59 Dead DOGS? Towards a Less Restrictive Interpretation of the Establishment Clause: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) LUKE BECK* Cases involving the establishment clause of s 116 of the Constitution very rarely come before the courts. In Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) the plaintiff contended that Commonwealth funding of an Islamic school with an on-campus mosque breached the prohibition in s 116 of the Constitution that [t]he Commonwealth shall not make any law for establishing any religion. This case note examines that case and discusses three key issues arising from the reasoning: the rejection of giving restrictive meanings to s 116, the possibility of non-national establishments of religion and the possibility of multiple establishments of religion. Finally, the case note identiies a number of issues important to the task of reinterpreting the establishment clause INTRODUCTION Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) 1 raises some important constitutional issues relating to the powers of the Commonwealth in respect of religious matters. In 2009, a group of residents commenced proceedings in the Supreme Court of New South Wales seeking to prevent the construction and operation of an Islamic school, with an on-campus mosque, at Hoxton Park in metropolitan Sydney. The residents argued, among other things, that Commonwealth funding of the school would contravene the prohibition in s 116 of the Constitution that [t]he Commonwealth shall not make any law for establishing any religion. It is convenient to refer to that provision as the establishment clause. A similar case has been decided before. In 1981, the High Court delivered its judgment in Attorney-General (Vic); Ex Rel Black v Commonwealth ( DOGS Case ). 2 In that case, the High Court by majority held that the establishment * BJuris, LLB (Hons) UNSW, LLM Syd; PhD Candidate and Associate, Constitutional Reform Unit, Sydney Law School, The University of Sydney. 1 (2011) 256 FLR 156. 2 (1981) 146 CLR 559.
60 clause of s 116 did not operate to prevent the Commonwealth funding religious schools. Relying on that decision, Rein J at irst instance struck out the Hoxton Park Residents Action Group s claim in late 2010. 3 However, in late 2011 the New South Wales Court of Appeal upheld an appeal against that decision holding that the plaintiff might be able to formulate an arguable case and casting doubt on the reasoning in the DOGS case. 4 While it appears that the Hoxton Park Residents Action Group does not intend to pursue the matter, the legal issues canvassed in the judgments are important and deserve consideration. This case note proceeds as follows. It begins by setting out the factual background to the case before turning to an exposition of the reasoning both at irst instance and on appeal. The case note then discusses three key issues arising from the reasoning: the rejection of giving restrictive meanings to the terms of s 116, the possibility of non-national establishments of religion and the possibility of multiple establishments of religion. Finally, the case note identiies a number of issues important to the task of reinterpreting the establishment clause. FACTS At the outset, it should be emphasised that this case was a strike out application and no facts had been either found or disproved. The reasoning both at irst instance and on appeal proceeded on the assumption that the facts as pleaded by the plaintiff were true. The Australian Federation of Islamic Councils Inc owned land at Hoxton Park and leased it to the Malek Fahd Islamic School Ltd which intended to construct and operate a school campus and a place of worship on the land. The Liverpool City Council granted development approval for this project. The school was in fact constructed and commenced operations. The plaintiff contended that the Schools Assistance Act 2008 (Cth), under which the school received Commonwealth funding, contravened the establishment clause. Section 11 of that Act summarised its operation: (1) This section is a simpliied outline of this Part. (2) Financial assistance to a State for a non-government school, or another non-government body, must not be paid unless there is an agreement between the Commonwealth and the relevant authority of the school or body. 3 Hoxton Park Residents Action Group Inc v Liverpool City Council (2010) 246 FLR 207. 4 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156.
61 (3) The agreement must cover matters including the following: (a) national performance and transparency requirements (see Subdivision B of Division 3); (b) grant acquittal and reporting requirements (see Subdivision C of Division 3); (c) monitoring, evaluation and compliance requirements (see Subdivision D of Division 3). (4) The following additional conditions apply to the grant of inancial assistance to a State for a non-government school or another nongovernment body (see Divisions 2 and 4): (a) in the case of inancial assistance for a school--the school must be an approved school; (b) the school or body must be inancially viable; (c) the State must pay amounts of assistance to the relevant authority of the school or body as soon as practicable (or within an extended period allowed by the Minister). (5) If a non-government school, or another non-government body, breaches a funding agreement, the Minister may (under the agreement) require the school or body to repay an amount to the Commonwealth. The Minister may also reduce or delay the amount of other payments for the school or body under this Act. (6) If a State fails to pass on an amount of inancial assistance to a nongovernment school, or another non-government body, for which inancial assistance is granted under this Act, the Minister may require the State to repay an amount to the Commonwealth. The plaintiff s argument in respect of the establishment clause was somewhat peculiar. As Rein J explained, the focus [was] not the provision of funding to religious schools, but rather the provision of funding to Islamic schools 5 Indeed, the plaintiff eschew[ed] any submission that assistance to religious schools (of any denomination other than Islam) establishes each of those religions in contravention of s 116. 6 5 Hoxton Park Residents Action Group Inc v Liverpool City Council (2010) 246 FLR 207, 214 [20]. 6 Ibid 216 [25].
