The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council  NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.
The prohibition on “establishment of religion” in Australia
To someone whose idea of the relationship between church and state is based on a simplistic view of the United States First Amendment jurisprudence, it may be surprising that the Australian Commonwealth Parliament can authorise public funds to be provided to a religious school. But as the Court here points out, and as I have discussed in some detail in a previous post on the issues, the Australian courts have provided a much narrower reading of the prohibition on “establishing” a religion contained in s 116 of the Australian Constitution, than the US courts have done in reading their apparently similar provision. (And indeed, as Beazley P notes at paras -, even the more recent US jurisprudence reveals that some funding for religious schools is permitted under the US First Amendment.)
Section 116 of the Commonwealth Constitution provides as follows:
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.
In my previous comments, I summarised the law on “establishment” as follows:
The history of interpretation of the provision makes it clear that, unlike in the US, this is not a prohibition on State, as opposed to Federal, action (so in theory a State is free to even “establish” its own religion, although in fact such a decision would not be politically acceptable today.) In addition, the important decision of the High Court of Australia in Attorney-General (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559 (sometimes known as the DOGS case for the group which sponsored the challenge, “Defence of Government Schools”) held that s 116, far from mandating a “wall of separation”, was not breached by direct Commonwealth funding of Catholic schools.
The interpretation given to s 116 was very narrow. Relying on the phrase “for establishing”, the majority of the High Court held that the prohibition would effectively only be breached by a law the very purpose of which was to set up something like a “state church”. Hence there would be no breach of the establishment clause by a moderate engagement with, and even-handed support for, religion in schools. This has been regarded as the settled meaning of the term for many years, which is presumably why, for example, when the “school chaplaincy” scheme was challenged in the High Court over the last few years, those making the challenge did not even attempt to argue that the “establishment” clause was breached by the Government providing funding to private religious organisations to allow the placement of “chaplains” in Government schools. (The cases challenging the scheme, Williams v Commonwealth  HCA 23, (2012) 86 ALJR 713 and Williams v Commonwealth of Australia (No 2)  HCA 23, were successful in that they led to the Court declaring the schemes invalid as then constituted. But the invalidity was on the grounds of the direct funding arrangements that had been adopted, not on a breach of s 116, despite some inaccurate press reports of the decisions.)
Facts and finding that this was not “establishment”
In the Hoxton Park case, the arrangements being challenged on s 116 grounds were that the Commonwealth provided funding to the State of NSW (in accordance with s 96 of the Constitution) for the running of the Malek Fahd Islamic School, a school run on Islamic principles. (It should be noted at the outset that it is indeed this school which had seen its Commonwealth funding revoked due to irregularities in its management of money, although apparently it has now been allowed to continue to operate while an appeal against the decision is pending. I have no personal knowledge of the financial management issues, and of course if the management of the school have been breaking the law, then the law should take its course. As Beazley P in Hoxton Park notes, the issue of how the money supplied was ultimately used is not of itself relevant to the question of constitutional power: “the ultimate use or misuse of the relevant funding was not the relevant inquiry in these proceedings” (at ) This note, like the Court decision, concerns the s 116 issues alone).
There was no dispute that the school was a religious school. The Court noted the following list of religious practices at the school, at :
“1. Salaat [a form of prayer] is compulsory once each school day for pupils.
2. Wudu [cleansing religious ritual] is expected each school day.
3. Halal food [certified by [AFIC] or other Halal certification authorities for religious purposes] is available and/or sold at [the School’s] tuckshops.
4. A head-cloth covering the hair as a mark of female distinction and modesty is compulsory for female students.
5. Religious studies in the Islamic faith are compulsory in [the] primary schools.
6. At the mosque at Greenacre and in the primary school prayer halls, females are segregated from males.”
Despite these features of education, however, the authority of the DOGS case was still binding on the Court of Appeal. The prohibition on “establishment” of religion in Australia only means, according to the court, that what is forbidden is something like the setting up of a “state religion”. The comments of Barwick CJ are often taken as best summarising the reasoning in the DOGS case, quoted in Hoxton at :
- Barwick CJ, at 580-581, pointed out that s 116 was “directed to the making of law … not … the administration of a law”. The validity of a law was thus to be tested at the time of its making. His Honour recognised that if the administration of the impugned law was within the ambit of the authority conferred by statute and amounted to the establishment of a religion, it could be void as offending s 116. The Chief Justice then stated, at 582:
“… establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion.In other words, establishing a religion involves its adoption as an institution of the Commonwealth …
… what s. 116 forbids is the passage of a law which will erect a religion into such a relationship to the body politic of the Commonwealth …” (emphases added)
In short, even providing funds to a religious school (certainly where such funds are conditioned on objective, secular, educational criteria and also provided on a needs-based and even-handed basis to other religious schools from different traditions) does not amount to the establishment of a state religion. While of course funding the activities of a religious school would allow the religious body involved then to spend its money on other specifically religious activities, and hence it could be said to “indirectly” provide government support for furthering the practice of that religion, Barwick CJ at 583 in DOGS, quoted in Hoxton Park at , said that this indirect effect was not sufficient to contravene s 116’s prohibition on “establishment”.
