a society irrespective of their race, religion, sexuality or gender identity. McMurdo P thus concluded that section 124A did not burden political expression without her Honour addressing whether or not the speech of Ronald Owen constituted relevantly political expression. McMurdo P nevertheless concluded that section 124A was reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and therefore satisfied the second limb of Lange.159 McMurdo P also indicated that even if her Honour was incorrect in finding that the law did not burden political discourse under the first limb of Lange, her Honour would have concluded that the law satisfied the second limb of Lange.160

3. Limitations of General Approach: Observations Ostensibly, the general approach under the first limb of Lange upholds the principle that the Lange freedom is not a personal constitutional right. Yet, for the following reasons, I suggest

158 ` Ibid.

159 Ibid, 416.

160 Ibid.

145 that the approach taken by Bathurst CJ in Monis NSWSC and Sunol v Collier (and possibly by Basten JA in the same latter case), and also, arguably, by McMurdo P in Owen v Menzies should not be adopted. The clarification provided by French CJ, Hayne, Crennan, Kiefel and Bell JJ in Unions NSW - that the plaintiff’s claims may assist in identifying the effect of a law on burdening political expression - is an important one. The High Court’s judgment in Unions NSW also suggests that, for practical purposes, the courts must take into account the plaintiff’s claims about the effect of the law on the plaintiff’s expression when deciding whether a law burdens political expression and, importantly, that doing so does not necessarily convert the constitutional freedom into a ‘right’. The joint judgment of Crennan, Kiefel and Bell JJ in Tajjour possibly complements the joint judgment in Unions NSW by making the uncontroversial point that a court should not regard a particular person’s characterisation of the speech as determinative of whether there is a burden on relevantly political expression.

Yet, it is conceivable that the High Court may, even in the near term, move towards adopting the general approach, notwithstanding the reservations about such an approach about to be explained in more detail. For example, the High Court did not squarely decide in AG v Adelaide whether the Corneloup brothers’ religiously motivated speech was burdened political speech. In the High Court’s judgments in Monis, there was relatively little discussion about whether Monis’ allegedly offensive speech was burdened political expression.161 In Tajjour, a majority of the High Court found that the consorting laws effectively burdened political expression without there being any evidence before the High Court about how the laws burdened the political speech of the plaintiffs or, indeed, political speech more generally.

To explain in more detail the suggested limitations of the general approach - first, there is the pragmatic consideration that the burden on the speech of the plaintiff is typically why the case is before the court. Constitutional claims are generally before courts because the plaintiff believes that there is an unreasonable burden on their relevantly political speech. That

161 See, however, Monis, n23, where Hayne J noted, 177, that ‘[t]he whole of each of the communications, including the attacks made on the deceased, was, both in form and in substance, a single communication about whether Australian forces should be engaged in Afghanistan. That subject was and is a matter of political controversy. The insults directed to the deceased were as much a part of the political nature of the communications as anything else that was said in them’.

146 plaintiff might be an individual or a corporation, say, a media organisation. Notwithstanding the High Court’s decision in Tajjour, there will usually be some evidence to support the Court’s ultimate findings about the burden that a law is alleged to have placed on plaintiffs’ ostensibly political speech. If there is no such evidentiary connection, then it may, as a matter of logic, be difficult to justify why the court would even consider the plaintiff’s pleadings.162

Secondly, the primary rationale for a court considering the general effect of a burden on political speech is typically said to be that to do otherwise would equate the plaintiff’s claim with a constitutional right. Yet, there is no necessary inconsistency between the constitutional freedom of political discourse being a freedom (i.e., not a right) and the courts assessing whether a law burdens the political expression of the plaintiff. To put the point differently - describing the potential protective scope of the implied freedom by reference to the testimony of the plaintiff, or by reference to how the plaintiff characterises their own expression, does not necessarily convert the implied freedom into a constitutional entitlement. Even if the plaintiff succeeds in arguing that their speech is burdened political expression, the court must still review the plaintiff’s constitutional claim under the second limb of Lange.

The analysis under the second limb of Lange requires the courts to decide whether the law (or other burden) is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with the maintenance of representative and responsible government provided for in the Constitution. The second limb of Lange necessarily incorporates an objective test into any constitutional claim. One objectively relevant consideration in this respect might be whether the law (state, territory or Commonwealth) imposes a direct and targeted burden on the relevant political speech or, by contrast, it limits the speech in a way that is incidental to a legitimate objective.163 The latter kind of law might be less susceptible to being constitutionally overturned than the former. Another question might be whether there are alternative, reasonably practicable and less restrictive means of achieving the same legitimate

162 The High Court considered the plaintiffs’ pleadings in Tajjour despite there being no evidence about how the consorting laws burdened the relevantly political speech of the plaintiffs.

163 Monis, n23, 211 (Crennan, Kiefel and Bell JJ).

147 end.164 If there are less extreme measures available than those set out under the relevant law, then, likewise, the law might be susceptible to infringing the implied freedom of political discourse. Testing the compatibility of the law in question with the maintenance of the system of representative and responsible government shifts the analysis from the plaintiff’s own claim to the reasonableness of the law’s limitations on political expression, i.e., proportionality. Either approach to the question of proportionality can ensure that the court does not assess the plaintiff’s claim through the lens of a constitutional right.

Thirdly, the plaintiff’s claims about whether the burdened speech is ‘political’ expression can be tested in evidence - assuming there is an opportunity for the courts to hear such evidence - with the courts providing guidance to those giving testimony (and those challenging that evidence) about the relevant touchstones for political expression (i.e., as I have suggested, voting choices and executive responsibility). Unless the courts hear testimony or expert evidence about what the general effect is of a burden on political expression, it is not clear what factual basis a court would have before it in order to decide whether a law generally burdens political expression. Naturally, the plaintiff’s affidavits or testimony about the effect of a burden on their speech need not be the only evidence presented before a court. For example, assuming the evidence is relevant in a rationally probative sense, a court could hear testimony from expert witnesses (say a market researcher, a statistician, a political scientist) about the general effect of a law on speech, which may then assist the court to determine the more general effect of a law on burdening political expression. This testimony could even be in addition to the evidence presented by the plaintiff. Unless the court has such other evidence before it, however, it may not be apparent what, if any, factual basis there is for the court to decide whether a law imposes a more generalised limitation on political discourse.

Fourthly, and related to point three, other than perhaps by reference to testimony of the person bringing the constitutional claim, it is rare for courts to hear detailed evidence about how a burden affects political speech. Without evidence about how an alleged burden generally limits expression (which, to my knowledge, the Australian courts have not tended to hear in implied freedom of political discourse cases), the courts are unlikely to be in

164 See Unions NSW, n24, 278 (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See also Tajjour, n81, 45 (Crennan, Kiefel and Bell JJ). Their Honours in Tajjour described the test under the second limb of Lange as one of ‘reasonable necessity’.

148 receipt of empirically verified data about how a burden affects the political speech of even a representative sample of the population.

Fifthly, a burden might only apply to the expression of the person who is bringing the constitutional action (consider, for example, prosecution of an individual for contempt of parliament).165 In that kind of case, the relevant legal analysis will necessarily concern how the burden affects the speech of the plaintiff and whether that person’s expression is ‘political speech’ rather than a more abstract consideration of whether the burden more generally applies to political expression.166

In view of the above-mentioned difficulties with the general approach, I suggest that the general approach should not be followed or adopted. Instead, the test under the first limb of Lange - the protective scope of the implied freedom - should be assessed by whether the law burdens the political speech of the plaintiff. That analysis necessarily involves consideration of whether the burdened speech of the plaintiff is relevant to representative and responsible government. This is the subject of a more detailed inquiry later in Section VII. Yet it is possible that the High Court will adopt the general approach in the near term and arguably it has already taken some tentative steps towards doing so.

165 See R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 (24 June 1955), a unanimous decision of seven judges of the High Court (delivered by oral judgment), upholding charges of contempt of parliament against a newspaper owner and journalist for stridently criticising a member of the House of Representatives.

166 In Monis n23, Hayne J, when analysing the appellants’ claims, referred to both the scope of the legislation and the nature of the appellants’ speech. His Honour said, 177, ‘[t]he whole of each of the communications, including the attacks made onthe deceased, was, both in form and in substance, a single communication about whether Australian forces should be engaged in Afghanistan. That subject was and is a matter of political controversy. The insults directed to the deceased were as much a part of the political nature of the communications as anything else that was said in them’.

149

V. COMMENTATORS’ VIEWS ON ‘POLITICAL SPEECH’

Dan Meagher argues that political communication consists of any form of expression which may reasonably be relevant to the federal voting choices of its likely audience.167 Meagher bases his approach on his view that ‘a minimalist model of judicially protected popular sovereignty’ underpins Australia’s implied free speech protections rather than any traditional free speech rationale.168 From this perspective, speech about religion, or by religious leaders, could fall within the protective scope of the implied freedom if it is relevant to the voting choices of its intended audience.

Upon examining the High Court’s decision in Lange, Adrienne Stone advocates redrawing the boundaries of the scope of the implied freedom in order to facilitate the proper functioning of the institutions the implied freedom seeks to protect.169 In doing so, Stone proposes four kinds of speech that may be regarded as ‘political communication’ while acknowledging that these proposed categories of free speech may tend to ‘dramatically’ expand the scope of protected speech.170

The first category Stone proposes is explicitly political communication, i.e., speech substantively about the government.171 The second kind of political communication Stone posits is speech about issues that could become matters of federal law or policy, or which in some other way could be the subject of federal governmental action.172 This category anticipates the possibility for change in a current political agenda and could include discourse that becomes relevant to governmental decision-making.173 A third type of political

167 Dan Meagher ‘What is ‘Political Communication?’ The Rationale and Scope of the Implied Freedom of Political Communication’, (2004) 28 Melbourne University Law Review 438, 467.

168 Meagher, ibid.

169 See n109, 383.

170 Ibid, 383-4.

171 Ibid, 383.

172 Ibid, 385.

173 Ibid. Stone notes that the ‘federal Parliament considers a wide array of issues, and the breadth of federal government involvement in modern life, subject to some commonsense limitations means that it is almost impossible to be sure that any matter will not become the subject of federal political debates’.

150 communication suggested by Stone is communications about matters which may not themselves be the subject of law or government action, but which may nonetheless influence voters’ attitudes toward the government.174 Finally, Stone suggests as a fourth class of political communication speech which is ‘relevant to democratic government because of the qualities it develops in the citizenry’.175 Stone describes this kind of political speech as that which ‘develop[s] among voters the capacities or qualities necessary to make a “true choice” in a federal election’.176

In studying the scope of the implied freedom, Nicholas Aroney177 traces the influential judgments of McHugh J in the High Court.178 Aroney observes that his Honour focussed on the systems of representative government and responsible government as the twin foundations for delineating the scope of the implied freedom. McHugh J maintained that these systems are not free-ranging principles but are supported by the text and structure of the Constitution.179 Further, McHugh J distinguished representative government (generally understood to mean that people in free elections choose representatives who govern on their behalf) from representative democracy, a wider concept, often taken to be descriptive of a society in which there is an equality of rights and privileges.180

The author provides examples of topics that became political (but which might not have been predicted to do so) such as gun control (as a result of the tragic shootings at Port Arthur in April 1996) and sexual privacy, following a citizen's successful appeal to the United Nations Human Rights Committee.

174 Ibid, 386. Stone refers, for example, to the issues underlying two political controversies at the time of publication of her article: first, Prime Minister Howard's refusal to issue a formal national apology to the Stolen Generations; and secondly, the federal government's proposal to amend the Sex Discrimination Act 1984 (Cth) to allow states to deny single and lesbian women access to state-funded in-vitro fertilisation (‘IVF’) services. The author notes that debates on these topics raised questions of religion, moral philosophy, history, medical science and sociology - and that peoples’ understanding of, and attitudes to these matters had the potential to affect their attitudes on questions of public policy as well as their voting choices: ibid, 387.

175 Ibid.

176 Ibid.

177 See Nicholas Aroney ‘Justice McHugh, Representative Government and the Elimination of Balancing’, (2006) 28 Sydney Law Review 505. See also Nicholas Aroney ‘The Structure of constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science?’ (1998) 21(3) UNSW Law Journal 645.

178 e.g., ACTV n5 and McGinty n16.

179 Aroney (2006) n177, 514.

180 Ibid.

151

A paper by David Hume about the rationale for the implied freedom suggests that it protects the receipt of relevant information by those responsible for making constitutionally- prescribed decisions.181 Hume observes that responsible government, representative government and referenda each involve the making of political choices. He contends that the efficacy of these systems requires that government not restrict the choosers’ opportunity to access relevant information concerning the choices contemplated by the Constitution and that this makes the implied freedom necessary.182 On this view, the implied freedom is a tool for facilitating the making of informed choices which support the systems of responsible government, representative government and referenda.183

Two broad themes emerge from this brief analysis of some of the literature.

First, as Meagher suggests, political speech may consist of speech that is relevant to an audience’s federal voting choices. This is a useful touchstone for describing the protective scope of the implied freedom. Yet, the High Court under McHugh J’s influence has taken the view that speech which is relevant to representative government and responsible government may fall within the constitutional freedom. A conception of the implied freedom that is grounded only in speech relevant to the audience’s voting choices may not adequately reflect the scope of the freedom as it has been described by the High Court.

Secondly, speech about religion, or by religious leaders, may come within the protective scope of the constitutional freedom if the (burdened) discourse is relevant to the Commonwealth systems of representative government and responsible government. Stone, as noted, suggests that the High Court in Lange narrowed the protective scope of the implied freedom. While this may be so, I have suggested that there may be fewer differences between Theophanous and Lange than might at first seem apparent, particularly if, as will be proposed, the courts undertake a generous temporal perspective of representative and responsible government. Further, both decisions have the potential to recognise speech about religion, or by and about religious leaders, as ‘political’ speech.

181 David Hume, ‘Wotton v Queensland - 'Islands of power' and political speech on Palm Island’, University of New South Wales Faculty of Law Research Series 2012, 7.

182 Ibid, 8.

183 Ibid, 9.

152

VI. CONSTITUTIONAL LIMITATIONS?

Does the Commonwealth Constitution prevent the implied freedom applying to speech about religion or by religious leaders?184 Aroney explores whether there may be constitutional barriers to the implied freedom protecting speech about religion.185 He specifically examines whether section 116 of the Constitution might imply a barrier to the implied freedom protecting religious expression. Aroney’s line of inquiry is that, if section 116 of the Constitution prevents the Commonwealth from making religiously based laws (including laws for establishment of religion, or for prohibiting the free exercise of religion), then this may mean religious speech cannot form a constitutionally legitimate part of political communication. This in turn may suggest that, by definition, the implied freedom cannot protect speech about religion.186

After carefully reviewing the legal authorities and academic literature, Aroney concludes that there are no a priori reasons why speech about religious matters cannot simultaneously be characterised as political communication for the purposes of the implied freedom. Aroney’s view may be contrasted with the findings of Dunford J in Harkianakis v Skalkos187 (‘Harkianakis’). In Harkianakis, Dunford J was asked to determine whether section 116 of the Constitution gave rise to a defence to a cause of action in defamation arising from any right to freedom of speech concerning religious issues analogous to the implied freedom of political discourse. Rejecting the argument that section 116 might give rise to such a defence, his Honour held that section 116

… effectively excludes religion from the system of government established by The Constitution and is, in this sense, the antithesis of those provisions establishing a system of representative and responsible government, it establishes

184 If the Constitution poses no a priori barrier to the implied freedom of political discourse including speech about religion, then it would seem to follow that there is no obstacle to the implied freedom applying to speech by religious leaders.

185 Nicholas Aroney, ‘The constitutional (In)Validity of Religious Vilification Laws: Implications for their Interpretation (2006), 34 Federal Law Review 288, 292.

186 Ibid.

187 (1997) 47 NSWLR 302.

153

nothing and prohibits the establishment of anything involving the Federal Government based on religion …

… the principles enunciated in Lange's case have no application to the discussion of religious matters or religious organisations …188

The emphasised words indicate that his Honour considered that the protective scope of the implied freedom cannot protect speech about religious matters. I disagree with Dunford J’s finding. I also support Aroney’s conclusion that there are no a priori reasons why speech about religious matters cannot simultaneously be characterised as political communication for the purposes of the implied freedom. In the following section, I elaborate upon Aroney’s reasoning and consider other possible a priori limitations on the implied freedom applying to speech about religion, but, as will be seen, I then discount these propositions.

To provide more detailed context to this inquiry, section 116 purports to constrain the Commonwealth government’s legislative powers. It provides that the Commonwealth (though not the states or territories) cannot make laws for proscribed purposes or require a religious test as a qualification for office.189 As previously noted, the ‘free exercise’ limb of section 116190 prohibits the Commonwealth making laws for prohibiting the free exercise of religion. It does not apply to exercises of executive power191 and instead governs the making of laws which seek to effect prohibitions on religious expression. The High Court has not given a broad interpretation to the ‘free exercise’ provision192 or section 116 more generally.

Given these apparently minimal constraints on Commonwealth legislative power, it is hard to see why section 116 should lead to any excision of religious speech from the protective scope

188 Ibid, 306. Emphasis added.

189 Section 116 does not purport to apply to rules or standing orders or exercises of executive power.

190 This would seem to be the clause of section 116 that plaintiffs would most likely invoke to protect expression about religion. However, a plaintiff may also, or alternatively, plead the ‘establishment’, ‘religious observance’ or religious tests limbs of section 116 to support a constitutional ‘religious expression’ claim.

191 Aroney (2006) n185 (The constitutional (In)Validity of Religious Vilification Laws), 300.

192 See e.g., Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116 and Krygger v Williams (1912) 15 CLR 366. The provision arguably would not apply to laws (or executive acts) which merely seek to stifle or suppress (cf prohibit) the free expression of religion and the High Court is yet to determine how it might distinguish cultural expression from speech about religion.

154 of the implied freedom. Further, as Aroney notes, section 116 could be amended by referenda and the prohibitions in section 116 could not circumscribe the scope of the implied freedom of political communication in relation to potential changes to section 116.193 Accordingly, there is no strong argument as to why any ‘rights’ conferred by section 116 may limit the operation of the implied freedom with respect to speech about religion.

A further argument (which I also discount) may be made: that section116 limits the reach of the implied freedom of political discourse in relation to speech about religion when state or territory laws are involved. Section 116 does not prohibit the states or territories from making laws for religion. It might therefore be argued that the states and territories should be able to administer laws relating to religious matters without the implied freedom encroaching upon their constitutional powers.194 It may even be said that if the implied freedom of political discourse were to protect the kind of ‘religious’ speech that the states are authorised to prohibit (say, vilifying speech that is regulated under state-based religious tolerance laws), then, at that point, the implied freedom has reached too far, constitutionally speaking.

Even if one accepts that the states and territories can make laws about religious affairs (by reason of section 116 or otherwise), there are significant limitations with this ‘overreach’ logic. Specifically, this reasoning has two weaknesses. First, even if a state government has constitutional power over a topic, people - the electorate - may have an interest in discussing how that government exercises its powers with respect to that topic. An assumed limitation on constitutional free speech in relation to either state laws or state government actions may lead to voters having no constitutional free speech protection if the states prosecute religious agendas.195 The implied freedom would become a hollow constitutional safeguard if it could

193 Aroney (2006) n185 (The constitutional (In)Validity of Religious Vilification Laws), 301.

194 In APLA, n25, Callinan J, 478 expressed concern that the definition of political speech could, if not ‘bounded’, include religious speech and might thereby conflict with the states’ powers to make laws for religion under s 116 of the Constitution. Arguably s 116 does not actually confer any powers over religion upon the states or territories (although it may do by implication). The states may have plenary or more limited powers in relation to religion under their own ‘constitutions’. As noted, in Unions NSW n24, the High Court at 276, rejected NSW’s argument that the there was any constitutional principle to the effect that the states could legislate to affect the Constitution, including in relation to its implications. On this reasoning, it would not be constitutionally possible for the states or territories to enact laws which limited religious freedoms and which also overrode the implied freedom of political discourse.

195 Such an approach would arguably also be at odds with the High Court’s acceptance that the implied freedom can protect speech that is affected by state (or territory) laws: see e.g., Coleman v Power n102.

155 not, by definition, protect speech about state governments that introduce laws affecting or relating to religious interests. A second reason is a pragmatic one relating to the likelihood that the implied freedom of political discourse would regularly ‘interfere’ with states’ powers. As has been seen, the burdened expression must relate to the Commonwealth systems of representative and responsible government. Speech about religion in relation to a state law which has no relevance to the Commonwealth Parliament would likely not qualify for constitutional protection.

There is a final argument that is similar (but subtly different) to that explored by Aroney, which could be an alternative reason for the implied freedom not protecting speech about religion. The Commonwealth has no specifically enunciated constitutional power over religion notwithstanding that it may be able to pass laws with respect to religion if they are also with respect to a matter or purpose within power (say in areas such as naturalisation and immigration/emigration).196 It might then be posited as part of this argument that political discourse - speech about the government - ought not to, include speech about religion. Accordingly, as a kind of counterpart to Aroney’s argument, it may be contended that the Commonwealth’s lack of legislative powers over religion is itself a reason to exclude speech about religion from the protective scope of the implied freedom of political discourse.

Yet, it could not be argued - at least not with conviction - that an absence of express Commonwealth power over religion ought to lead to any excision of speech about religion from the protective scope of the implied freedom. To begin with, the lack of legislative powers over religion is no guarantee that a government will eschew religious objectives.197 Excluding speech about religion from the scope of the implied freedom would potentially mean there is no protection for speech about how the government exercises any quasi- religious powers. Such a restriction on the limitations of political speech would be

196 See Edmund Barton, Australasian Federation Convention Debates Melbourne 2nd March 1898, 1771- 72.

197 The Federal Labor Government’s funding of school chaplains is arguably evidence of the pursuit of quasi-religious objectives, particularly in light of (then) Prime Minister Gillard’s comments to the head of the Australian Christian Lobby (Brigadier Jim Wallace) in an interview on 6 August 2010 that the chaplaincy program is a ‘great program’ and a ‘great success’ and that ‘... chaplains are doing sensational work’. The Prime Minister agreed with the suggestion by Wallace that there was little doubt that the program would continue after 2011 even though the program’s continuation at the time of the discussion was yet to be reviewed: see interview at http://www.acl.org.au/make-it-count/ (viewed 2nd December 2012). See also Williams v Commonwealth (2012) 248 CLR 156.

156 antithetical to any notion that the implied freedom of political discourse can promote the government’s accountability to the electorate by allowing voters to share and exchange political ideas, including - perhaps most critically in this context - if a government seeks to implement religiously-motivated policies.198

It follows from what I have said in this section that there are no ‘in principle’ reasons as to why the implied freedom cannot apply to speech about religion, or to expression by religious leaders. No legal limitations about the implied freedom of political discourse applying to speech about religion or to speech by religious leaders emerge from the High Court cases on the implied freedom.199

VII. WHAT IS SPEECH ABOUT REPRESENTATIVE AND RESPONSIBLE GOVERNMENT?

What does it mean for the implied freedom to protect speech that is relevant to representative and responsible government? In the following passages, I try to answer this question in seven points. I begin by describing the interrelationships between representative and responsible government. I then consider the significance of voting preferences with respect to speech that might fall within the protective scope of the implied freedom. I finally explore the significance of temporal considerations in relation to the concepts of representative and responsible government and in doing so briefly return to Lange. The objective in doing so, is to try to identify more clearly whether ‘political’ speech as the High Court described it in Lange can include speech about religion or by religious leaders.

First, the touchstone of responsible government is that the executive must answer to the Commonwealth Parliament. By contrast, representative government refers to a system whereby elected representatives are accountable to the people who vote for them. In theory,

198 As mentioned, even though the Commonwealth may not have specific legislative powers over religion, it may be able to make laws with respect to religion if they are also with respect to a matter or purpose within power.

199 I have dealt with the point made by Callinan J in APLA n25, 478 (see n194), where his Honour expressed concern that the definition of political speech could, if not ‘bounded’, include religious speech and might thereby conflict with the states’ powers to make laws for religion under s 116 of the Constitution.

157 representative government and responsible government are distinct political frameworks and yet there may a degree of interconnectedness between the two systems. A government’s actions when it is in office - its actions and inactions - can (and do) affect voter choices. Additionally, speech about the kinds of things a government does when governing (and also what it does not do, or perhaps what it should do) can influence voters’ perceptions of the government’s effectiveness. This, in turn, may affect voters’ decisions at the ballot box. It may, as a result, be difficult to distinguish speech that is relevant to responsible government from speech that pertains to representative government and vice versa.

Secondly, arguably the most salient guidance in relation to any system of government in the Constitution is sections 7 and 24. Notwithstanding the possible above-mentioned overlaps between representative government and responsible government, sections 7 and 24 tend to focus on voters’ choices and reveal that representative government is, at least from the text of the Constitution, a governmental system that underpins the constitutional arrangements. Using the expression ‘directly chosen by the people’, sections 7 and 24 also indicate that voters have a direct choice, i.e., that the voting public can ‘choose’ between different Commonwealth parliamentary candidates. Conversely, voters can elect to not choose political candidates who lack sufficient appeal. Dawson J in ACTV noted the significance of sections 7 and 24 of the Constitution and the importance of voter choices for the implied freedom.200 Hayne J also referred to those clauses (and sections 64 and 128 of the Constitution) in Monis.201 Expression that is relevant to voting choices in relation to the Commonwealth Parliament will be, and will likely remain (in the absence of constitutional change), a cornerstone of political expression.

Thirdly, different voters will likely have different ‘wants’ in relation to acquiring and passing on information that is relevant to their voting choices. People do not have homogenous desires for ‘political’ information. The kind of material that an individual regards as relevant to their voting choices is that which allows the person to exercise a genuine choice. Voting is

200 ACTV n5, 186-7. See also, e.g., Tajjour n81, 51 (Gageler) and 80 (Keane J).

201 Monis n23, 140. Hayne J observed, further, that ‘those who are elected as members of the parliament and those who are appointed as ministers of state are necessarily accountable to “the people”’ (his Honour thus implicitly distinguished representative government from responsible government while highlighting the accountability of political representatives to the electorate): ibid. See also Unions NSW n24, 289 (Keane J).

158 a matter of personal preference and the word ‘direct’ in sections 7 and 24 in relation to that voting choice supports this view.202 Disinterested or disaffected voters may need little evidence to inform their voting decisions. Others, by contrast, may seek as much material as possible to inform themselves. Some voters may be primarily concerned with the political matters of the day and their political concerns may be short term. Others may take a longer term view of political affairs. For some individuals, the kind of expression that is relevant to their own ballot box choices and perhaps to their perceptions of the government’s actions, could be about a topic that is barely spoken of, except for, say, in academic journals or in their local church. For others, the topic of primary political interest may be at the forefront of contemporary parliamentary debate. At the ballot box, one voter could, for example, be interested in the personal background, professional affiliations or lived ethical standards of a political candidate in the voter’s own electorate or elsewhere; another voter may, by contrast, be concerned about the policies or practices of an entire political Party. A voter’s choice about whether to elect a particular electoral candidate could be influenced by considerations outside his/her electorate (or in other tiers of government). A voter’s decision may be influenced by a policy in relation to which the government does not want to take responsibility or over which governments tend to share responsibilities.

Some voters may be influenced by the views or teachings of religious leaders and may search for political Parties or candidates whose policies resonate with, or are consistent with, those teachings. Depending on voters’ dispositions for acquiring political information and their perceptions of the importance of political matters (and the significance of politicians to them), for some voters, perhaps even many, politics will be about government over the long term - leadership, welfare, health, economic wellbeing and the good of society. For others, ballot box decisions may involve little more than the whimsical filling out of ballot papers at the local school on a Saturday every few years and may have no more political significance than that. Whoever the voter may be, it is inherent in them making an informed voting choice that they are able to take into account such information as they see as relevant to their choice

202 ‘Direct’ implies that the voter’s choice at the ballot box is paramount, in contrast to the views of, say, lobby groups or even political parties.

159 about who to elect to political office. The potentially burdened expression relevant to those choices may be publicly expressed or even delivered to a substantial audience.203

Fourthly, a wide range of matters fall within Commonwealth government executive responsibility. Speech about executive responsibility could include commentary about the decisions (or words, or speeches) of ministers or the actions of the Prime Minister and also - as the High Court wrote in Lange - discourse about the actions (or inactions) of ministers’ departments and statutory authorities. Speech that is relevant to responsible government could comprise expression about the government’s activities in creating legislation, executing policies or implementing programs. ‘Political’ speech could also be about what the government refuses to do, or does not do. Speech about responsible government may even include expression about possible perceived religious objectives the government may prosecute. Such religious objectives might, for example, comprise, opposing legalisation of euthanasia or - a more contentious suggestion - opposing onshore processing of asylum seekers because of implicit, unspoken objections to the possible settlement of Muslims in Australia.

