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Higgins' Argument for Section 116 of the Constitution

Published online by Cambridge University Press:  24 January 2025

Luke Beck
Luke Beck*
Affiliation:
Constitutional Reform Unit, Sydney Law School, The University of Sydney
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Abstract

The argument that led to the inclusion of s 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The standard account of the argument presented by the proponent of the clause, Henry Bournes Higgins, holds that it was included to ensure that no inferential power to legislate with respect to religion could be drawn from the religious words of the constitutional preamble. This article argues that the standard account of Higgins' argument is wrong and that the substance of Higgins' concern was a realisation that the Commonwealth's enumerated powers were wide enough to authorise legislation dealing with religion.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 3 , September 2013 , pp. 393 - 415
Copyright
Copyright © 2013 The Australian National University

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Footnotes

This article is a revised version of a paper presented at the University of Sydney Postgraduate Law Conference, Sydney Law School, 1 November 2012. The author thanks Helen Irving, Anne Twomey and the anonymous referees for comments on earlier versions of this article.

References

1 Official Report of the National Australasian Convention Debates, Melbourne, 17 March 1898, 2474.

2 Ibid.

3 Quick, John and Garran, Robert Randolph, The Annotated Constitution of the Commonwealth of Australia (Angus & Robertson, 1901) 952.Google Scholar

4 Pannam, Clifford, ‘Travelling Section 116 with a US Road Map’ (1963) 4 Melbourne University Law Review 41, 53.Google Scholar

5 La Nauze, JA, The Making of the Australian Constitution (Melbourne University Press, 1972) 229.Google Scholar

6 Commonwealth, Final Report of the Constitutional Commission (Australian Government Publishing Service, 1988) vol 1, 610.Google Scholar

7 McLeish, Stephen, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ (1992) 18 Monash University Law Review 207, 219.Google Scholar

8 Puls, Joshua, ‘The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees’ (1998) 26 Federal Law Review 139, 140.CrossRefGoogle Scholar

9 Williams, George, Human Rights under the Australian Constitution (Oxford University Press, 2002) 110.Google Scholar

10 Mortensen, Reid, ‘Judicial (In)activism in Australia's Secular Commonwealth’ in Parker, Christine and Preece, Gordan (eds), Theology and Law: Partners or Protagonists (ATF Press, 2005) 52, 55.Google Scholar

11 Evans, Carolyn, Legal Protection of Religious Freedom in Australia (Federation Press, 2012) 70.Google Scholar

12 (1981) 146 CLR 559, 612 ('DOGS Case’).

13 Ibid 654.

14 (1997) 190 CLR 1, 60 ('Stolen Generations Case’).

15 Ely, Richard, Unto God and Caesar: Religious Issues in the Emerging Commonwealth, 1891–1906 (Melbourne University Press, 1976) 21.Google Scholar

16 Ibid.

17 Winckel, Anne, ‘Almighty God in the Preamble’ (1999) 4 The New Federalist 78, 79.Google Scholar

18 Ely, above n 15, ix.

19 Ibid; Winckel, Anne, The Constitutional and Legal Significance of the Preamble to the Commonwealth Constitution, Past, Present and Future (LLM Thesis, University of Melbourne, 2000) 127.Google Scholar

20 Irving, Helen, To Constitute a Nation: A Cultural History of Australia's Constitution (Cambridge University Press, 1999) 166.Google Scholar

21 See Ely, above n 15, 21–31.

22 Ibid.

23 Ibid 27; Official Report of the National Australasian Convention Debates, Melbourne, 7 February 1898, 656 (Henry Bournes Higgins).

24 Ely, above n 15, 24.

25 Official Report of the National Australasian Convention Debates, Melbourne, 6 April 1897, 405.

26 Winckel, ‘Almighty God in the Preamble', above n 17, 81.

27 See Williams, John M, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 669.Google Scholar

28 The first attempt was at a meeting of the Constitutional Committee on 8 April 1897: National Archives of Australia, Series R213, p 105. The second was in the Convention proper: Official Report of the National Australasian Convention Debates, Adelaide, 22 April 1987, 1184–9.

29 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1741–2.

30 See Williams, above n 27, 499–525.

31 Ibid 437–58.

32 See Beck, Luke, ‘The Constitutional Prohibition on Religious Tests’ (2011) 35 Melbourne University Law Review 323, 342.Google Scholar

33 Official Report of the National Australasian Convention Debates, Melbourne, 7 February 1898, 654.

34 Ibid.

35 Ibid.

36 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 664.

37 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1769, 1779.

38 See Proceedings of the Australasian Federal Convention held at Parliament House, Melbourne, 20th January to 17th March, 1898 (Victorian Government Printer, 1898) 224–5; Williams, above n 27, 1111.

