Higgins' Argument for Section 116 of the Constitution
Federal Law Review, Vol. 41, No. 3, pp. 393-415, 2013
25 Pages Posted: 15 May 2013 Last revised: 5 May 2014
Date Written: May 14, 2013
The argument that led to the inclusion of Sec. 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The provision states: ‘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 test shall be required as a qualification for any office or public trust under the Commonwealth.’ The clause was proposed and pursued by Henry Bournes Higgins at the Constitutional Convention of 1897-1898 at which the Constitution was drafted. The argument Higgins presented appears, on first inspection, to be rather odd. Relying on cases and events in America, the nature of which he misrepresented to the Convention, Higgins appeared to argue that the reference to ‘Almighty God’ in the constitutional preamble might give rise to a Commonwealth power to legislate in respect of religion. At first glance the argument appears to be sophistry. Indeed, the Convention’s leader, Edmund Barton, described it as ‘far-fetched’.
This article argues that Higgins’ argument was not sophistry nor far-fetched. It argues that the fundamental concern underlying Higgins’ argument, which in reality had little to do with the preamble, reflects what would now be considered an orthodox approach to constitutional interpretation. Although presented in a spectacularly confused manner, the true substance of Higgins’ argument was that although the Commonwealth was not granted any express power to legislate with respect to religion, those powers that the Commonwealth was expressly granted were wide enough to authorise legislation respecting religion.
The article begins by setting out the standard account of Higgins’ argument for Sec. 116 as presented by various scholars and judges. It then briefly surveys the political background to Sec. 116, which provides the context in which Higgins presented his argument. That background involves the political campaigns for and against the inclusion of a reference to ‘Almighty God’ in the constitutional preamble as well as Higgins’ broader motives in introducing a provision prohibiting laws touching religion. The article then sets out Higgins’ argument as he presented it to the Convention. Next, the article closely examines the evidence – American case law and legislation – on which Higgins based his argument. The article then examines Higgins’ thinking on two matters: what he knew about the American case law and legislation on which he based his argument and how he understood the nature of constitutional grants of legislative powers. Finally, bringing together the analysis presented so far, the article presents an alternative reading of Higgins’ argument for Sec. 116 to that presented by the standard account.
Keywords: Section 116, separation of church and state, First Amendment, religion clause, Church of the Holy Trinity, Sunday closing laws, dual characterisation, Henry Bournes Higgins, constitutional preamble
JEL Classification: K10, K30
Suggested Citation: Suggested Citation