Fifthly, over time, executive responsibility can switch between tiers of government and government responsibilities can change. Governments often jointly administer policies (e.g., there are joint Commonwealth and state roles in relation to law enforcement, aspects of taxation, education and health). Hearings and findings of commissions of inquiry (e.g., NSW Independent Commission Against Corruption) may highlight connections, friendships and professional relationships between members of political Parties at different tiers of government. Some politicians may switch from state government positions to the federal government (or from local government to state government roles). There may be a morphing of executive responsibilities and a blending of perceived accountabilities for legislative and executive decisions between federal, state, or even local branches of government. In the longer term, a greater or lesser range of activities may be relevant to voting choices or

203 Yet constitutionally protected speech need not necessarily be public or aimed towards a substantial public audience. Effectively burdened privately expressed views (one person to another) might even fall within the protective scope of the implied freedom if there is an effective burden on the speech and the speech is relevant to representative and responsible government in the Commonwealth Parliament. See, however, Tajjour n81 ‘… the interactions of the kind required to be kept free by ss 7, 24, 64 and 128 of the Constitution are public interactions, which do not exhibit the personal characteristics of consorts’: 80 (Keane J).

160 executive responsibility in any tier of government and this may tend to alter, or at least make unclear, the nature of what can be legitimately characterised in a constitutional sense, as political speech. The changing nature of these governmental responsibilities may make it difficult - especially over time - to identify any single tier of government as having responsibility for a particular field.

Sixthly, political speech is not a static concept, nor is it fixed in time. A generous view of ‘political speech’ may facilitate discourse about nascent ‘political’ matters. Apolitical subjects can become ‘political’ matters. French CJ seemed to accept as much in Hogan v Hinch when his Honour described the implied freedom as applying to expression about ‘... matters potentially within the purview of government’.204 Political speech may alter depending on the composition of Parliament. Consider climate change. Perhaps only two decades ago, notwithstanding that the Commonwealth already had a well-established role in environmental law, many Australian voters may not have conceived of climate change as an area of significant governmental responsibility for Australia, let alone a topic that might be relevant to people’s voting choices. Yet, scientific research and academic debate in this field - speech and expression - arguably drove political leaders in the Western world (including Australia) to recognise (or not recognise) climate change as a bellwether topic for ‘progressive’ Parliaments. To not recognise climate change as within the scope of the implied freedom in, say, 1990 could have denied the Australian electorate the ability to communicate about a matter that would emerge little more than two decades later as an arguably critical consideration in influencing voting choices for Australians. The same might be said of: asylum seeker policy in Australia; Islam; poker machines; and real-time advertising of online bookmakers’ odds on the outcomes of broadcast sporting games. 205 That is, these matters became political topics without necessarily being inherently so.

Seventhly, voting choices may traverse parliamentary terms. Clearly, the actions of a government while it is governing can stimulate public debate and affect public sentiment (and voting choices) for long periods, again hinting (though the concepts are distinct) at the

204 n33, 544. Emphasis added.

205 Poker machines became a political topic for the Commonwealth as a result of Independent MP Andrew Wilkie requiring, in 2009, that the Gillard-led Labor Government support voluntary poker machine pre- commitment reforms to help ‘problem’ poker machine users in return for Mr Wilkie giving Prime Minister Gillard his parliamentary vote on crucial supply bills.

161 lockstep nature of voting choices and executive responsibility. Government budgets delivered in one term can affect perceptions about the economic competence of later governments. Conversely, ostensibly ’old’ political topics - for example, the government’s role in previous World Wars, or governments’ treatment of the Stolen Generations to take just two examples - can remain ‘political’, affecting peoples’ lives (and influencing their voting choices) for decades. Voters may choose political parties (and independent MPs) on their long-term records. Political topics resurface (as do former political leaders). Even retired political figures can exert influence amongst voters beyond their parliamentary careers.

Returning to Lange - beyond saying the implied freedom did not only apply during election periods, the High Court did not restrict the scope of the implied freedom to any particular timeframe. The High Court in Lange acknowledged that most of the information that people need to make an informed voting choice exists between the holding of one and the calling of the next election,206 meaning, a government’s actions when it is in government, influence voting choices at future elections. Similarly, Heydon J in Coleman v Power described the implied freedom as protecting expression ‘... which might lead to voter appreciation of the available alternatives’,207 implying that voters make future ballot box choices based on how candidates perform after being elected to office.

The High Court said in Lange that the information that is relevant to responsible government arises ‘throughout the life of a federal Parliament’.208 This does not suggest a conservative approach to the temporal aspects of speech about responsible government. In Hogan v Hinch, French CJ said political matters are ‘… not limited to matters concerning the current functioning of government’.209 People may (and do) remember the actions of their governments - fondly or otherwise - long after those governments have been elected out of office. Historic acts of government can permeate peoples’ perceptions of future governments - in positive and negative ways - for years and perhaps even decades. By contrast, younger

206 Lange n3, 561. Emphasis added. The High Court in Lange thus rejected McHugh J’s suggestion in ACTV n5 (664) that the implied freedom only applies during election periods.

207 Coleman v Power n102, 126. Emphasis added.

208 n3, 561.

209 n33, 544.

162 voters may have naive, though genuine, expectations of their government and may have their own perceptions of what is relevantly ‘political’ in the short term or longer run. Emphasising the non-transitory nature of executive responsibilities, ministers in previous governments can be called to account for their actions before later parliaments. Committees regularly review the actions and activities of former governments, ministers and departments. Conversely, House of Representatives and Senate committees often undertake inquiries to better inform the policies of current and future governments, or possibly to criticse the practices of former governments.

Given these considerations, it would be unrealistic to propose any rigid timeframe for speech about responsible (or representative) government. I suggest there is another reason for the courts to avoid a static approach to deciding whether speech falls within the protective scope of the implied freedom. As I have hinted, topics can become relevantly ‘political’ if people have sufficient freedom (and time) to discuss them. A less than generous approach to interpreting the temporal aspects of the implied freedom - in effect, not granting topics the opportunity to grow into ‘political’ subjects in the longer run - could deny Australian voters the opportunity to freely communicate about emerging political subjects that may over time, become important topics for governments if there is enough confidence to discuss them.

VIII. CONCLUSION

The Constitution does not, of itself, imply that there is any barrier to the implied freedom of political discourse protecting speech about religion. The fact that section 116 purports to limit the Commonwealth’s legislative powers with respect to religion does not itself limit or reduce the scope of the implied freedom of political discourse to include speech about religion. Section 116 (which applies only to Commonwealth laws) does not limit the reach of the implied freedom of political discourse in relation to speech about religion when state or territory laws are concerned. The fact that the Commonwealth lacks specific legislative powers over religion (recognising that the Commonwealth may nevertheless be able to pass laws with respect to religion if the laws are also with respect to a matter or purpose within power) also does not imply that speech about religion is excluded from the protective scope of the implied freedom of political discourse.

163

Lange remains the authoritative High Court case on the scope of the implied freedom of political discourse. According to Lange, the implied freedom applies to speech that facilitates informed voting choices and discourse which is relevant to the effectiveness of the government, including through its statutory authorities and public utilities, in governing for people who exercise those voting choices. It also applies to speech about referenda.210 By contrast, Mason CJ, Toohey and Gaudron JJ’s joint judgment in Theophanous indicates that the implied freedom applies to speech about the political views and public conduct of all persons involved in activities that have become the subject of political debate.

The Theophanous view of the scope of the implied freedom appears broader than what the High Court decided in Lange. The earlier joint judgment would appear to more readily recognise religious leaders’ contributions to public debate as political speech. I have contended, however, that a generous interpretation of the High Court’s description of the implied freedom Lange could result in the differences between Lange and Theophanous being less stark than otherwise may appear. It is also possible that, over time, speech which is relevant to the development of public opinion can become the kind of speech that is important for peoples’ voting choices or their perceptions of executive responsibility and this may again imply more similarities between Theophanous and Lange than might otherwise initially seem apparent.

There are some suggestions from the decisions of the Appeal Courts of NSW and Queensland that those Courts may favour a general approach to identifying the protective scope of the implied freedom. This methodology involves considering whether the relevant law generally effectively burdens speech about government and political matters rather than whether the law effectively burdens the political speech of the plaintiff. It is possible that, over time, the High Court may come to favour the general approach; there are arguably some indications from the High Court judgments that the High Court may already tend to favour such an approach. At this stage, however, the general approach could not be said to be settled law

210 For the reasons given in n38, I have not in this Chapter sought to distinguish speech about representative or responsible government from speech about referenda. However, Case Study 3 in Chapter 5 considers whether burdened speech that is relevant to a Commonwealth constitutional referendum on the definition of marriage could fall within the protective scope of the implied freedom of political discourse.

164 and I have put forward what I consider to be some persuasive reasons as to why the general approach should not be adopted.

I have also suggested that a generous temporal view of ‘political speech’ could protect discussion about topics that are of emerging ‘political’ relevance and this may allow discourse about those subjects to grow, or even flourish. Seen in this light, ‘political speech’ may include speech about religion and the contributions of religious leaders to public debate even if the subject matter is of nascent relevance to representative and responsible government (or, by contrast, is apparently of primarily historic relevance).

It is, accordingly, possible to tentatively answer the questions I posed at the start of this Chapter. First, political speech is speech that is relevant to voting choices or executive responsibility in relation to the Commonwealth Parliament. Political speech can include speech about state government matters if these matters are relevant to voting choices or executive responsibility in relation to the Commonwealth Parliament. Secondly, the implied freedom of political discourse may protect burdened speech about religion, and by religious leaders, if the speech is political speech as defined above (and the plaintiff can also show that the relevant burden does not fall within the second limb of Lange, as varied by McHugh J in Coleman v Power).

These answers, I suggest, reflect the minimum limits of political speech. Based on the Theophanous view of political speech, though perhaps not inconsistent with Lange, the implied freedom could protect speech by religious leaders who seek to influence government decision making (e.g. by lobbying). It could even be said that AG v Adelaide supports the view that political discourse can include expression of religious viewpoints — perhaps even evangelism — if the speech relates in some way to federal politics.211

The above answers may have important implications for the speech of religious leaders in Australia who contribute to public debate, for, on this reasoning, such speech may fall within the protective scope of the implied freedom. In Chapter 5, I apply these principles to some specific instances of speech coming from a religious perspective. The purpose is to consider

211 As noted, because of the South Australian Solicitor General’s concession in AG v Adelaide that the by- law restricted political expression, the authority of the case may be somewhat limited in respect of the suggestion that political speech may include expression of religious viewpoints, including evangelism.

165 whether the protective scope of the implied freedom could apply to those instances of speech and to review the veracity of the findings in this Chapter.

166

CHAPTER 5 - THREE CASE STUDIES

I. INTRODUCTION

A. Conclusions from Chapter 4 In Chapter 4, after reviewing relevant literature and High Court authorities, I suggested that there are no a priori reasons why the implied freedom of political discourse could not protect expression about religion or speech by religious leaders. Further, if speech about religion or by religious leaders is relevant to the systems of representative or responsible government in the Commonwealth Parliament (or relates to referenda), then that expression may, if burdened, fall within the protective scope of the implied freedom.1 In subtly different ways, two key High Court judgments - the joint judgment in Theophanous v Herald & Weekly Times Ltd2 (‘Theophanous’) and the High Court’s unanimous single judgment in Lange - support this suggested approach to identifying political speech, including in relation to speech coming from a religious perspective.

B. Chapter Overview This Chapter comprises three Case Studies where I apply the above reasoning to instances of speech coming from a religious perspective. The Case Studies allow for a more specific consideration of the implied freedom of political discourse to speech about religion or by religious leaders. My objective in analysing the Case Studies is twofold. First, it is to discern the effectiveness and practicalities of the above-suggested approach to identifying political expression where the speech comes from a religious perspective. Secondly, and related to the first objective, it is to identify whether there are any possible legal or practical limitations in

1 As noted in Chapter 4, the speech (if relevantly ‘political’) could be constitutionally protected speech if the law or other burden is not reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government provided for in the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’) as restated in Coleman v Power (2004) 220 CLR 1, 50-1 (McHugh J).

2 (1994) 182 CLR 104.

167 applying the proposed methodology for identifying political speech when the speech in question is about religion or comes from a religious perspective.

I examine the speech in each Case Study by reference to both Theophanous and Lange. The aim is to determine whether speech about religion or by religious leaders can fall within the protective scope of the implied freedom of political discourse. I do not consider the law under the second limb of Lange in these Case Studies for that is not the objective of this Chapter, nor of this thesis. Nor, given the already-noted limitations of section 116, do I review whether the speech in the Case Studies might be protected by section 116. As will be seen, in no Case Study is the relevant law a law of the Commonwealth and so section 116 could not apply.

The first Case Study considers the speech of Perth Anglican Archbishop Roger Herft who published an Opinion Piece in The Australian in 2006 criticising the Sydney Anglican Diocese for not ordaining women as church leaders. I review whether, if the Perth leader’s expression were burdened by religious tolerance laws, the speech could fall within the protective scope of the implied freedom of political discourse.

Secondly, I examine the speech of two Catholic leaders - Cardinal Pell of Sydney and Archbishop Hickey of Perth - who each, separately, in 2007, threatened ‘consequences’ to Catholic NSW and Western Australian politicians if the politicians voted in support of therapeutic cloning legislation. The Case Study considers whether, if the Catholic leaders’ speech was burdened by contempt of parliament laws, the expression might be constitutionally recognised political speech.

The third illustration is a ‘tweet’ by the then head of the Australian Christian Lobby, Brigadier Jim Wallace. He tweeted a message on 25th April 2011 - Anzac Day - which implied that those who fought for Australia stood for higher moral values than people who supported either gay marriage or Islam. I review whether the Brigadier’s tweet, if burdened by anti-vilification laws in relation to the comment about gay marriage could fall within the protective scope of the implied freedom of political discourse as ‘political’ speech.

The speech in these Case Studies occurred at different times: 2006, 2007 and 2011 respectively. I choose these examples because, in the case of the first two Case Studies, they involve speech by religious leaders and in the case of the last example, the speech is by a lobbyist who represented church organisations. The Case Studies are contemporary and

168 interesting - and perhaps most importantly - in each case the speech in question could be subject to a legal burden. In the case of Cardinal Pell and Archbishop Hickey, the State Parliaments of NSW and Western Australia considered laying contempt charges against those men. It is therefore possible to assess whether the speech could be subject to the implied freedom as though the speech in each instance was actually subject to a burden.

I review the potential application of the implied freedom to the expression (and, more specifically, whether the speech could be political speech under Theophanous or the first limb of Lange) according to the law as it stands at the time of writing.

II. CASE STUDY 1: WOMEN’S NON ORDINATION

Overview This Case Study explores whether an Opinion Piece published by a senior Australian Anglican clergyman about women’s non-ordination practices in another Australian Anglican Diocese could qualify as ‘political speech’ under the implied freedom of political discourse if the expression was burdened by religious tolerance laws.

Perth Anglican Archbishop Roger Herft Piece, published an article in The Age in 2006. His essay referred to a sermon delivered in a Lakemba mosque by the then Australian Mufti, Sheikh Taj El-Din Hamid Hilaly which was later made public and translated into English. Using the Sheikh’s message as an example, drawing comparisons between conservative religious teaching and referring to the Sydney Anglican Diocese’s policy of not ordaining women, Archbishop Herft argued in his Opinion Piece, inter alia, that the selective use of scripture by Islamic and Christian scholars, including by members of the Sydney Anglican

Diocese, ‘keeps women in subjection’.

I assume for the purpose of this Case Study that the Archbishop’s speech is burdened by religious tolerance legislation in Victoria, namely, the Racial and Religious Tolerance Act (Vic) 2001) (‘Religious Tolerance Act’).3 To show that such a burden is a not unrealistic

3 There currently are no religious tolerance laws in the state of NSW, where the Sydney Anglican Diocese is principally located. However, the Opinion Piece was published in a national newspaper and there are religious tolerance laws in Victoria, Queensland and Tasmania (see below). The Case Study therefore considers a hypothetical action in relation to the Opinion Piece under the religious tolerance laws of Victoria. Religious tolerance laws such as those in Victoria, Queensland and Tasmania

169 proposition,4 in Section II B, I illustrate how the Opinion Piece appeared to seriously offend male clergy in the Sydney Anglican Diocese.5

In Section II C, I inquire into whether Archbishop Herft6 could plausibly argue that the Opinion Piece is ‘political speech’ for the purpose of pleading the implied freedom of political discourse in response to the hypothetical burden under the Religious Tolerance Act.7

generally regulate conduct which causes serious offence or contempt towards persons because of their religious beliefs. Specifically, section 8 of the Racial and Religious Tolerance Act (Vic) (2001) provides that: ‘A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons ...’ Section 11 limits section 8 by stating – ‘(1) A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith- (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report of any event or matter of public interest. (2) For the purpose of subsection (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising’. For other Australian religious tolerance legislation, see s.124A Anti-discrimination Act 1991 (Qld), which, subject to specified exceptions (e.g., fair reporting), prevents a person by public act inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the grou Section 109 of the Queensland Act provides that it does not apply to religious bodies, including with respect to the ordination or appointment of priests. See also s.19 Antidiscrimination Act 1998 (Tas) which prohibits a person by public act inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the religious belief or affiliation or any member of the group. Section 42 of the Tasmanian legislation exempts certain cultural and religious practices. In December 2003, Senator Joe Ludwig (Labor, in Opposition) introduced a Bill into the Commonwealth Parliament which would have amended the Crimes Act (Cth) 1914 to prohibit threats of physical harm or to property on the basis of a person’s religion: see http://www.austlii.edu.au/au/legis/cth/bill/rarhb2003241/ (viewed 9th September 2013). The legislation was never passed. Since 2010, it has been an offence under the Commonwealth Criminal Code to intentionally urge the use of force or violence against a group of people, or a member of a group, when ‘the target group is distinguished by race, religion, nationality, national or ethnic origin or political opinion’. For such action to be unlawful, the offender must intend that violence or force will occur and the use of force or violence must ‘threaten the peace, order and good government of the Commonwealth’: see sections 80.2A and 80.2B Criminal Code (Cth). In 2005, the NSW Parliament considered a Bill to amend the NSW antidiscrimination legislation, the Anti-Discrimination Amendment (Religious Tolerance) Bill 2005 (NSW) (‘Religious Tolerance Bill’) but the NSW laws were never enacted. If the laws were enacted, the Religious Tolerance Bill would have prohibited any public act which, inter alia, incited severe ridicule of a person or group of persons on the grounds of their religious belief or religious activity.

4 I do not consider the second limb of Lange.

5 There is no intended suggestion that Archbishop Herft’s article did infringe, or was even alleged to have infringed, religious tolerance laws in Australia.

6 I do not consider whether The Age could specifically also plead a case based on the implied freedom of political discourse.

7 For an unsuccessful implied freedom claim under section 8 of the Religious Tolerance Act, see Catch the Fire Ministries Inc v, Daniel Nalliah and Daniel Scot v Islamic Council of Victoria Inc and

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This analysis involves considering in further detail how the Australian courts have defined political speech and examining how these principles could apply in relation to a constitutional free speech claim with respect to the hypothetical burden on the Opinion Piece under the Religious Tolerance Act.

I note, here, that section 116 of the Constitution could not protect Archbishop Herft’s expression if it infringed the Religious Tolerance Act as the Victorian legislation is not a

Commonwealth statute.8 There are no Commonwealth religious tolerance laws. I do not further consider section 116 in this Case Study.

Archbishop Herft’s Article In October 2006, Sheikh Hilali was reported to have said that women who do not wear a hijab are like ‘uncovered meat’ to whom men might be attracted sexually, as would a cat be to meat.9 In an article published in the secular media (The Age) on 3 November 2006, Perth Anglican Archbishop Roger Herft compared the theology which lay behind Sheik Hilaly’s apparent views about women to the Sydney Anglican Diocese’s policies in not ordaining women as rectors or bishops.10

Attorney General for the State of Victoria (2006) 206 FLR 56 (‘Catch the Fire’) in which the evangelical Christian defendants unsuccessfully raised the implied freedom of political discourse in relation to an allegation that they had breached section 8 of the Religious Tolerance Act. The Court’s decision is reviewed later in this Case Study.

8 Section 116 of the Constitution only applies to Commonwealth laws. The section could not protect speech burdened by state laws.

9 In an edited English translation prepared by SBS, the Sheikh is reported to have said: ‘If you take uncovered meat and put it on the street, on the pavement, in a garden, in a park or in the backyard, without a cover and the cats eat it, is it the fault of the cat or the uncovered meat? The uncovered meat is the problem. If the meat was covered, the cats wouldn't roam around it. If the meat is inside the fridge, they won't get it. If the meat was in the fridge and it (the cat) smelled it, it can bang its head as much as it wants, but it's no use. If the woman is in her boudoir, in her house and if she's wearing the veil and if she shows modesty, disasters don't happen.’ See http://www.news.com.au/story/0,10117,20652824-2,00.html?from=public_rss, viewed 24th November 2006.

10 As can be seen in the full text of the Opinion Piece, Herft also referred to Melbourne Sheikh Mohamed Omran, an outspoken cleric who referred to Osama bin Laden as a ‘good man’, questioned the involvement of Muslims in the London bombings, and was allegedly linked to Melbourne men charged with terror-related offences: see also William Birnbauer, The Age, February 19 2006, ‘Speak No Evil’, http://www.theage.com.au/news/national/speak-no-evil/2006/02/18/1140151850821.html, viewed 22nd September 2013.

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Referring to the opinions of conservative Muslim and Christian scholars, and mentioning an academic from Moore Theological College (an institution closely affiliated with the Sydney Anglican Diocese), Herft wrote

The Bible understood by Sydney's leadership as a prescribed text sees life as divinely sanctioned. It limits the role of women to a particular status with defined boundaries of engagement ….

The divinely sanctioned world view authenticated by the selective use of Scripture by these Islamic and Christian scholars keeps women in subjection and gives a clear passport to heaven for the chosen. Those who see the Scriptures differently will find their destiny in the fires of hell.11

The full text of the Opinion Piece is set out in the Appendix to this thesis (p.258).

Archbishop Herft’s Opinion Piece appeared to upset senior male clergy in the Sydney Anglican Diocese. The then Anglican Archbishop of Sydney, Dr Peter Jensen, responded to the Perth Archbishop’s article by ‘discussing the matter privately’ with Archbishop Herft and asked a web administrator in the Sydney Anglican Diocese to ensure that that there be no web link to the story posted on a Sydney Anglican Media discussion thread.12 Other Sydney Anglican leaders issued responses. Anglican Bishop of North Sydney Glenn Davies (appointed Sydney Anglican Archbishop in 2013, to replace the by then retiring Dr Jensen) accused Archbishop Herft of ‘taking a political shot’ at Sydney Anglicans.13 Anglican Bishop of South Sydney Rob Forsyth said Herft's statement amounted to a serious failure of

11 Archbishop Roger Herft, The Age, 3 November 2006, ‘Christians are guilty of prejudice, too’ http://www.theage.com.au/news/opinion/christians-are-guilty-of-prejudice- too/2006/11/02/1162339985160.html?page=fullpage#contentSwap1, viewed 22 September 2013.

12 See: http://www.sydneyanglicans.net/community/viewtopic.php?t=2218&postdays=0&postorder=asc&start =15, viewed on or about 3 November 2006, but link since deleted.

13 See Linda Morris and Anna Patty, Sydney Morning Herald, 3 November 2006, ‘All religions degrade women’, http://www.smh.com.au/news/national/all-religions-degrade- women/2006/11/02/1162339989150.html, viewed 22nd September 2013.

172 judgment by the Perth Archbishop and he defended the Sydney Diocese against any accusation of moral equivalence with Sheikh Hilaly.14

Archbishop Herft later issued an apology to the Sydney Anglican Diocese.15 The Perth leader’s apology showed (perhaps even more clearly than did his Opinion Piece) that what prompted Herft to write the article in The Age was the Sydney Anglican Diocese’s opposition towards the ordination of women and even more specifically its decision at that time to engage in no further debate on ordaining women clergy in the Sydney Diocese.16 The Perth leader’s statement of regret also confirmed that Archbishop Herft held a strong difference of opinion with the Sydney Anglican Diocese about the interpretation of bible passages relating to the role of women in the Church.

Could the Archbishop’s Speech Fall Within the Protective Scope of the Implied Freedom of Political Discourse? 1. Questions Raised by the Case Study The Opinion Piece appears to reflect differences of opinion between Archbishop Herft and male clergy in the Sydney Anglican Diocese about interpreting parts of the Christian bible concerning the role of women in the Anglican Church. While, as will be seen, it may be

14 See Barney Zwartz, The Age, 3 November 2006, ‘Sydney Anglicans “as bad” as Hilali’, http://www.theage.com.au/news/national/sydney-anglicans-as-bad-as- hilali/2006/11/02/1162339984705.html, viewed 22nd September 2013.

15 I have not been able to find an official publication of any apology by the Perth Archbishop, although the text of part of an apology from Herft is reported on a blog managed by Byron Smith, Sydney Anglican and Fellow of the Centre for Public Christianity and (at the time) PhD candidate in Christian Ethics, Edinburgh University. The text of the reported apology by Archbishop Herft is as follows: ‘The moment I was made aware that my unhelpful link in the article to the current problem with the Chief Mufti had caused offence to the Diocese of Sydney and many others, I spoke with Archbishop Jensen and expressed my regret. He graciously admonished and accepted my apology at what had been taken as an objectionable inference. I have the highest regard for the integrity and the leadership in the Diocese of Sydney and would in no way see Anglicans in Sydney as countenancing the views expressed by the Chief Mufti. I know that the Diocese of Sydney has a high regard for women and the role they play in ministry in Church and society. I regret the pain caused by me to those who in a faithful understanding of the Scriptures do not accept the leadership of women in the ordained ministry. I was deeply saddened to hear the decision to close debate on this matter in one of the most significant diocese in the Anglican Communion. The impact that this has on many women in ordained ministry who feel further diminished disturbed me greatly.’ See ‘Nothing New Under the Sun’, blog, http://nothing-new-under-the-sun.blogspot.com.au/2006/11/archbishop-herft-on-women-and- bible.html?showComment=1164953280000#c116495332180349915, viewed 22nd September 2013.

16 See Sydney Anglicans, ‘Sydney speaks on women’s ordination’, 23rd October 2006, http://sydneyanglicans.net/news/sydney_speaks_on_womens_ordination/, viewed 22nd September 2013.

173 possible to infer or imply connections between the Opinion Piece with governmental matters, these links are not obvious on the face of the article.

Because there seems to be no obvious link with political matters, the Case Study provides an opportunity to consider, first, whether speech from a religious perspective may, if burdened, fall within the protective scope of the implied freedom of political discourse even if the speech has only a potentially weak connection with governmental matters. Also: how subtle can the political message be (and subtle to whom)?

Secondly, and related to the first point, the Case Study allows for a review of the following question. Does burdened political speech comprise expression that is generally (objectively) relevant to voting choices and/or ministerial responsibility, or, by contrast, could burdened speech be ‘political’ if only a few people regard the speech as relevantly political? Relatedly, if only small audience, or perhaps a very small proportion of a large audience would regard speech about religion as relevantly political, then would that evidence be sufficient to bring the speech, if burdened, within the protective scope of the implied freedom? What if only the person expressing the view (in this case, Archbishop Herft) perceived the speech to be relevantly political: could that evidence be sufficient for a court to determine that the speech is relevantly constitutional speech?17

2. Could Theophanous Protect the Opinion Piece? In what is likely the broadest description of political expression by the High Court, Mason CJ, Toohey and Gaudron JJ in their joint judgment in Theophanous stated that political speech includes discourse about the political views and public conduct of all persons involved in activities that have become the subject of political debate.18

Despite some similarities between Theophanous and Lange (as described in Chapter 4), the Theophanous joint judgment did not expressly connect political speech with Commonwealth voting choices or executive responsibility in the same way that the High Court did in Lange. Nor did the Theophanous judgment apply the same two stage test that the High Court

17 It would seem difficult to discern a subjective perspective without receiving evidence from the Archbishop himself.

18 On this reasoning, public discussion about judicial decisions of significant public interest - say, in relation to sentencing in high profile criminal cases, immigration, tax and marriage - could constitute political discourse.

174 employed in Lange and which the High Court has, with some modifications, followed since.19 Instead, the Theophanous joint judgment described the implied freedom of political discourse as pertaining to

There must therefore be some doubt about the High Court (or any other court) would adopt the comparatively wide view of political speech in Theophanous. Yet, the High Court has never expressly overruled the Theophanous joint judgment and the possibility of a court (including the High Court) following Theophanous cannot be ignored. It is also conceivable that, based on the Theophanous conception of political speech, a court may find that the Archbishop’s Opinion Piece constitutes protected political expression, although, as will be seen, I suggest that it is unlikely that a court would reach such a view.

First, the Perth leader used the seemingly sexist language of a widely reported sermon by a Muslim leader as a comparator for the Sydney Anglican Diocese’s bible-based opposition to appointing women as religious leaders. Archbishop Herft commented on the language of ‘Aussie pub culture’ and described the demeaning sexist aspects of language used in some parts of Australian society

Hilali describes women as "half soldiers" — deceivers used by Satan to tempt men with their raw sexuality. They must be kept

19 There is no reference in the Theophanous joint judgment to the qualifying language in the second limb of Lange, namely, consideration of whether the relevant burden is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

20 n2, 123 (Mason CJ, Toohey and Gaudron JJ).

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under submission — covered in case men are trapped by their lust and fall into sin.

We are rightly horrified by the tone and language used by the sheikh in his use of the phrase "uncovered meat" to describe women who do not wear the hijab. But let us not forget that similar views are found in the Christian faith and in secular ideologies portrayed in the degrading view of "the sheila" in Aussie pub culture.21

Arguably, this kind of speech - biting social commentary about sexist language, including in religious communities - could fall within the broad view of political speech described in Theophanous. It is also, though coming from a religious vantage point, a public comment by a public figure about a matter of public interest: sexism.

