Alex Deagon provides the second post in our book forum on Luke Beck’s Religious Freedom and the Australian Constitution. To see all posts please click here. Click through for posts by Farrah Ahmed and Marion Maddox, as well as Luke Beck‘s reply.
BY ALEX DEAGON
This book by Associate Professor Luke Beck is important and timely in a context where religious freedom is under threat and there is a re-emergence of scholarly consideration of Section 116 of the Australian Constitution. Like Beck’s previous publications it is well written and tightly argued, delving deeply into the history and political context surrounding the construction of s 116 to contend that the provision is designed to have a wider operation than the High Court has so far given it. Specifically, this operation is to safeguard against religious intolerance on the part of the Commonwealth.
In my view the most significant parts of the book are where Beck articulates a theoretical understanding of s 116 in Chapter 9 based on his plausible explanation of its history and language in the first eight chapters, and considers the implications and future of s 116 in Chapter 12 based on this understanding.
In Chapter 9 Beck compares the traditional ‘neutrality’ understanding of s 116 advanced by McLeish with the ‘safeguard against religious intolerance’ theory of his own creation. Beck’s arguments in favour of the religious intolerance theory over the neutrality theory are compelling. He also appropriately recognises that s 116 applies to groups and individuals (120). Of particular importance is the emphasis that the religious intolerance theory concerns the scope of s 116 as a limit on Commonwealth legislative power to interfere with or impose religion (127). The corollary of rejecting the standard account for including s 116 (Chapter 6) is the Commonwealth has broader powers to make laws about religion than the High Court has considered, because the purpose of s 116 is to prevent the Commonwealth from making laws on the subject of religion as an inferential exercise of its enumerated powers. It further follows from this that s 116 in general must be given a broader interpretation than the High Court has allowed for s 116 to achieve its purpose. A broader interpretation of s 116 is independently supported by Chapter 8, where Beck critiques the High Court’s narrow interpretation of s 116 in DOGS by identifying that the Court incorrectly viewed the use of ‘for’ as having purposive significance from the perspective of the Convention debates. The possibility of this broader interpretation of s 116 is taken up in the final chapter.
A broader interpretation of s 116 is acceptable in principle but there are problems which Beck does not sufficiently address. First, at least two related problems arise in relation to a broader interpretation of the free exercise clause. Beck distinguishes between ‘standards’ (which, if met, are conclusive of the matter) and ‘principles’ (a factor which must be balanced against competing considerations) and characterises the free exercise clause as a principle while the other three clauses in s 116 are standards. Beck’s justification for this characterisation is the free exercise clause ‘does not, because it simply cannot, mean what it literally says’ (157). This is because a Commonwealth law which prohibits a religious practice of human sacrifice (murder) does not necessarily lead to constitutional invalidity (158). There is clearly an unarticulated assumption by Beck here. The assumption is human sacrifice or murder is an ‘exercise of religion’. If that assumption is accepted then Beck’s conclusion is correct and the free exercise clause is a principle. How then does the balancing process occur? Unfortunately Beck merely gives some very general and abstract principles without specifically addressing the free exercise clause (158). More detail is needed here and it might be worth considering something like a proportionality test as advocated in, for example, my Defining the Interface of Freedom and Discrimination (2017). But it is also worth at least exploring Beck’s unarticulated assumption. Why assume murder is an exercise of religion? Why not conversely assume the free exercise clause is a standard which necessarily results in constitutional invalidity if breached, and say laws prohibiting murder do not breach the clause because such conduct is not exercising a religion? Beck gives no reasons for choosing the former assumption over the latter. There needs to be more consideration of what an ‘exercise of religion’ is to justify the assumption, and that goes to the second problem.
Beck effectively narrows the free exercise clause to preventing the ‘suppression of religious practices’ (119, 163) but there needs to be a more substantive articulation of what a ‘religious practice’ might extend to: for example it might include social, commercial, or educational practices as Aroney contends in Freedom of Religion as an Associational Right (2014). Given Beck’s claim that s 116 is concerned with the ‘practical effect’ of laws (158-159) it follows that the practical effect of some Commonwealth laws might suppress religious practices broadly construed (such as laws preventing ‘discriminatory’ hiring practices of religious educational institutions) and so potentially breach the free exercise clause. If the free exercise clause is a principle this underscores the need for something like a proportionality test for balancing the relevant considerations to determine if a breach has occurred.
Second, there needs to be more detailed analysis of the limits of the establishment clause. Beck delivers a devastating critique of the problematic reasoning in the DOGS case and gives a compelling argument that the establishment clause should have been considered in terms of practical effect rather than purpose (162-163). However, while arguing the reasoning of the decision was wrong he stops short of saying the decision itself was wrong (161). It seems his religious intolerance theory should still allow non-discriminatory and non-preferential Commonwealth funding of religious and secular schools, but this is pure speculation because Beck does not elaborate on what a broad interpretation of the establishment clause might prevent or entail. It is an important question which needs answering, as I have already indicated in Liberal Assumptions in Section 116 Cases (2018).
Finally, Beck briefly addresses the religious test clause and Williams No. 1 in relation to the National School Chaplaincy Program. Beck’s reasoning here is unfortunately glib (165). He claims that adopting the religious intolerance theory should lead to invalidation of the Program under s 116 by interpreting ‘office under the Commonwealth’ more broadly. Even while accepting this broader interpretation Beck does not question whether a religious test is really imposed in accordance with his ‘religious intolerance’ framework. Beck’s acknowledgement that Higgins’ aim for s 116 was not to categorically prevent any law concerning religion is especially pertinent (77). The School Chaplain guidelines cited by Beck (164) indicate a number of acceptable religious and non-religious options for school chaplains – formal ordination or qualifications being one, but also endorsement by a religious institution (which can in principle and has in fact extended to those outside of it), or endorsement by a chaplaincy service approved by a state or territory government which has no intrinsic religious requirement. There is arguably no breach despite Beck’s assertions. It is actually religiously tolerant by allowing a diversity of religious and non-religious options. It would be religiously intolerant to exclude religious chaplains or chaplains of particular religions.
Though there remains work to be done in applying the framework Beck constructs, the framework itself is plausibly grounded historically and presented thoughtfully and logically. It is a considerable achievement which should make this book required reading for any scholar of Australian constitutional law.
Alex Deagon is a Senior Lecturer in the Faculty of Law, Queensland University of Technology.
Suggested citation: Alex Deagon, ‘Book Forum on Luke Beck’s Religious Freedom and the Australian Constitution‘ on AUSPUBLAW (21 November 2018) <https://auspublaw.org/2018/11/book-forum-alex-deagon/>.