The Establishment Clause of the Australian Constitution: Three Propositions and a Case Study
26 Pages Posted: 3 Mar 2015
Date Written: 2014
This article argues that the reasoning in Attorney-General (Vic) ex rel Black v Commonwealth, the sole High Court case on the meaning of the establishment clause of s 116 the Constitution, is too narrow and requires reconsideration. It begins that process of reconsideration and argues that the proper meaning of the establishment clause encompasses at least the following three propositions. First, the establishment clause prohibits federal expenditure for religious purposes such as religious activities. Secondly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the Commonwealth. Thirdly, the establishment clause prohibits the Commonwealth from instituting programs that result in a religion or multiple religions becoming identified with the states and territories. The article concludes by testing the Australian Government’s National School Chaplaincy and Student Welfare Program against those three propositions.
Keywords: establishment clause, religious establishment, section 116, school chaplains
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