Weighing against the view that this might be the kind of political speech described in Theophanous is the contention that the above aspects of the Perth leader’s article were incidental to the primary subject matter of the Opinion Piece, which was a criticism of the Sydney Anglican Diocese’s interpretation of bible passages relating to women and leadership as reflected in the below passage:

In the recent debate in the diocese of Sydney on the ordaining of women, the foundation issues were argued with more sophistication, but the basis on which the determination never to allow women into the ordained ministry was canvassed on similar grounds. The Bible understood by Sydney's leadership as a prescribed text sees life as divinely sanctioned. It limits the role of women to a particular status with defined boundaries of engagement.22

Put slightly differently, the Opinion Piece was about biblical interpretation, not public affairs. Differences of opinion about matters of biblical interpretation - hermeneutics - are probably not, properly described, ‘public’ matters, at least not in the sense that the joint judgment

21 See Appendix, p.258.

22 See Appendix, p.258.

176 conceived of public matters in Theophanous, especially when those differences of opinion are held by church leaders.

It may also be said in further arguing against the proposition that Theophanous could protect the Archbishop’s speech, that expression of a religious viewpoint must have something of a public quality - i.e., governmental quality - if the speech is to qualify for constitutional protection. The Theophanous joint judgment described protected speech as having distinctly public qualities - speech which would not necessarily include or contemplate internecine matters of church policy or bible interpretation - including, as the joint judgment described, speech or expression about

... the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office.23

The Theophanous joint judgment thus contemplated discourse about public figures, people seeking public office and subjects which are the focus of public political debate. By contrast, it might be said that a debate, even a highly public one, amongst church leaders about bible interpretation would be unlikely to within the Theophanous joint judgment’s description of political discourse.

It might, however, then be said, secondly, that Herft’s article indirectly raised questions about women’s employment opportunities in leadership roles in the Sydney Anglican Diocese. The Opinion Piece possibly illustrated how women outside the Sydney Anglican Diocese - though not within it - can aspire to secular leadership roles and how, by contrast, male clergy’s role in bible interpretation can implicitly thwart women’s career goals in the Anglican Church. In this sense, the Perth religious leader’s commentary could be seen as relevant to the role of women as professionals in the workplace, itself a matter of great public and political importance and therefore potentially within the Theophanous conception of political speech.

This argument, however, begs the question about whether public commentary about church leadership positions is relevant to public life in the sense contemplated in Theophanous. Arguably, religious debates are, or belong, in the private sphere and are not matters of public

23 Theophanous n2, 124 (Mason CJ, Toohey and Gaudron JJ).

177 concern. Such a notion of church life potentially being separated from public life is not necessarily a view that is based on any conception that the implied freedom cannot include speech about religion. Yet, there may be reasonable grounds for believing that church life may not be public life, at least not in the sense described in the joint judgment in Theophanous. For example, in church communities, including evangelical religious organisations such as the Sydney Anglican Diocese, worshippers arguably implicitly submit themselves to the (often male) authorities in the church organisations in relation to church life and the rules of the voluntary organisations (the Sydney Anglican Diocese in this case) then apply. More specifically, with some exceptions (say, in relation to property rights or harm to reputation)24 members of voluntary organisations tend to rely upon the authority of the organisation independently of the power or influence of any arm of the state. This is not to say that voluntary organisations are completely free from state regulation. The state may, for example, have a role in the corporate governance of the organisation, or with respect to tax obligations (or exemptions), criminal laws, or record-keeping requirements. The state may even give religious organisations some regulatory relief in areas such as tax or recognition of their charitable status; there may be reciprocity between religious organisations and the state, with the church organisation even providing volunteers to support government services. Freedom from state interference may allow individuals within voluntary organisations to be free to meet worship, interact and support one another, confident in doing so that there is minimal external influence and potentially empowering those members to enjoy their autonomy and freedom from state influence. The absence of state rules is also arguably what distinguishes public life from private life and differentiates voluntary organisations from public and corporate ones.

In short, counter to the argument that the Archbishop spoke about the role of women in public life, there is a reasonable view that his comments were about women in private

24 Australian courts do, in the main, tend to regard the policies of voluntary organisations (such as churches) as being not susceptible to judicial challenge unless there are exceptional circumstances which affect, say, individuals’ property rights or their reputation. A decision of potentially reputation- harming nature may attract an entitlement to natural justice even in a voluntary organisation: see Fisher v. Keane (1879) 11 Ch D 353; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Plenty & Plenty v Seventh Day Adventist Church of Port Pirie [2003] SASC 68; and Carter v NSW Netball Association [2004] NSWSC 737. See also Scandrett v Dowling (1992) 27 NSWLR 483, a case relating to women’s ordination in the Sydney Anglican Diocese.

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(church) life - namely, as part of a voluntary organisation, enjoying freedom from the state - which is not the kind of discourse the joint judgment described in Theophanous.

Thirdly, however, from a slightly different perspective, it might be said that, based on the Theophanous view of political discourse, Archbishop Herft’s article impliedly raised the question of the state supporting religion by retaining exemptions in the NSW antidiscrimination legislation in relation to ordination decisions amongst religious organisations. 25 The exemptions in the laws free religious organisations from the constraints of the antidiscrimination laws with respect to their ordination decisions. It might be said that the government’s non-repeal of exemptions for religious organisations under the NSW antidiscrimination laws means that the topic of women not being appointed to church leadership positions in the Sydney Anglican Diocese is, a priori, a political matter under the Theophanous view of political expression (and possibly even under Lange), for the Sydney Anglican Diocese could not have such anti-ordination policies in place without the implicit support of the state.

The difficulty with this final argument is that Archbishop Herft did not mention, or even allude to these considerations in his Opinion Piece. The article instead seemed to focus on hermeneutics, albeit using the well-publicised sermon of a Muslim Sheikh as the backdrop to the published opinion. There does not seem to be any obvious or even implied connection between Archbishop Herft’s article and the exemptions in the legislation relating to ordination decisions by religious organisations.

25 NSW, Victorian and Commonwealth laws exempt religious institutions from the operation of antidiscrimination laws in relation to ordination decisions. See e.g., section 82 Equal Opportunity Act (Vic) 2010. See also the exemptions in section 56 of the Antidiscrimination Act (1977) (NSW) relating to the ‘ordination or appointment of priests’ which mean that religiously based policies which may otherwise infringe secular prohibitions on discrimination in the workplace are not prohibited under the NSW antidiscrimination legislation. The exemptions in the state legislation are mirrored in section 37 (and section 38) of the Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act’), which states that the provisions of the Sex Discrimination Act do not apply to 'the ordination or appointment of priests, ministers of religion or members of any religious order' (sexual harassment is not exempted). The provisions of the Sex Discrimination Act which apply to sexual discrimination in the workplace apply principally to Commonwealth employees or those seeking to become Commonwealth employees: see section 8 Sex Discrimination Act. Irrespective of the exemptions relating to ordination, the Sex Discrimination Act would not apply to the policies of the Sydney Anglican Diocese because members of the Diocese, even if employed by the Diocese, are not Commonwealth employees.

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3. Could the Opinion Piece Satisfy the Lange View of Political Speech? The case law suggests that if Archbishop Herft’s Opinion Piece was entirely religious, then his speech could not fall within the protective scope of the Lange freedom. For example, as noted in Chapter 4, in APLA, Gleeson CJ and Heydon J held that the implied freedom does not protect communications that are entirely about commercial activity.26 As will be seen in more detail in this Case Study, although in a very different context, the Court of Appeal of the Supreme Court of Victoria held in Catch the Fire27 that the speech of two Christian evangelical pastors about Islam did not fall within the protective scope of the implied freedom and the Court followed the High Court’s reasoning in APLA in reaching that conclusion.

In another very different context, though arguably consistent with APLA, the Full Federal

Court of Australia in Rabelais28 suggested that political speech does not include material that amounts to advocacy of law-breaking because that kind of kind of speech does not protect the exercise by the people of a free and informed choice as electors. The Court’s decision in Rabelais is consistent with the principle laid down by the High Court in APLA in the sense that the protective scope of the implied freedom of political discourse does not include speech that is unrelated to voting choices or executive responsibility.

In Harkianakis v Skalkos,29 Dunford J (sitting as the trial judge) in the NSW Supreme Court held that the implied freedom does not protect communications that are about religious matters.30 His Honour’s decision was based at least in part on the understanding that section

116 of the Constitution made religion irrelevant to Commonwealth politics.31 His Honour’s view is not, with respect, correct insofar as it depends for its rationale upon section 116 excluding speech about religion from the implied freedom.32 Dunford J’s decision is,

26 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 (‘APLA’), 351. See also 481 (Callinan J).

27 n7.

28 Brown v Classification Review Board (1998) 82 FCR 225 (‘Rabelais’).

29 (1999) 47 NSWLR 302.

30 Ibid, 306.

31 Ibid.

32 I demonstrated in Chapter 4 that such a view is not a priori correct.

180 nevertheless, consistent with the reasoning of Gleeson CJ and Heydon J in APLA in that, just as the implied freedom does not protect communications that are essentially a commercial activity, it would not protect communications that are essentially about religious considerations.

In a different field again, but reflecting a similar principle to the High Court’s reasoning in APLA, the Australian courts have held that the Lange freedom does not protect speech about judicial decisions.33 Although the rationale for this principle has been challenged (and sometimes strenuously),34 the reasoning is generally consistent with Lange in that, perhaps with the acknowledged exception of the appointment or possible removal of judges to or from office (where arguably there is a connection with the executive given that the executive appoints judges and the executive can, in exceptional circumstances, also remove them), the courts operate independently of the executive and Australian citizens do not vote for (or remove) judges.35 There is not generally considered to be a sufficiently strong connection between judicial decisions and voting choices or responsible government for speech about court judgments to fall within the first limb of Lange.

In this light, if Archbishop Herft’s speech was unrelated to voting choices or executive responsibility then it would not fall within the protective scope of the implied freedom. In particular, if the Perth leader’s commentary was viewed as speech only about religion, then just as the speech about commercial matters in APLA was not considered to be relevantly political speech, likewise Archbishop Herft’s speech would not meet the High Court’s description of political speech in Lange. It might even be regarded as the kind of speech

33 See e.g., Hogan v Hinch (2011) 243 CLR 506 554-5 (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). See also John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 158 FLR 81, where Spigelman CJ, 96, explained that his Honour did not generally believe that the constitutional freedom applies to speech about courts and judges.

34 See Ronald Sackville, ‘How Fragile Are the Courts? Freedom of Speech and Criticism of the Judiciary’ (2005) 31 Monash University Law Review 191.

35 The executive appoints judges, retired judges may chair inquiries commissioned by the executive and in rare circumstances, Parliament may remove judges from office. However, in the main, given judges’ independence from the political process, discourse about the courts is not considered to be sufficiently closely connected with either representative or responsible government to amount to protected political discourse.

181 upon which the law - section 8 of the Religious Tolerance Act - imposes no real effect36 because the speech lacks a sufficient connection with government or political matters.

It might, however, also be contended that the Perth leader expressed a view about the lack of career advancement for Sydney Anglican women and that this subject matter falls within a broad view of political discourse that is consistent with Lange.37 In this respect, the Opinion Piece referred to the way the (male) leadership in the Sydney Anglican Diocese

… limits the role of women to a particular status with defined boundaries of engagement.

Arguably, this was a comment about the stifled choices of Sydney Anglican women, aspirations stifled by men. It might even be said that Archbishop Herft’s statement related to the limited career choices within the Church for women as Sydney Anglicans and the Opinion Piece was an implied reference to the need for workplace policy reform with the Sydney Anglican Diocese.

In support of an argument that the implied freedom of political discourse can protect speech about policy reform, consider this: the High Court held in Aid/Watch Incorporated v Federal

Commissioner of Taxation38 (‘Aid/Watch’) (partly by reference to the implied freedom of political discourse) that the system of law in Australia postulates for its operation agitation for legislative and political changes.39 If Archbishop Herft were regarded as agitating for legislative change (say, by arguing for the repeal of exemptions in NSW antidiscrimination legislation in relation to ordination decisions), then his article might be seen as the kind of contribution to public discourse the High Court recognised in Aid/Watch as a potentially protected form of political discussion. This view could, for example, be submitted on the basis that the Perth leader’s article implicitly urged the government to repeal the exemptions in antidiscrimination legislation. Herft did so, it might be said, by indirectly broaching the topic of the exemptions in the antidiscrimination legislation which allow the Sydney

36 See Tajjour v NSW [2014] HC 35, 42 [106] (Crennan, Kiefel and Bell JJ).

37 French J in Rabelais, n28, 237-8, observed that political matters may include discussion about the social and economic organisation of society as well as about its laws and proposals for their change. Emphasis added.

38 (2010) 241 CLR 539.

39 Ibid, 556 (French CJ, Gummow, Hayne, Crennan and Bell JJ).

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Anglican Diocese to lawfully discriminate against appointing women as Church leaders either in the Diocese or as leaders of the Diocese.

It might also be said that, to not recognise Archbishop Herft’s speech as potentially protected political discourse would be to fail to acknowledge that speech about matters of social reform - including in churches - can be pressed in discrete ways which might not necessarily include overt or obvious political messages. Further, to not include implicit or even perhaps subliminal political messages as political expression would be to deny the obvious reality that people have different ways of expressing their own viewpoints - some are more nuanced than others - and that a relevantly political message need not be overtly political to fall within the Lange freedom, particularly if it comes from a religious leader who is accustomed to using religious language and not political language in everyday speech.

In further support of this submission, it may be noted that, in Hogan v Hinch,40 French CJ described the implied freedom as protecting speech about matters ‘potentially within the purview of government’41, which might, with flavours of the joint judgment in Theophanous, imply a more generous view of the scope of the implied freedom than might be otherwise suggested by the Lange decision. The question of the government possibly removing the exemptions from the antidiscrimination legislation relating to ordination decisions could be a policy matter potentially within the purview of government and, conceivably, the Perth leader’s speech touched on this topic.

While these arguments may suggest that the Archbishop’s Opinion Piece included at least some political content, I believe that, to this point, the weightier argument is that there was little or no evidence that the Archbishop’s article pressed for (or against) legislative change or even for reform within a church community. He perhaps agitated for reform or change of the subordination policies within the Sydney Anglican Diocese, but even if reform were his aim, the Opinion Piece focussed on bible interpretation - and not governmental action - to achieve that objective. The article contained no direct or even implied reference to the exemptions in the antidiscrimination legislation nor any hint of government action (or inaction) to address those laws.

40 n33.

41 Ibid, 544.

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It would also seem that any connection between the Opinion Piece and responsible or representative government could only be faintly inferred from the text of the Opinion Piece or otherwise mined from what otherwise appears to be a spirited criticism about Sydney Anglicans’ allegedly flawed methods of biblical interpretation. If a court had to peer behind the text of the Opinion Piece to extract a relevantly political meaning to the Archbishop’s words, then this may stretch the constitutional definition of ‘political expression’ too far. I do not believe that a court would search that far into the text to derive a political meaning to the content of article. This, however, does not itself suggest that there is any inherent limitation in the implied freedom protecting the speech of the Archbishop in the Opinion Piece. Rather, it is to simply say that, the better view, to this point of the analysis, is that a court would likely find that the Opinion Piece did not constitute political discourse for similar reasons to those of the High Court in APLA, namely, the Opinion Piece consisted principally or entirely of non-political content.

4. Who was/is the Audience? Perhaps the ‘political’ implications of the Perth leader’s message were discernible by a small or even tiny audience and were not obvious to a wider community. Perhaps there was a largely hidden political message, perceptible only to a few? What if any political implications of the Archbishop’s Opinion Piece could be perceived only by clergy or theologians in the Sydney Anglican Diocese? How significant is it that the Anglican Bishop of North Sydney Glenn Davies criticised Archbishop Herft for taking a political shot at Sydney Anglicans: does his use of the word ‘political’ in commenting on the Opinion Piece suggest that some clergy perceived the Opinion Piece to have relevantly political implications which were at least discernible to them? More generally, whose perspective is relevant to whether the content of speech or other expression is political, non-political or apolitical?

These questions may be important in this Case Study, for, as suggested, prima facie, Archbishop Herft’s article appeared to be about the religious doctrines of a diocese within the Anglican Church of Australia and there seems to be little obvious connection between the Archbishop’s speech and ‘political’ matters, state, Commonwealth or otherwise. It is possible that by exploring these questions in more detail, a different view might be reached about whether the protective scope of the implied freedom of political discourse could include Archbishop Herft’s Opinion Piece.

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The High Court stated in Lange that the constitutional freedom applies to communications ‘about’, ‘on’, ‘concerning’ or ‘relevant to’ government or political matters.42 The language suggests that Lange speech must have some objectively verifiable relevance to governmental matters, the courts being the final arbiters of whether the speech is ‘political’ discourse. Consistent with this view, Meagher, as noted, contends that political speech is expression which is reasonably relevant to the voting choices of its intended audience.43 It would follow from this reasoning that whether or not speech is ‘political’ in the Lange sense is determined by whether the likely audience would regard the speech as being reasonably -i.e., objectively - relevant to political affairs in the Commonwealth Parliament.

From a different perspective, however, the aforementioned language in Lange (namely, ‘about’, ‘on’, ‘concerning’ or ‘relevant to’) reflects a more prosaic point, namely, that the relevant burdened speech must have some connection with (i.e., relates to, or is relevant to) governmental matters. Further, that the Lange terminology says little about how courts ought to decide whether speech falls within the first limb of the constitutional freedom. Instead, the courts simply decide, on the evidence before them: if or how the plaintiff’s speech is burdened, whether the expression is relevantly political; and then, assuming the task is considered necessary, to apply the second limb of Lange - proportionality - to determine the validity of the law.

5. Fringe Political Views While Archbishop Herft’s own characterisation of burdened ‘political’ speech, by itself, is unlikely to satisfy a court that there is a burden on political speech,44 the implied freedom of

42 n1, 560-1.

43 Dan Meagher ‘What is ‘Political Communication?’ The Rationale and Scope of the Implied Freedom of Political Communication’, (2004) 28 Melbourne University Law Review 438, 467. This approach also requires some identification of the characteristics of the likely audience in order to assess how they would regard the message of the person expressing the viewpoint.

44 It seems relatively clear that the plaintiff’s own perspective about the constitutional relevance of their speech is, by itself, unlikely to bring speech under the first limb of Lange. For a court to rely solely on the plaintiff’s characterisation of the speech to identify political speech would likely stray too closely to viewing the Lange freedom as a personal free speech right and a court is therefore unlikely to rely on that evidence alone as the basis for identifying political speech. In Lange (n1), for example, the High Court held that ‘… ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power’: 560.

185 political discourse may protect views which have political traction only with a small minority of the electorate. It is even conceivable that, even if only a few or even a minority of people would regard Archbishop Herft’s speech as having any connection with governmental matters, such a perception, amongst even a small number of people, may be sufficient for the speech to amount to Lange discourse.

This point can be inferred from the High Court’s reasoning in relation to ‘fringe’ political speech. The High Court has acknowledged that political speech can include non-mainstream views. It has, for example, held that protected political speech may comprise offensive discourse45 and/or views that some consider may lie at the fringe of political discussion.46 It has also held that the implied freedom can protect unreasoned communications.47 Hayne J put the matter this way in Monis

The very purpose of the freedom is to permit the expression of unpopular or minority points of view. Adoption of some quantitative test inevitably leads to reference to the "mainstream" of political discourse. This in turn rapidly merges into, and becomes indistinguishable from, the identification of what is an "orthodox" view held by the "right- thinking" members of society. And if the quantity or even permitted nature of political discourse is identified by reference to what most, or most "right-thinking", members of society would consider appropriate, the voice of the minority will soon be stilled. This is not and cannot be right.48

His Honour thus acknowledged that different people bring different perspectives to the notion of what constitutes political expression. Hayne J’s reasoning accepts that some political opinions are more reasonable than others and that some peoples’ political views are those which many people, or even perhaps most others, may consider distasteful. These fringe

45 All six High Court judges in Monis v R (2013) 249 CLR 92 (‘Monis’) concluded that s 471.12 of the Criminal Code burdened the defendant’s alleged offensive political speech.

46 See Monis, ibid, 131, 134 (French CJ), 171 (Hayne J).

47 Levy v Victoria (1997) 189 CLR 579 (‘Levy’), 623 (McHugh J); see also 613 (Tooney and Gummow JJ).

48 n45, 146.

186 views can nevertheless, according to the High Court, fall within the protective scope of the implied freedom of political discourse.

If political speech can include expression at the fringe of political discourse, then, I suggest, by analogous reasoning, there is the scope for political speech to include speech which comes from a primarily or even - arguably - an entirely religious perspective. This is despite the fact that some people, or perhaps even most, may consider that that kind of speech is in no way relevant to political affairs. 49 Although this suggestion may seem contentious and perhaps at odds with the reasoning of the High Court in APLA, this point can be argued as a matter of logic. Take, for example, certain hypothetically expressed opposition to gay marriage reform which simply reflects a speaker’s personal discomfort with legalising gay marriage, with the person’s views in this example being underpinned by a potentially bigoted view that homosexual relationships are not ‘normal’ (Person A). Person A may hold nothing more than a personal negative opinion about gay people being married, uninfluenced by any religious perspective. Consider, by contrast, equally strong opposition to gay marriage reform which is based on firmly held religious conviction. This other person (Person B) opposes gay marriage because it is supposedly unbiblical.

If Person A and Person B say the same thing when opposing gay marriage (and express themselves in generally the same way, and the message is received by a similar audience), then there may be no difference in the contribution to political discourse of Person A and Person B. Either kind of speech, whatever the speaker’s motivation or belief, may constitute opposition to legislative reform to allow gay couples to marry. Either speaker’s expression may resonate politically with some parts of the audience who receive the speaker’s message and/or perhaps parts of the electorate to whom the immediate audience chooses to pass on the message. To hold that Person A’s potentially bigoted opposition to gay marriage is legitimate political expression while the religiously motivated Person B’s opposition to gay marriage is not legitimate political expression would, I believe, stray perilously close to what Hayne J in Monis rejected as ‘the identification of what is an ‘orthodox’ view held by the ‘right- thinking’ members of society’.50 In practical terms, neither Person A nor Person B may

49 I established in Chapter 4 that there is no a priori constitutional barrier to the implied freedom including speech about religion.

50 Monis n45, 146 (Hayne J).

187 express a view that most right thinking members of the electorate would consider to be a legitimate view but this is beside the point. If either person’s speech is burdened, then Lange may protect either person’s speech assuming the content of the speech is sufficiently relevant to government and political affairs in the Commonwealth Parliament.

In response, it might nevertheless be said that political speech can be biting, harsh, excoriating and unreasoned while still being relevant to political matters, while speech from a religious perspective cannot be relevant to governmental matters. This may be based on a notion of church-state separation. However, assuming there is some discernible political content in speech coming from a religious perspective, then that speech can, I suggest, comprise political discourse. The High Court arguably accepted as much in AG v Adelaide51 where the Cornleoup brothers’ speech was - plainly - religiously motivated.

It is therefore now possible to further develop the argument that fringe political views can fall under the first limb of Lange by examining key provisions of the Constitution. To start with, it may, first, be noted that sections 7 and 24 of the Constitution - key provisions from which the implied freedom is said to be derived - use the language ‘directly chosen by the people’. The Constitution thus acknowledges a relationship between citizens’ voting choices and the representation of those voters’ interests in the Commonwealth Parliament. ‘Direct choice’ also suggests that the audience’s perceptions about what constitutes political speech are relevant to the identification of political speech. The notion of MPs and Senators being directly chosen by the people implies that individual voters’ perspectives may be relevant considerations in identifying political expression.

Secondly, and expanding on this first point, it can then be said that the constitutional touchstones - sections 7 and 24 - implicitly recognise subjective factors (e.g., moral values, religious beliefs, culture, race) which may be relevant to specific individuals’ voting choices and which may accordingly be relevant to communications about matters pertaining to those voting choices. Conversely, these constitutional provisions do not imply that voting choices are uniform, generic or homogeneous. Arguably (while not conferring any constitutional rights as such) these sections of the Constitution acknowledge, even if only tacitly, that idiosyncratic voting preferences or perceptions may underpin an understanding by particular

51 Attorney General for the State of South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1.

188 voters that certain speech has some political content, even if most people may not regard the expression as relevantly political.

Drawing support from these constitutional clauses, it may then be contended that the courts should recognise subjective features of a potential or likely audience (including perhaps only a small subsection of the entire potential audience) when deciding whether burdened speech falls within the first limb of Lange. From this reasoning, it may be asserted that, even if the political implications of Archbishop Herft’s speech were known to, or discernible by, only a small number of members of the Anglican Church of Australia, or to only, say, clergy in the Perth or Sydney Anglican Dioceses (or only to male clergy in the Sydney Diocese), the perceptions or reactions of that relatively small audience about the political implications of the speech (assuming these could be measured or assessed) would be sufficient to bring the Opinion Piece under the first limb of Lange. Moreover, a realistic potential for the speech to be politically relevant to such a fringe group of voters could be sufficient to bring the speech within the protective scope of the implied freedom of political discourse.

Having, then, potentially made the case that fringe expression about religion may fall within the protective scope of the implied freedom, it nevertheless remains unclear what connection there is, or was, between the Opinion Piece and voting choices or executive responsibility in the Commonwealth Parliament, which is the test I proposed in Chapter 4 for identifying relevantly political expression. Archbishop Herft’s speech still appears to be more like the kind of speech which Gleeson CJ and Heydon J held in APLA bore an insufficiently clear connection with, or relevance to, political affairs because it was commercial material (or, as here, religious material). While, as noted, Bishop Davies of North Sydney (later Sydney Anglican Archbishop) criticised Archbishop Herft for taking a political shot at Sydney Anglicans, it is by no means clear that the Bishop of North Sydney used the term ‘political’ in a way that implied any substantive connection with governmental matters. There would instead seem to be a reasonable possibility that Bishop Davies used the term ‘political’ in a more general sense, to refer to Archbishop Herft having allegedly inappropriately commented publicly in a secular newspaper to criticise the Sydney Anglican Diocese about internal church matters and/or hermeneutics, matters which should not have been aired publicly but which should have been discussed privately, that is, within the Church.

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6. Significance of Catch the Fire

The Court of Appeal of the Supreme Court of Victoria held in Catch the Fire52 that section 8 of the Religious Tolerance Act did not burden political speech.53 The Victorian Court of Appeal concluded that the speech in Catch the Fire did not fall within the protective scope of the implied freedom because the relevant expression in that case was not closely enough connected with government or political matters. As will be seen, in reaching this conclusion, the Court of Appeal - and particularly Neave JA - cited the decision of Gleeson CJ and Heydon J in APLA. In the absence of strongly differentiating qualities as between the speech in Catch the Fire and Archbishop Herft’s expression, the Court of Appeal’s findings in Catch the Fire might be thought to be a strong consideration weighing against the protective scope of the implied freedom including Herft’s speech.

The speech alleged to be burdened under section 8 of the Religious Tolerance Act in Catch the Fire included, amongst other statements, assertions by two pastors in Melbourne that: Muslim scholars misrepresented parts of the Qur’an; Allah was not merciful; and that Muslim people must fight Christians and Jews.54 While the Court of Appeal overturned the finding of the Victorian Civil and Administrative Tribunal that the men’s speech infringed section 8 of the Religious Tolerance Act, the Court of Appeal (Nettle, Ashley and Neave JJA) also held that section 8 of the Victorian Religious Tolerance Act did not effectively burden freedom of communication about political matters.55

Neave JA gave the most detailed reasons for her Honour’s findings on the question of whether the pastors’ speech fell within the protective scope of the implied freedom. Her Honour explained (citing Lange) that the extent to which communication about government and political matters will be protected from legislative intervention is

52 n7.

53 Section 8 of the Religious Tolerance Act is the same provision as that which is assumed to burden Archbishop Herft’s Opinion Piece in this Case Study.

54 See Catch the Fire n7, 64-5.

55 Nettle JA indicated that his Honour did not consider that section 8 effectively burdened freedom of communication about political matters in the sense contemplated in Lange: ibid, 97. However, his Honour also held that if section 8 did effectively burden freedom of political communication, then section 8 would satisfy the test under the second limb of Lange: ibid. The second Court of Appeal judge, Ashley JA, did not address whether the Victorian legislation infringed the implied freedom of political discourse.

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limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.56

Her Honour also indicated that the kinds of matters covered by the implied freedom include communications about: the functioning of government; policies of political parties and candidates for election; the conduct of the executive branch of government (including ministers and the public service); the conduct of statutory authorities and public utilities; discussion amongst electors of political matters; and information concerning matters relating to the exercise of functions and powers vested in public representatives and officials.57

Neave JA’s review of the cases - including, notably, the High Court’s decision in APLA - led her Honour to conclude that the implied freedom is derived from the need to protect the institutions of responsible and representative government.58 Neave JA held that, even though legislation may restrict communications containing some political material, such a restriction may not be sufficient for the implied freedom to invalidate that legislation.59 While Neave JA’s conclusion in this regard seems to conflate the first and second limbs of Lange, her Honour clearly considered that section 8 of the Religious Tolerance Act did not burden the pastors’ political speech.

Her Honour’s conclusion might seem to be a persuasive finding. It comes from a Superior Court in relation to the same statute as the one that is assumed to constitute a burden upon Archbishop Herft’s speech in this Case Study. Further, just as was the case in Catch the Fire, the speech in this Case Study comes from a Christian religious perspective.

