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POLITICS AND THE LAW acknowledgment of religion’s role in society…. Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change…. 25 Having reviewed the history and practices in the Australian colonies at the time of the Convention, Ely writes that “associating religion with the new Commonwealth did not offend the community at large.” 26 Significantly, it was noted, when the matter was brought before the first Senate, that “[s]ection 116 began, ‘the Commonwealth shall not make any law…”, [Sir Frederick Sargood] commented, “A standing order is not a law.” 27 And Ely concludes that: the prayer question at last was settled. As the Sydney Morning Herald editorial of 8 June remarked, such prayers would provide a ‘regular expression of the statement in the preamble…that we as a people “humbly rely on the blessing of Almighty God”.’ However, as the debates themselves had made clear, the religion of the federal parliament would be undogmatic, unsectarian and unsacerdotal. A door had been opened, slightly, to religion, but not to the churches. 28 Whether because a Standing Order eludes the reach of s 116, or because it was accepted at the time of federation that such associations of religion with the Commonwealth were unproblematic, historical practices and understandings suggest that Commonwealth parliamentary prayer may not violate the establishment guarantee of s 116. However, while it may not establish a religion, it is possible that Commonwealth parliamentary prayer may violate those guarantees contained in s 116 against imposing a religious observance and against setting a religious test an office under the Commonwealth. While neither of those guarantees has been judicially interpreted, Luke Beck writes that: Prayers are a type of a religious observance, and it is compulsory for the president [of the Senate] and the speaker [of the House of Representatives] to recite the parliamentary prayers. This also affects everyone else in the chambers and public galleries. 29 Similarly, in respect of a religious test for public office: The standing orders make it the job of the president and the speaker to participate in religious activities. A person has to be willing to participate in particular religious activities if they want to take on either role. This looks rather like a religious test for a federal public office. 30 As such, Commonwealth parliamentary prayer, while potentially capable of passing Constitutional muster as concerns, the establishment guarantee may nonetheless violate the guarantees against the imposition of a religious observance, at least in respect of the relevant members of the Senate and House of Representatives and the public who are present for the recitation of the prayers, and against a religious test upon the office of president and speaker. The States and Territories What of the States and Territories? Its placement in Chapter V of the Australian Constitution, which deals with the States, and the Convention debates about its terms demonstrate that the prohibition of s 116 was originally intended to extend to the States. 31 However the express terms of its final form, and its subsequent judicial and academic treatment are clear: s 116 does not apply to the States, although it may to the Territories. A number of postfederation attempts expressly to extend the application of s 116 to the States and Territories have each failed. 32 Consequently, it seems clear that nothing in the guarantees enumerated in s 116 prevents the States (and possibly the Territories) from legislating so as to establish religion as an institution of the state, or to impose a religious observance or test for a State or Territory office. But what if s 116 did apply to the States (and expressly to the Territories)? My conclusions with respect to the Commonwealth would almost certainly be the same. In short, the current parliamentary prayer used in every State and Territory may not constitute an establishment of religion violative of s 116. Historical conditions and practices provide some support for this conclusion; Ely writes that: …practices regarding prayers in the colonial legislatures differed considerably. The New South Wales, Tasmanian and South Australian legislatures and the Victorian Legislative Assembly did not have prayers at all. The Victorian Legislative Council opened its sessions with the Lord’s Prayer. The Queensland and Western Australian legislatures used prayers based on the Book of Common Prayer. 33 Since colonial times, the practice has expanded such that it has become the common practice in every State and Territory to use some form of parliamentary prayer. 34 On the basis of colonial and post-federation practice and understandings in the States, therefore, even if s 116 did apply to them, the use of the parliamentary prayer used today may not constitute an establishment of religion violative of the establishment guarantee. They may, though, constitute the imposition of a religious observance and of a religious test for holding a State or Territory office. CONCLUSION Commonwealth parliamentary prayer may not constitute an establishment of religion violative of the establishment guarantee of s 116 of the Constitution; it may, however violate the guarantees against imposition of a religious observance and against a religious test for a Commonwealth office. Because s 116, in its express terms, does not apply to the States and Territories, no probation exists against parliamentary prayers in those jurisdictions. If s 116 did apply, however, the conclusions reached in respect of the Commonwealth would be the same. B Endnotes 1 Town of Greece v Galloway (‘Town of Greece’), 572 US ___ (2014) (references herein are to the slip opinion). 