62 FIRST INSTANCE Rein J began his consideration of the matter by looking generally at the Schools Assistance Act. His Honour considered: On its face, and without recourse to authority, the Schools Assistance Act cannot be described as a law for the establishment of Islam as a religion at all, nor, a fortiori, as the religion of Australia. 7 Rein J continued by characterising the plaintiff s argument in a syllogistic form: the Schools Assistance Act gives funding to religious schools including the school at Hoxton Park, the religion of that school is Islam, therefore the Act establishes Islam. 8 Rein J listed a number of problems with this argument: (1) The Act itself does not give any funding to the School, although it does permit funding to be provided to the various states of Australia, including New South Wales; (2) The Act provides for funding to be given to the State for the purpose of grants to non-government schools which meet certain criteria, and the schools that beneit include, but are not limited to, schools of the Islamic faith and are not limited to schools associated with particular religions; (3) The words establishing any religion do not mean assisting a school by providing grants to construct a building or funds for its expenses. The High Court has authoritatively held what established means in this context: see the discussion below of Attorney-General (Vic.); ex rel. Black v Commonwealth (1980) 146 CLR 559; and (4) The test to determine whether legislation infringes the establishment provision of s 116 has been authoritatively determined in Black, and the plaintiffs contentions are inconsistent with that test, as I shall explain below. 9 In relation to the second point, Rein J irst pointed to the plaintiff s view that it was only in its application to Islamic schools that the Schools Assistance Act violated the establishment clause. 10 Rein J considered that the Act operated in the same manner in respect of schools of all faiths. 11 As such, Rein J held, the Act could not be taken to violate the establishment clause. 12 His Honour said: It would seem that to assist more than one religion must, by deinition, mean 7 Ibid 215 [23]. 8 Ibid. 9 Ibid 215-6 [24]. 10 Ibid 216 [25]. 11 Ibid 216 [25], 219 [34]. 12 Ibid 216 [25].
63 that no single religion is established within the meaning of s 116. 13 Rein J was therefore rejecting the possibility that multiple religious establishments could exist simultaneously. In support of this conclusion, Rein J quoted Stephen J s description in the DOGS case that establishment involves the elevation of one church above all others. 14 The question of multiple establishments of religion will be considered below. Rein J then turned to consider the DOGS case in some detail. He described that case as involving very similar legislation that provided for the funding of schools operated by or associated with religious bodies. 15 Rein J pointed out that the claim was rejected by six of the seven judges in DOGS. 16 His Honour then quoted extensively from the judgments of the majority in DOGS and concluded that the majority view in that case was that to violate the establishment clause a law must constitute or recognise [the religion in question] as a state religion, state church or national institution. 17 This, Rein J said, was fatal to the plaintiff s claim. Rein J also rejected the plaintiff s argument that the Schools Assistance Act had the effect of establishing Islam in Hoxton Park. 18 His Honour said: A religion cannot be established as the religion of Australia or as a national institution of the Commonwealth by permitting a school (with a mosque as part of its infrastructure) to be built at Hoxton Park. 19 Here, Rein J is not simply stating that Commonwealth funding of religious schools does not involve any establishment of any religion but also that non-national establishments of religion are not with the ambit of the establishment clause. This is a matter that will be discussed below. THE COURT OF APPEAL The New South Wales Court of Appeal upheld an appeal against the striking out of the establishment clause claim. The judgment was delivered by Basten JA with whom Allsop P and Beazley JA agreed. In summary, the Court of Appeal distinguished DOGS on the facts and considered that the law as stated in DOGS may not be settled. Distinguishing DOGS on the facts The Court of Appeal emphasised the plaintiff s allegation in the present case was that funding was provided under the Schools Assistance Act for the construction 13 Ibid. 14 Ibid citing DOGS Case (1981) 146 CLR 559, 610. 15 Ibid 216 [26]. 16 Ibid. 17 Ibid 218 [31]. 18 Ibid 219 [35]. 19 Ibid.