To seek, nevertheless, to distinguish the speech in Catch the Fire from that in the Opinion Piece, it could be argued that the pastors’ speech in Catch the Fire came from a Christian perspective and was entirely about religious differences as between Christians and Muslims. By contrast, Archbishop Herft’s Opinion Piece, though also reflecting a religious viewpoint,

56 Catch the Fire n7, 115.

57 Ibid, 116. Interestingly, this language seems to reflect the principles in the joint judgment in Theophanous which her Honour cited but did not expressly rely upon.

58 Catch the Fire, ibid, 117.

59 Ibid.

191 broached concerns about the status of women in the Sydney Anglican Diocese including in relation to their employment opportunities as Church leaders. Further, speech about constraints on women’s career progression is a political topic in the sense that it is, or should be, relevant to state and Commonwealth governments. By contrast, the pastors in Catch the Fire simply commented on the religious tenets of Islam and, it might be said, their statements had little relevance to secular life. Against this view, however, is that there were no obvious or even subtly discernible political message in the Opinion Piece. If there is any subtle or implicit political content, it is difficult to discern. A court may be reluctant to speculate about the political content of speech if it is not reasonably obvious on the face of the material what the political content might be.

Conclusion on Implied Freedom Archbishop Herft’s Opinion Piece included no overt political messages. Any potential connection with representative and responsible government was, at best, vaguely peripheral to the main message of the Opinion Piece which was a missive to the Sydney Anglican Diocese about the Diocese’s allegedly distorted hermeneutics.

The High Court, Federal Court and Supreme Court cases reviewed in this Case Study suggest that speech about matters of biblical interpretation - religious matters - would likely not be regarded as constitutional speech. That kind of speech would, without more, bear an insufficiently close connection with the doctrines of responsible government and representative government in the Commonwealth Parliament.

The Perth leader was not agitating for legislative change. He did not argue that women in the Sydney Anglican Diocese could not contribute to political discourse in wider society by being unable to rise to the position of leaders in the Diocese. Instead, the Perth leader’s message was a targeted criticism (for which Herft later apologised) of the Sydney Anglican Diocese’s opposition to ordaining women to leadership positions. Using Sheikh Hilaly’s well-publicised sermon as a kind of theological springboard into public debate, Archbishop Herft’s message was directed principally to the Sydney Anglican Diocese’s use of bible teaching about the subordinate role of women as leaders and it was not aimed more generally to the question of sexism, or the role of women in secular life, albeit potentially alluding to important topics such as the limited scope for women in the Sydney Anglican Diocese to become leaders in the Church in a professional capacity and/or to contribute to secular life as religious leaders.

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I have suggested that the perceptions and understandings of a small audience about a political message - say, by the male senior clergy in the Sydney Anglican Diocese - might be relevant to determining whether speech constitutes political expression. As noted, the Bishop of North Sydney (later Archbishop of Sydney) Glenn Davies accused Archbishop Herft of taking ‘a political shot’ at the Sydney Anglican Diocese. It seems doubtful whether Bishop Davies used the term ‘political’ in any relevant constitutional sense (i.e., as in any way relevant to voting choices or executive responsibility) as opposed to commenting publicly to criticise the Perth Archbishop about what the Sydney Diocese thought should be raised as an essentially private church matter.

This is not to say that expression of a relevantly political viewpoint must always be clearly understood by everyone as having relevance to voting choices or executive responsibility. There is - plainly - the scope for the political salience of speech to be nuanced or subtle. People have different ways of expressing themselves and bring different perspectives, backgrounds and influences to their speech. However, even taking these considerations into account, it is by no means obvious that even male clergy in the Sydney Anglican Diocese, or anyone outside the Diocese, understood the Opinion Piece to have political significance in a constitutional legal sense.

Thus, I believe that the Perth Anglican Archbishop’s Opinion Piece would not fall within the first limb of Lange or even under Theophanous This conclusion does not, however, reflect any inherent limitation in the implied freedom protecting the burdened speech of religious leaders. Rather, it is consistent with a conclusion that Archbishop’s speech was not sufficiently closely related to political affairs to constitute political expression.

It is, however, not impossible that a court (even the High Court) could adopt the general approach and reason that section 8 of the Religious Tolerance Act generally burdened political expression. If so, it would not be necessary for that court to decide whether Archbishop Herft’s speech constituted relevantly political expression. Yet, as noted in Chapter 4, I believe that there are serious limitations with the general approach and that it should not be further adopted or followed.

How Could Archbishop Herft’s Speech Constitute Political Speech? It is possible to conceive of speech about women’s ordination which might fall within the protective scope of the implied freedom if the Perth Archbishop expressed his public

193 comments in a slightly different way. For example, if the Perth religious leader specifically critiqued the exemptions under the NSW Antidiscrimination Act 1977 (NSW) relating to the appointment or ordination of priests and he then sought, by reference to the Sydney Anglican Diocese’s policies on subordination of women to argue that the NSW laws could no longer be justified in a secular democracy, then that speech may possibly fall within the protective scope of the implied freedom of political discourse. Arguably a government in a secular democracy such as Australia is responsible for ensuring that the government does not insulate church organisations from widely affirmed secular laws (including antidiscrimination legislation). There are, as noted, parallels between the exemptions in the NSW antidiscrimination laws for religious organisations with respect to ordination decisions and similar exemptions in the Commonwealth laws which may give even a public comment on the NSW legislation a sufficient connection with Commonwealth political affairs.

Similarly, if the Perth leader had specifically compared secular policies relating to workplace equality with the Sydney Anglican Diocese’s apparent unwillingness to promote women to professional leadership positions in the Church, then arguably this kind of speech might be relevant to political affairs in the Lange sense of that term. This could be argued on the basis that secular governments must ensure that laws, even those applying to religious organisations, are consistently applied across genders. Further, that even if laws (such as antidiscrimination laws) aim to protect decision-making autonomy within religious organisations, then this protection must not go so far as to disadvantage women from reasonable prospects of career progression. In short, a comment by the Archbishop directed to secular employment laws (albeit the laws of a state) could give the Opinion Piece something of a clearer relevance to governmental matters.

Perhaps more tenuously, the Perth leader’s speech could have constituted political expression had he pointed out that the inability of Sydney Anglican women to be recognised as Church leaders limits their capacity to speak out as Church leaders on potential political topics.60 To

60 It might, however, be said that women in the Sydney Anglican Diocese do not need to be appointed to Church leadership roles in order to contribute to political discussion. For example, women in the Diocese (and those outside it) could contribute to public discourse - including about matters relevant to women in church life - without being appointed to leadership positions. For example, whether or not as Church leaders, women can be involved in public discussion via Opinion Pieces, television interviews, books, blogs etc and may if they choose to do so, speak out about the Diocese’s policies. But this argument is, I suggest, weak, for two reasons. First, being appointed as the leader of a Church allows the person appointed to that position to command a presence of some sort in public life because of

194 cite an example of this kind of public contribution to discourse, a (male) Sydney Anglican leader, the Sydney Anglican Dean, Phillip Jensen, commented publicly about the contribution that Christian politicians can make to discourse in political life, a comment that women leaders in the Sydney Anglican Diocese could not make qua leaders. Dean Jensen criticised ‘the secularists’ for imposing limits on the role religion (Christianity) can play in the public sphere. He wrote:

Knowing very little of religious understanding or reasoning they [secularists] attribute different opinions to their own as “irrational beliefs”. In the name of multicultural fairness their multiculturalism does not include any culture but their own. Thus they marginalise, if not completely censor, religious opinions, considerations or reasoning from public discourse. To them, religion is irrational and irrelevant to public life. For politicians to even talk of religion is to “preference” people of religious faith (I originally wrote persuasion but secularists would not use such a word as it may imply some activity of the mind). Even if the politician was speaking the truth that “the Christian and Jewish faiths have played a role in Australian society” there is likelihood of implicitly privileging Christians and Jews.61

This is a statement by a male religious leader about the importance of allowing public expression of religious beliefs including by politicians. Women leaders in the Sydney Anglican Diocese are unable to make such statements as religious leaders. They cannot become religious leaders in the Diocese. Even though such a connection with political matters may still seem tenuous, burdened speech by the Perth Archbishop about Sydney Anglican women being unable to make such contributions to political discourse qua religious leaders in the Diocese may come closer to having a connection with representative or responsible government.

them having been appointed to that position. Secondly, if women are unable to be ordained or consecrated, then they will, by definition, be denied the ability to make leadership decisions from within the organisation that could alter any policies that may tend to subordinate women.

61 Dean Phillip Jensen, 3rd July 2009, ‘Quiet Please – Politicians are Present’, http://phillipjensen.com/articles/quiet-please-politicians-are-present/, viewed 6th February 2013.

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III. CASE STUDY 2: WARNINGS TO CATHOLIC POLITICIANS

Overview This Case Study reviews speech by two Australian Catholic leaders - Cardinal George Pell, then Archbishop of Sydney, and Archbishop Barry Hickey, then leader of the Perth Catholic Church - directed to, respectively, Catholic NSW and Western Australian politicians in 2007. The Church leaders told Catholic state politicians how they should vote in relation to laws that would, if passed, legalise Somatic Cell Nuclear Transfer (‘SCNT’) (also called therapeutic cloning) and they warned of the consequences that could befall those Catholic MPs if they supported the legislation. While Dr Pell and Mr Hickey used different terminology, each Church leader implied that the Catholic politicians to whom they directed their comments could be denied the Sacraments (Holy Communion) if they voted in favour of the SCNT legislation.

Each State Parliament - NSW in relation to Dr Pell and WA about Archbishop Hickey - considered prosecuting the men for contempt of the respective State Parliament because of the warnings the religious leaders directed towards Catholic MPs about the consequences of them voting for the Bills.62 Ultimately, neither the NSW Parliament nor the WA Parliament brought a charge of contempt of parliament against Cardinal Pell or Archbishop Hickey. The State Parliaments concluded that there was no case for either religious leader to answer. The Catholic leaders’ speech, and the prospect of each State Parliament charging either religious

62 The origins of contempt of parliament can be traced back to King Edward the Confessor in the 11th Century. At the time, Parliament functioned mainly as the High Court of Justice: see Keiron Wood (2012), Contempt of Parliament, Clarus Press Dublin, chapter 2. In its modern meaning in Australia, contempt of parliament indicates that there is a degree of improper influence over the free exercise or free performance of the duties of a Member of Parliament. There is no specific statutory definition of contempt of parliament for either the NSW Parliament or Western Australian Parliament. The legal meaning of contempt of parliament is therefore somewhat imprecise. As guidance, section 4 of the Parliamentary Privileges Act 1987 (Cth) describes conduct that may amount to an ‘offence against the House’ (which would include contempt of parliament) in the following terms: ‘Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member’. I do not consider the law relating to contempt of parliament in any significant further detail in this Case Study, for the objective of the Case Study is to examine whether the Archbishops’ speech, assuming it is burdened by a contempt of parliament charge, could fall within the protective scope of the implied freedom of political discourse.

196 leader with contempt of parliament nevertheless provides an opportunity to review whether the Church leaders’ expression could be regarded as ‘political’ speech under Theophanous or

Lange if the men’s speech was burdened by a contempt of parliament action.63

In Section III, B, I discuss the background to SCNT laws in Australian states and territories. This review considers the legislative and policy backdrop to the religious leaders’ statements in 2007 as well as explaining why the NSW and Western Australian Parliaments were at the time considering SCNT legislation. The discussion also allows an opportunity to examine the contribution that Cardinal Pell made to public debate earlier in 2005 - some two years before his statements to NSW Catholic politicians - when the Commonwealth Parliament was considering SCNT legislation.

Section III C describes the statements that each Catholic leader directed to state Catholic politicians and reviews the responses of the Privileges Committees of the respective State Parliaments to the religious leaders’ explanations of their speech. Section III D analyses the law concerning the implied freedom of political speech insofar as it relates to the religious leaders’ speech, assuming each leaders’ speech is burdened by an indictment for contempt of parliament. That section explores whether the religious leaders’ speech could fall within the protective scope of the implied freedom of political discourse.64

SCNT: Policy Context 1. Religion and Ethics of SCNT SCNT allows scientists to remove the nucleus from an ovum and replace it with the nucleus of another somatic cell (i.e., a normal non-reproductive cell).65 If stimulated by shock

63 The most significant High Court case concerning contempt of parliament is R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 (24 June 1955), a unanimous decision of seven judges delivered by oral judgment. The Privy Council refused leave to appeal the High Court’s decision, finding it to be ‘unimpeachable’. For background on the case, see generally Andrew Moore (2011), Mr Big of Bankstown: The Scandalous Fitzpatrick and Browne Affair, UWA Publishing. The Commonwealth Parliament has since enacted section 4 of the Parliamentary Privileges Act 1987 (Cth): see ibid.

64 As section 116 of the Constitution could not be of assistance in these instances (even if a charge of contempt of parliament by a state parliament was considered to be a ‘law’, it would not be a law of the Commonwealth), I do not consider section 116 any further in this Case Study.

65 The human body has two different cell types: germ cells and somatic cells. Germ cells are in the ovaries and testes and are the cells which give rise to eggs and sperm. Somatic cells are all other cell types in the body: see Stewart Smith (2002), ‘Human Cloning and Stem Cell Research’ Briefing Paper No 9/02, NSW Parliamentary Library Research Service, 1, available at

197 treatment, the egg comprising the somatic cell's nucleus may begin to divide. After many mitotic divisions, the single cell forms a blastocyst (an early stage embryo) with almost identical DNA to the original organism. SCNT may therefore facilitate the production of cells to replace damaged ones and may be used to treat damaged or diseased human organs.

A key ethical concern about SCNT relates to the status of the embryo, namely, what will be destroyed when the stem cells are harvested, a plain cell mass or an early embryo?66 If the cell mass is regarded as an early embryo, then is that mass ‘human life’ with the same moral status as a human being? 67 The questions SCNT poses relate to the genesis and evolution of life,68 questions of considerable interest to many people, including Catholics and Catholic leaders.

While the ethical questions relating to SCNT do not only arise for those who hold religious beliefs, the institutional Catholic Church leadership arguably does regard procreation as the sole and unique function of sexual relations.69 Any possible harvesting of embryos is likely to be a religious concern for the Catholic Church.70 It is therefore not surprising that laws legalising SCNT may arouse passionately held views, publicly expressed, from Catholic leaders such as Cardinal Pell and Archbishop Hickey.

http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/feeb827a12ff8fe5ca256ecf000821 a2/$FILE/09-02.pdf, viewed 23rd July 2013.

66 Susan Dudley, Thomas John and Justine Clarke: Parliament of Australia Department of Parliamentary Services Bills Digest, Prohibition of Human Cloning for Reproduction and the Regulation of Human Research Amendment Bill 2006, No 59 (2006-7), 6 December 2006, 29, available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/W6LL6/upload_binary/w6ll66.pdf;file Type=application%2Fpdf#search=%22legislation/billsdgs/W6LL6%22, viewed 25th July 2013. See also House of Lords, Stem Cell Research - Report, Session 2001-2, para 4.9, available at http://www.publications.parliament.uk/pa/ld200102/ldselect/ldstem/83/8301.htm, viewed 25th July 2013.

67 Dudley et al, ibid.

68 Ibid, 28.

69 See Michel Foucault, Religion and Culture (1999), selected and edited by Jeremy R. Carrette, Sexuality and power (1978), Manchester University Press, 121.

70 Cardinal Pell has, however, expressed his support for adult stem cell research and the Sydney Catholic Archdiocese has (under his leadership) provided a number of large financial grants to fund medical investigations into adult stem cell research: see e.g., Catholic Communications, Important Adult Stem Cell Research Supported by Archdiocese Grant, 16 March 2012, http://www.sydneycatholic.org/news/latest_news/2012/2012316_418.shtml, viewed 24th July 2013.

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2. Commonwealth SCNT Legislation During the 1990s, new techniques became possible for creating a human embryo. Three Australian states - Victoria, South Australia and Western Australia - enacted legislation banning human reproductive cloning and seeking to regulate research on human embryos.71 Although the laws generally developed consistently with the regulation of assisted reproductive technology,72 the definition of ‘cloning’ and ‘human embryo’ varied under each state’s laws as did the research practices that were prohibited and permitted in the different jurisdictions.73 By the late 1990s, there was no nationally consistent legislation in Australia to deal with therapeutic cloning; in those jurisdictions where legislation existed, there was uncertainty about whether the laws would be capable of addressing changes in the scientific environment.74 The Commonwealth Government therefore began to look more closely at how to regulate reproductive cloning.

In 1999, the House of Representatives Standing Committee on Legal and Constitutional Affairs established an Inquiry to deal with considerations relating to scientific developments, including in relation to SCNT (‘Andrews Committee’). The consensus position eventually reached by the Andrews Committee (chaired by Catholic Liberal MP Kevin Andrews) was to allow a three year moratorium on legislation relating to SCNT, with the topic to again be reviewed at the conclusion of that period.75

71 See Reproductive Technology (Code of Ethical Research Practice) Regulation 1995 made under the Reproductive Technology Act 1988 (SA), Infertility Treatment Act 1995 (Vic), and Human Reproductive Technology Act 1991 (WA). See also Dudley et al, n66, 6.

72 Dudley et al, ibid.

73 Ibid.

74 Ibid.

75 Prime Minister Howard proposed a compromise solution in 2002, namely, the use of surplus (existing) embryos for research (of which there were at the time about 70,000 embryos): see Michael Cook, 5 August 2002, Canberra Times, ‘Howard’s compromise on embryo research unravelling’, available at http://www.australasianbioethics.org/Media/20020805-MC.html, viewed 24th July 2013. The Australian Catholic Bishops Conference (‘ACBC’) expressed its disapproval when Prime Minister Howard signalled at his meeting with Premiers in 2002 that he intended to approve stem-cell research on surplus IVF embryos (making it clear that practices such as therapeutic cloning and the creation of embryos specifically for research remained unacceptable). A Research Fellow with ACBC described the Prime Minister’s decision as ‘... a significant rupture with medical codes of long standing, including the Nuremburg Code and the Declaration of Helsinki.’ The then head of the Baptist Union of Australia, the Reverend Tim Costello, described the decision as ethically wrong: see Kelly Burke, 5 April 2002, ‘Churches split over Howard’s stem-cell go-ahead’, http://www.smh.com.au/articles/2002/04/04/1017206244837.html, viewed 23rd July 2013.

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In 2002, after considering the recommendations of the Andrews Report, the Council of Australian Governments (‘COAG’) agreed that the Commonwealth, states and territories would introduce nationally consistent legislation in order to, inter alia, ban human cloning and establish a national regulatory regime in relation to the use of excess ART embryos, to be administered by the NHMRC as the national regulatory and licensing body.76

In 2005, a Committee appointed by the Minister for the Ageing (the Hon Julie Bishop MP) released a report on the 2002 Commonwealth Human Embryos and Cloning Legislation (‘Lockhart Review or Lockhart Committee’). The Lockhart Committee identified the primary ethical concern for the Committee as being that legalising the creation of embryos by SCNT could lead to reproductive cloning.77 Each key recommendation of the Lockhart Committee -

76 See COAG agreement 31 March 2004 (referring to the COAG agreement of 5 April 2002), available at http://www.coag.gov.au/node/49, viewed 24th July 2013. According to the WA Legislative Council Standing Committee on Uniform Legislation and Statutes Review when reviewing a WA Bill in 2007 that would mirror legislation then passed into law by the Commonwealth to allow SCNT, a COAG agreement of 13 April 2007 varied the inter-governmental agreement of ‘2 April 2002’ (note: I believe the correct date is 5 April 2002). The WA Legislative Council Standing Committee reported that ‘[a]s a result of the variations to the Intergovernmental Agreement: Research Involving Human Embryos and Prohibition of Human Cloning [5 April 2002], and the passing into law of the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 (Cth) on 12 June 2007, Western Australian legislation was rendered at variance with the agreed legislative scheme and no longer complied with the Research Involving Human Embryos Act 2002 (Cth)’: see WA Legislative Council Standing Committee, Report 23, Human Reproductive Technology Amendment Bill 2007, October 2007, 6, available at http://www.parliament.wa.gov.au/parliament/commit.nsf/%28WebInquiries%29/F07D55BC0BBAED C348257831003E971B?opendocument, viewed 26th July 2013. The Commonwealth enacted two pieces of legislation: Research Involving Human Embryos Act 2002 (Cth) (to regulate activities involving the use of human embryos created by assisted reproductive technology); and Prohibition of Human Cloning Act 2002 (Cth) (to address concerns about scientific developments in relation to human reproduction and the utilisation of human embryos) (together here referred to as ‘2002 Commonwealth Human Embryos and Cloning Legislation’). The 2002 Commonwealth Human Embryos and Cloning Legislation prohibited SCNT but allowed scientists to use surplus embryos for research. Mirroring the 2002 Commonwealth Human Embryos and Cloning Legislation, NSW passed the Human Cloning and Other Prohibited Practices Act 2003 (NSW) and Research Involving Human Embryos Act 2003 (NSW), legislation which was, for the most part, enacted in similar terms in other jurisdictions for national consistency. See for example, Human Cloning and Embryo Research Act 2004 (ACT); Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 (Qld); Prohibition of Human Cloning for Reproduction Act 2003 (SA); Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (Tas); Infertility Treatment Act 1995 (Vic); and Human Reproductive Technology Act 2001 (WA).

77 The Lockhart Committee made two important recommendations –

[23] Human somatic cell nuclear transfer should be permitted, under licence, to create and use human embryo clones for research, training and clinical application, including the production of human embryonic stem cells, as long as the activity satisfies all the criteria outlined in the amended Act and these embryos are not implanted into the body of a woman or allowed to develop for more than 14 days.

200 one relating to human somatic cell transfer and the other the transfer of human somatic cell nuclei into animal oocytes (to reduce the need for human oocytes (egg cells)) - included the qualification that the embryos could not be implanted into the body of a woman or allowed to develop for more than 14 days.

3. Cardinal Pell Voices Concerns at National Press Club Not long before the Lockhart Committee released its Report, on 21 September 2005, Cardinal Pell gave a National Press Club speech entitled ‘The Dictatorship of Relativism’, in which he warned of what he described as ‘destructive human embryo experimentation’. Cardinal Pell cautioned of ‘relativism’ and ‘poison’ to faith and morals and illustrated his point with an anecdote:

Recently I heard of a discussion between two Christian politicians (I am not sure both were Catholics) on how they would vote on destructive human embryo experimentation. One proposed to vote for it and the other to oppose, and the supporter of the legislation justified his position by claiming he had asked advice from a priest who told him to follow his conscience. At best the priest ducked the issue; at worst he disguised his dissent by advocating what his listener preferred.

Simple-minded relativism is alive and well within the Christian communities. In its radically liberal forms it is poisonous of both faith and morals, while at a pastoral level such fudging of

[24] In order to reduce the need for human oocytes, transfer of human somatic cell nuclei into animal oocytes should be allowed, under licence, for the creation and use of human embryo clones for research, training and clinical application, including the production of human embryonic stem cells, as long as the activity satisfies all the criteria outlined in the amended Act and these embryos are not implanted into the body of a woman or allowed to develop for more than 14 days.

Legislation Review Committee (December 2005), Legislation Review: Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002, xxiii. See also Donna M. Cooper (2006), The Lockhart Report and the ethics of the creation and destruction of preimplantation embryos for medical research, Monash Bioethics Review 25(2), 3, available at http://eprints.qut.edu.au/5082/1/5082_1.pdf, viewed 23rd July 2013.

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the issues offers nothing to people young or old who are looking for truth and principles.78

According to Cardinal Pell, by advising the parishioner to follow his conscience, the priest (of indeterminate denomination) either deliberately avoided the real ethical concerns (‘ducked the issue’) or disguised his real theological beliefs (‘disguised his dissent’). There was no possibility that the question the politician posed in the anecdote was an unresolvable dilemma. Instead, this situation was, for the Archbishop, a world without moral absolutes: a slide into relativism.

This was a striking message from the Archbishop (in a secular forum, the National Press Club) to Catholic priests and politicians about voting preferences. It carried the warning that Catholic priests (and other church leaders) who did not caution (federal) politicians to vote against embryonic stem cell research were ‘fudging’ on the issue. What is more, politicians whose priests told them to follow their conscience were receiving unethical advice (reflecting an absence of ‘truth and principles’) from their religious mentors.

Cardinal Pell was, in short, instructing Catholic priests about how to give advice to their parishioners on the question of embryonic therapeutic cloning. Pell was also implicitly telling Catholic (federal) politicians to not support SCNT legalisation. So far as I can tell, there was no suggestion from the Commonwealth Parliament that Cardinal Pell might have committed a contempt of parliament by telling Commonwealth MPs how to vote. Nor, as far as I can tell, was there any publicly reported criticism of Cardinal Pell using the National Press Club to direct a message to politicians about a matter of religious concern or for using a secular forum to publicly tell priests about how to advise their flocks in relation to SCNT laws.

4. Commonwealth Passes SCNT Legislation By August 2006, even though the Howard Government Cabinet’s position was to not endorse the Lockhart Committee’s recommendations, the then Prime Minister agreed to allow Parliamentary debate on SCNT in the next (Spring) sitting period of Parliament. Some MPs, however, opposed any move to allow therapeutic cloning. For example, the then Federal

78 Cardinal George Pell, On the dictatorship of relativism, edited version of National Press Club speech on 21st September 2005, available at http://www.ad2000.com.au/articles/2005/nov2005p3_2097.html, viewed 25th July 2013.

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Health Minister (later, Prime Minister), Tony Abbott, a Catholic, told the National Press Club on 2 August 2006 that ‘so-called therapeutic cloning is basically translating Dolly the

Sheep type situations to human beings.’79

On 19 October 2006, Liberal Senator Kay Patterson (by then a former Health Minister) tabled before the Senate a Private Members Bill, the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill Cth (2006) (Commonwealth Prohibition Amendment Bill). If passed the Bill would amend the 2002 Commonwealth Human Embryos and Cloning Legislation and allow SCNT consistent with the recommendations of the Lockhart Review.80 On 7 November 2006, after the Senate agreed to remove a provision allowing the transfer of human somatic cell nuclei into animal oocytes,81 the Commonwealth Prohibition Amendment Bill passed the Senate by 34 votes to

31.82 Within a month, the amended Commonwealth Prohibition Amendment Bill had passed the House of Representatives (with a larger majority than in the Senate) despite Prime Minister Howard imploring MPs to vote against the legislation, while allowing MPs a

79 See Annabel Stafford (3 August 2006), ‘Abbott fears stem-cell researchers will follow Dolly to clone humans’, The Age, http://www.theage.com.au/news/national/abbott-fears-stemcell-researchers-will- follow-dolly-to-clonehumans/2006/08/02/1154198206310.html, viewed 24th July 2013. In August 2006, faced with Freedom of Information requests, Prime Minister Howard released a Report (commissioned by his own Department and not made public), which questioned the findings of the Lockhart Review: see PM, ‘PM Defends New Stem Cell Report’, http://www.abc.net.au/pm/content/2006/s1731260.htm, viewed 5th October 2014. Meanwhile, Catholic bishops continued to oppose the amending legislation. In their submission in October 2006 to the Senate Inquiry into the Legislative Responses to Recommendations of the Lockhart Review, the ACBC contended that ‘so-called’ therapeutic cloning was ‘... much more unethical than so-called reproductive cloning because the intention from the beginning is a lethal one: to create a human being so that it can be killed for parts (in this case for stem cells or other useful materials).’ Australian Catholic Bishops Conference submission to Senate Inquiry into the Legislative Responses to Recommendations of the Lockhart Review, dated 3 October 2006, 4. The ACBC thus was in no doubt that the therapeutic cloning was unethical and amounted to killing a human being in order to use its ‘parts’.

80 Senator Stott Despoja (Australian Democrats) and Senator Webber (ALP) had earlier tabled before Senate the Somatic Cell Nuclear Transfer (SCNT) and Related Research Amendment Bill 2006.

81 See House of Representatives Hansard, 6 December 2006, Kevin Andrews (Minister for Employment) who, later opposing the Bill in the House of Representatives, described that particular provision as ‘abhorrent’, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansar dr%2F2006-12-06%2F0035;query=Id%3A%22chamber%2Fhansardr%2F2006-12-06%2F0020%22, viewed 24th July 2013.

82 Senate Hansard 7 November 2006.

203 conscience vote.83 The House voted 82 to 62 in favour of the Commonwealth Prohibition

Amendment Bill.84 The Commonwealth legislation came into effect on 12 June 2007, just a few days after Cardinal Pell and Archbishop Hickey urged state politicians to not vote for SCNT laws in NSW and Western Australia.

The (Burdened) Speech of the Catholic Bishops 1. Cardinal Pell’s Warning to NSW Catholic Politicians Cardinal Pell issued a media statement on 4 June 2007 on behalf of the Bishops of the ten NSW Catholic Dioceses of Australia. The media release urged NSW politicians to ‘reject the cloning of human embryos for experimentation and destruction’.85 Before NSW Parliament at the time was the Human Cloning and Other Prohibited Practices Amendment Bill 2007 (NSW) (Therapeutic Cloning Bill). The Lower House of the NSW Parliament (Legislative Assembly) was due to begin debating the Therapeutic Cloning Bill on the evening of 5 June 2007, the day after the Archbishop released his media statement. If passed, the Therapeutic Cloning Bill would amend the Human Cloning and Other Practices Act 2003 (NSW) to legalise SCNT and would mirror the legislation passed by the Commonwealth in 2006.

