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					RELIGION AND POLITICS IN AUSTRALIA Lecture 9 (13 August 2007) THE CONSTITUTIONAL POLITICS OF RELIGION 1. General Points • S. 116: four aspects, no law: ‘for establishing any religion’, ‘for imposing any religious observance’, ‘for prohibiting the free exercise of any religion’, ‘requiring any religious test as a qualification for public office’. • Limitation on Commonwealth or Separation of Church and State (see Tom Frame’s lecture 8 and book in RB)? • Commonwealth and State powers: Tasmania is the only state constitution to protect religious freedom • Preamble/Constitution (compromise between the two re God) • High Court’s interpretative style: legal positivism/historical purpose • Coper, Encounters with the Constitution, p. 93: ‘On the evidence so far (admittedly limited) those who would look to the High Court to champion the cause of freedom of and from religion have no great cause for optimism” • McKenna, p. 155, irony: “America, the federal republic whose national mythology was largely forged by religious refugees, left God out of its Constitution in 1787: Australia, the more secular and pragmatic nation, embraced the Almighty in the Preamble to its Constitution in 1901” • Balances (between churches and between religious and secular) • Irving, To Constitute a Nation, pp. 167-168: ‘the balance between the two sets of interests and the opposing fears they represented was considered to be a happy one’ • International law also protects religious freedoms and rights 2. Drafting the Constitution, 1891-1901 (R. Ely, Unto God and Caesar, 1976) • Interests of delegates (1891 drafts). No mention of God in the original Preamble. J. Quick failed to insert “invoking divine providence” • Petitions and public pressure for God’ inclusion (1897-98) meant by 1898 pressure had become “unstoppable” • Preamble/Constitution interaction: Higgins “want[ed] to make it clear that in inserting these religious words in the preamble of the bill we are not by inference giving power to impose on the Federation of Australia” any religious laws” • Henry Bourne Higgins (rationalist, parliamentarian and High Court justice); Patrick McMahon Glynn (Irish-Catholic from SA) • Seventh Day Adventists (US, 1885) strongly opposed close church-state relations and campaigned “better than any of he atheists”. 3. High Court Cases • 1912, Krygger (HC rejected exemption from military training on the grounds as being contrary to religious beliefs). Said “absurd and “thin”





1943, Jehovah’s Witnesses believed governments were “satanic” but HC decided this did not entitle advocacy of doctrines prejudicial to war effort. • 1950, Crittenden (HC rejected challenge to election of a Catholic to the Parliament on grounds of allegiance to a foreign power [Vatican] • 1981, Defence of Government Schools (allowed financing of church schools): “altogether too much to say that a law which gives financial aid to churches generally, to be expended on education, is a law for establishing religion”. But Murphy J alone dissented: “To refuse to read the establishment clause with generality because so read it covers some of the ground covered by other guarantees in s.116 is to interpret s.116 as if it were a clause in a tenancy agreement rather than a great constitutional guarantee of freedom of and from religion” • 1983, Church of the New Faith (i.e Scientology): HC found that Scientology was religion for taxation purposes, exempt from pay-roll tax. 1988 Constitutional Referendum (Galligan and Nethercote, 1989) • YES case (Byers): freedom of religion must be total not just in federal sphere; no unintended consequences such as encouragement to human sacrifices; Bowen ditto. • NO case: no public concern and negative implications with possibility of a US-style “anti-religion litigation industry” • Catholic Church’s NO case depended on “the current political muscle of the church in our society” (M. Tate, former Labor minister, now priest) 1998 Constitutional Convention • Debate and Recommendations: CC Resolution: “The Preamble should contain reference to Almighty God”. • P. O’Shane: “possibly the most committed atheist in the chamber…I find the words unexceptional” • Participants: P. Hollingworth, T. Costello, G. Pell • McKenna, p. 154: “Abstract enough to be multicultural and diverse enough to be non-denominational God was an uplifting symbol. Delegates seemed to agree that the Constitution’s acknowledgement of a higher power gave it gravitas, humility and some sense of spirituality. Including god was one means of viewing the Constitution as more than a legal document”. 1999 Preamble Debate • CCF Preamble Quest (God included in majority of submissions) • John Howard’s Preamble: GOD in present tense: “With hope in God” • Opposition: past: “Having come together in 1901 relying on God” • Reprinted in J. Uhr, The Australian Republic: The Case for Yes 1999 Referenda • Churches were quiet, because they saw the issues unrelated to religion or were afraid to speak out. Hollingworth: republic “pleasing to God” • Small group of minor clergy supported monarchy on religious grounds. Sheil (ACM): “Queen is a lot closer to God than any republic is ever going to be”


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