The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Constitution

Abstract

Section 116 of the Australian Constitution limits the ability of the Commonwealth to legislate in respect of religion. It 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 shall be required as a qualification for any office or public trust under the Commonwealth.’ The limited case law on s 116 holds that the word ‘for’ means ‘for the purpose of’ such that improper legislative purpose is the test for invalidity rather than a consideration of whether an impugned law has the effect of doing one of the things prohibited by s 116. This article argues that the ‘for the purpose of’ interpretation is misconceived and therefore that the improper test is wrong.

The article begins in part II by examining the significance attributed to purpose in the High Court’s case law on s 116. Part II shows how two competing interpretations of the word ‘for’ – ‘for the purpose of’ and ‘with respect to’ – have emerged in the case law and examines the reasoning offered by the High Court for the eventual adoption of the purposive interpretation. Part III of the article then examines the drafting history of s 116 and argues that the framers of the Constitution did not use the word ‘for’ with any intention of importing a purposive element into s 116 and that the use of the word ‘for’ turns out to be an accident of drafting. In part IV, the article argues that the improper purpose test is inconsistent with the general purposes prompting the inclusion of s 116 in the Constitution. The framers of the Constitution were seeking to limit the scope of the subject matters with respect to which the Commonwealth might legislate. Part V argues that the purposive interpretation of the word ‘for’ is inconsistent with the High Court’s contemporary approach to constitutional interpretation, which holds that prohibitions on power should not be interpreted narrowly or restrictively but rather interpreted with all the generality with which the used will admit. In Part VI, the article argues that the improper purpose test suffers from analytical problems in practice because recent High Court case law suggests that a law has the purpose of doing all the things it in fact does or is likely to do. Part VI also shows how a number of judges who adopted the purposive interpretation have in their application of that test focused on the effects of impugned laws. Part VII offers some concluding observations about how the word ‘for’ in s 116 should be understood.

Keywords: Section 116, Freedom of Religion, Constitutional Interpretation, Rights, Establishment Clause, Separation of Church and State