39 Ibid.

40 Ibid.

41 Ely, above n 15, 140 n 2.

42 Letter from WA Colcord to HB Higgins, 23 March 1898, quoted in Ely, above n 15, 140.

43 Ely, above n 15, 62.

44 Official Report of the National Australasian Convention Debates, Melbourne, 7 February 1898, 654.

45 United States Constitution, preamble: ‘We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.'

46 Official Report of the National Australasian Convention Debates, Melbourne, 7 February 1898, 655 referring to Church of the Holy Trinity v United States, 143 US 547 (1892) ('Church of the Holy Trinity’).

47 Ibid.

48 Ibid.

49 Ibid 656.

50 Ibid 655–6.

51 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 658

52 Ibid.

53 Ibid 663.

54 Ibid.

55 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1732.

56 Ibid 1734.

57 Ibid.

58 Ibid 1735.

59 Ibid 1769.

60 Ibid referring to United States Constitution art VI cl 3: ‘but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’ and amend I ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …'

61 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1769–70.

62 Ibid 1779.

63 Ibid.

64 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 661.

65 Ibid.

66 Church of the Holy Trinity v United States, 143 US 457, 458 (1892) quoting 23 Stat 332, c 164, § 1.

67 Ibid.

68 Ibid 463.

69 Ibid 465.

70 Ibid 470.

71 Ibid 471.

72 Ibid 465.

73 Ibid 468.

74 Jones, Alonzo T, Appeal from the US Supreme Court Decision Making this ‘A Christian Nation': Review of the United States Supreme Court Decision in Case No 143–October Term, 1891. The Rector, Church Wardens, and Vestrymen of the Church of the Holy Trinity, Plaintiffs in Error vs the United States [February 29, 1892]. And also certain Acts of Congress for the Closing of the World's Columbian Exposition on Sunday (International Religious Liberty Association, 1893) 17–8.Google Scholar The document is available online at <http://docs.adventistarchives.org/docs/RLT/RLT1893-101__B.pdf?q=docs/RLT/RLT1893-101__B.pdf>.

75 Ibid 25.

76 Jones, Alonzo T, The Union of Church and State in the United States, a Protest: Review of the United States Supreme Court Decision in Case No 143–October Term, 1891. The Rector, Church Wardens, and Vestrymen of the Church of the Holy Trinity, Plaintiffs in Error vs the United States [February 29, 1892]. And also certain Acts of Congress for the Closing of the World's Columbian Exposition on Sunday (Pacific Press Publishing Co, 1892).Google Scholar A copy of this document is available online at <http://text.egwwritings.org>.

77 Ibid 20, 28.

78 Ely, above n 15, 28 n 22, 42.

79 Foster, Gaines M, Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (University of North Carolina Press, 2002) ch 5.Google Scholar See also Laband, David N, Heinbuch, Deborah Hendry, Blue Laws: The History, Economics and Politics of Sunday-closing Laws (Lexington Books, 1987).Google Scholar

80 Foster, above n 79, 96.

81 Ibid 97–100.

82 Ibid.

83 Ibid.

84 Ibid 101.

85 Ibid 101–2.

86 Ibid 102.

87 Ibid.

88 Act of 5 August 1892, 52 Cong Ch 381, 27 Stat 389, § 4:

That it is hereby declared that all appropriations herein made for, or pertaining to, the World's Columbian Exposition are made upon the condition that the said Exposition shall not be opened to the public on the first day of the week, commonly called Sunday; and if the said appropriations be accepted by the corporation of the State of Illinois, known as the World's Columbian Exposition, upon that condition, it shall be, and it is hereby, made the duty of the World's Columbian Commission, created by the act of Congress of April twenty fifth, eighteen hundred and ninety, to make such rules or modification of the rules of said corporation as shall require the closing of the Exposition on the said first day of the week commonly called Sunday.

89 United States Constitution art 1 § 8 cl 3: ‘The Congress shall have power … [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'

90 Quick and Garran, above n 3, 290.

91 Prentice, Ezra Parmalee, The Commerce Clause of the Federal Constitution (Callaghan and Co, 1898) 304Google Scholar; Black, Henry Campbell, Handbook of American Constitutional Law (West Publishing Co, 1895) 297.Google Scholar

92 Quick and Garran, above n 3, 290.

93 See 23 Congressional Record 5999 (Joseph Hawley) (1892, Senate).

94 Foster, above n 79, 105.

95 Ibid 105–6; Burg, David F, Chicago's White City of 1893 (University Press of Kentucky, 1976) 91.Google Scholar

96 World's Columbian Exposition v United States, 56 F 654 (7th Cir, 1893). See further Burg, above n 95, 91.

97 23 Congressional Record 6003–4 (John Morgan) (1982, Senate).