Two days after Cardinal Pell’s media statement, Cardinal Pell told a news conference

Catholic politicians who vote for this legislation must realise that their voting has consequences for their place in the life of the church.86

83 See Mark Davis and Mark Metherell, Sydney Morning Herald, ‘Embryo cloning gets the go-ahead’, available at http://www.smh.com.au/news/national/embryo-cloning-gets-the- goahead/2006/12/06/1165081020220.html, viewed 24th July 2013.

84 House of Representatives Hansard, 6 December 2006.

85 Cardinal George Pell, Archdiocese of Sydney media release 4 June 2007, ‘No Catholic could in good conscience vote for Cloning Bill – NSW Bishops’.

86 NSW Privileges Committee, Report No 38 (2007), Comments by Cardinal George Pell concerning the Human Cloning and Other Prohibited Practices Amendment Bill 2007, 1 and Appendices 2-4. The Sydney Morning Herald reported that Cardinal Pell had told an audience that Catholic MPs would need to seriously consider continuing to take holy communion if they chose to vote for therapeutic cloning: A.Smith and L.Morris, Sydney Morning Herald (6 June 2007), ‘Catholic MPs defy Pell on cell vote’, pp1,7. Dr Pell was also quoted as saying ‘No politician - indeed, no Christian person with respect for human life - who has properly informed his conscience about the facts and ethics in this area should vote in favour of this immoral legislation’: NSW Parliament Hansard, Legislative Assembly, Mrs Jillian Skinner, 5 June 2007, 775.

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This could reasonably be understood to mean that Catholic politicians would be denied Holy Communion (if not excommunicated) if they voted in favour of the Therapeutic Cloning

Bill.87

Three days after Cardinal Pell’s media release, the NSW Legislative Assembly passed the

Therapeutic Cloning Bill by 65 votes to 26.88 On 26 June 2007, the Upper House (NSW

Legislative Council) passed the Therapeutic Cloning Bill: it did so by 26 votes to 13.89 Before the Legislative Council voted, Reverend Fred Nile (Christian Democratic Party) and Reverend Dr Gordon Moyes (Uniting Church Minister and former head of Wesley Mission) urged Christians to pray in the stated hope that they might change the attitudes of politicians who may be inclined to vote for the legislation and also influence those who were still undecided, to vote against the Therapeutic Cloning Bill.90 Reverend Nile later proposed nine separate amendments to the Therapeutic Cloning Bill, all were defeated.91

Cardinal Pell’s statements about ‘consequences’ were referred to the Privileges Committee of the NSW Legislative Council (NSW Privileges Committee) to allow the Committee to review whether the Cardinal had possibly committed contempt of parliament. In his own (robust) defence, Cardinal Pell explained his reference to ‘consequences’ as follows

The phrase ‘consequences for their place in the life of the Church’ refers to the effect a seriously wrong decision has on the personal relationship between that individual and God, and that individual and the Church community to which he belongs.

87 During the 2004 US election campaign, Bishop Raymond Leo Burke (at the time, Archbishop of St Louis), suggested that John Kerry (the then Presidential nominee for the Democratic Party, later, Secretary of State and a Catholic) and any other Catholic politicians who supported abortion would be denied the Eucharist. Archbishop Burke later wrote a pastoral letter advising Catholics to note vote for politicians who supported abortion or other anti-life practices: see Huff Post (Religion), David Gibson, 1 October 2012, http://www.huffingtonpost.com/2012/10/01/cardinal-raymond-burke- sp_n_1924290.html, viewed 26th July 2014.

88 NSW Parliament Hansard, 7 June 2007.

89 NSW Parliament Hansard, 26 June 2007.

90 Christian Today – Australia, ‘Stem-Cell Research Pass NSW Upper House’, 27 June 2007, http://au.christiantoday.com/article/stem-cell-research-pass-nsw-upper-house/2898.htm, viewed 25th July 2013. See also The Age, age.com.au, 25 June 2007, ‘Call for prayers to beat stem cell bill’, http://www.theage.com.au/news/National/Call-for-prayers-to-beat-stem-cell- bill/2007/06/25/1182623807936.html, viewed 25th July 2013.

91 NSW Parliament Hansard, 26 June 2007.

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These consequences need not be imposed from outside by a third party such as a bishop or priest, but are intrinsic to the infraction itself and loosen the person’s bonds to the Church.

No one is compelled to be or remain a Catholic. Obviously outsiders are not liable to Catholic discipline, and Catholics are able in our situation of religious freedom to ignore or reject any Church sanction.

My task as a Catholic Archbishop is to point out that God judges human conduct, as well as pointing out the importance of Catholics following Church teaching on matters of faith and morals. The vast majority of political matters are for the prudential judgment of each individual Catholic, but the Church is unambiguous that there are certain choices which are intrinsically evil and cannot in good conscience be condoned or promoted by faithful Catholics – the evil being known through right reason itself, as well as through Catholic faith.92

Implicit in the Cardinal’s explanatory message was that stem cell research was a matter of ‘intrinsic evil’ capable of being known by right reason.

In further defending his public statements, Archbishop Pell said that, as a religious leader, it was essential that he was free to contribute on matters of public interest and debate. Cardinal Pell asserted that Christianity provided a public service by allowing church leaders to contribute to discourse:

In a democracy such as Australia any citizen should be free to argue publicly for certain policies on religious grounds; these arguments to be accepted or rejected by legislators or electors as they see fit.

It is my submission that it is essential that religious leaders, including myself, are free to express the position taken by their

92 NSW Privileges Committee, Report No 38 (2007), Comments by Cardinal George Pell concerning the Human Cloning and Other Prohibited Practices Amendment Bill 2007, Cardinal Pell Response, 20 August 2007, p3-4.

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Church or religion on matters of public interest and debate. To prevent religious leaders from doing so has the effect of stifling religious freedom and hampers effective and open debate on matters of public interest.

One of Christianity's most important public services is to preserve and strengthen Australia as a decent, prosperous and stable democracy. It does this through its many works of practical service and care, but also from time to time by regular participation in public debate, usually by lay people, but sometimes through Church leaders.

So too legislators are free to use religious considerations in deciding their position on legislation. I might add that the same principle allows atheists, be they legislators or electors, to act on the basis of their atheistic convictions when it comes to the formation of legislation and public policy. If the right of legislators and electors who are religious believers to do the same were to be denied, then we would have informally mandated atheism as the unofficial state religion. This is hardly compatible with the principle and practice of religious liberty.93

Cardinal Pell thus pressed that his contributions to public debate on the topic of stem cell research reflected the essentiality of religious leaders being able to speak about the position of their church on such matters of public interest. According to Dr Pell, the contributions of Christian leaders to public debate preserved Australia’s position as a prosperous and stable democracy.94

2. Archbishop Hickey’s Warning to WA Catholic Politicians At or around the same time that Cardinal Pell issued his media statement about the Therapeutic Cloning Bill in NSW, the then Catholic Archbishop of Perth, Barry Hickey,

93 Ibid.

94 The NSW Privileges Committee noted that the Cardinal had defended his statements on the basis of religious liberty and freedom: ibid, 7.

207 issued a warning to Western Australian MPs about a Bill before the Western Australian Parliament. If passed, the Bill would legalise SCNT in Western Australia.

Archbishop Hickey told Western Australian Catholic MPs that, if they supported the legislation before the Western Australian Parliament to legalise SCNT, then they risked no longer being able to take the Sacraments:

Catholics who vote for the cloning of embryos destined for destruction are acting against the teaching of the church on a very serious matter and they should, in conscience, not vote that way, but if they do in conscience they should not go to communion.95

The WA Bill passed the Legislative Assembly on 6 September 2007 (about three months after Archbishop Hickey directed his statements towards Western Australian Catholic politicians); 26 MPs voted for the legislation and 16 against it.96 The WA Bill did not, however, pass the Western Australian Legislative Council.97 Instead, on 6 May 2008, after a conscience vote, the Western Australian Legislative Council rejected the WA Bill by 18 votes to 15.98

95 Brisbane Times, 7 June 2007, ‘MPs to probe Archbishop stem cell threat’, http://news.brisbanetimes.com.au/national/mps-to-probe-archbishop-stem-cell-threat-20070607- h5g.html, viewed 7th April 2013.

96 WA Parliament Hansard, Legislative Assembly, 6 September 2007, p4990a-4994a.

97 The WA Bill was tabled before the Western Australian Legislative Council on 18 September 2007. See WA Parliament Bills, http://www.parliament.wa.gov.au/parliament/bills.nsf/BillProgressPopup?openForm&ParentUNID=FE 8EB995A9A54CB1C82572AC0011ED67, viewed 26th July 2013. The Legislative Council sent the WA Bill to Standing Committee on Uniform Legislation and Statutes Review (‘WA Standing Committee’) for review. The WA Standing Committee published its report on 18 October 2007 but did not review the ethical questions associated with SCNT. Instead, the WA Standing Committee considered the narrower legal question of whether the WA Bill would operate effectively in a national legislative regime. Upon reviewing the WA Bill, the Committee was satisfied that the WA Bill could operate effectively with other national legislation and it made no other findings with respect to the provisions of the WA Bill: see WA Legislative Council Standing Committee, Report 23, Human Reproductive Technology Amendment Bill 2007, October 2007, available at http://www.parliament.wa.gov.au/parliament/commit.nsf/%28WebInquiries%29/F07D55BC0BBAED C348257831003E971B?opendocument, viewed 26th July 2013.

98 WA Parliament Hansard, Legislative Council, 6 May 2008. Legislation to mirror the amending Commonwealth legislation was, however, enacted in most other states and territories. At the time of writing, other states and territories to enact the amending laws (aside from NSW) include ACT - Human Cloning and Embryo Research Amendment Act 2008 (ACT); Queensland - Research Involving Human Embryos and Prohibition of Human Cloning Amendment Act 2007 (Qld); South Australia -

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The comments attributed to Archbishop Hickey were referred to the Procedures and Privileges Committee of the Legislative Assembly (WA) (‘WA Privileges Committee’) to review whether the Archbishop had possibly committed contempt of the WA Parliament. Upon completing its inquiry, the WA Privileges Committee exonerated Archbishop Hickey of contempt of parliament. The Speaker of the WA Privileges Committee nevertheless advised Hickey that, irrespective of whether Archbishop Hickey had threatened any MP, ‘at the least that impression was created’.99 The Speaker also warned Archbishop Hickey that

... in any further statements you wish to make, there should be no suggestion that personal consequences will be visited upon any members who do not act in Parliament in accordance with your views.100

Archbishop Hickey responded to the Speaker’s letter in a letter dated 25 June 2007. In his letter, the Perth Catholic leader stated that his ‘comments were intended to be more religious than political’.101 In apparent contrast to Dr Pell’s views that Christianity provided a public service by contributing to political debate, Archbishop Hickey defended his comments on the basis that they appealed to politicians’ religious convictions rather than necessarily reflecting Archbishop Hickey’s own political views.102

Could the Catholic Leaders’ Speech Fall Within the Protective Scope of the Implied Freedom? 1. Could Theophanous Protect the Opinion Piece? As noted in Chapter 4 and Case Study 1, Mason CJ, Toohey and Gaudron JJ held in their joint judgment in Theophanous that political speech includes discourse about the political views and public conduct of all persons involved in activities that have become the subject of political debate. It is possible, although not inevitable, that a court would consider whether

Statutes Amendment (Prohibition of Human Cloning for Reproduction and Regulation of Research Involving Human Embryos) Act 2009; and Victoria - Infertility Treatment Amendment Act 2007 (Vic).

99 Letter from WA Procedures and Privileges Committee (signed Hon Fred Riebeling MLA, Chair of Committee) to Archbishop Hickey, 12 June 2007.

100 Ibid.

101 Ibid. Letter from Archbishop Hickey to WA Procedures and Privileges Committee 25 June 2007.

102 Archbishop Hickey also said that he was concerned that ‘the actions of Catholics be consistent with their beliefs [and that] to point this out is part of the responsibilities of my office’: ibid.

209 the speech of either or both Catholic religious leaders was protected as political discourse under the Theophanous formulation of the implied freedom of political discourse. This section of the Case Study therefore considers whether either religious leaders’ speech would meet the Theophanous description of political speech.

Both Cardinal Pell and Archbishop Hickey were, by 2007, public figures whose public comments on SCNT would possibly constitute political speech under the Theophanous conception of political expression simply because of their existing public profiles. The Theophanous joint judgment potentially recognises as within the description of ‘political discourse’ discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate.103 This description of political speech might include the speech of prominent religious figures – including Catholic Archbishops - about widely discussed public topics. Pell, in particular, contributed to public debate on a range of topics.104 The Cardinal’s staunch defence of himself to the NSW Parliamentary Privileges Committee made it clear that Pell saw himself as a public figure who could and - further - should participate in public debate on moral matters in order, as he saw it, to preserve and strengthen Australia as a decent, prosperous and stable democracy. His warnings to NSW Catholic politicians in 2007 (broadly consistent with his statements at the National Press Club in 2005 where he spoke about ‘destructive human embryo experimentation’) aligned with his views about the importance of religious leaders - and particularly Christian religious leaders - being involved in public discussion about matters of significance to the Catholic Church, including but not limited to debate on SCNT. Pell was an active, seasoned, high profile contributor to public debate.

103 Theophanous, n2, 124 (Mason CJ, Toohey and Gaudron JJ).

104 Later in 2007, Cardinal Pell spoke about climate change. He rejected the argument pressed by the then Opposition Leader Kevin Rudd that climate change was a major moral issue. Contradicting Rudd, Pell said climate change was less important than tackling poverty, marriage breakdown or abortion rates Misha Schubert, 4 October 2007, Pell, the sceptic, not convinced world is warmer, age.com.au, http://www.theage.com.au/news/national/pell-the-sceptic-not-convinced-world-is- warmer/2007/10/03/1191091193879.html, viewed 21st April 2014. In a different context, as Archbishop of Melbourne, Pell in 1997 unsuccessfully applied for an injunction restraining the National Gallery from displaying the work ‘Piss Christ’ by Andres Serrano (the reference to ‘piss’ was to the artist’s own urine).

210

More generally, the institutional Catholic Church leadership arguably considers procreation to be the sole function of sexuality105 and it would therefore not be surprising to find that Australia’s then most senior Catholic cleric would feel strongly about, and perhaps want to speak publicly about, the topic of embryonic stem cell research, especially when over 25% of all Australians at the time identified themselves as Catholics.106 There seems to be little doubt that Cardinal Pell’s speech would fall within the Theophanous definition of political speech.

Archbishop Hickey, by comparison, had a more modest public profile. Hickey, like Pell, spoke at the National Press Club (1994), but his message at the venue was more politically benign (he launched the English language edition of the Catechism of the Catholic Church).107 So far as I can determine, Archbishop Hickey had not, before 2007, spoken publicly about SCNT. However, Archbishop Hickey contributed to public debate in other areas of politics and religion, sometimes attracting criticism. For example, he joined speakers in a pro-life

(anti-abortion) rally in Perth in 1998.108 He was criticised (in the Commonwealth Senate) for joining the rally because the other participants in the event used and published stolen information from women who had had abortions.109 Even with his more modest public profile, it seems likely that, as a public figure, Archbishop Hickey’s comments on SCTN legislation would fall within the Theophanous conception of political speech.

A potential objection to either religious leaders’ speech falling within the Theophanous (or Lange) definition of protected political speech is that ‘political’ debate does not, or should not, include statements about religion, or expression of views by religious leaders. Yet, for the reasons noted in Chapter 4, there is no inherent constitutional limitation under the Theophanous (or Lange) conception of ‘political views’ or ‘political debate’ which would a priori prevent the implied freedom applying to the expression of political views by religious leaders. Rather, so long as the speech meets the description of political speech in

105 See Foucault, n69, 121.

106 See Australian Bureau of Statistics 2006 Census Summary, at http://www.multiculturalaustralia.edu.au/doc/2006census-quickstats-australia.pdf, viewed 4th May 2014.

107 See National Press Club Archive, Address 22 June 1994, http://catalogue.nla.gov.au/Record/1897734, viewed 21st April 2014.

108 Senator Jim McKiernan, 3 April 1998, Senate, Hansard, 2022.

109 Ibid.

211

Theophanous (if applied), then that speech may fall within the protective scope of the implied freedom.

More specifically, the 2007 state-based SCNT legislation was, by 2007, already a matter of significant public discussion, especially when considered against the backdrop of the protracted inquiries into the possible enactment of the Commonwealth SCNT laws which preceded the state laws. Given the public profile of the subject matter, it is arguable that public expression of any view by any person about the NSW and Western Australian SCNT laws would fall within the Theophanous conception of political speech whether or not the views came from a recognised public (or religious) figure and regardless of the person’s public profile. Coming, however, from well-known Catholic leaders, with comments directed to state politicians and with various media outlets reporting the religious men’s comments, there seems little doubt that, on this perspective of Theophanous, the Archbishops’ speech would fall within the Theophanous interpretation of political speech. Cardinal Pell’s warning to politicians was potentially heard by, and was relevant to, up to 1,845,500 Catholic voters in NSW and Archbishop Hickey’s warning was potentially relevant to 464,005 Catholic voters in Western Australia.110 This is to say nothing of Catholic voters in other jurisdictions who may have taken an interest in the leaders’ warnings to the state politicians.

Finally, in relation to Theophanous, Archbishop Hickey’s claim that he intended his statement to be more religious than political raises an interesting question. Does a public figure’s appeal to others’ religious convictions fall within the Theophanous description of public political discourse? Does it make any difference to the Theophanous assessment that the person expressing the view is a religious leader?

I believe that, in the context of the Western Australian SCNT laws, Hickey’s appeal to state politicians’ religious convictions would fall within the Theophanous definition of political speech and that this would be the case notwithstanding that Archbishop Hickey possibly intended his speech to appeal to politicians’ religious convictions. Archbishop Hickey directed his warnings to Catholic politicians who were about to perform a public duty - as the Legislature - on a topic of significant public interest, on a matter with legislative

110 Figures obtained from 2006 Commonwealth Census, available at http://www.abs.gov.au/websitedbs/censushome.nsf/home/data?opendocument&navpos=200 by searching religion under NSW and Western Australia, viewed 4th May 2014.

212 consequences. The Perth Catholic leader plainly aimed to influence the politicians’ legislative decision making, albeit arguably by appealing to their religious beliefs. There was a governmental context to the Archbishop’s speech - lawmaking - which would bring the expression within the Theophanous conception of political speech. The politicians’ decisions would have consequences for the State of Western Australia.111

2. Could Lange Protect the Speech (Could Contempt be a Burden under Lange?)? I am not aware of the Lange freedom ever being raised in response to a contempt of parliament indictment. However, every institution - including a state parliament - is ultimately subject to the Constitution. It follows that the implied freedom could apply to speech burdened by the laws, decisions and practices of a state parliament.

In contrast to the majority of enacted laws, however, a contempt charge is a targeted constraint, one which aims to regulate, or penalise, specific expression, usually that of an individual (or perhaps a media outlet). Contempt of parliament is a qualitatively different indictment to an enacted law in that a contempt charge is levelled by a motion of Parliament and is directed to specific instance of speech, conduct or behaviour, without the genesis of the law occurring via a legislative process or subsequent administration of the law via the Executive. The Parliament itself administers and oversees the law and, if necessary, it also punishes the conduct. The otherwise distinct roles between the Legislature and the Executive may become blurred in those relatively rare instances when a Parliament commences action for contempt of itself by a person.

What then are the implications under Lange of this kind of potential burden on political speech?

On the question of whether contempt of parliament could be a relevant burden on speech, the High Court has already noted that the constitutional freedom is not necessarily confined to protecting political speech burdened by enacted laws: for example, the High Court in Lange

111 There nevertheless remains an argument that a public statement which aims to target a private religious conviction is not necessarily the kind of public commentary that the High Court joint judgment had in mind in Theophanous as attracting the implied freedom. In different circumstances, if, say, the speech in question perhaps had a less clear relevance to legislative decision-making than in the case of Archbishop Hickey’s warnings to WA politicians, then such an argument may have more weight. I consider the issue of Archbishop Hickey’s appeal to the WA politicians’ religious convictions later in this Case Study when examining his speech with reference to the Lange conception of political speech.

213 recognised that ‘political’ speech implies a limitation on executive power and not just legislative power.112 The High Court has held in other implied freedom cases that speech that is burdened by: parole decisions involving an exercise of administrative power at state level (Wotton);113 court-enforced suppression orders when the orders are issued by a state court (Hogan v Hinch);114 and delegated legislation (Levy)115 could fall with the protective scope of the implied freedom. In AG v Adelaide116, the High Court accepted (albeit with a concession by the Solicitor General for South Australia) that state-based delegated legislation (a local government by-law) which inter alia restricted preaching, could fall within the protective scope of the implied freedom of political discourse.

On this reasoning, administrative decisions, decisions of the courts and laws made under delegated legislation may be subject to the implied freedom of political discourse if the burden restricts or tends to restrict expression of information about political or governmental matters. It might, however, be said that a parliament’s decision to issue contempt proceedings with respect to itself (whether it be the Commonwealth Parliament or a parliament of a state or territory) is in a different category to the above examples. Further, that when issuing a contempt indictment, the Parliament is defending itself; it is acting on behalf of its own elected members to protect, or perhaps even preserve, its processes and possibly its very integrity. For a court, including the High Court, to hold that the protective reach of the implied freedom could include speech that is burdened by an indictment issued by Parliament could threaten the Parliament’s very autonomy and authority.

Yet, there is no in-principle reason why the protective reach of the implied freedom could not extend to ‘political’ speech that is burdened by a contempt indictment any more than it could be said that the protective scope of the implied freedom does not extend to speech that is

112 The High Court in Lange, n1, stated that: ‘[the implied freedom] necessarily implies a limitation on legislative and executive power to deny the electors and their representatives, information concerning the executive branch of the government throughout the life of a federal Parliament. Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature’: 561.

113 Wotton v Queensland (2012) 246 CLR 1.

114 n33.

115 n47.

116 n51.

214 burdened by enacted laws. Even a state parliament is ultimately subject to all the terms of the Constitution, including its implied terms.117 It follows from the aforementioned decisions and reasoning that a contempt of parliament indictment could be an ‘effective burden’ on the constitutional speech of the two Catholic leaders if the charge could tend to punish constrain, limit or deter Cardinal Pell and Archbishop Hickey from expressing relevantly ‘political’ views. To fall within the protective scope of the Lange freedom, those views must, however, be relevant to governmental affairs, and specifically, voting choices or executive responsibility in the Commonwealth Parliament. I now turn to these questions.

(a) Did the Speech Relate to the Commonwealth Parliament?

There was a clear connection between the religious leaders’ speech and state political affairs. Any NSW and Western Australian State Catholic politician who supported the SCNT laws would be politically responsible for that State Government enacting and administering the SCNT laws. Those Catholic politicians’ decisions as members of the Legislature could - plainly - result in NSW and/or Western Australia having executive responsibility for the SCNT laws. The speech also had relevance to voting choices at the state level: state politicians who supported (or opposed) the SCNT legislation could face the consequences of their legislative decisions at the ballot box.

The Archbishops’ speech was also connected with state voting choices in another respect (albeit a point neither Catholic leader may not choose to rely upon in their own defence). Each Catholic leader implied that there would be religious consequences for state Catholic politicians who supported the SCNT legislation. Their warnings potentially carried the force of the Magisterium. The Catholic leaders’ statements delivered an implicit message, perhaps even a threat, that Catholic voters might no longer regard Catholic politicians as authentic members of the Roman Catholic Church if they supported the SCNT legislation. Not being entitled to take the Sacraments, the politicians could have a diminished role in the Catholic Church. Moreover, voters who identified as Catholic may consider those Catholic politicians who voted for the SCNT laws to be less worthy of their voting choice at the ballot box.

117 Unions NSW v State of New South Wales (2013) 304 ALR 266 (‘Unions NSW’), 276 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

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I have contended that the speech of either leader could fall within the protective scope of the implied freedom only if the speech related to voting choices or executive responsibility in the Commonwealth Parliament. The clerics’ warnings were, however, issued to state politicians (not members of the Commonwealth Parliament). The Parliaments considering issuing the contempt proceedings against the two religious leaders were state Parliaments. The relevant burden in each case - contempt of parliament - was (hypothetically) under a state law.

Cardinal Pell had already sought to persuade Catholic Commonwealth MPs of his views on SCNT by delivering a National Press Club speech in 2005. In that speech, the Cardinal warned Commonwealth Catholic politicians of a slide into relativism if they voted for SCNT laws. By the time the NSW and Western Australian SCNT laws came before the respective State Parliaments, the opportunity had arguably passed for anyone, including senior Catholic leaders, to persuade any Commonwealth MP that the Commonwealth should not support SCNT.

In view of the prior enactment of those laws by the Commonwealth Parliament, it might be said that the speech the religious leaders directed towards NSW and Western Australian State politicians in 2007 was insufficiently connected with Commonwealth governmental matters, particularly as the state-based laws would apply to smaller organisations which might otherwise fall outside regulation under the Commonwealth laws. The NSW and Western Australian laws also applied to a discrete area of SCNT regulation which was different to the area covered by the Commonwealth.

Was, then, the Catholic leaders’ speech relevant to Commonwealth voting choices or executive responsibility (and if so, how)? I believe that a court would conclude that Cardinal Pell’s and Archbishop Hickey’s warnings were relevant to Commonwealth political affairs. The High Court has acknowledged the strong ties between different tiers of government in Australia as a basis for concluding that the implied freedom of political discourse may protect speech about state political matters. It reasoned, for example, in Coleman v Power118 that speech burdened by Queensland vagrancy laws - offensive expression directed at a Queensland police officer - could fall within the protective scope of the implied freedom

118 n1.

216 because of, inter alia, the cooperation and joint funding between state and Commonwealth law enforcement authorities.119

Similarly, in Wotton120, French CJ, Gummow, Hayne, Crennan and Bell JJ (with whom Kiefel J generally concurred) held, concerning a Queensland parole law, that the plaintiff’s (burdened) discussion of matters relating to Aboriginal and Indigenous affairs involved communication at a national level, rather than a purely state level.121 By its very nature, that kind of speech could not be confined to one tier of government. The five High Court judges in the joint judgment in Wotton reasoned that law enforcement and policing depended on cooperation between federal, state and territory police forces and that the interaction between those services and Aboriginal people is a matter of national rather than purely local political concern.122

In Unions NSW123 the High Court similarly held that communication about political parties could not be confined to one tier of government. The Court noted that there was significant interaction between the different levels of government in Australia which was reflected in communication between people about those different tiers of government.124 The High Court also referred to the existence of national political parties operating across the federal divide at all tiers of government125 as evidence necessitating that a wide view be taken of the operation of the freedom of political communication.126 In each decision, though for slightly different reasons, the High Court accepted that, on some topics, it may be difficult to distinguish Commonwealth, state and even local government responsibilities. Speech about one tier of government may be inextricably linked with speech about another.

119 Ibid, 45 (McHugh J) and 78 (Gummow v Hayne JJ).

120 n113.

121 Ibid, 15.

122 Ibid.

123 n117.

124 Ibid, 273.

125 Ibid, 274.

126 Ibid.

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This is not to say that expression about state or local government matters is always relevant to the Commonwealth Parliament. Whether speech about state or local government matters is relevant to Commonwealth governmental affairs will depend on the subject matter of the speech, the particular circumstances and the nature of the burden. A court could, for example, reach a different view about whether speech about public holiday trading (arguably a state or territory and/or local governmental responsibility) is relevant to Commonwealth political affairs in the same way as speech about other state or local government responsibilities (say, law enforcement). Much may depend on whether there is shared responsibility between the different tiers of government - either express or implied - including under intergovernmental funding arrangements. A government with no formal constitutional responsibility over a field (say, the Commonwealth with respect to public holiday trading) may be considered to be closely politically connected with another level of government because the former exercises significant funding control over the other tier of government (say, because of industrial relations laws). Speech about one level of government may therefore be interlinked with speech about another. Political decisions in one tier of government may hinge on political decisions in another. Political affiliations may sometimes draw tiers of government together.

In light of the High Court cases and the above reasoning, there are several factors suggesting that the speech of both Cardinal Pell and Archbishop Hickey’s could, and I believe, would fall within the protective scope of the Lange freedom notwithstanding that the relevant burden was a state law (or indictment) and that the speech of the two Catholic leaders was directed to state politicians and state political affairs.

First, given the interrelationship of the state SCNT laws with the Commonwealth SCNT laws (including under COAG), each Catholic leaders’ warning to MPs conveyed implicit criticism of the legislative decisions of the (Catholic) Commonwealth MPs and Senators who had already voted in favour of the Commonwealth legislation. Cardinal Pell’s and Archbishop Hickey’s warnings to state politicians about the consequences of them voting for the state legislation arguably reflected their disappointment or disenchantment with the historic legislative choices of Commonwealth Catholic MPs who supported the laws. The clerics’ warnings to state politicians was arguably an expression of their displeasure with the legislative decisions of the Commonwealth MPs who passed the SCNT policies into law as

218 well as a warning to the state Catholic politicians who were about to make a legislative decision that they should not do the same thing.

