Luke Beck replies to reflections from Farrah Ahmed, Alex Deagon and Marion Maddox on his book Religious Freedom and the Australian Constitution. To see all posts please click here.

BY LUKE BECK

In his Foreword, former Chief Justice of the High Court Robert French AC describes Religious Freedom and the Australian Constitution: Origins and Future as ‘provocative’ and providing ‘food for thought’. That was certainly my intention.

The book tells the story of section 116: from a bricklayer being sentenced to a spell in the stocks in 1890s Sydney for failing to conform to the religious orthodoxy endorsed by government, to lobbying of politicians by religious leaders with the kind of gusto that continues to this day, to fed up Constitutional Convention delegates giving everyone a constitutional prize, to Doc Evatt trying to make the world and the Australian Constitution a better place in the 1940s, and on to how the contemporary High Court has tried to work out what section 116 means by relying on history the High Court itself made up.

The reflections offered by Marion Maddox, Farrah Ahmed and Alex Deagon demonstrate that French is right. Each contributor has approached the book from a different perspective, reflecting their own different personal and scholarly backgrounds and interests. Maddox has considered the book’s implications for contemporary political debates about the role of religion in public policy and the role of government in religion. Deagon has considered the book’s contribution to the development of constitutional doctrine. And Ahmed has considered the book from the perspective of theories of religion and government. I am grateful that these scholars agreed to participate in this book forum.

I think the book has achieved much in prompting thinking from such a range of perspectives.

Most of my other scholarly work looks at what section 116 means and how it applies. Constitutional history has an important role in that process. In the final chapter of the book, I articulate three principles that the history underlying section 116 requires should inform the practical and evaluative reasoning necessary to apply each of section 116’s clauses to particular situations. These are:

  • Section 116 is concerned with the practical operation of laws;
  • Section 116 should not be interpreted narrowly; and
  • Section 116 should be interpreted to avoid religious intolerance on the part of the Commonwealth.

As French notes in his Foreword, history cannot provide full answers to constitutional questions. These three principles alone are not sufficient to resolve any particular legal dispute about the validity of a law. Nor are these principles alone sufficient to articulate a doctrinal account of the meaning of section 116 or any of its clauses. As my other work on section 116, including recently ‘The Constitutional Prohibition on Imposing Religious Observances’, shows much more analysis taking into account other matters is necessary in order to answer constitutional questions.

I conclude the book in this way:

Section 116 of the Australian Constitution is unlikely to be amended to apply to the States. Every attempt at doing so has failed, with the most recent attempt suffering the worst defeat of any referendum in Australian history. Section 116 is not, however, without future prospects.

The High Court has seriously misunderstood the point of section 116, and the High Court’s reasoning in section 116 cases is seriously flawed.

Section 116 has the potential to provide a pragmatic safeguard against religious intolerance on the part of the Commonwealth, if only the High Court understood its history. This book provides that history.

There is much work left to be done in understanding section 116 and the role of religion in the Australian Constitution. I hope the book helps in that task, and in other tasks including those Maddox, Deagon and Ahmed identify.

Religious Freedom and Australian Constitution: Origins and Future can be purchased with a 20% discount from routledge.com using the discount code FLR40 (not valid with other discounts).

Luke Beck is Associate Professor of Constitutional Law at Monash University.

Suggested citation:  Luke Beck, ‘Book Forum on Luke Beck’s Religious Freedom and the Australian Constitution‘ on AUSPUBLAW (21 November 2018) <https://auspublaw.org/2018/11/book-forum-luke-beck/>.