64 of both a school and a mosque. 20 The Court made the preliminary point that it was arguable that the Act did not authorise funding for the mosque. 21 However, because this was a strike out application, the Court proceeded on the basis that the plaintiff s allegations were correct and that the funding was properly authorised. The Court of Appeal considered that it was clear that the factual matters raised in this case differed from those raised in the DOGS case. 22 The DOGS case concerned Commonwealth funding of religious schools for educational purposes. The allegation in this case concerned the additional and different issue of funding of bodies for religious purposes (namely the construction of the mosque). This was not an issue raised in [the DOGS case]. 23 On that basis, Rein J had erred in holding that the DOGS case was fatal to the plaintiff s claim. Reconsidering DOGS: the law The Court of Appeal considered that Rein J s analysis of the DOGS case was not erroneous in its terms. 24 The Court also considered that it may be accepted that the term establishing in s 116 was given a restrictive meaning, which would not cover the grant of inancial aid directly to churches for religious purposes, unless the purpose was to set up the religion as an institution of the Commonwealth. 25 However, the Court of Appeal identiied two issues that might lead to a reconsideration of the reasoning in DOGS: the meaning given to establishment in other contexts and a changed approach to constitutional interpretation. 1 The meaning of establishment The Court of Appeal pointed out that in other contexts judges of the High Court have given a broader meaning to the notion of establishment. 26 The other context identiied was Wylde v Attorney-General (NSW) (Ex Rel Ashleford). 27 That case was a trust dispute and the property involved was an Anglican church. The Court of Appeal quoted two passages from that judgment. The irst was Latham CJ s statement: The Church of England in England has remained as an established church, that is to say as a religious body teaching a religion which is supported and encouraged by the State 28 20 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156, 165 [27]. 21 Ibid 165 [27]. 22 Ibid 165 [28]. 23 Ibid 165 [28], 166 [34]. 24 Ibid 160 [14]. 25 Ibid 165 [28]. 26 Ibid 165 [29]. 27 (1948) 78 CLR 224. 28 Ibid 262.
65 The second passage quoted was from the judgment of Dixon J: But although in the beginning and for a not inconsiderable period the position of the Church of England in New South Wales appears to have been that of the Church established by law, time changed its relation to the law. It is not easy to trace the steps by which the result was reached but eventually it came to be considered as a body like other Churches established upon a consensual basis. The Ecclesiastical Court was disused and forgotten, the Acts of Council referring to it ceased to be law as did other early legislation in which might be seen a recognition of the Church as an institution established by law. 29 The Court of Appeal did not discuss the issue further other than to give a citation to another case discussing the history of the Church of England in New South Wales. 30 The issues of broader interpretations will be discussed below. 2 The general approach to constitutional interpretation The Court of Appeal also pointed out that approaches to constitutional interpretation have evolved since the DOGS case was decided, particularly in terms of references to the Convention Debates and to American jurisprudence. 31 These developments might, the Court of Appeal considered, allow submissions to be made supporting a more a lexible approach to the constraints on legislative power expressed in s 116. 32 The Court of Appeal did not discuss the question of the use of the Conventions Debates beyond simply identifying the matter as one with respect to which approaches have changed. Of course, it was not until 1988 several years after the DOGS case had been decided that the High Court handed down its judgment in Cole v Whitield making extensive use of the Convention Debates as an aid to interpretation and clearly stating that such use was permissible. 33 In relation to the use of American jurisprudence speciically the First Amendment which provides: Congress shall make no law respecting an establishment of religion the Court of Appeal made a number of observations. First, it was pointed out that in the DOGS case Barwick CJ took a restrictive approach that would allow references to the text of the United States Constitution and its interpretation only in cases of ambiguity. 34 Second, it was observed that the 29 Ibid 285-6. 30 Scandrett v Dowling (1992) 27 NSWLR 483 31 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156, 166 [32]. 32 Ibid 166 [34]. 33 (1988) 165 CLR 360. 34 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2011) 256 FLR 156, 166 [32] citing DOGS case (1981) 146 CLR 559, 577-9.