Secondly, the religious leaders’ statements related to the administration of SCNT laws at state and Commonwealth levels of government. As has been shown, the State legislation was interlinked (e.g., via COAG) with Commonwealth laws. The purpose of the NSW and Western Australian State Governments introducing the laws into the respective State Parliaments was, in large part, to achieve consistency and complementarity with the Commonwealth legislation. The Commonwealth-state history to SCNT, including the historic COAG agreement and the need for joint administration of the Commonwealth and state laws suggest a strong connection between Commonwealth and state political affairs such that speech directed to a state government was necessarily relevant (even if not directly) to

Commonwealth governmental matters relating to SCNT laws and administration.127

Thirdly, although perhaps more tenuously, just as there may be an interrelationship of policy considerations at both state and federal tiers of government, there may within the Catholic Church, be a commonality of religious beliefs and understanding about the consequences of Catholic politicians being denied the Sacraments. This argument does not necessarily reflect well on either Cardinal Pell or Archbishop Hickey and it is therefore perhaps unlikely that either man would raise the point as part of an implied freedom of political discourse pleading. However, the point possibly accentuates the interlinking of the levels of government relevant to this Case Study, albeit by reference to a state Catholic politician’s religious status.

To explain: Party political relationships traverse tiers of government. So, however, may peoples’ perceptions of a Catholic’s status within the Church as well as for that same person within political circles. Catholic voters may not only potentially shun NSW and Western Australian Catholic politicians who exercise a legislative choice which contradicts the stern warnings of Catholic leaders. The significance for church life of any perceived ‘consequences’ for Catholic politicians who fail to adhere to their Catholic leader’s teachings could be apprehended by Catholic and non-Catholic politicians alike in other tiers of

127 On a related point, although demonstrating the relationship between the states rather than the relationship between the states and the Commonwealth, a religious leaders’ warning to state politicians about the consequences of them voting on SCNT could also easily be perceived as a warning (or expression of disappointment) to politicians in other states.

219 government. Potentially denied the Sacraments, a Catholic politician who failed to act in accordance with the Magisterium’s instructions may suffer a diminished status in the Church and in politics. His or her potentially reduced status would not necessary be confined to state politics and may be apprehended in other tiers of government.

To further explain, within the Catholic Church, perceptions about the religious status of a politician, or more specifically, others’ views about the legitimacy of that person’s position within the Catholic Church, may not be bounded by levels of government, or even by territorial boundaries. The Catholic leaders’ warnings to politicians, and more specifically, the consequences of a state Catholic politician not adhering to the religious leaders’ missives, could follow that politician wherever and whenever in politics he or she may choose to go. If Catholic state politicians moved from state to federal politics (or vice versa, or to other tiers of government), then their diminished reputation as Catholics may follow them to the Federal Parliament or to state politics (or to local government politics), as the case may be. The person’s reputation as a Catholic - reflecting a perception of their religious status within the Catholic Church - could follow that person in politics, in perpetuity, from one level of government to another.

(b) Lange Freedom as a Constitutional ‘Right’ and the General Approach

In Chapter 4, I noted that some NSW and Queensland Supreme Court judges (arguably with some High Court support) had indicated that the constitutional question under the first limb of Lange is not about whether the person is limited as to whether they can express themselves (or how the person frames the description of their speech), but how the burden affects the constitutional freedom in a more general sense.128 This led to those judges taking the view that the protective scope of the implied freedom is determined by reference to the effect that a burden generally has on political expression, and not necessarily its effect on the speech of the plaintiff. I described this as the general approach and highlighted some of its shortcomings while also noting that it is possible, even in the near term, that the High Court

128 In Unions NSW n117, the High Court put the point this way ‘… The freedom is to be understood as addressed to legislative power, not rights, and as effecting a restriction on that power. Thus the question is not whether a person is limited in the way that he or she can express himself or herself, although identification of that limiting effect may be necessary to an understanding of the operation of a statutory provision upon the freedom more generally. The central question is: how does the impugned law affect the freedom’: 277 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

220 may itself adopt such an approach (and has arguably already gone some way towards doing so).

This Case Study emphasises a shortcoming of one particular aspect of the general approach. An indictment for contempt of parliament, such as was contemplated by the NSW and Western Australian Parliaments is a targeted constraint upon the specific speech of an individual. In this instance, the indictment would be against the particular religious leaders - Cardinal Pell and/or Archbishop Hickey - for their warnings to state politicians. A contempt charge of the kind described in this Case Study - contemplated by the respective State Parliaments - may have no general effect on burdening discourse except in the sense that the indictment may potentially deter others at future times from making religiously motivated threats to politicians. Even then, to have any actual effect on such speech, Parliament would likely have to introduce, or at least contemplate, a new contempt action in relation to that speech against specifically named individuals. It would therefore seem very difficult to identify any general burden on political discourse brought about by the contempt of parliament indictment considered in this Case Study.

Each church leader issued a warning to Catholic MPs about the ‘consequences’ that could befall the state MPs if they supported the NSW or WA SCNT legislation. Despite differences in the terminology that each clergyman use towards their respective state MPs (Cardinal Pell: ‘... their voting has consequences for their place in the life of the church’; Archbishop Hickey: ‘.... if they do in conscience [support the legislation] they should not go to communion’), both leaders’ statements carried an implicit threat to any Catholic politician that, if they supported the legislation, they might no longer be entitled to the full rewards of Catholic Church life. Each religious leader’s message implied that there would be personal (religious) consequences for state politicians if they voted for the relevant state SCNT legislation.

It was these personal threats to Catholic politicians which caused each Parliament to consider prosecuting each church leader for contempt of parliament. It was also the implied threat of personal consequences for the church life of those MPs who (potentially) voted in favour of the laws which arguably distinguished the speech of the two religious leaders from mere forceful political lobbying. The expression - from senior representatives of the Catholic

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Church - came with the religious sting that, if the Catholic MPs did not vote against the SCNT legislation (or if they supported it), then MPs would not be able to take the Sacraments in church and may, accordingly, face a diminished role in Catholic Church life.

Significantly, the two Catholic Archbishops offered different justifications for their public statements. Cardinal Pell claimed that religious leaders are entitled to argue publicly about public policies. The Sydney Cardinal suggested that the contributions of Christian leaders to public discourse (including his own) strengthened Australia as a decent, prosperous and stable democracy. Cardinal Pell saw himself in a senior religious role which bore upon him a responsibility to contribute to public discourse.

Cardinal Pell perhaps had greater confidence in his ‘right’ to speak out about such matters than did Archbishop Hickey, the former having participated in public discussions about SCNT at least two years before his public statements attracted the ire of the NSW Parliament Privileges Committee. Cardinal Pell may have felt entitled, perhaps even responsible, to be quite forceful and even directive in his statements to Catholic NSW politicians about SCNT. The Sydney Catholic leader delivered the ‘parable of the Catholic politician and the priest’ at the National Press Club in 2005. Two years before NSW Parliament considered SCNT legislation, Cardinal Pell had already, by storytelling, effectively told federal Catholic politicians not to pass SCNT legislation. The former Sydney Catholic leader’s explanation of his statement to the NSW Privileges Committee made it clear that his public statement was an appeal to politicians’ political decision making and not merely their religious beliefs. For the reasons previously explained, the speech had a connection with, and relevance, to Commonwealth political affairs. His expression would fall within the protective scope of the implied freedom.

By contrast, in his explanatory response to the WA Privileges Committee, Archbishop

Hickey said his comments were intended to be more religious than political.129 Hickey intimated that his exhortations to Catholic politicians were directed to the private religious interests of Catholic politicians and not their political capacities. Presumably what

129 At least one Western Australian MP (Troy Buswell, then Deputy Opposition Leader) defended the right of Archbishop Hickey to warn state MPs about the consequences of them supporting the WA SCNT legislation, stating ‘... as long as I am a member of this place I will defend the Archbishop’s and anybody else’s right to make those statements to draw people’s attention to specific issues’: WA Parliament Hansard, Legislative Assembly, 29 August 2007, p4513b-4519a.

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Archbishop Hickey had in mind with this explanation was to clarify that he did not intend his statements to influence the Parliamentary voting choices of Western Australian politicians. As a contempt of parliament indictment is concerned with undue influence over the duties of a politician, the distinction Archbishop Hickey apparently tried to draw might have been important in establishing that he did not seek to influence the legislative choices of the politicians in relation to their political decisions.

While Archbishop Hickey may have intended his speech to be more religious than political, it is, in my view, likely that his expression would have been understood by the Catholic politicians who heard it (those in NSW as well as Western Australia) to have had considerable political significance and relevance.

First, Western Australian Catholic parliamentarians who were preparing to vote for the state SCNT legislation would surely have understood the Archbishop’s message to have relevance to them as politicians. Enacting or refusing to enact legislation is a political process; as members of the Legislature, even the most devout Catholic politicians still make legislative choices. Catholic MPs would likely have understood Hickey’s statements to be directed towards their Parliamentary decisions in relation to the SCNT legislation, albeit with potential consequences for their lives in the Catholic Church if they failed to follow Hickey’s instructions.

Secondly, while stating that his comments were intended to be more religious than political, Archbishop Hickey was reported to have said that state MPs should not vote in favour of the legislation. The conclusion is, I suggest, inescapable that the Perth Catholic leader’s speech would have been understood to convey a political message - namely, that Catholic state politicians should not support the legislation - even if the Perth leader directed his speech to their religious convictions. For the reasons previously explained, Hickey’s speech was also relevant to Commonwealth political affairs.

3. Conclusion on the Implied Freedom in Relation to the Archbishops’ Speech There seems to be little doubt that each religious leader’s speech could, assuming it was burdened by a state-based contempt of parliament indictment, fall within the protective scope of the implied freedom. It could do so under the Theophanous conception of political speech or under Lange. The speech of Archbishop Hickey is perhaps the more interesting of the two examples in this Case Study, for the analysis in this Chapter suggests that even a religious

223 leader who intends their speech to be religious may find that the speech falls within the protective scope of the implied freedom of political discourse if the speech is relevant to ministerial responsibility or voting choices at the Commonwealth level of government.

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IV. CASE STUDY 3: A TWEET ABOUT GAY MARRIAGE

A. The Tweet This Case Study examines a tweet by the (then) leader of the Australian Christian Lobby (‘ACL’), Brigadier Jim Wallace (‘Wallace Tweet’) about gay marriage (and Islam). Wallace, then Managing Director of ACL130 and a former head of the Special Air Services of the

Australian Army, was sitting with his 96 year old father131 (a war veteran) in front of the ACL leader's television in his Canberra home132 on Anzac Day 2011 when he tweeted

@JimWallaceACL

Just hope that as we remember Servicemen and women today we remember the Australia they fought for - wasn't gay marriage and Islamic!133

Wallace's message did not specify whether the Australian servicemen and servicewomen to whom he was referring were currently-serving defence force members, ex-service personnel, veterans and/or died in service. Brigadier Wallace apologised for the tweet later that same day, writing (again on Twitter), apparently in response to criticism

@JimWallaceACL

130 Brigadier Jim Wallace became Managing Director of the ACL in 2000, a position Wallace held until 2013, after which he vacated the position of Managing Director (to become Deputy Chairman of ACL) and was replaced as Managing Director by Mr Lyle Shelton. Made a Member of the Order of Australia (AM) in 1984 for his service to the Australian military, Wallace was, for a time, in charge of the Special Air Service Regiment of the Australian Army. He tweeted on Anzac Day 2011 with some knowledge about war and presumably was aware that Australia’s armed forces included gay men and women, as well as Muslims. ACL is, and continues to be, a Christian political lobby group: Its stated aim is to ‘bring Christ's influence into public policy' and - it says - '[to do so] strenuously, while acknowledging that in a secular, democratic state we must accept the majority decision in the end': Australian Christian Lobby (Jim Wallace) Open Letter to News Weekly 6 December 2008, available at http://newsweekly.com.au/article.php?id=3352, viewed 21st July 2013.

131 Matthew Johnston (25 April 2011), Australian Christian Lobby head sorry for attack on gay marriage, Muslims, Herald Sun, http://www.heraldsun.com.au/news/victoria/make-big-match-a-grand-final- replay/story-fn7x8me2-1226044458549, viewed 22nd February 2013.

132 Ben Packham (26 April 2011), Christian lobbyist sorry for gays, Islam tweet, The Australian, http://www.theaustralian.com.au/in-depth/anzac-day/christian-lobbyist-sorry-for-gays-islam- tweet/story-e6frgdaf-1226044692747, viewed 22nd February 2013.

133 Rod Benson (2011), Jim Wallace and the ANZAC tweet firestorm, ABC Religion & Ethics, http://www.abc.net.au/religion/articles/2011/04/27/3201328.htm, viewed 21st February 2013.

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Ok you are right my apologies this was the wrong context to raise these issues. ANZACs mean to [sic] much to me to demean this day, not intended134

Despite the apology, the apparent susceptibility of the Wallace Tweet to unfavourable interpretations led Wallace to issue a further clarifying message about his original tweet. Later on Anzac Day 2011, Wallace issued a statement:

My ill-timed tweet was a comment on the nature of the Australia (my father) had fought for, and the need to honour that in the way we preserve it into the future.

While of course and rightly there have always been gays and Muslims in Australia, many of whom have fought for the country, the nature of the country they fought for and arguably what made it worth fighting for, has been largely drawn from Judeo-Christian heritage and values.135

Based on this clarification, it seems that Wallace intended his Anzac Day message to mean that, in contrast to gay marriage and Islam, Australian service personnel strived to maintain values drawn from a Christian heritage.136 Even with this clarification, the imputation was that war veterans stood for higher principles than the morals or values underpinning support for gay marriage or belief in Islam.

134 Ibid.

135 Matthew Johnston (25 April 2011), Australian Christian Lobby head sorry for attack on gay marriage, Muslims, Herald Sun, http://www.heraldsun.com.au/news/victoria/make-big-match-a-grand-final- replay/story-fn7x8me2-1226044458549, viewed 22nd February 2013.

136 Ibid. A slightly different possible imputation is that those who fought for, or fight for, Australia do not support Islam or gay marriage at all. This seems not have been Wallace’s intention given that his clarifying statement acknowledged that gay people and Muslims had fought for Australia. However, if this was the correct interpretation of the Wallace Tweet, then the statement would be at odds with Australian Defence Force (ADF) policies, which acknowledge and support diversity of religious belief in the Australian military services (including in relation to Islam) and state that, ‘where practicable, and dependent on operational requirements, personnel are not to be employed to work on a day where that is contrary to the principles of their religion’: see Australian Government, Department of Defence (2011), Guide to Religion and Belief in the Australian Defence Force, 5, available at http://www.defence.gov.au/fr/rr/Guide%20to%20Religion%20and%20Belief%20in%20the%20Austral ian%20Defence%20Force.pdf, viewed 15th July 2013. The same publication accepts that Defence Force commanders and supervisors ‘may approve different types of head dress (such as turbans, hijabs or yarmulkes) or simply be more flexible with uniform requirements (such as allowing Muslim women to wear long sleeves and tracksuit pants during physical training)’: ibid.

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B. Overview Against this background, this Case Study uses the Wallace Tweet as the basis for discussing whether the content of the tweet might, if burdened, constitute 'political speech'. Because Wallace tweeted the message in the ACT, I review whether the Brigadier’s message could - hypothetically - be protected from a burden under ACT homosexual anti-vilification laws.137 To keep the Case Study focussed on the politics of gay marriage, I concentrate on the gay marriage element of the Wallace Tweet and not its statement about Islam.138

In Section IV C, I consider whether Brigadier Wallace’s contributions to public debate on the topic of gay marriage could fall within the Theophanous conception of political speech. This review shows that Wallace’s contribution to discourse on Anzac Day 2011 was part of a lengthy history of public comment from the Brigadier opposing the legalisation of gay marriage in respect of the Commonwealth, states and territories of Australia.139 In Section IV,

137 See, e.g., Discrimination Act (ACT) 1991. Section 66 of the Discrimination Act ACT (1991) provides that it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of people on the ground of race, sexuality, gender identity or HIV/AIDS status. There are exceptions to the above.

138 The ACT laws apply to race but not religion and the Wallace Tweet would therefore not infringe the laws insofar as it relayed a message about Islam. Even though I do not consider it in detail, the ‘Islamic’ element of the Wallace Tweet could nevertheless constitute an interesting study in political expression.

139 As noted, Wallace resigned as Managing Director of the ACL in 2013. I do not generally consider ACL’s contributions to public debate on gay marriage after 2012 except to mention - here, by way of summary - that in late 2012 and 2013, consistent with its opposition to changes to Commonwealth laws to allow same sex marriage, the ACL lobbied against same sex marriage reforms in South Australia, NSW, Tasmania and ACT: see Alex Dunkin, Gay News Network, ‘ACL enters gay marriage debate’, 14 November 2012, http://gaynewsnetwork.com.au/news/acl-enters-sa-marriage-debate-9511.html, viewed 7th January 2014; Australian Christian Lobby, Submission No 1167, Inquiry into Same Sex Marriage Law in NSW, received 1 March 2013, http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/0/158e3f2238943f13ca257b2a007c81 5e/$FILE/1167%20Australian%20Christian%20Lobby.pdf, viewed 7th January 2014; Matt Smith, Mercury News, ‘Tasmanian Law Reform paper fuels same-sex marriage argument ahead of parliamentary debate’, 10 October 2013, www.themercury.com.au/news/tasmania/tasmanian-law- reform-paper-fuels-same-sex-marriage-argument-ahead-of-parliamentary-debate/story-fnj4f7k1- 1226736572595, viewed 7th January 2014; See also ACL Media Release 22 October 2013, ‘ACT residents urged to email their MLAs asking them not to redefine marriage’, http://www.acl.org.au/2013/10/act-residents-urged-to-email-their-mlas-asking-them-not-to-redefine- marriage/, viewed 7th January 2014. The ACT passed the Marriage Equality (Same Sex) Act 2013 (ACT) (‘ACT Marriage Equality Act’) into law in October 2013 and the first marriages under that law took place in the ACT on 7 December 2013. The High Court of Australia unanimously found that the ACT Marriage Equality Act was inconsistent with the Marriage Act and that the ACT Marriage Equality Act was legally invalid: Commonwealth v Australian Capital Territory (2013) 250 CLR 441. The ACL (under new Managing Director Mr Lyle Shelton) welcomed the High Court’s decision. Mr Shelton said ‘Marriage between a man and a woman is good for society and beneficial for governments to uphold in legislation. It’s about providing a future for the next generation where they can be raised

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D, I then review whether the Wallace Tweet could fall within the first limb of Lange

(including by reference to referenda).140

C. Wallace and ACL as Public Contributors to Gay Marriage Debate: the Theophanous View of Political Speech As noted in the earlier Case Studies, the joint judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous suggests that political speech includes discourse about the views and public conduct of all persons involved in activities that have become the subject of political debate a description that could include the Wallace Tweet. A brief study of Wallace’s contributions to public debate about marriage law reform from 2004 to 2012 (Wallace resigned as ACL Managing Director in 2013) shows that Wallace and ACL frequently spoke publicly about changes to the marriage laws. Wallace often did so with the implicit or explicit support of senior serving politicians. This Section describes some of those contributions by Wallace, ACL and politicians.

1. Marriage Act Amendments 2004 Brigadier Wallace claimed to have had a role in bringing about changes to the Marriage Act

1961 (Cth) (‘Marriage Act’) in 2004.141 The ACL chief was involved in the National Marriage Forum (NMF), a joint initiative of the Fatherhood Foundation, Australian Christian Lobby and Australian Family Association which convened in the Great Hall of Canberra’s Parliament House on 4 August 2004 to press for amendments to the Marriage

Act.142 These amendments to the Marriage Act would, if enacted, clarify that marriage was the

by their biological parents, wherever possible’: see ACL Media Release 12 December 2013, ‘ACL Welcomes High Court decision on marriage’, http://www.acl.org.au/2013/12/mr-acl-welcomes-high- court-decision-on-marriage/, viewed 7th January 2014. The ACL welcomed the decision even though the High Court’s unanimous decision indicated that the Commonwealth Parliament could, if it chose to, legislate to allow gay marriage: ibid. The High Court held per curiam, 456: ‘Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.’ At the time of writing, the Commonwealth has not passed any law to legalise gay marriage.

140 As the ACT law is not a Commonwealth law, I do not consider whether section 116 of the Constitution could protect the speech.

141 ACL (Jim Wallace) Open Letter to News Weekly 6 December 2008, available at http://newsweekly.com.au/article.php?id=3352, viewed 21st July 2013.

142 Ibid. See also Anglican Diocese of Sydney Australia – Social Issues Executive, Andrew Cameron and Tracy Gordon, Briefing #21, The National Marriage Forum, 6 August 2004, http://www.sie.org.au/briefings/the_national_marriage_forum/, viewed 21st July 2013.

228 union of a man and a woman in an exclusive commitment. A short time after the NMF, the Commonwealth Parliament passed legislation to insert subsection 5(1) into the Marriage Act:

‘marriage’ means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.143

For the then Prime Minister John Howard, this amendment to the Marriage Act confirmed in legislative form the apparently immutable Christian belief that marriage is a legally-binding, lifelong union between a man and a woman.144

2. Commitments by Senior Politicians Prime Minister Howard told ACL and its constituents at ACL’s August 2007 election year event Make it Count that he changed the definition of marriage in 2004 in order to promote a

143 The Labor Party (then in Opposition) advised that this amendment confirmed the common law position on marriage. The then Shadow Attorney General Nicola Roxon said ‘... it is certainly not something to get hot under the collar about when actually it is restating what is the existing law’: ABC Insiders, 30 May 2004, interview with Shadow Attorney General Nicola Roxon, transcript available at http://www.abc.net.au/insiders/content/2004/s1119031.htm, viewed 17th July 2013. By contrast, Senator Penny Wong, a gay Christian in a committed lesbian relationship, argued that the ALP should not support the legislative change: see debate on Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013, Second Reading, 20 June 2013.

144 See John Howard, Menzies Lecture, 27 August 2009: ‘In Australia, the former government which I led, decided in 2004 that the Marriage Act 1961 (Cth) should be amended to define marriage as a voluntary union for life between a man and woman to the exclusion of all others, thus precluding the possibility of recognising same sex marriages’, available at The Australian, http://www.theaustralian.com.au/politics/menzies-lecture-by-john-howard-full-text/story-e6frgczf- 1225766613925, viewed 29th July 2013. See also Recognition of Same Sex Marriages in Australia, Social Responsibilities Committee, Anglican Diocese of Melbourne, https://www.melbourne.anglican.com.au/main.php?pg=download&id=1339, viewed 14th July 2007. The legislative change to the Marriage Act did, however (subject to the High Court’s interpretation of the scope of the constitutional marriage power in section 51(xxi) of the Constitution), raise the possibility that, if state laws were not man-woman specific in relation to the definition of marriage, then this legislation might not conflict with the amended Commonwealth legislation. This could allow states and territories to introduce their own laws to allow gay marriage notwithstanding the amendment to the definition of marriage under the Commonwealth legislation. The High Court clarified the jurisdictional question over marriage in Commonwealth v Australian Capital Territory n139. The High Court unanimously found that the Marriage Equality Act (ACT) was inconsistent with the Marriage Act and that the Marriage Equality Act was legally invalid. Earlier, in 2004, the Marriage Amendment Act 2004 (Cth) inserted section 88EA into the Marriage Act. This amendment prohibited Australia recognising the legality of same-sex marriages carried out in foreign countries: In 2006, Attorney General Ruddock recommended that the Governor General disallow an ACT law - the Civil Unions Act (2006) (ACT) - to allow ‘civil unions’. Supported by Senator Steve Fielding, Family First Senator for Victoria (who recited the rhyme ‘marriages bloom between a bride and a groom’) (see ABC, Bid to Save ACT civil unions fails, http://www.abc.net.au/pm/content/2006/s1664191.htm, viewed 6th October 2007), Ruddock said the ACT law failed to recognize that ‘marriage is the union of a man and a woman to the exclusion of all others ... which [he said] reflects the traditional understanding of marriage’ : Philip Ruddock, Media Release 6 June 2006.

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Christian view of society.145 At the same event, Kevin Rudd, then Federal Opposition Leader, told Make it Count that, in the ALP’s view, marriage was between a man and a woman.146 In the Opposition Leader’s (then) opinion, marriage could not involve members of the same sex.147 Rudd told Make it Count that the ALP supported neither same sex marriage nor civil

145 From at least 2005, ACL convened federal, state and territory election-year events during election years which included a focus on potential changes to the Marriage Act. These regular events, called Make it Count, generally involved religiously sympathetic state and/or federal political leaders offering their views to ACL about political topics regarded as significant for Christians. These events, often including speeches by Christian political leaders, were shown live via webcast to church groups. In 2005, the new Labor leader, Kim Beazley, himself a Christian, spoke about his own faith at an ACL conference in Canberra: see John Warhurst, ‘Religion in 21st Century Australian National Politics’, in Papers on Parliament 46 (2006) Images, Colours and Reflections Lectures in the Senate Occasional Lecture Series 2005–2006 66, available at http://www.aph.gov.au/binaries/senate/pubs/pops/pop46/pop46.pdf, viewed 16th July 2013. In the August 2007 Make it Count, Prime Minister Howard remarked (in response to a question): ‘... There is one thing that your question prompted me to recall that I should have mentioned in my address when I was listing the things that I did specifically to promote a Christian view of society, and that is the amendment to the Marriage Act that our Government introduced. [Applause] The amendment to the Marriage Act, which made it very clear that as far as we were concerned, and as far as the parliament was concerned - and it did pass through without objective [sic] - that marriage was a voluntary union for life of a man and a woman to the exclusion of all others. Now, that is our view of marriage. It remains our view and it will always be our view of marriage and it can only be the view that a Christian society should have of marriage’: Media Monitors Transcript Make it Count 2007, http://pandora.nla.gov.au/pan/76281/20070831- 1744/www.acl.org.au/makeitcount/load_pdf_public.pdf, 26, viewed 22nd June 2013. Emphasis added.

146 Make it Count, ibid, 59.

147 Rudd told the Commonwealth Parliament on 6 December 2006: ‘I do not believe that Christian beliefs mandate a conservative position on human sexuality. These are very much matters for the individual— individual choices which should be respected, just as the privacy of people’s personal relationships should be respected.’ House of Representatives Hansard, 6 December 2006. By May 2013, he had changed his mind. In May 2013, he wrote (on his widely read blog): ‘I for one have never accepted the argument from some Christians that homosexuality is an abnormality. People do not choose to be gay. The near universal findings of biological and psychological research for most of the post war period is that irrespective of race, religion or culture, a certain proportion of the community is born gay, whether they like it or not. Given this relatively uncontested scientific fact, then the following question that arises is should our brothers and sisters who happen to be gay be fully embraced as full members of our wider society? The answer to that is unequivocally yes, given that the suppression of a person's sexuality inevitably creates far greater social and behavioural abnormalities, as opposed to its free and lawful expression’: Kevin Rudd, Monday, 20 May 2013, ‘Church and State are able to have different positions on same sex marriage’. http://www.kevinruddmcom/2013/05/church-and-state-are-able-to- have.html, viewed 16th June 2013. ACL did not respond kindly to Rudd’s changed position. The new ACL Managing Director Lyle Shelton published a media release on 21 May 2013 - the day after Rudd published his blog - claiming that the man who had rightly issued an apology to the Stolen Generation could create another kind of stolen generation by robbing children of their biological identity: see ACL Media Release 21 May 2013, Rudd’s change on marriage sets up a new stolen generation, http://www.acl.org.au/2013/05/mr-rudd%E2%80%99s-change-on-marriage-sets-up-a-new-stolen- generation/, viewed 15th July 2013. In the same media release, in an apparent reference to Rudd’s reportedly strained relationships with political colleagues and with a hint that the ACL had long doubted the sincerity of Rudd’s Christian convictions, Shelton claimed that Mr Rudd was ‘intent on burning bridges not only with colleagues, but with a [Christian] constituency which had long given him the benefit of the doubt’: ibid. Shelton later claimed that Rudd’s position on marriage was ‘out of step

230 unions, but that the ALP was prepared to accept the possibility of relationship registers if they existed at a state or territory level.148

Just before the ALP’s 2009 National Conference, Brigadier Wallace reminded Prime Minister

Rudd of his 2007 pledge to ACL.149 Wallace published a Media Release under the title Gay marriage is a test for faith in Labor.150 Claiming that the Rudd Government ‘came to power with a commitment to ... not to introduce civil union schemes that mimic marriage’ and asserting that ‘any move to water down the ALP’s platform on marriage at its annual conference would break faith with this election promise’, Wallace’s Media Release stated

Evangelical and Orthodox Christians in particular have been very tolerant in the removal of discrimination from same-sex

with every major Christian denomination in Australia ...’, ACL Media Release, 28 June 2013, Rudd’s new view of marriage out of step with orthodox Christianity, http://www.acl.org.au/2013/06/mr- rudd%E2%80%99s-new-view-of-marriage-out-of-step-with-orthodox-christianity/, viewed 15th July 2013.

