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 burden 2 - 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 27 th 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 1

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 speech 6 about religion 7 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). 2

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 5

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. 6

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 Williams 19 ( Krygger ) Judd v McKeon; 20 the Jehovah s Witnesses Case; 21 Kruger v Commonwealth 22 ( Stolen Generations Case ); the Scientology Case; 23 Attorney General (Vic); Ex rel Black v The Commonwealth 24 ( DOGS Case ); and Williams v Commonwealth 25 ( 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 Ltd 26 ( 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 7

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 Victoria 28 ( 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 Adelaide 29 ( 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 2 30 ( Sunol v Collier ) and Owen v Menzies; Bruce v Owen; Menzies v Owen 31 ( 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. 9

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. 10

The Conclusion to the thesis follows. 11

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 (108 6, 109 7, 109A 8 and 115 9 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 19 th 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). 14

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 18 th 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 3 rd December 2006. 18 Johnson was appointed as Chaplain on 24 th 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 28 th September 2008. 16