Perhaps because the appellants realised the strength of the previous authority on this issue, they also attempted to argue a breach of two other aspects of s 116.
Imposition of a “religious observance”?
One aspect was based on the prohibition of “imposing a religious observance”. Here the argument was that, because students were required to participate in Islamic religious ceremonies, the effect of the funding was to impose a religious observance on students- see the summary of the argument at .
This argument, like the previous one, failed, the Court pointing out that, as with the “establishment” point, the Constitutional prohibition was directed to a a law “for imposing a religious observance”, which meant that the very purpose of the law in question must be directed to this end, for it to be invalid. A law the execution of which incidentally involved imposition of a religious observance would not be forbidden by s 116. Para  spells out the point, in a way which also illustrates it with regard to the other s 116 prohibitions:
There is no basis for either Act to be characterised as a law for imposing religious observance. Each Act made provision for Commonwealth funding of education, by means of state-mediated grants, subject to certain safeguards and requirements. Funding under the Acts was not limited to religious schools. Even in allowing for the funding of religious schools, the purpose of the Acts, both in their objects and in their specific provisions, was the funding of education and not the imposition of any religious observances incidental to the religious character of a recipient school. As the authorities clearly state, it is the purpose of the legislation to which regard must be had: see in particular the passages in Kruger to which reference was made above at . On this basis, neither Act, nor the funding thereunder, is invalid as being a law for imposing religious observance. (emphasis added)
Prohibition of “free exercise of religion”?
Thirdly, and of some interest, the appellants had argued that the legislation “prohibited free exercise of religion”, contrary to s 116, because students at the school were not free to decline to engage in the religious activities- see .
Again, as previously, the argument failed because the Court held that the “purpose” of the legislation was not impairment of free exercise. In this area, however, falls the one part of this judgment that I think might have been in need of further development.
In ruling that the law would not fall foul of the s 116 limb on prohibition on the free exercise of religion, the Court of Appeal at  referred to the early High Court decision of Krygger v Williams (1912) 15 CLR 366, where indeed there are some blunt words rejecting a “free exercise” claim if a law which has “nothing at all to do with religion” has an incidental impact on religious freedom (there a law for conscription to military service). Similar views expressed by Brennan and Toohey JJ in Kruger v Commonwealth (1997) 190 CLR 1 were noted and supported at . The correct view of the matter was said to be that a law would only contravene s 116 if its clear “purpose” was to impair religious freedom.
With respect, I would like to suggest that more discussion of this “free exercise” point was warranted. In a general review of the law on religious freedom in a linked previous paper, I have analysed the above cases and others, and suggested that the narrow “purpose” view of the free exercise clause is not the best one. In particular, the Court of Appeal in Hoxton Park does not really discuss what I regard as the major “free exercise” decision in Australia, Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116. In that decision the leading judgment of Latham CJ suggested that a law which amounted to an “undue” infringement of freedom of religion (see p 128) would contravene the free exercise clause.
The view that consideration of the free exercise limb of s 116 involves more than simply looking at the apparent “overall purpose” of legislation can also be supported to some extent from the decision of Gaudron J in Kruger. To quote from my earlier paper:
On the question as to whether a law needs to have the “purpose” of impairing freedom of religion, or not, her Honour took a slightly wider view of the matter than some other members of the Court:
“s 116 was intended to extend to laws which operate to prevent the free exercise of religion, not merely those which, in terms, ban it. (at 131, emphasis added)”
Her Honour also stressed the need to interpret constitutional guarantees broadly, so as not to allow Parliament to circumvent them by laws that appear to have innocent aims. … [Her Honour] points out that laws can have more than one purpose:
“In Attorney-General (Vict); Ex rel Black, Barwick CJ expressed the view, in relation to that part of s 116 which protects against laws “for establishing any religion”, that for “[a] law to satisfy [that] description [it] must have that objective as its express and … single purpose.” If that is correct, it is because of what is involved in the notion of “establishing [a] religion”. Certainly, that notion involves something conceptually different from “imposing … religious observance”, “prohibiting the free exercise of any religion” or requiring religious tests “as a qualification for … office or public trust under the Commonwealth”, they being the other matters against which s 116 protects. Moreover, s 116 is not, in terms, directed to laws the express and single purpose of which offends one or other of its proscriptions. Rather, its terms are sufficiently wide to encompass any law which has a proscribed purpose. And the principles of construction to which reference has been made require that, save, perhaps, in its application to laws “for establishing [a] religion”, s 116 be so interpreted lest it be robbed of its efficacy. (at 133, emphasis added)”
Her Honour’s comments provide some grounds for saying that the narrow view of the purpose of legislation adopted in relation to the “establishment” prohibition, may not be appropriate for the other matters s 116 deals with.