66 terminological differences between the Australian and American provisions may or may not be indicative of differences in intended meaning. 35 Third, it was suggested that the similarity in language may warrant an inference that the Australian clause is derived from the American clause and that regard may properly be had to relevant American cases. 36 Moreover, the Court of Appeal pointed out that the High Court s freedom of political communication cases evince a willingness to derive greater assistance from the United States Supreme Court in respect of matters relevant to the structure and scope of government. 37 As such, there was reason for the Court of Appeal to believe that the High Court may abandon the restrictive approach to constitutional interpretation that the Court of Appeal thought characterised the approach in the DOGS case. The Court of Appeal did not decide that any of this would necessarily allow the plaintiff to prevail. It only decided that the funding of a religious institution for religious (not educational) purposes is a proper matter for challenge. It may ultimately require the High Court to determine if its existing jurisprudence adequately covers that matter. 38 DISCUSSION There are three matters that call for comment. The irst is the Court of Appeal s characterisation as restrictive of both the approach to interpretation followed in the DOGS case and the interpretation of the establishment clause adopted in that case. The second matter is Rein J s view that Commonwealth assistance to multiple faiths precludes any breach of the establishment clause. The third matter calling for comment is Rein J s view based on the DOGS case that what is prohibited by the establishment clause is a national establishment of religion. Rejecting restrictive meanings The approach to interpretation and the meaning adopted in the DOGS case was indeed, as the Court of Appeal indicated, restrictive. A number of the majority judges in that case said so themselves. 39 Gibbs J said: There is no reason to give such a provision [ie s 116] a liberal interpretation. 40 Wilson J, with whom Mason J agreed, 41 stated what while grants of power should be construed with all the generality which the words used will admit the same is not true of a provision which proscribes power. 42 This is signiicant and the Court of Appeal s suggestion that a less restrictive interpretation of the establishment clause may 35 Ibid 166 [33]. 36 Ibid. 37 Ibid 166 [34]. 38 Ibid 166 [35]. 39 Cf DOGS case (1981) 146 CLR 559, 577 (Barwick CJ) 40 Ibid 603. 41 Ibid 612. 42 Ibid 653.
67 now be adopted was prescient. There is very recent High Court authority that the words of s 116 should not be given restrictive meanings. In Williams v Commonwealth, 43 the High Court was required to interpret the religious tests clause of s 116, which provides: no religious test shall be required as a qualiication for any ofice or public trust under the Commonwealth. In considering the meaning of the word ofice in that provision, Gummow and Bell JJ said: it may be accepted that, given the signiicance of the place of s 116 in the Constitution, 44 the term should not be given a restricted meaning when used in that provision. 45 The separate judgments of French CJ, 46 Hayne, 47 Crennan 48 and Kieffel JJ 49 indicated their agreement with Gummow and Bell JJ on s 116 issues. That reasoning is plainly applicable to all the words and phrases appearing in s 116, including the establishment clause. The Court of Appeal s apparent prescience is also indicated by its quoting from the judgments in Wylde s case. There is also very recent High Court authority touching on that case. In PGA v The Queen, 50 a case concerning rape in marriage, appears this statement in the joint judgment of French CJ, Gummow, Hayne, Crennan and Kiefel JJ: Further, unlike the situation in England, in the Australian colonies there was to be no established religion. The Anglican Church was expressly enjoined from exercising any authority or jurisdiction in matrimonial causes. 51 The footnote to the irst sentence cites both Wylde s case and the case cited by the Court of Appeal discussing the history of the Church of England in New South Wales. 52 Of particular interest, is that the particular pages cited from Wylde s case includes the passage from Dixon J s judgment quoted by the Court of Appeal. This is somewhat odd given that Dixon J s comments appear to contradict the PGA majority s statement. The passage in PGA is also odd for another reason. The High Court appears to be saying that the fact that the Anglican Church had no legal 43 [2012] HCA 23. 44 Kruger v The Commonwealth (1997) 190 CLR 1, 85-87, 121-124, 130-134, 160-161, 166-167. 45 Williams v Commonwealth [2012] HCA 23, [110]. 46 Ibid [4]. 47 Ibid [168]. 48 Ibid [476]. 49 Ibid [597]. 50 [2012] HCA 21. 51 Ibid [26] citations omitted. 52 Ibid.