98 Note, ‘Enjoining the Sunday Opening of the World's Fair’ (1893) 27 American Law Review 571, 572.Google Scholar

99 Ely, above n 15, 142–3:

The slips of paper used to mark off these places were parts of an envelope, and about half of the postmark remained. ‘FIT……TH VIC’ and ‘JA……20…98’ is fairly clearly ‘Fitzroy North, Victoria, January 20, 1898. 251 St Georges Road, North Fitzroy, was at this time the address of the Australasian Tract Society and the Echo Publishing Company. It was also the Victorian headquarters of the Adventists. Therefore one reasonably can surmise that the letter to the readers of the Congressional Records came from the Adventists. We know that around this time Colcord, the Adventist's religious liberty secretary, was corresponding with Higgins. We know that at this time Higgins lived in the suburb of Malvern, not Fitzroy … We know from what Higgins said on 7 and 8 February, and 2 March, that he was closely familiar with the events relating to the closing of the 1892 Chicago Exhibition on Sunday. The probability therefore is that the vigorously underlining reader was none other than Higgins himself’ (emphases in original).

100 Ibid.

101 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 661.

102 Ibid.

103 Ibid 658.

104 See Gale Cengage Learning, Fact Sheet, ‘Making of Modern Law: Legal Treatises, 1800–1926’ <http://www.gale.cengage.com/pdf/facts/momlTreaties.pdf>.

105 Black, Henry Campbell, Handbook of American Constitutional Law (West Publishing Co, 1895)CrossRefGoogle Scholar ('First Edition Handbook’); Black, Henry Campbell, Handbook of American Constitutional Law (West Publishing Co, 2nd ed, 1897)Google Scholar ('Second Edition Handbook’).

106 Prentice, Ezra Parmalee, The Commerce Clause of the Federal Constitution (Callaghan and Co, 1898).CrossRefGoogle Scholar

107 Ibid 304.

108 Ibid 337.

109 Black, First Edition Handbook, above n 105, 297.

110 Black, Second Edition Handbook, above n 105, 341.

111 Black, First Edition Handbook, above n 105, 392.

112 Ibid 393.

113 Ibid.

114 Black, Second Edition Handbook, above n 105, 447.

115 Ibid 451.

116 Ibid 452.

117 (1909) 8 CLR 330 ('Huddart Parker’).

118 Constitution s 51(xx).

119 Huddart Parker (1909) 8 CLR 330, 409.

120 Ibid 410.

121 Ibid.

122 Ibid 409.

123 Lane, P H, The Australian Federal System (Lawbook Co, 1979) 160.Google Scholar

124 Huddart Parker (1909) 8 CLR 330, 409–10.

125 Ibid 415.

126 For example, Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1770.

127 Quick and Garran, above n 3, 952.

128 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 663.

129 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1734–5.

130 Official Report of the National Australasian Convention Debates, Melbourne, 8 February 1898, 663.

131 It is worth noting that Higgins might have been mistaken and confused in his reference to the ‘general welfare'. That expression appears not only in the preamble but also in art 1 § 8 of the United States Constitution granting Congress power ‘[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States'. Even if the preamble provides a source of power, it is not a power that is conferred; it would be an inferred power. The general welfare clause of art 1 § 8 has been given a broad interpretation by the Supreme Court allowing a wide power to tax and spend: United States v Butler, 297 US 1 (1936); Helvering v Davis, 301 US 619 (1937); see also National Federation of Independent Business v Sebelius, 132 S Ct 2566 (2012).

132 Jacobson v Commonwealth of Massachusetts, 197 US 11, 22 (1905). However, Himmelfarb, Dan, ‘The Preamble in Constitutional Interpretation’ (1991) 2 Seton Hall Constitutional Law Journal 127Google Scholar, 207 n 314 has identified Hepburn v Griswold, 75 US (8 Wall) 603 (1870) as a case where the Supreme Court ‘effectively derived federal right from preamble's “establish justice” language’ and Mahon v Justice, 127 US 700 (1888) as a case in which a single justice in dissent ‘effectively derived limitation on power of state government from preamble's “insure domestic tranquillity” language'.

133 Quick and Garran, above n 3, 290.

134 Ibid 952.

135 See Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418. See also Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1.

136 Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169, 194.

137 On the technique of characterisation see, eg, Zines, Leslie, The High Court and the Constitution (Federation Press, 5th ed, 2008) chs 2 and 3.Google Scholar

138 Official Report of the National Australasian Convention Debates, Melbourne, 2 March 1898, 1771–2, 1778.

139 DOGS Case (1981) 146 CLR 559, 612.

140 Constitution s 51(i).

141 Lane, PH, Lane's Commentary on the Australian Constitution (LBC Information Services, 2nd ed, 1997) 801Google Scholar: ‘Nowhere in the Commonwealth catalogue of “enumerated specific subjects” is there a power to make laws with respect to religion … Hence s 116 envisages a federal law with respect to non-religion': Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116, 122–3 (Latham CJ):

The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to reconcile it with other provisions. It prevails over and limits all provisions which give power to make laws.

Accordingly no law can escape the application of s 116 simply because it is a law which can be justified under ss 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s 116 imposes.