Stephen Gageler (Barrister)

My commentary looks at some of the issues raised by Mr. Moreno from the perspective of an Australian constitutional lawyer.

I want to say something first about the origins and nature of the Australian Constitution and in so doing to distinguish it from the United States Constitution. I propose then to say something about guarantees of religious liberty under the Australian Constitution. Finally, I want to look at how some of the specific issues raised by recent cases in the United States referred to by Mr. Moreno would be resolved as a matter of Australian constitutional law.

The two Constitutions compared

The Constitution of the United States came into force in 1788, the year that the first fleet sailed into Sydney Harbour. The first ten amendments to the United States Constitution, embodying the Bill of Rights, were added two years later.

The centrality of concerns about religious freedom to the thinking of the framers of the United States Constitution can be seen from the place which they accorded that freedom in the scheme of the Constitution. Religious freedom is addressed in the first part of the First Amendment.

The First Amendment begins:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech .."

These words embody what have been called the establishment clause, the free exercise clause and the free speech clause. The latter, of course, is a constitutional guarantee which is independent of religious freedom as such but which is complementary to it.

In Australia in the years prior to Federation, in marked contrast to the American position more than a hundred years earlier, there had been no revolution. Nor was there at the time any significant distrust of government. The Australian Constitution came into existence in 1900 following a further century of parliamentary and social reform both in England and in the Australasian colonies themselves. Although the Australian Constitution was drafted in Australia and approved by a majority of the Australian people before it was adopted, the Australian Constitution at the time of its enactment was in form a schedule to an Act of the Imperial Parliament.

To a very large extent, the framers of the Australian Constitution adopted the American model. The Australian system of federalism, for example, is based squarely on that contained in the United States Constitution. So is the entrenchment of the federal judiciary and the separation of judicial power.

However, there is one significant respect in which the framers of the Australian Constitution deliberately departed from the American model. That was in rejecting the adoption in Australia of a Bill of Rights. The reason for this rejection was that comprehensive guarantees of individual liberty were seen to be both unnecessary and out of keeping with the staunchly egalitarian character of Australian democracy.

To this rejection of a Bill of Rights, there was one relevant exception. That was in the limited guarantee of religious freedom set out in section 116 of the Australian Constitution. To the details of that section I will turn in a moment.

For present purposes, it is sufficient to identity two potential sources of religious freedom in the Australian Constitution. The first is the express guarantee in section 116. The second is the newly discovered implied guarantee of freedom of political communication. It is interesting that by putting the two sources together, we have something approaching the area covered by the first amendment to the United States Constitution.

However, whilst the first amendment has been held by the United States Supreme Court to limit State power as well as congressional power through the mechanism of the fourteenth amendment, section 116 of the Constitution undoubtedly applies only to the Commonwealth. In Australia, apart from any relevant limitation to be gleaned from the guarantee of freedom of political communication, there is no guarantee of religious freedom which operates as a constitutional restraint on state legislative or executive power.

The language of section 116 of the Australian Constitution was in part drawn directly from the first amendment and in part from the language of Article VI section 3 of the United States

Constitution which prohibits any religious test being required as a quantification to office. Section 116 provides:

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

Section 116 has been interpreted by the High Court on three significant occasions.

The first was in World War 1 when it was held that the free exercise clause provided no answer to a law providing for compulsory military training: Krvgger v Williams (1912) 15 CLR 366.

More recently, the High Court has considered the meaning of the word "religion" in the context of a provision of state law providing for a tax exemption. In a joint judgment clearly written with an eye to its constitutional implications, Mason and Brennan JJ said the following:

See Church of the New Faith v Commissioner of Payroll Tax (Vict) (1983) 154 CLR 120 at 135-136. In that case the Church of Scientology was found on the evidence to be a religion.

The passage quoted relevantly sets out both the meaning of "religion" for legal purposes in Australia and the scope of the immunity conferred by the free exercise clause of section 116.

The scope of the constitutional freedom has been variously expressed. For example, it has been referred to as:

See Cunliffe v Commonwealth (1994) 182 CLR 232 at 326.

What underlies all of these formulations is a conception that freedom of political communication is essential to the functioning of the political system of representative government or representative democracy for which the Australian Constitution provides and is therefore necessarily implied by the Australian Constitution. What is enshrined within the Constitution and protected by it is freedom of political communication (however it is more precisely expressed) as a systemic value rather than freedom of speech as a matter of individual liberty.

Political communication has been recognised by some members of the High Court as extending to "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about": Theophanous at 124 quoting from Barendt, Freedom of Speech (1985) at 152. The freedom obviously extends to some speech which is religious in its nature or which is religiously inspired. To what extent has yet to be determined.

Needless to say, the judgments of the High Court have recognised that freedom of political communication is not an absolute and does not necessarily spell the invalidity of a law which results in some curtailment of that freedom. A law which in some respect limits freedom of speech will not be invalid if it is nevertheless reasonably capable of being characterised as appropriate and adapted to the achievement of some other legitimate governmental objective. Again, precisely how this formulation is to be worked out in practice is yet to be determined.

However, it is not very different from standard first amendment jurisprudence in the United States.

Turning finally to the recent United States cases referred to by Mr. Moreno in his paper, it is difficult to deal with many of the scenarios without knowing significantly more about the precise facts. A full consideration would also take some time.

I will therefore restrict myself to only a couple of comments.

For better or for worse, the implied guarantee of freedom of political communication in the Australian Constitution would probably protect the religious displays of the Ku Klux Clan in the same way in which those displays have been held to be protected by the First Amendment in the United States.

So far as religion in public schools is concerned, the Australian Constitution has significantly less to say than the United States Constitution. Certainly, the establishment clause of section 116 would not require the removal of a portrait of Jesus from high school wall. Nor would it prevent a student initiated graduation prayer from occurring. Similarly, the free exercise clause be unlikely to invalidate rules which have the effect of preventing a student possessing a Bible or distributing religious literature within the precincts of a school. For rules of that nature to be invalidated it would necessary for at least two conditions to be fulfilled. The first is that the relevant rules would need to be sourced in Commonwealth law. Most laws regulating public education in Australia are state laws. Secondly, the rules would need to be discriminatory. They would need to single out religious books or religious literature. It would not be sufficient that they merely apply generally to prohibit the possession of unauthorised books or the distribution of unauthorised literature.

This is not to say that the Australian political system either permits or denies more religious freedom than that which prevails under the Constitution of the United States. It is simply to point out that the debate, if there is to be one, must by and large occur at a different level of discourse. The questions are politically and administrative rather than constitutional.