68 authority over divorce is suficient proof that that Church was not established. That appears to be an incredibly narrow view of the meaning of established religion and one that appears to be narrower than the views expressed in the DOGS case. It might also be observed that the established Church of England exercises no authority or jurisdiction in matrimonial causes in the United Kingdom today. 53 That said, Williams with its rejection of restrictive meanings was decided a few weeks after PGA and is a constitutional case dealing directly with s 116; Williams is therefore more authoritative than PGA. The Court of Appeal would therefore appear to be correct that the meaning given to the establishment clause in the DOGS case is not necessarily authoritative. The possibility of non-national establishments of religion As noted above, Rein J s rejection of the plaintiff s claim that the Schools Assistance Act established Islam in Hoxton Park was on two grounds. Firstly, that funding religious schools does not amount to establishment and, secondly, that establishment is a national matter. This second reason cannot be accepted. It may be taken as uncontroversial that the Church of England, as it exists today, is established and that any attempt by the Commonwealth to legislate for a church in Australia to occupy an equivalent position would violate the establishment clause of s 116. However, the Church of England is not established throughout the entire country, that country being the United Kingdom of Great Britain and Northern Ireland. With effect from 1871, the Irish Church Act 1869 dissolved the union between the Irish and English Churches and provided that the Church of Ireland, as so separated, should cease to be established by law. 54 Likewise, the Welsh Church Act 1914 operated to terminate the establishment of the Church of England in Wales and Monmouthshire. 55 Moreover, the Church of England was never established in Scotland: the Protestant Religion and Presbyterian Church Act 1707 (Scot) ensured that on the union of England and Scotland the establishment of the Presbyterian Church of Scotland would not be affected. 56 In any case, the words The Commonwealth shall not make any law for establishing any religion must surely operate to invalidate a Commonwealth statute providing, for instance, Christianity shall be the oficial religion of the State of Victoria (assuming such a statute was supported by a relevant head of power). The DOGS case even with its restrictive reasoning is authority for this proposition. Gibbs J, for example, considered that if the conditions of a grant of inancial assistance [under s 96] require the State to which the grant is made to establish a religion 53 Matrimonial Causes Act 1973 (UK). 54 32 & 33 Vict, c 42 preamble. 55 4 & 5 Geo 5, c 91 preamble. The Suspensory Act 1914 delayed the coming into effect of the Welsh Church Act. For a discussion see, eg, Roger L Brown, The Disestablishment of the Church in Wales (1999) 5 Ecclesiastical Law Journal 252. 56 See also Union With England Act 1707 (Scot) and Union With Scotland Act 1706 (Eng).
69 within the meaning of [s 116], the Act by which the grant is authorized [will be] invalid as contrary to s 116. 57 If that is right and the Commonwealth cannot use money to induce a State to establish a religion within its jurisdiction then it must also be the case that the Commonwealth cannot establish a religion in a State. It would seem to follow that the establishment clause would also operate to invalidate a Commonwealth statute providing Islam shall be the oficial religion of the suburb of Hoxton Park. It follows from this discussion that non-national establishments of religion are possible and that s 116 prohibits the Commonwealth from bringing about any such establishment. Rein J was therefore wrong to dismiss the plaintiff s claim on the second ground. This discussion does not, however, provide an answer as to whether the provision of Commonwealth funding for the construction of a place of worship in a particular locality violates the establishment clause. The answer to that question depends on the meaning of establishing any religion and not simply on the fact that what is involved in the provision of such funding is localised. The possibility of multiple religious establishments The above discussion also speaks against Rein J s rejection of the possibility of multiple religious establishments. As noted above, Rein J held that the Schools Assistance Act operated to assist all non-government schools regardless of religious afiliation, if any. On that basis, his Honour said: It would seem that to assist more than one religion must, by deinition, mean that no single religion is established within the meaning of s 116. 58 In other words, Rein J took the view that multiple establishments of religion are, by deinition, not possible. This view cannot be accepted. In the United Kingdom, the Anglican Church of England and the Presbyterian Church of Scotland were and are both established at the same time. 59 The combined effect of the Union with Scotland Act 1706 (Eng) and the Union with England Act 1707 (Scot) was the union of the kingdoms of England and Scotland and the creation of the United Kingdom with a combined Parliament. But those Acts did not affect the respective religious establishments that had existed in the separate kingdoms. Indeed, this was an express condition of the Union provided for in legislation of both the English and Scottish Parliaments. 60 57 (1981) 146 CLR 559, 592. 58 Hoxton Park Residents Action Group Inc v Liverpool City Council (2010) 246 FLR 207, 216 [25]. 59 In Macqueen v Frackelton (1909) 8 CLR 673, 690 Grifith CJ referred to the Church of Scotland as by law established. See further Mark Hill, Norman Doe and Russell Sandberg, Religion and the Law in the United Kingdom (Kluwer Law International, 2011) 31. 60 Protestant Religion and Presbyterian Church Act 1707 (Scot); An Act for securing the Church of England as by Law established (1706, Eng, 6 Anne c 8).