In the Hoxton Park case itself, however, I would agree with the Court of Appeal that there is no breach of the “free exercise” clause of s 116, even it were viewed more widely. After all, as Beazley P notes at , the affected students are those “whose parents have exercised a choice to send them to a school which engages in such observances”.
Basten J, whose detailed judgment on other points repays a careful reading not possible in this note, makes the same point in his discussion of the “free exercise” argument, even assuming it were available, at :
[C]entral to the concept of “imposition” is the element of religious observance which is non-consensual. With respect to children, the source of any consent must be found in the beliefs and intentions of the parents. There is no suggestion that any parent is under any threat or improper pressure to send their children to a particular non-secular (or secular) school. No doubt such a choice is strongly influenced by the parents’ religious beliefs: in that (relevant) sense the choice is entirely consensual. Further, whatever may have motivated a parent to send a child to a school which provides religious instruction of a particular kind, the Commonwealth is neutral as to that aspect of the child’s education. It was not right to say that the Commonwealth required that the school provide religious instruction and hence imposed religious observance on the children. The fact that the school imposed such a requirement, and obtained funding from the Commonwealth, does not mean the Commonwealth imposed any such requirement. The funding criteria were silent as to this aspect of the school’s curriculum.
The issue of “standing”
Finally, while there are a number of other issues canvassed in the decision, one more is particularly important for the application of s 116. This is the vexed question of “standing”. Where it is alleged that the Parliament has contravened s 116 in making laws, who has the legal authority to complain of this contravention? The normal rules applying to litigation require a party to have an interest in the outcome of a direct nature.
While it was not essential to the outcome of the proceedings (because the appellants failed on their substantive s 116 points), the comments of the Court suggest that it might have been hard to justify a claim brought by the Resident’s Association. The members of the Association did not, apparently, have children present at the school (or who might have wished to attend the school). Beasley P noted that it was not sufficient to establish “standing” that at one point the State of NSW was involved in the proceedings, where the State itself had not intervened to challenge the validity of the legislation- see .
Basten JA also considered the question at paras -. He noted that at one point it was claimed that the Association (and a Mrs Harris, a member of the Association and local resident in the area where the school was to be built) had an interest in complaining about interference with physical “amenity” caused by construction work and increased traffic. But he doubted whether those issues alone would give standing to challenge the validity of the law under which funding was provided, at :
[T]he mere fact that a decision (or law) may have a physical or economic effect on a particular person does not mean that that person will have standing to challenge the decision or law. That will be so where the interference is in a functional sense unrelated to the matters to be considered by the decision-maker or unrelated to the purpose of the law.
In other words, an incidental impact like increased traffic was not in itself related to the supposed establishment of religion or impact on free exercise, and hence may not itself have given a good legal reason to allow the parties to bring a challenge of this sort. While noting that the matter was not necessary to be decided in these proceedings, his Honour seemed to be of the view that their standing to bring the claim was strongly in doubt- see ; and this might have provided another reason to dismiss the proceedings if the substantive s 116 points had not failed.
The broad outlines of the Court of Appeal’s approach to s 116 are clear. In general, a law which does not have as its clear purpose one of the prohibited outcomes in s 116 will not contravene the Constitutional limits imposed. In particular, it is not “establishment” of religion for the Commonwealth Parliament to channel funding to a religious school through the States (although of course, when that funding is provided, it must be expended and accounted for in accordance with the purposes for which it was given.)
I have suggested, however, that while the comments of the Court on “establishment” and “religious observance” seem correct, the discussion of “free exercise” issues may need to be slightly nuanced. The right to religious freedom is an important human right, protection of which in Australia depends in part on s 116. To confine the prohibition in s 116 to laws the “sole or dominant” purpose of which is explicit interference with religious freedom seems to apply far too narrow a reading. Even a broader reading here, I have suggested, would have led to rejection of the challenge to funding, as no-one would be forced against their wishes to send their children to a religious school of any sort. But for the future, protection of religious freedom requires the slightly broader approach authorised by the leading decision of Latham CJ in the Jehovah’s Witness case, a careful consideration of whether there is an “undue impairment” of religious freedom when weighed up against other compelling community interests. Only then can the true diversity of the Australian community be properly protected.