148 Media Monitors Transcript Make it Count 2007, http://pandora.nla.gov.au/pan/76281/20070831- 1744/www.acl.org.au/makeitcount/load_pdf_public.pdf, p 59, viewed 22nd June 2013. In December 2007, Rudd, by then Prime Minister, announced that the ALP would not override any state or territory legislation allowing for civil unions. This, he said, was a matter for the states and territories: see Annabel Stafford, The Age (7 December 2007), ‘Rudd refuses to overrule ACT on gay partnership bill’, http://www.theage.com.au/articles/2007/12/06/1196812922344.html, viewed 17th July 2013. The two commitments - not supporting gay marriage while not opposing legislation for civil unions - seemed mutually inconsistent. If territories (such as the ACT) did proceed with enacting civil union legislation, then these apparently conflicting policy proposals by Mr Rudd could lead to an untenable position, with government action or inaction potentially offending Christian constituents or territory governments, or both. When in November 2009, the Labor-governed ACT Legislative Assembly passed a Civil Unions Bill which granted same-sex couples the right to legally binding ceremonies, the Rudd Labor government urged the ACT Territory Government to amend the Bill: see Paul Maley, The Australian, 25 November 2009, ‘Rudd will intervene to overturn gay civil unions in the ACT’, http://www.theaustralian.com.au/news/rudd-will-intervene-to-overturn-gay-civil-unions-in-the- act/story-e6frg6n6-1225803463250, viewed 18th July 2013. See also Rachel Evans, 16 January 2010, ‘Labor, Greens weaken ACT civil unions bill’, http://www.greenleft.org.au/node/43004, viewed 17th July 2013. Faced with this pressure from the Federal Labor Party, the ACT Government altered the provisions of the Civil Unions Bill dealing with legally binding civil union ceremonies. As a result of the changes to the Civil Unions Bill, ceremonies relating to same sex civil unions under the ACT law had no legal standing. Instead, for a ceremony to receive legal recognition, a celebrant would have to ‘notify’ the ACT Registrar General of the event. Thus, of the competing Rudd commitments, the one that prevailed was his pledge to ACL. Rudd later earned a stinging castigation from Senator Hanson Young for what she regarded as the Labor Government imposing the Commonwealth’s will over the ACT’s sovereignty. The Senator described the Prime Minister’s approach as ‘lackluster’: see Senator Hanson Young, Senate Hansard, 25 November 2009.

149 At that time, the ALP National Conference’s policy platform did not include support for legalising gay marriage.

150 ACL Media Release, 31 July 2009, available at http://www.acl.org.au/2009/07/gay-marriage-is-a-test- for-faith-in-labor/, viewed 17th July 2013.

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couples but do not wish to see the institution of marriage undermined to placate the demands of noisy activists representing around two percent of the population. 151

The apparent subtext to Christians being ‘very tolerant’ was that, during 2008, the Rudd Government had enacted laws which, inter alia, allowed same sex couples to leave superannuation entitlements to their partner or children upon their death.152 Rather than heralding the changes to discriminatory laws as progressive, Wallace’s 2009 Media Release suggested that the ACL’s constituency tolerated the 2008 Rudd-led initiatives to outlaw discrimination against same sex couples under Commonwealth legislation and that Wallace saw no need for the government to placate the desires of a noisy minority, i.e., those who sought legalisation of gay marriage.153

151 Ibid.

152 A year before the change, the then senior (High Court) judge Justice Michael Kirby, an Anglican (see Prominent Sydney Anglicans Disagree on Homosexuality, Religion Report, 7 June 2006, http://www.abc.net.au/rn/talks/8.30/relrpt/stories/s1657625.htm, viewed 6th October 2007) asked the then Howard Government to explain why the judge’s (male) partner of 38 years did not have the same superannuation entitlements as would his partner if his partner was a woman: see Chris Merritt, Kirby's plea to PM on spouse pension, The Australian, July 12 2007, http://www.theaustralian.com.au/news/nation/kirbys-plea-to-pm-on-spouse-pension/story-e6frg6nf- 1111113939637, viewed 6th June 2013. The (Anglican) judge’s views on the morality of homosexuality were later canvassed in an ABC interview by Toni Hassan with the then Sydney Anglican Archbishop Dr Peter Jensen. When Ms Hassan asked Dr Jensen if he agreed with the judge’s view that homosexuality was ‘neither moral nor immoral’, Dr Jensen said he ‘did not want to go there’ and later terminated the interview: see ABC Religion Report, 7 June 2006, http://www.abc.net.au/rn/talks/8.30/relrpt/stories/s1657625.htm, emphasis added, viewed 17th March 2007.

153 On 3 December 2011, Labor amended its platform on gay marriage at the ALP National Conference to support gay marriage while allowing the Party’s MPs a conscience vote on legislation in the federal Parliament: see Ben Packham, The Australian – National Affairs, 3 December 2011, ‘ALP platform changes to support gay marriage’, http://www.theaustralian.com.au/national-affairs/in-depth/alp- platform-changes-to-support-gay-marriage/story-fnba0rxe-1226212916021, viewed 19th July 2013. The day before the ALP National Conference amended its platform in 2011, the ACL (Jim Wallace) published a further Media Release - ‘ACL urges ALP National Conference not to abandon marriage between a man and woman’ – warning the ALP to ‘not embrace Greens’ ideology’ and cautioning of ‘... an inevitable course to further broaden the definition [of marriage] to include other relationships such as polygamy, polyamory and who knows what else’: see ACL Media Release 2 December 2011, http://www.acl.org.au/2011/12/acl-urges-alp-national-conference-not-to-abandon-marriage-between-a- man-and-woman/, viewed 19th July 2013. The day before it issued the Media Release, ACL was reported to have compiled a petition of 90,000 signatures opposing gay marriage, which it planned to present to Joe de Bruyn, a member of the National Executive of the ALP, described as a ‘right wing powerbroker’: see Dennis Shanahan and Melinda Rout, 1 December 2011, The Australian: National Affairs ‘Christian lobby gathers strong support to contest law change’, http://www.theaustralian.com.au/national-affairs/christian-lobby-gathers-strong-support-to-contest- law-change/story-fn59niix-1226210660543, viewed 19th July 2013.

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The next year, on 21st June 2010, Prime Minister Kevin Rudd reaffirmed to Wallace and ACL at Make it Count that the ALP Government’s view was that ‘marriage is between a man and a woman’.154 The then Opposition Leader, Tony Abbott, concurred with Rudd. Abbott told Make it Count that he wanted ‘... larger families with more children’.155 Promising to not amend the Marriage Act, and thus building upon commitments made by Prime Minister Howard and then Prime Minister Rudd at earlier ACL events, Opposition Leader Abbott also said he would not ‘support changes [to the marriage laws] that would allow other relationships to mimic marriage’.156

3. ACL Urges Churches to Oppose Gay Marriage In May 2011, a month after the Wallace Tweet, Wallace and several other Christian writers published a paper entitled Revising Marriage? Why Marriage is the Union of a Man and a

Woman157 (‘Revising Marriage’). More than 50 Christian leaders endorsed the article.158 Wallace and the other authors of Revising Marriage expressed their concern for the future of marriage

… the Bible shows it to be foundational to a healthy society. Over many generations Christians have reflected on the teaching of Scripture in relation to marriage and have

154 See Make it Count 2010, http://www.abc.net.au/tv/bigideas/stories/2010/08/04/2973693.htm, viewed 24th June 2013. Three days after 2010 Make it Count, the ALP changed leaders. Its new chief, Ms Julia Gillard - an atheist - became Australia’s new Prime Minister and Australia’s first female Prime Minister. Wasting no time in interviewing Ms Gillard, Wallace spoke with the new Prime Minister on 6 August 2010. When questioned on possible changes to the marriage laws, Ms Gillard told Brigadier Wallace that marriage would continue to apply only to a man and a woman and the ALP would not support the development of ceremonies that ‘mimic’ marriage ceremonies: see ACL, http://www.acl.org.au/make-it-count/, viewed 19th February 2013.

155 Make it Count 2010, ibid.

156 Ibid. In 1997, the then Health Minister Tony Abbott sought to amend the Sex Discrimination Act (1984) (Cth) in order to discriminate between married couples and de facto partners under the age of 25 for the purpose of receiving student allowances. Under the Minister’s proposal only the former, married couples, would receive the higher ‘independent’ allowance. The then Health Minister claimed that, without the legislative amendment, students might have ‘an incentive to shack up [sooner] than might be good for them’: see Marion Maddox (2005), God Under Howard – the Rise of the Religious Right in Australian Politics, 57-58, Allen & Unwin.

157 http://australianmarriage.org/wp-content/uploads/2011/08/Revising_Marriage_pastors.pdf, viewed 12th January 2014.

158 See http://www.acl.org.au/2011/08/50-national-leaders-of-christian-churches-endorse-document-on- marriage/, viewed 12th January 2014.

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developed a distinctive view. Although marriage exists in all human cultures, the Christian tradition has particular insights into its nature and purpose. Our confidence in the view we advocate stems from our faith in a God who created all things and designed our sexuality as men and women for the relationship of marriage.159

Two months later, Revising Marriage was circulated to federal politicians.160

In August 2011, as a member of The Committee for the Preservation of Marriage, Wallace wrote to ministers, pastors and parishioners, circulating a summary of Revising Marriage. The Committee urged churches to mobilise their parishioners to lobby MPs to oppose the marriage equality legislation which was then before Parliament.161 In June 2012, church leaders began to put The Committee for the Preservation of Marriage’s lobbying strategy into effect. Before debate began in the House of Representatives on the legalisation of gay marriage,162 Anglican Archbishop Dr Peter Jensen and senior leaders from the Sydney

159 Ibid, 2, para 2.1, viewed 12th January 2014.

160 In June 2011, Sydney Anglican Archbishop Peter Jensen published a stridently worded anti-gay marriage pronouncement. At the time, this was a rare contribution by himself to public debate on gay marriage. Provocatively, the Sydney Anglican leader: claimed that calling same sex marriages ‘marriage’ was ‘an abuse of marriage itself’; warned that ‘Ministers of the gospel [would] find it increasingly difficult to teach Christian sexual ethics in schools’; and, pointedly, asserted that the ‘claim for a ‘right’ to be married could open the way for other forms, such as polygamous marriages or perhaps even marriage between immediate family members.’ See Peter Jensen, 13 June 2011, ‘Real Marriage’, Sydney Anglicans Website, available at http://sydneyanglicans.net/seniorclergy/articles/real_marriage, viewed 19th July 2013.

161 Australian Christian Lobby, Media Release 24 August 2011, http://www.acl.org.au/2011/08/50- national-leaders-of-christian-churches-endorse-document-on-marriage/, viewed 12th January 2014. Bills at the time were before the Commonwealth Parliament, and had been tabled by, jointly, Greens MP Adam Bandt and Independent MP Andrew Wilkie and, separately, Labor MP Stephen Jones. Senate and House Committees were due to report on respective inquiries on marriage law reform at around the time debate was to begin in the House. The tabling of the House of Representatives Standing Committee report on those Bills was due to occur at around the same time as was debate on those Bills.

162 Between 2010 and 2013 there were several unsuccessful attempts to legalise gay marriage in the Commonwealth Parliament. See, for example, Marriage Equality Amendment Bill 2010 (Hanson Young 2010 Bill), tabled 29 September 2010. The Hanson Young 2010 Bill sought to amend the definition of marriage in the Marriage Act from ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’ to ‘the union of two people, regardless of their sex, sexual orientation or gender identity, to the exclusion of all others, voluntarily entered into for life’. At the time of its tabling, Ms Hanson Young said her intention was to provide ‘...equality for same sex couples ... [by removing] discrimination under the Marriage Act so that while marriage is still a union between two consenting adults, it is not defined by gender’: Senate Legal and Constitutional Affairs Legislation Committee (2012), Marriage Equality Amendment Bill 2010, 1. See also Marriage

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Catholic and Greek Orthodox Churches sent letters to their respective congregations (via leaders of parishes) urging parishioners to express their opposition to MPs about them legalising same sex marriage. The religious leaders made it clear in their letters that the timing of their request to parishioners was intended to coincide with Parliamentary debate on the topic of gay marriage.163

4. Would the Wallace Tweet Meet the Theophanous Description of Political Speech? There seems little doubt that the Wallace Tweet would fall within the Theophanous description of political speech. Wallace was a regular contributor to public debate on gay marriage (i.e., opposing it). His public contributions often had the implicit or explicit support of senior political figures. Wallace was even confident enough to publicly denounce senior political leaders - like the then Prime Minister Rudd - if he felt they were reneging or wavering on commitments they made to ACL’s constituents at ACL events. ACL’s Christian lobbying objectives and its public statements about gay marriage had potential political relevance for a large number of Australians.164

Amendment Bill 2012 (Bandt/Wilkie Bill) and Marriage Equality Amendment Bill 2012 (Jones Bill). See also Marriage Amendment Bill (No. 2) 2012 (Crossin Bill); Marriage Equality Amendment Bill 2013(Hanson Young 2013 Bill) and Marriage Act Amendment (Recognition of Foreign Marriages for Same-Sex Couples) Bill 2013 (Hanson Young 2013 Foreign Marriages Bill). The latter Bill aimed to achieve a more modest objective than the other Bills: it would, if passed, amend the Marriage Act 1961 (Cth) to provide that same-sex marriages that were validly entered into in foreign countries could be recognised under the laws of Australia.

163 See Sydney Anglican Media, Archbishop’s Letter Redefining Marriage, (16 June 2012) http://sydneyanglicans.net/mediareleases/archbishops-letter-to-churches, viewed 15th July 2013. See also Jacqueline Maley, Richard Willingham, June 18, 2012, Sydney Morning Herald: National Times ‘Churches lay down law on gay marriage as vote nears’, http://www.smh.com.au/federal- politics/political-news/churches-lay-down-law-on-gay-marriage-as-vote-nears-20120617-20iby.html, viewed 15th July 2013. See also Marriage: One Man and One Woman in a Covenant of Love and Life (Catholic Archdiocese of Sydney, signed by Sydney Archbishop Dr George Pell and his auxiliary Sydney bishops, Julian Porteous, Terence Brady and Peter Comensoli), June 2012, available at http://www.sydneycatholic.org/pdf/4251b.pdf, viewed 16th July 2013; and Encyclical, letter from Primate of the Greek Orthodox Church of Australia, Archbishop Stylianos, translated from original Greek, 28 May 2012 (to be read at the Divine Liturgy on Sunday 17 June 2012), available at http://marriage.greekorthodox.org.au/wp- content/uploads/2012/07/archbishop_encyclical_english_20120608.pdf, viewed 16th July2013.

164 In 2011, more than 50% of all Australians identified as being either Catholic or Protestant Christian: see Australian Bureau of Statistics, 2011 Census Data at http://www.censusdata.abs.gov.au/census_services/getproduct/census/2011/quickstat/0?opendocument &navpos=220, viewed 4th May 2014. Plainly, however, ACL does not represent the views of all churches or even a majority of them. Some church groups have expressed concerns about what they describe as the media’s ‘unhealthy reliance’ on religiously conservative lobby groups such as ACL when the media seeks comment or opinion from Christian organisations on religious topics: see Queensland Churches Together, Victorian Council of Churches, 12 December 2011, Australian

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One possible objection to the Wallace Tweet being protected by the Theophanous conception of political speech is that ACL is a religious lobbying organisation with religious objectives. It might be said that ACL’s goal, and that of Wallace, was to prosecute religious objectives and that religious objectives cannot be political objectives. As noted in Chapter 4, however, there are no a priori reasons why the implied freedom of political discourse (whether under the Theophanous conception of political speech or that of Lange) cannot include speech about religion or speech coming from a religious perspective. On the Theophanous conception of political speech, the expression must simply be relevant to a matter of public political debate and on this view of constitutional discourse, there is little doubt the Wallace Tweet would be political speech.

D. Could the Wallace Tweet Meet the Lange Description of Political Discourse? 1. Too Offensive or Inane? There is, by any objective measure, a level of offensiveness to the Wallace Tweet. The Wallace Tweet implied that the moral values of those who support gay marriage (and the followers of Islam) are inferior to those who fought for Australia in war. This was a harsh and potentially offensive message for those people who sought to achieve marriage equality and strived, in good conscience, to change marriage laws in order to allow gay couples to be treated and respected in the same way as heterosexual couples. It was also, separately, a blunt and offensive message for those who love Allah (the message being that worshippers of Allah are of a lower moral order than the Australians who fought for Australia in war).

Notwithstanding its offensiveness, it is clear that constitutionally-protected political speech does not only include expression that generates consensus and/or is socially progressive. As the cases demonstrate (see below) the protective scope of the implied freedom applies to offensive viewpoints, regressive speech and speech which is hurtful, even galling. The fact that the Wallace Tweet might have been very hurtful to people in relation to its comments

Christian Lobby does not represent all Australian Christians, nor all Christian viewpoints, http://www.qct.org.au/index.php?option=com_content&view=article&id=915:australian-christian- lobby-does-not-represent-all-australian-christians-nor-all-christian- viewpoints&catid=1:latest&Itemid=39, viewed 21st July 2013.

236 about gay marriage and/or Islam would not a priori disqualify it from being protected political speech.165

In Coleman v Power, for example, McHugh J noted that ‘insults are a legitimate part of the political discussion protected by the Constitution [and] an unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom’.166 In the same case, Gummow and Hayne JJ wrote that ‘[i]nsult and invective have been employed in political communication at least since the time of Demosthenes’.167 In its more recent decisions, the High Court has stated even more emphatically that highly offensive expression can receive constitutional protection. Constitutionally protected speech can include minority opinions and political and/or fringe views which most people, perhaps even many, may consider obnoxious, unreasoned or bigoted. As mentioned in Case Study 1, Hayne J put the matter the following way in Monis

Lange speech is thus not necessarily constrained by what most right-thinking members of society might consider appropriate. It can include views that some or even many people might consider inconsiderate or hurtful. It can potentially protect speech that only a minority

165 AG v Adelaide n51, is arguably authority for this proposition in relation to speech about gay marriage (the brothers preached about the sinfulness of gay marriage).

166 n1, 54 (McHugh J).

167 Ibid, 78 (Gummow and Hayne JJ).

168 n45, 146 (Hayne J).

237 of people at the fringe of politics might consider to have any political relevance. The Wallace Tweet would not be disqualified from constitutional protection merely because the speech resonated with the views of only a small minority of the community at the margin of public discourse.

Perhaps, however, it might be said that Wallace’s contribution to public discourse was too inane to be political. That is, given its apparent lack of meaningful insights, the Wallace Tweet should not be recognised as protected political speech. It might even be said that the Wallace Tweet contributed no more meaning to public discourse in Australia on Anzac Day 2011 than would a statement such as ‘supporting gay marriage is un-Australian’. Yet, neither the High Court nor any other Australian court is likely to accept an argument that speech must be insightful or at least not banal to qualify for constitutional protection. Such an argument would be akin to requiring that, in order to receive legal protection under the implied freedom of political discourse, speech must make a meaningful contribution to political discourse.

There are three reasons why a court would not accept such a view.

First, as noted in Case Study 1 (and in this Case Study), the High Court accepts that protected ‘political’ speech may comprise ill-informed discourse and/or views that some consider may lie at the outer margin of political discussion.169 At the time of the Wallace Tweet, the High Court had already accepted that abusive language - insults directed at a Queensland police officer - could fall within the protective scope of the implied freedom.170 The Court’s jurisprudence in relation to offensive speech has developed considerably since Coleman v Power, with the Court affirming the principles it developed in Coleman v Power and accepting, perhaps even more explicitly than it did in its earlier judgments, that political expression can include offensive or fringe speech.171 If Lange can protect offensive speech, then there seems little reason why a court would deny constitutional protection to particular speech merely because the content happened to be dull, banal or lacking in insight.

169 See e.g., Monis ibid, 131, 134 (French CJ), 171 (Hayne J).

170 See Coleman v Power n1, 54 (McHugh J).

171 As noted, all six High Court judges in Monis n45, concluded that s 471.12 of the Criminal Code burdened the defendant’s alleged offensive political speech.

238

Secondly, to dismiss the Wallace Tweet (or other speech) as not being sufficiently ‘political’ because of its apparent lack of meaningful content would be to suggest that courts ought to make value judgments about the quality of contributions to public debate in order to determine whether the content of the expression is sufficiently meritorious to be considered ‘political’. It is unlikely that the courts would be inclined to inquire into, or decide upon, the merits of specific contributions to political discussion as a precondition to accepting the expression as political speech. There is a danger that such an approach could involve the courts evaluating the ‘political’ worthiness of contributions to public discourse, which may lead the courts down a fraught path.

There is a third and perhaps even more powerful reason why the courts would not be inclined to inquire into whether speech makes a meaningful contribution to political discourse. The people in the Australian electorate - those who elect the country’s political representatives - come from a wide variety of backgrounds. People invariably have different values, perceptions and expectations about political life and what constitutes meaningful contributions to political discourse. People also have different ways of expressing themselves; some are more articulate than others. Brigadier Wallace may not, in some people’s views, have made a meaningful contribution to public discourse in Australia on Anzac Day 2011. Yet this would not in itself prevent the Wallace Tweet from falling within the protective scope of the implied freedom of political discourse. To hold Wallace to such a standard would be to suggest that political speech must be of a particular quality or standard, something which the courts would be loath to do.

2. Connection with Commonwealth Parliament The burden which is assumed to limit the expression of Brigadier Wallace in this Case Study is a law of the Australian Capital Territory. Another question this Case Study raises is whether a burden imposed under ACT laws - the ACT being a territory of Australia and the law not being a Commonwealth law - can be subject to the implied freedom of political discourse.

As explained in Chapter 4, if burdened speech is relevant to voting choices or executive responsibility in the Commonwealth Parliament, then the speech can fall within the protective scope of the implied freedom of political discourse notwithstanding that it is burdened by a

239 state law.172 In this instance, the Wallace Tweet - comprising a comment on gay marriage - was relevant to Commonwealth political affairs.173 The connection of the Wallace Tweet with matters before the Commonwealth Parliament is clear from the lengthy public debate about gay marriage in Australia at the Commonwealth, state and territory level from at least as early as 2004. Wallace contributed to those political discussions from 2004 (and possibly even before) when he lobbied the Commonwealth to amend the Marriage Act to specify that marriage was an exclusive relationship between a man and a woman. The Brigadier continued those lobbying efforts to retain that amendment. ACL lobbied against the legalisation of gay marriage in Australian states and territories and it strongly opposed any change to the Marriage Act at the Commonwealth level. ACL’s opposition to gay marriage often had the express support of senior political figures. The large volume of legislation unsuccessfully presented to the Commonwealth Parliament, the extensive public debate on the topic of marriage law reform and the frequent comments on the topic of marriage by senior federal political leaders illustrates the clear relevance of the topic of gay marriage to the Commonwealth Parliament.

3. Relevant to a Commonwealth Referendum? The protective scope of the implied freedom includes expression which is relevant to voting choices or executive responsibility in the Commonwealth Parliament, or to Commonwealth referenda. The Wallace Tweet was, aside from its relevance to the Commonwealth Parliament, potentially relevant to a referendum under s.128 of the Constitution in relation to the definition of marriage in section 51(xxi) of the Constitution.174

Taking a longer term temporal view of political discourse (such as I recommended in Chapter 4), I believe the Wallace Tweet could meet the Lange conception of political speech on the basis of the relevance of the speech to a referendum on the definition of marriage. There were public comments about a Commonwealth referendum on marriage in July 2011 (just three months after the Wallace Tweet) when Federal ALP backbencher John Murphy - an

172 See e.g., Coleman v Power n1; Hogan v Hinch n33; Unions NSW n117.

173 As noted, in late 2012 and 2013, ACL also opposed same sex marriage law reforms in South Australia, NSW, Tasmania and ACT.

174 The High Court in Lange, n1, 571, observed that speech which is relevant to referenda (as described in section 128 of the Constitution) may fall within the protective scope of the implied freedom.

240 opponent of gay marriage - called for a conscience vote or a referendum on gay marriage. Murphy claimed that a majority of people in his inner-Western Sydney seat of Reid opposed gay marriage.175

In his letter to Sydney Anglicans of 16 June 2012 (Redefining Marriage) Anglican Archbishop Dr Jensen claimed publicly that

... it is beyond the power of parliament to change the definition of marriage, although its laws should recognise the true definition and support it.176

The Commonwealth Independent MP Tony Windsor, NSW Christian MP Fred Nile and the Australian Federation of Islamic Councils expressed their support for a referendum on the

175 ABC News, 27 July 2011, Labor backbencher wants gay marriage referendum, http://www.abc.net.au/news/2011-07-27/labor-backbencher-john-murphy-calls-for-gay-marriage- referendum/2811714, viewed 26th April 2014.

176 Redefining Marriage, n163. It appears from this statement that Dr Jensen believed that Parliament lacked the power to amend the definition of marriage and that the Archbishop therefore recommended that any consideration of such an amendment be left to a referendum rather than political intervention. It is not clear whether Dr Jensen was referring to a constitutional obstacle to Parliament amending the definition of marriage. If his point was that Parliament itself could not amend the Constitution in relation to the definition of marriage, then the Archbishop was on strong legal ground. In Re F; Ex parte F (1986) 161 CLR 376 Mason and Deane JJ noted (at 389) that ‘... the Parliament cannot extend the ambit of its own legislative powers by purporting to give to “Marriage” an even wider meaning than that which the word bears in its constitutional context. Nor [their Honours said] can the Parliament manufacture legislative power by the device of deeming something that is not a marriage to be one or by constructing a superficial connection between the operation of a law and a marriage which examination discloses to be but contrived and illusory’. This makes it clear that Parliament itself cannot alter the meaning of marriage under s.51(xxi). If, however, Dr Jensen’s point was not about constitutional change (he did not specify whether it was), then his assertion that Parliament lacked the power to change the ‘correct’ definition of marriage would seem to be a remarkable one, in a least four respects. First, it would arguably imply that the ‘true’ definition of marriage - between a man and a woman - is immutable, god-inspired and in that sense is not susceptible to legislative alteration. Secondly, the claim would infer that, however parliament might choose to define the concept of marriage, such an amendment would not alter the god-ordained meaning of marriage, being between a man and a woman. Thirdly, it would suggest that any parliamentarian who supported gay marriage would be violating or at least deviating significantly from the true definition of marriage, being a union between a man and a woman. Fourthly, perhaps most strikingly, the claim would appear to suggest that the 2004 amendment to the Marriage Act to define marriage as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’, was a legitimate change to the definition of marriage by the Parliament but a reversal of that amendment would be illegitimate. The High Court made the constitutional position clear in The Commonwealth v Australian Capital Territory n139, where the High Court held: ‘Section 51(xxi) is not to be construed as conferring legislative power on the federal Parliament with respect only to the status of marriage, the institution reflected in that status, or the rights and obligations attached to it, as they stood at federation.’: 456 (per curiam).

241 definition of gay marriage177 as did the then Prime Minister Kevin Rudd.178 By late 2013, the Commonwealth Democratic Labor Party Senator, John Madigan added his voice to the support for a referendum on the definition of marriage, publicly suggesting that any change to the legal definition of marriage ought not to be left in the hands of politicians and should be resolved by referendum.179

I believe Wallace’s public statement about marriage on Anzac Day 2011 occurred sufficiently close in time to these other public comments about a referendum on marriage for the Wallace Tweet to fall within the protective scope of the implied freedom on the basis of its relevance to such a possible referendum.

4. Could a Court Adopt the ‘General Approach’? It is conceivable that a court may consider whether the ACT legislation generally burdened speech rather than considering whether the Wallace Tweet was, itself, a burdened contribution to political discourse. While, for the reasons I set out in Chapter 4, I believe there are serious flaws with the general approach, a court may nevertheless follow Bathurst CJ’s (and Basten JA’s approach) in Sunol v Collier180 as supported by the reasoning of McMurdo P in Owen v Menzies181 and arguably (as suggested in Chapter 4) some aspects of the High Court’s decisions in AG v Adelaide182 and Tajjour.183

177 See Heath Aston and Dan Harrison, Sydney Morning Herald, 29 August 2013, Christian groups welcome gay marriage referendum, http://www.smh.com.au/federal-politics/political-news/christian- groups-welcome-gay-marriage-referendum-20130429-2io0q.html, viewed 26th April 2014. See also David Crowe, Ecumenical News, 30 April 2013, Australian Muslim, Christian groups unite on gay marriage referendum, http://www.ecumenicalnews.com/article/australian-muslim-christian-groups- unite-on-gay-marriage-referendum-22148, viewed 26th April 2014.

178 Nick Butterfly, The West Australian, 29 June 2013, PM flags gay marriage referendum, https://au.news.yahoo.com/qld/a/17796900/pm-flags-gay-marriage-referendum/, viewed 26th April 2014.

179 See Ben Packham, The Australian, 9 December 2013, Senator John Madigan seeks gay marriage referendum, http://www.theaustralian.com.au/national-affairs/senator-john-madigan-seeks-gay- marriage-referendum/story-fn59niix-1226778504756, viewed 26th April 2014.

180 Sunol v Collier No 2 (2012) 260 FLR 414. Bathurst CJ and Basten JA reached different conclusions, however, about whether the legislation fell within the protective scope of the implied freedom of political discourse.

181 Owen v Menzies; Bruce v Owen; Menzies v Owen (2012) 265 FLR 392

182 n51.

183 n36.

242

Those NSW and Queensland Supreme Court decisions, similarly to this Case Study, considered the application of the implied freedom to religiously motivated offensive speech about gay people where the speech was burdened by antidiscrimination laws. The similarities in the factual circumstances between those cases and the Wallace Tweet may make those judgments somewhat attractive for a court to follow when considering the potential constitutional protection for Wallace’s Anzac Day message, particularly as the approach in those cases may allow the court to avoid expressly deciding whether Wallace’s speech was relevantly ‘political’.