70 Multiple religious establishments are therefore possible and there is nothing in the text of the establishment clause that suggests that its operation does not extend to prohibiting multiple religious establishments. TOWARDS A LESS RESTRICTIVE INTERPRETATION OF THE ESTABLISHMENT CLAUSE If the interpretation of the establishment clause articulated in the DOGS case is to be rejected as too restrictive, how then should a court go about interpreting that provision? This section will set out some matters that should be borne in mind in that task. The starting point for analysis would appear lie outside of s 116. The establishment clause of s 116 is a denial of legislative power to the Commonwealth. However, the Commonwealth does not have a general plenary legislative power such that it can legislate as it pleases. Commonwealth legislation must be supported by a head of power and there is no religion power. 61 Quite apart from s 116, then, the Commonwealth could not legislate to put a church in the same position as the Church of England or the Church of Scotland; there being no head of power that suggests itself as one that would support such a law (perhaps with the exception of the territories power). Equally, the Commonwealth could not enact the hypothetical provisions above that Christianity shall be the oficial religion of the State of Victoria and Islam shall be the oficial religion of the suburb of Hoxton Park. On this basis, s 116 must have potential operation in cases where an impugned law is one with respect to trade and commerce or taxation and so on. 62 If an interpretation given to the words for establishing any religion is such that no law properly characterised as one with respect to any of the Commonwealth s heads of power can satisfy it then that interpretation must be rejected because it deprives the establishment clause of any potential operation. The adoption of such an interpretation would have the same effect as repealing the provision. For this reason, the cases where the establishment clause operates to invalidate a law will never be so direct or obvious as the examples given here. The positions of the Church of England and the Church of Scotland may, of course, have interpretative utility. The way in which this can be so is demonstrated by the above critique of Rein J s reasoning showing that both non-national and multiple establishments of religion are possible. The same method was also employed above in critiquing the High Court s comment in PGA. The critiques used those bodies in a negative way: if an analysis of religious establishment for the purposes of s 116 is narrower than the general position in the United Kingdom then that analysis must be in error. 61 Kruger v Commonwealth (1997) 190 CLR 1, 131 (Gaudron J). 62 See Constitution s 51
71 Despite this utility, a number of important things must be pointed out in respect of the established positions of the Church of England and the Church of Scotland. The irst is that the meaning of establishment in the United Kingdom is far from clear. 63 The second is that some deinitions offered by British authorities are Christianitycentric. 64 The third is that its meaning in the United Kingdom does not matter in the same way that the meaning of the word establishing appearing in Australia s written constitution does. These matters suggest that caution must be exercised when considering the various deinitions offered by British authorities. Another thing that must be pointed out is that although the meaning of establishment is unclear it is accepted that the nature of the establishment of the Church of England is different from the nature of the establishment of the Church of Scotland. 65 This suggests that establishment can manifest itself in varying ways. 66 There is yet another reason why the proper interpretation of the establishment clause is broader than the position of the Church of England and the Church of Scotland. It is because those are established churches and s 116 prohibits laws for establishing any religion. To limit an interpretation to the general positions of the Church of England or Church of Scotland would also be to effectively limit the meaning of religion in s 116 to organised or institutional religions. 67 The establishment clause plainly prohibits the Commonwealth from establishing nonorganised or non-institutional religions. As the Court of Appeal suggested, another possible source of comparative assistance is found in American First Amendment jurisprudence. Inferences are not needed to show that the language of the Australian establishment clause was derived from the First Amendment establishment clause. In moving the provision that became s 116 at the Constitutional Convention, Henry Bournes Higgins said: I may state that most of this clause, with regard to the making of laws, is 63 See, eg, Javier Garcia Oliva, Church, State and Establishment in the United Kingdom in the 21 st Century: Anachronism or Idiosyncrasy? [2010] Public Law 482, 484-6; E R Norman, Notes on Church and State: A Mapping Exercise in R M Morris (ed), Church and State: Some Relections on Church Establishment in England (The Constitution Unit, 2008) 9, 9-10; Frank Cranmer, John Lucas and Bob Morris, Church and State: A Mapping Exercise (The Constitution Unit, 2006) 9-10; M H Ogilvie, What is a Church by Law Established? (1990) 28(1) Osgoode Hall Law Journal 179, 195-198. See also, DOGS case (1981) 146 CLR 559, 606 (Stephen J): The plaintiffs point to the undoubted imprecision surrounding the concept of establishment as applied to the Church of England. 