2 While the First Amendment originally applied only to the federal government of the United States, the Supreme Court has extended, or incorporated its protection against the states through the operation of the Fourteenth Amendment: see Everson v Board of Education, 330 US 1 (1947). 3 Town of Greece, above n 1, 6-18 (Kennedy J), citing Marsh v Chambers (Marsh), 463 US 783 (1983); County of Allegheny v American Civil Liberties Union, Greater Pittsburgh Chapter (County of Allegheny) 492 US 573 (1989). See also ‘Establishment Clause: Town of Greece v. Galloway’ (2014) 128 Harvard Law Review 191. But see Town of Greece, 1-25 (Kagan J, dissenting). And see the view expressed in Canada: Mouvement laïque québécois v Saguenay (City) [2015] 2 SCR 3; Freitag v Penetanguishene (Town) (1999) 47 OR (3d) 301. 4 See Ian Hunter, ‘Parliament and Prayer’ (2010) 26 Flinders Journal of History and Politics 27. 5 Ibid 30. 6 Richard Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891-1906 (Melbourne University Press, 1976) 117-24. 14 THE BULLETIN February 2018
POLITICS AND THE LAW 7 Ibid 111-2, 117-24. 8 Ibid 111-2. 9 Ibid 117-24; Hunter, above n 4, 29-30. 10 See Ely, above n 6, 123. 11 See New South Wales: Parliament of New South Wales Legislative Assembly Standing Orders (NSW) O 39, Standing Rules and Orders of the Legislative Council (NSW) O 28; Victoria: Legislative Assembly of Victoria Standing Orders (Vic) O 55(1)(a), O 232(4)(e)(v), Legislative Council of Victoria Standing Orders (Vic) O 4.02, O 1.01(10), O 1.07(5), O 4.05(1); Tasmania: House of Assembly Standing & Sessional Orders and Rules (Tas) O 22, Standing Orders Legislative Council (Tas) O 28; Queensland: Standing Rules and Orders of the Legislative Assembly (Qld) ch 11 and O 45(2) (a); South Australia: Standing Orders of the House of Assembly (SA) O 39, Standing Orders of the Legislative Council (SA) O 51; Western Australia: Standing Orders of the Legislative Assembly of the Parliament of Western Australia (WA) O 58, Western Australia Legislative Council Standing Orders (WA) O 14(1)(a); Australian Capital Territory: Legislative Assembly for the Australian Capital Territory Standing Orders and Continuing Resolutions of the Assembly (ACT) O 30; Northern Territory: Legislative Assembly of the Northern Territory Standing Orders (NT) O 7, Legislative Assembly of the Norther Territory Thirteenth Assembly Sessional Orders (NT) O 6. 12 See Tom Frame, Church and State: Australia’s Imaginary Wall (UNSW Press, 2006) 48-52; Joshua Puls, ‘The Wall of Separation: Section 116, The First Amendment and Constitutional Religious Guarantees’ (1998) 26 Federal Law Review 151. The seminal history of s 116 is Ely, above n 6. 13 Frame, above n 12, 7-9. 14 Peter J M MacFarlane and Simon Fisher, Churches, Clergy and the Law (The Federation Press, 1996) 32, who note that ‘metaphorically, the flow of Commonwealth largesse to religious institutions is permitted; what is blocked is the reverse passage of religious entanglement with Commonwealth affairs (adapting a metaphor from Lemon v Kurtzman 403 US 602 (1971) 613)).’ 15 Frame, above n 12, generally. 16 Attorney-General (Vic); Ex rel Black v Commonwealth (DOGS Case) (1981) 146 CLR 559. 17 Uncertainty exists as to whether the Commonwealth’s law-making power in relation to the Territories means that they are subject to the constitutional freedoms; precedent suggests not: Kruger v Commonwealth (1996) 190 CLR 1, 60–1 (Dawson J), 141–2 (McHugh J), 79, 85–6 (Toohey J), 122–3 (Gaudron J). But see Clifford L Pannam, ‘Travelling Section 116 with a U.S. Road Map’ (1963) 4 Melbourne University Law Review 41; Jared Clements, ‘Section 116 of the Australian Constitution and the Jurisprudential Pillars of Neutrality and Action-Belief Dichotomy’ (2008) 11 International Trade & Business Law Review 255, 273-275. 18 DOGS case, above n 16, 579–81. 19 Ibid 582 (Barwick CJ); see also 604 (Gibbs J), 612 (Mason J), 653 (Wilson J). 20 Ibid 582 (Barwick CJ), 604 (Gibbs J), 612 (Mason J), 653 (Wilson J). 21 Ibid 616 (Mason J). 22 Ibid 599-603 (Gibbs J), 613-6 (Mason J). 23 Ibid 632 (Murphy J). 24 See Paul Babie, ‘National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update’ (2017) 45 Federal Law Review 351, 364-6. 25 Town of Greece, above n 1, 7-8 (Kennedy J), citing Marsh, above n 3, and County of Allegheny, above n 3 (footnotes omitted and emphasis added). 26 Ely, above n 6, 117. 27 Ibid 124, citing Commonwealth Parliamentary Debates, Volume 1, 1138-9. 28 Ely, above n 6, 124. 29 Luke Beck, ‘Official prayers in federal parliament are divisive and unconstitutional, and should be scrapped’, The Conversation (22 August 2017) . 30 Ibid. 31 Ely, above n 6, 60-8, and see especially 63 for the text of Henry Bourne Higgins’ version of s 116. And see House of Representatives, Joint Standing Committee on Foreign Affairs, Defence and Trade, Freedom of Religion and Belief Report (2000) , 57-8. 32 Constitution Alteration Bill 1944 (Cth); Australian Constitutional Convention, 1978; Constitutional Alteration (Rights and Freedoms) Act 1988 (Cth): House of Representatives, above n 31, 58. 33 Ely, above n 6, 122-3. 34 See above n 11. College Tours Senior School Tuesday 27 February Junior School and Ignatius Early Years Wednesday 14 March Book online at Ignatius.sa.edu.au
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