A court considering whether section 66 of the Discrimination Act was compatible with the implied freedom of political discourse and adopting the general approach could, for example, take the view that discussion of homosexuality forms part of the fabric of political debate in Australia and that the topic is relevant to federal politics.184 On this basis, it may find that the law falls within the protective scope of the implied freedom. Alternatively, also taking the general approach, a court may consider that section 66 established appropriate parameters for communications about government and political matters in a civilised democracy and therefore did not fall within the first limb of the Lange freedom.185 Such a court may also take a very different view. However, in each case the general approach would involve the court not assessing whether the plaintiff’s speech – in this instance the Wallace Tweet – is, itself, relevantly political speech. The possibility of a court following the general approach cannot be ruled out even though for the reasons set out in some detail in Chapter 4, I consider there to be serious limitations with such an approach.

5. Conclusion on the Wallace Tweet It follows from what I have said above that the Wallace Tweet, if burdened under ACT anti- vilification laws, could fall within the protective scope of the implied freedom. It could do so on either the Theophanous or the Lange conception of political speech. Though the Wallace Tweet was arguably offensive and obscure and even banal, these reasons alone would not disqualify the Wallace Tweet from receiving constitutional protection. The Wallace Tweet was relevant to voting choices or executive responsibility in the Commonwealth Parliament

184 See Sunol v Collier, n180, 424-5 (Bathurst CJ).

185 Ibid, 434 (Basten JA); see also Owen v Menzies n181, 415 (McMurdo P).

243 and possibly even relevant to constitutional referendum with respect to marriage. Whether a court would conclude that the relevant anti-vilification laws satisfied the criteria under the second limb of Lange, namely, whether the laws were reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of representative and responsible government provided for in the Constitution, is a matter I do not consider here.

V. CASE STUDIES SUMMARY

I suggested in Chapter 4 that the protective scope of the implied freedom could apply to speech coming from a religious perspective if the speech was relevant to voting choices or ministerial responsibility in the Commonwealth Parliament. Further, there were no a priori reasons why the Constitution could not protect speech about religion or speech by religious leaders.

These Case Studies examined expression coming from a religious perspective where the speech could realistically be subject to a burden of some kind. The first two Case Studies examined the hypothetically burdened speech of (Anglican and Catholic) religious leaders; the last Case Study related to the hypothetically burdened speech of a religious lobbyist.

These Case Studies provided the opportunity for a detailed consideration of whether the protective scope of the implied freedom of political discourse could include expression coming from a religious point of view. It has been shown in some detail that speech about religion or by religious leaders may fall within the protective scope of the implied freedom. Further, no particular legal or constitutional difficulties arise in relation to assessing whether speech from a religious perspective can fall within the protective scope of the implied freedom.

I suggested in relation to the first Case Study that Archbishop Herft’s expression probably would not fall within the protective scope of the implied freedom based on either Theophanous or Lange because the Archbishop’s speech bore an insufficient connection with governmental affairs. This conclusion does not reveal any inherent limitation in relation to whether the protective scope of the implied freedom can include speech about religion or about religious leaders. To the contrary, it is consistent with the High Court’s views on the matter. That Case Study demonstrates that, like any other speech, expression about religion

244 will not fall within the protective scope of the implied freedom if it lacks any connection with Commonwealth political affairs. The High Court reached a conclusion in APLA on analogous reasoning - namely that the speech did not fall within the protective scope of the implied freedom - because it considered the speech in that case to be commercial and thus to lack a sufficiently clear connection with speech about voting choices or executive responsibility in relation to the Commonwealth Parliament.

By contrast, in the second and third Case Studies - the speech of Cardinal Pell and Archbishop Hickey (Case Study 2) and then the speech of Brigadier Wallace (Case Study 3) - it was shown that the burdened speech would likely constitute political speech irrespective of whether the test applied was under Theophanous or Lange. In those latter Case Studies (by contrast with Case Study 1), the speech did have a relatively clear connection with political matters - or, more specifically, voting choices and/or ministerial responsibility in the Commonwealth Parliament - and thus the expression would, I suggest, if burdened, fall within the protective scope of the implied freedom of political discourse.

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CHAPTER 6 – CONCLUSION

I. RESEARCH QUESTIONS

This thesis sought to answer whether the Constitution can protect speech about religion in Australia, especially by religious leaders. It identified two areas of constitutional law that could potentially provide protection for such speech: section 116 of the Constitution and the implied freedom of political discourse. Having identified these two areas of law as potential sources of constitutional protection, the thesis inquired into the following specific questions:

 what protection does section 116 of the Constitution provide for speech about religion?; and  in relation to the implied freedom of political discourse, under what circumstances (if any) can speech about ‘government or political matters’ include speech about religion or by religious leaders?

In seeking answers to these questions, it was necessary to address several more specific inquiries. It was anticipated that addressing these more detailed inquiries would assist in answering the questions to the broader areas of research investigation referred to above. It was also considered to be useful, once the answers to the detailed inquiries were developed, to then test the answers in Case Studies, so as to determine the veracity of the proposed findings and, if necessary, review the conclusions.

It is now possible to set out the answers to the above two questions. Before doing so, however, it is useful to recap on the inquiries and resulting findings in each of the individual Chapters.

II. RESEARCH FINDINGS

Chapter 2: Origins and Objects of Section 116 Chapter 2 investigated the objectives of section 116 of the Constitution insofar as could be determined from records of the Convention Debates and some of the relevant literature. Using these source materials, Chapter 2 inquired into whether section 116 was intended to protect speech about religion as well as into whether there were any inherent limitations in

246 the drafting of section 116 that might limit its scope to protect such expression. It also looked at the constitutional rationale for section 116 and the discussions during the Convention Debates about the purposes of the section 116.

The research in Chapter 2 suggested that there was, from its inception, a lack of clarity about section 116’s objectives. For example, in the process of debating and drafting section 116 (as the clause became after its renumbering), there seemed to be some uncertainty about what legislative powers the Commonwealth had to make laws for or about religion. It was, as a result, potentially unclear why, or in relation to what Commonwealth legislative powers, section 116 was even considered necessary to protect religious freedoms.

In this regard, Convention Delegates like Barton (later, a High Court judge) and Higgins (also later a High Court judge) suggested that they understood that the Commonwealth may be able to pass laws with respect to religion if the laws were also with respect to a matter or purpose within power. Yet, Barton also contended that section 116 was not necessary because of Australia’s enlightened approach towards religion. Higgins - the main proponent of section 116 - likely regarded the Commonwealth’s legislative powers as wide enough to allow the Commonwealth to authorise legislation about religion irrespective of any reference to God in the Preamble. At the same time, some Convention representatives (including Higgins himself) characterised section 116 as a kind of constitutional bulwark against the Commonwealth relying upon the reference to Almighty God in the Preamble to make religiously based laws, or to make laws with a mainstream Christian bias.

The potentially inconsistent messages about the rationale for section 116, and the confusion about whether the reference to God in the Preamble conferred any substantive lawmaking powers on the Commonwealth, seemed to generate uncertainty about section 116’s purposes, including why the provision was even considered necessary to protect religious freedoms.

Against this background, section 116 took its place in the Constitution as a series of clauses having the appearance of something of a negotiated compromise for protecting religious liberties. The establishment and free exercise clauses drew on the words of the First Amendment; the clause relating to religious tests had its counterpart in Paragraph 3 of Article VI of the US Constitution; the observance limb appeared afresh.

Despite the uncertain rationale for including section 116 in the Constitution, it seems that section 116 was not intended to be merely a hollow measure for protecting expression about

247 religion. For example, while Josiah Symon (Chair of the Judiciary Committee at the Conventions) recommended that section 116 be limited to religious tests, he had a generous view of religious freedoms:

what we want in these times is to protect every citizen in the absolute and free exercise of his own faith, to take care that his religious belief shall in no way be interfered with … 1

The notion of every citizen’s religious belief being in no way interfered with suggested that section 116 did not aim to be a narrow or shallow constitutional protection in relation to expression about religion. Nevertheless, the caveat to the free exercise clause, acknowledged and seemingly generally agreed during the Convention Debates, was that the protective reach of section 116 would extend only to religious practices which conformed to broadly-held social norms. This limitation could pose difficult legal demands on those seeking constitutional protection for expression of non-mainstream, religious beliefs.

The interpretation of section 116 was, however, left to the High Court. Depending on how the High Court interpreted the freedoms in section 116, there was a possibility that section 116 might provide relatively generous protections for religious freedoms (including in relation to speech about religion) notwithstanding that section 116 would only ever apply to Commonwealth laws. What is more, apart from the suggested caveat that the notion of the free exercise of religion would need to be bounded by social norms, there was no real indication from the Convention Debates that the High Court should interpret the words of section 116 less than liberally or, to use Higgins’ (judicial) phrase, with anything like a niggardly spirit. Nor was there any clear indication in the Convention Debates that the word ‘for’ in section 116 should lead to a constitutional narrowing of section 116’s protective scope.

B. Chapter 3: The High Court’s Interpretations of Section 116 Chapter 3 reviewed the High Court’s interpretations of section 116. The analysis demonstrated that, to date, the High Court has not found in favour of any litigant who has brought a constitutional challenge under section 116. In a significant number of decisions (and notwithstanding some judgments suggesting a more flexible approach), the High Court

1 Australasian Federation Convention Debates, Melbourne 7th February 1898, 658.

248 has emphasised the significance of the preposition for in section 116 as implying that the relevant Commonwealth law must evince a specific purpose that is proscribed by section 116.

Notwithstanding some notable exceptions to the general trend of decisions (e.g., Murphy J in the DOGS Case2 and Gaudron J in the Stolen Generations Case),3 the relatively consistent direction of the High Court judgments is that, for a law to breach the free exercise or establishment clauses of section 116 (and arguably the religious observance clause too, which has not been subject to detailed High Court analysis but is also preceded by the word ‘for’), the Commonwealth law in question must at least, in some way, reflect a legislative purpose that is proscribed under section 116. The judicially recognised implication of the word ‘for’ has thus become a critical part of the section 116 jurisprudence. The High Court’s section 116 decisions suggest that it is not sufficient for a Commonwealth law to have the effect of achieving an objective proscribed by section 116; the law must evince a purpose proscribed by section 116.

By way of brief recap, as noted in Chapter 3, in a High Court sitting as just two judges, Griffiths CJ (Barton J concurring in the result) implied in Krygger4 that the free exercise clause would not exonerate conduct that is mandated under a Commonwealth law even if that activity conflicts with a person’s religious beliefs. If this reasoning were adopted by the contemporary High Court, then section 116 may offer very limited constitutional protection for a person who may be required, by Commonwealth law, to carry out acts which conflict with their religious beliefs.5

A High Court comprising five judges unanimously rejected a section 116 claim by the Jehovah’s Witnesses in another free exercise case, the Jehovah’s Witnesses Case.6 Latham CJ, who wrote the most comprehensive judgment in the Jehovah’s Witnesses Case, ostensibly interpreted the notion of the free exercise of religion quite generously. His Honour affirmed what Higgins J had held in Judd v McKeon, namely, that section 116 could protect against

2 Attorney General (Vic); ex rel Black v The Commonwealth (1981) 146 CLR 559.

3 Kruger v Commonwealth (1997) 190 CLR 1.

4 Krygger v Williams (1912) 15 CLR 366.

5 As noted, Higgins J challenged this reasoning in Judd v McKeon (1926) 38 CLR 380.

6 Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (1943) 67 CLR 116.

249 legislative encroachments on religious conscience. Latham CJ, however, subsequently concluded - as did the entire High Court in the Jehovah’s Witnesses Case - that section 116 offered the plaintiff no constitutional relief. The High Court reached this conclusion notwithstanding that the Jehovah’s Witnesses engaged in no overtly hostile acts and (surely) there was considerable uncertainty about how, based on the evidence, Jehovah’s Witnesses’ teachings posed a realistic threat to the security of the Commonwealth. The group of Jehovah’s Witnesses worshippers seemed to represent the kind of fringe religious group who Latham CJ (at least in the earlier part of in his judgment), suggested that section 116 might actually protect. Starke J in the Jehovah’s Witnesses Case held that the relevant Regulations did not infringe section 116 even though his Honour described the relevant Regulations as arbitrary, capricious and oppressive towards the plaintiff.

In the more recent (1997) free exercise of religion case, the High Court in the Stolen Generations Case7 rejected a claim by Australian Aboriginals that a Northern Territory Ordinance prohibited the free exercise of their religion. Only Gaudron J would have found in favour of the plaintiffs if her Honour had been persuaded that the Aboriginals’ practices amounted to the free exercise of religion, but Gaudron J was not satisfied of the evidence in that regard.

It might, as noted in Chapter 3, be possible to discern from three of the High Court judges in the Stolen Generations Case a jurisprudential principle that the High Court does not necessarily endorse a narrowly focussed interpretation of section 116 that is based on a very strict interpretation of the word ‘for’. It is conceivable that, in the future, the High Court could come to interpret section 116 more flexibly, perhaps even focussing on the effect of the law in question (or, at least recognising the possibility of the existence of multiple potential objectives in legislation) rather than requiring proof of the law’s single or predominant purpose in order to trigger the freedoms under section 116, including for speech about religion. There are also hints from the judgments of Latham CJ (and Starke J) in the Jehovah’s Witnesses Case and Gaudron J in the Stolen Generations Case that the High Court could, if it chose to, assess constitutional claims under the free exercise clause of section 116

7 n3.

250 by weighing the proportionality of the restriction on the religious freedom with the public interest justification for the law.

Yet, other, earlier, High Court authorities may make it difficult for the High Court to adopt a more flexible approach to section 116, at least in the short term. A relatively well established line of High Court decisions highlight a particularly narrow construction and characterisation of the other freedoms in section 116. For example, in the DOGS Case, a majority of the High Court adopted a particularly narrow reading of the establishment clause by reference to the meaning of the word ‘for’. What is more, several judges in the DOGS Case gave a restrictive interpretation to the concept of establishment. Wilson J, for example, held - and Mason J concurred with him - that proof of establishment requires statutory recognition of a religion as a national institution.

It may be unlikely (at least in the short term) that the High Court would deviate from the thread of section 116 judgments - including the DOGS Case - which have focussed on whether there is evidence of a single or predominant purpose under section 116 as a prerequisite to finding an infringement of section 116. Apart from the relevant aspects of Latham CJ’s judgment in the Jehovah’s Witnesses Case and Gaudron J’s judgment in the Stolen Generations Case, there have, however, been some other less rigid interpretations of section 116 which may, over time, eventually find greater favour in the High Court. Murphy J in the DOGS Case indicated that the purpose of a law may be measured by its effect; his Honour focussed on the effect of grants under Commonwealth legislation which allowed the churches to use money for religious purposes. There may, as noted, even be support in some of the implied freedom of political discourse jurisprudence for a more flexible approach to interpreting section 116. For example, as noted in Chapter 3, Mason CJ in ACTV8 suggested that, if a law imposes an excessive restriction in an ancillary way - that is, the law goes further than is reasonably required for the Commonwealth’s purposes - then it may be implied that the legislative purpose was to impose the restriction and therefore the law could be regarded as for that purpose.9 This approach, similar to a proportionality test, could lead to a more nuanced interpretation of purpose under section 116: purpose could be implied from effect.

8 Australian Capital Television Pty Ltd v Commonwealth of Australia (1992) 177 CLR 106.

9 Ibid, 143-4.

251

The analysis of the cases in Chapter 3 nevertheless suggested that the High Court has been restrictive in its interpretation of the last limb of section 116, including in relation to the no religious test clause. In its most recent religious test decision - Williams No 110 - the High Court suggested that, for an arrangement to infringe the religious tests clause, the Commonwealth must be able to exercise legal control over the person who is appointed to the office. Without that level of control, the role would not constitute an office or trust under the Commonwealth.

C. Answering the Section 116 Question The question posed for the research undertaken by this thesis into section 116, was:

What protection does section 116 of the Constitution provide for speech about religion?

The answer to this question is as follows.

The provision ostensibly provides constitutional protection for the free exercise of religion (and the other specified religious freedoms) in relation to laws of the Commonwealth Parliament. Section 116 does not apply to the states. Despite apparent confusion at the outset about what the Commonwealth’s powers were to make laws about religion, one objective of section 116 was to protect speech about religion, including by minorities.

Section 116 has, however, proved to provide limited protection for speech about religion. The High Court cases suggest that, to infringe section 116, the relevant Commonwealth law must be made for a purpose proscribed by section 116. The High Court has often interpreted section 116 - and particularly the word ‘for’- as requiring evidence of a defined, proscribed, legislative purpose. This requirement alone makes it difficult for a litigant to prove any breach of section 116.

The High Court may, in the future, come to use a proportionality test under the free exercise limb of section 116, one which balances the restrictions on religious freedom with the public interest justification for the law. There appears to be some support in the High Court cases - principally in the judgments of Latham CJ (and arguably Starke J) in the Jehovah’s Witnesses Case and Gaudron J in the Stolen Generations Case (whom, it may be noted, decided against

10 Williams v Commonwealth (2012) 248 CLR 156.

252 the plaintiffs in the respective free exercise of religion decisions) - for the High Court to adopt such an approach should it wish to at some point in the future. This kind of analysis would avoid the rigid and narrow focus on whether the law is for a proscribed purpose. At this stage, however, such an approach could not be said to be settled law in Australia.

Some High Court judgments - again, the judgments of Murphy J in the DOGS Case and Gaudron J in the Stolen Generations Case - also suggest there is a possibility of a more flexible interpretation of section 116. This approach does not necessarily require proof of a single legislative purpose but could consider whether a law may comprise multiple purposes, or may have an effect which is different to the stated objectives of the law. This, however, is not a judicial methodology that could be said to have broad High Court endorsement at this stage. Over time, it is nevertheless possible that the High Court may come to interpret section 116 in accordance with that more flexible approach.

D. Chapter 4: Political Speech, Religion and Religious Leaders Having concluded in Chapter 3 that section 116 offered relatively little constitutional protection for speech about religion, Chapter 4 investigated the scope of the implied freedom of political communication to include burdened speech about religion.

Chapter 4 conducted a review of High Court implied freedom cases, including the High Court’s 1997 decision in Lange,11 a unanimous joint judgment of the full High Court and which remains the High Court’s most authoritative statement on the implied freedom of political discourse. The persuasive joint judgment of Mason CJ, Toohey and Gaudron JJ in the earlier decision in Theophanous12 was also discussed. The analysis in Chapter 4 suggested that the Theophanous joint judgment, never having been expressly overruled, potentially allows a greater range of expression to be recognised as political speech than does the High Court’s judgment in Lange. As was also noted, both Lange and the Theophanous joint judgment, in subtly different ways, recognise that political speech includes speech that is relevant to voting choices and executive responsibility in the Commonwealth Parliament.

11 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

12 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.

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The High Court’s decision in APLA13 was also reviewed. It was noted the High Court in APLA held that the speech in that case did not fall within the protective scope of the implied freedom because the expression was commercial and lacked a sufficiently clear connection with speech about voting choices or executive responsibility. Chapter 4 suggested that the APLA decision, though concerning speech about commercial matters, established important parameters about when the implied freedom can include speech about religion: the decision implies that speech will not fall within the protective scope of the implied freedom of political discourse if the speech is religious and not political.

Chapter 4 highlighted a separate development in the implied freedom of political discourse jurisprudence, namely where the courts assess whether there is a general burden on political speech. In decisions in the appellate jurisdictions of the NSW and Queensland Supreme Courts - respectively, Sunol v Collier14 (‘Sunol v Collier’) and Owen v Menzies; Bruce v Owen; Menzies v Owen15 (‘Owen v Menzies’) (each case involving alleged offensive speech coming from a religious perspective) - the courts reviewed implied freedom claims by considering whether the law in question generally burdened political speech. The courts did not analyse whether the relevant burden restricted the political speech of the plaintiff. Notwithstanding that, as noted, there may be some support for the general approach in the High Court - for example, in the decisions of AG v Adelaide16 and Tajjour17 - Chapter 4 highlighted the considerable difficulties with the general approach and argued that it should not be adopted. At the same time, reflecting uncertainty in this important area, the High Court’s joint judgment in Unions NSW18 arguably suggests that the High Court does not support the purely general approach.

Chapter 4 analysed some of the literature on the protective scope of the implied freedom of political discourse and also undertook discrete and detailed inquiries into whether there may

13 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

14 (2012) 260 FLR 414

15 (2012) 265 FLR 392

16 Attorney General for the State of South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1.

17 Tajjour v State of New South Wales [2014] HCA 35, 8 October 2014.

18 Unions NSW v State of New South Wales (2013) 304 ALR 266.

254 be constitutional limitations on the implied freedom of political discourse including speech about religion. The research demonstrated that, first, section 116 of the Constitution does not, of itself, imply that there is any barrier to the implied freedom of political discourse protecting speech about religion. More specifically, the fact that section 116 purports to limit the Commonwealth’s legislative powers with respect to religion does not itself limit or reduce the scope of the implied freedom of political discourse to include speech about religion. Secondly, section 116 (which applies only to Commonwealth laws) does not limit the reach of the implied freedom of political discourse in relation to speech about religion when state or territory laws are concerned. Thirdly, as Chapter 4 demonstrated, the fact that the Commonwealth lacks specific legislative powers over religion (recognising that the Commonwealth may nevertheless be able to pass laws with respect to religion if the laws are also with respect to a matter or purpose within power) does not imply that speech about religion is excluded from the protective scope of the implied freedom of political discourse.

Based on the review of the implied freedom of political discourse cases and the assessment of whether there are any constitutional limitations on the implied freedom of political discourse protecting speech about religion or by religious leaders, Chapter 4 proposed that if speech about religion or by religious leaders relates to the systems of representative or responsible government in the Commonwealth Parliament (or to referenda), then that speech may, if burdened, fall within the protective scope of the implied freedom of political discourse.

Having reached that tentative conclusion, Chapter 4 then analysed in some detail what speech about representative and responsible government means. The research suggested that political speech includes a broad range of subjective matter and may include discussion about topics that are of emerging ‘political’ relevance. The research also indicated that political speech could include speech about religion and the contributions of religious leaders to public debate.

E. The Case Studies In Chapter 5, the tentative conclusions in Chapter 4 were applied to three Case Studies. Each Case Study examined expression coming from a religious perspective and tested the approach suggested in Chapter 4. The Case Studies did not review the effectiveness of section 116 of the Constitution, for Chapter 3 (building on Chapter 2) had already identified the limitations of section 116 in protecting speech about religion. It was plain from the analysis undertaken

255 into section 116 that section 116 could offer no constitutional protection from the burdens identified in the Case Studies.

The Case Studies provided the opportunity for a detailed consideration of whether the protective scope of the implied freedom of political discourse could include expression coming from a religious point of view. The studies also facilitated a review of whether there were any pitfalls or limitations in the analysis of the implied freedom undertaken and proposed in Chapter 4.

The first two Case Studies examined the hypothetically burdened speech of (Anglican and Catholic) religious leaders; the last Case Study related to the hypothetically burdened speech of a religious lobbyist. The first Case Study reasoned that Anglican Archbishop Herft’s expression likely would not fall within the protective scope of the implied freedom (based on either Theophanous or Lange) because the Archbishop’s speech bore an insufficient connection with governmental affairs. This conclusion did not reveal any inherent limitation in relation to whether the protective scope of the implied freedom can include speech about religion or about religious leaders. Rather, consistent with the High Court’s decision in APLA, the Case Study demonstrated that expression about religion would not fall within the protective scope of the implied freedom if it lacked even a clearly peripheral connection with political affairs.

By contrast, in the second and third Case Studies - the speech of Cardinal Pell and Archbishop Hickey (Case Study 2) and then the speech of Brigadier Wallace (Case Study 3) - it was shown that the burdened speech would likely constitute political speech irrespective of whether the test applied was under Theophanous or Lange. In those Case Studies (by contrast with Case Study 1), the speech did have a relatively clear connection with political matters - or, more specifically, voting choices and/or executive responsibility in the Commonwealth Parliament - and thus it was suggested that the expression would almost certainly fall within the protective scope of the implied freedom of political discourse. The speech in the second and third Case Studies had a sufficiently clear connection with the Commonwealth Parliament notwithstanding that in each instance the relevant burden existed under either a state law or a territory law.

F. Answering the Implied Freedom of Political Discourse Question The question posed at the start of this thesis was:

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In relation to the implied freedom of political discourse, under what circumstances (if any) can speech about ‘government or political matters’ include speech about religion or by religious leaders?

Having reviewed the High Court cases and tested the conclusions reached in Chapter 4 in the Case Studies, it is now possible to answer this question.

The protective scope of the implied freedom applies to burdened speech which is relevant to voting choices and/or the effectiveness of the Commonwealth government, including through its statutory authorities and public utilities, in governing for people who exercise those voting choices. Its scope also includes burdened speech about referenda. If burdened speech about religion or by religious leaders meets this description, then the protective scope of the implied freedom of political discourse can apply to that speech, notwithstanding that the speech is about religion or is by religious leaders. If, however, the relevant burdened speech is wholly or even predominantly about religion, then that speech will not fall within the protective scope of the implied freedom of political discourse.

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APPENDIX

Women’s Non Ordination Case Study

Archbishop Herft Opinion Piece (The Age)

The views expressed by Muslim cleric Sheikh Taj al-Din al-Hilali and Melbourne's Sheikh Mohammed Omran raise serious questions. Their representative role in a democratic society that thrives on free and open speech gives them the right to express their opinion. They must be accountable to the wider Australian populace as their opinions shape their constituency and have serious consequences for the rest of us. The sermon that caused the furore covered several areas of life including theft, adultery, women and the eternal damnation that awaits Christians and others whom Hilali considers polytheistic — an obvious reference to the Christian understanding of God as a community of being in the holy trinity. The basis of the views expressed by the Muslim leadership are contained in a simple trilogy. Life, death and human destiny are divinely sanctioned by the authority of the Koran, the holy text that is all-encompassing. A true human society consists of those who submit to the will of Allah and who are obedient to the law and the teachings of prophet Muhammad. Those outside this community may be acknowledged but are destined for hell. In the divinely ordained scheme, women have a specific place in society. Hilali describes women as "half soldiers" — deceivers used by Satan to tempt men with their raw sexuality. They must be kept under submission — covered in case men are trapped by their lust and fall into sin. We are rightly horrified by the tone and language used by the sheikh in his use of the phrase "uncovered meat" to describe women who do not wear the hijab. But let us not forget that similar views are found in the Christian faith and in secular ideologies portrayed in the degrading view of "the sheila" in Aussie pub culture. In the recent debate in the diocese of Sydney on the ordaining of women, the foundation issues were argued with more sophistication, but the basis on which the determination never to allow women into the ordained ministry was canvassed on similar grounds. The Bible understood by Sydney's leadership as a prescribed text sees life as divinely sanctioned. It limits the role of women to a particular status with defined boundaries of engagement. One narrative of creation and the fall found in Genesis declares woman as the temptress, "an aid to the snake!" (Genesis 3:12,15). A key text used in the debate to keep women out of the pulpit and sanctuary is from St Paul's letter to Timothy: "Let a woman learn in silence with full submission. I permit no woman to teach or to have authority over a man; she is to keep silent. For Adam was formed first, then Eve" (I Timothy 2:11-13) — the argument made by Paul is that the woman was "deceived" in the fall. Adam was compromised. The woman was taken in by the snake and became a transgressor. She is therefore perceived as inherently deceitful. Men have a prescriptive right over women including the clothing they wear. Paul calls on women to wear "modest" clothes — no fancy

258 hairdos, expensive clothes or jewellery of gold and pearls. They will be saved, he says, by "bearing children". In I Corinthians 11, another favourite biblical passage used in the headship debate, Paul sees man as head over women, the way a woman wears her hair becomes critical. No short hair is permitted for women nor is long hair allowed for men. So women, because they are under the headship of men, are to keep silent in church (I Corinthians 14:33-36). They must ask their husbands when they get home anything that was in need of clarification. If they do not have a husband, they will have to carry on in ignorance. The thought forms that treat women as second-class human beings have foundational elements that are similar in many repressive religious traditions. One of the leading academics from Moore College, Dr Mark Thomson, made it clear that there was nothing to discuss regarding women in ministry as "God has not left us alone to guess what any part of Scripture is saying. God is a very good communicator — we have been convinced that the teaching of Scripture is authoritative — we rejoice in the word God has given us". Hilali in his logic reiterates that Allah is forgiving and merciful yet wise and all powerful, so the word that is given must be for the good of humanity. Women just fall into this divine pattern of submission — it is the way things are — and it is good. The divinely sanctioned world view authenticated by the selective use of Scripture by these Islamic and Christian scholars keeps women in subjection and gives a clear passport to heaven for the chosen. Those who see the Scriptures differently will find their destiny in the fires of hell. In Christianity, as I am sure in Islam and in other faith and non-faith systems, there are other texts and a humbler interpretation given by many other scholars that gives rise to a different, equally div sanctioned world view. All humanity and the whole created order are loved into a dignity that invites all to move from slavery to freedom. At its heart, Christianity proclaims that women and men, children, all races and colours are invited to live their lives in the power of divine love marked by a cross that gives profound value to each and to all.1

1 Archbishop Roger Herft, The Age, 3 November 2006, ‘Christians are guilty of prejudice, too’ http://www.theage.com.au/news/opinion/christians-are-guilty-of-prejudice- too/2006/11/02/1162339985160.html?page=fullpage#contentSwap1, viewed 22th September 2013.

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