64 Eg, Marshall v Graham (1907) 2 KB 112, 126 quoted in DOGS case (1981) 146 CLR 559, 596. 65 For a discussion see, eg, Hill, Doe and Sandberg, above n 59, 39-41; Cranmer, Lucas and Morris, above n 63, 58-67; C R Munro, Does Scotland Have an Established Church? (1997) 4 Ecclesiastical Law Journal 639; T M Taylor, Church and State in Scotland [1957] Juridical Review 121. 66 See DOGS case (1981) 146 CLR 559, 606-7 noting authorities to similar effect. 67 See Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) ( Scientology case ) (1983) 154 CLR 120.
72 already in the American Constitution, either in the original Constitution or by way of an amendment of the Constitution. In the Constitution of the United States there is a provision that the Federal Parliament is not to make any law prohibiting the free exercise of any religion, and there is also a clause, the very irst amendment of the Constitution, that the Federal Parliament is not to make any law for the establishment of any religion. 68 This does not necessarily mean that the Australian provision embodies the meaning of the American provision and that American cases are persuasive or even useful authorities in interpreting the Australian provision. Much more analysis is necessary before that general question can be answered. Consideration must be given to the reasons and arguments that led to the inclusion of s 116 in the Constitution and their impact on the meaning of the provision, 69 and how those might differ from the reasons and arguments that led to First Amendment (and indeed the rest of the Bill of Rights). 70 Consideration must also be given to how the two provisions sit within their broader constitutional contexts; there may well be important differences in the legal principles, values and assumptions underlying and expressed in the two constitutions that colour the meaning of the provisions and approaches to their interpretation. Moreover, consideration must also be given to the effects of the post-civil War Fourteenth Amendment on the meaning and operation of the First Amendment. 71 Only once these, and presumably other, matters are considered will it be possible to determine what aspects, if any, of American establishment clause case law may be useful. CONCLUSION The Hoxton Park Residents Action Group succeed in parallel litigation in the New South Wales Land and Environment Court and the development consent for the school was declared invalid on the ground that the Liverpool City Council failed to consider a relevant consideration. 72 The Court s order that the respondents be restrained from using the said land as a school unless and until a further development consent to do so has been granted was suspended until 31 March 2013. However, a website that appears to be associated with the Hoxton Park Residents Action Group declares mission accomplished and suggests that the Group holds the belief that a further consent will not be granted. 73 In these 68 Oficial Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1769. 69 Cf DOGS case (1981) 146 CLR 559, 612 (Mason J): Why it was considered necessary to include in the Constitution s 116 or its irst clause is not altogether clear Relection on the question is speculative and does not assist in the resolution of the problems that now arise. 70 The irst ten amendments to the United States Constitution were adopted at the same time and constitute the Bill of Rights. 71 See, eg, Akhil Reed Amar, The Bill of Rights (Yale University Press, 1998) 43, 246ff. 72 See Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43. 73 <www.nomoreschoolsathoxtonpark.com>
73 circumstances, would seem that the Hoxton Park Residents Action Group does not intend to pursue its establishment clause claim. Nevertheless, the Hoxton Park Residents Action Group s attempted pursuit of the claim has raised important issues regarding the meaning of the establishment clause of s 116. There is strong reason to believe that at an appropriate opportunity the High Court will reconsider the reasoning in the DOGS case in favour of a less restrictive interpretation of the establishment clause.clause of s 116. There is strong reason to believe that at an appropriate opportunity the High Court will reconsider the reasoning in the DOGS case in favour of a less restrictive interpretation of the establishment clause.