There has been a lot of controversy around the recent decision of the ACT government to compulsorily acquire Canberra’s Calvary Hospital. One question that is worth asking is this: could this move be an unlawful breach of religious freedom rights? In this post I want to consider the possibilities.

Calvary Public Hospital in the ACT has been owned and run by the Roman Catholic church for a number of years. But it was the subject of negative commentary in a recent Legislative Assembly report, criticising the hospital for not offering abortion services. (These procedures, of course, are condemned by the Roman Catholic church and are not offered by any hospitals run by the church.)

In May 2023 the ACT government announced it was going to introduce legislation to acquire the hospital and to run it as part of the general Territory health system. Professor Joanna Howe, in her comment on the announcement, noted that, while the government claimed that these issues were not involved, it was hard to take this claim seriously:

In my view, the decision to compulsorily acquire Calvary Hospital is driven by ideology and not efficiency, as the Health Minister Rachel Stephen-Smith asserts. Walter Abheyeratna, the ACT president of the Australian Medical Association, acknowledged as much when he said it was important to deliver public healthcare services without being bound by ideology.

Other have noticed the irony of referring to a need not to be bound by “ideology”, when it seems fairly clear that it was precisely the government’s ideological commitment to abortion on demand (and arguably to expansion of euthanasia in the future) was driving the decision.

The government then introduced, and rushed through the single-chamber ACT Legislative Assembly, the Health Infrastructure Enabling Act 2023 (ACT).

The church made an attempt to delay the process by challenging the provisions of the Act which purport to provide for “just terms compensation”, as not being effective. The Full Court of the ACT Supreme Court rejected this challenge and ruled that the legislation was valid, in its decision in Calvary Health Care ACT Limited v Australian Capital Territory [2023] ACTSCFC 1 (23 June 2023).

However, so far there has been no legal challenge made on the grounds of interference with religious freedom. I want to suggest two avenues which might be explored.

Human Rights Act 2004

One avenue would be to consider a possible challenge to the decision based on the right to freedom of religion in the ACT Human Rights Act 2014. Section 14 provides:

Freedom of thought, conscience, religion and belief

    14 (1)     Everyone has the right to freedom of thought, conscience and religion. This right includes— 

        (a)     the freedom to have or to adopt a religion or belief of his or her choice; and 

        (b)     the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community and whether in public or private. 

    (2)     No-one may be coerced in a way that would limit his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Human Rights Act 2014 (ACT), s 14

If it could be shown that the acquisition of the hospital was made in order to prevent the “demonstration” of the Roman Catholic faith in the “practice” of health care by the local Roman Catholic community, there could be a breach of s 14(1)(b). However, even if this were so (and it may not be an obvious proposition), the legislation may not be very helpful.

For one thing, rights given by the 2014 Act may be qualified, under s 28, by “reasonable limits set by laws that can be demonstrably justified in a free and democratic society”. Arguments would no doubt be put forward as to why it was “justified” to acquire the hospital. In any event, it is doubtful whether the provisions of the 2014 Act can over-ride other, later, legislation passed by the ACT Legislative Assembly. While legislation is to be “interpreted” to be consistent with human rights (under s 30), it would be hard to conclude that a specific Act acquiring the particular land and business of the hospital could in any way be “read down” to protect the church’s rights in the hospital.

Section 116 of the Constitution

A second and possibly more effective avenue of challenge would be to consider the impact of s 116 of the Commonwealth Constitution. That provides:

Commonwealth not to legislate in respect of religion.

                   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.

Here one could argue that closing a Roman Catholic hospital because it was operating in accordance with deeply held Roman Catholic beliefs, amounts to “prohibiting the free exercise of [the] religion”. The main Australian authority on the “free exercise” clause is the decision of the High Court in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116. There, Latham CJ held that this clause would be breached, not only by a law which absolutely outlawed some religion, but by a law which imposed an “undue” infringement of freedom of religion (at 67 CLR, 128).

However, there is a possible barrier to the application of s 116 here. Does the clause operate as a limit on the Territory legislature? In the past the view has sometimes been taken that the Constitutional head of power under which laws are passed in relation to territories like the ACT, s 122, is not governed by the limits placed on Commonwealth law-making under other parts of the Constitution. Thus it has been argued previously that the requirement for “just terms” compensation when the Commonwealth acquires private property, imposed by s 51(xxxi), is not applicable to property obtained for a Territory.

Without reviewing the whole history of the debate on the matter, it seems likely today that the High Court would find that s 116 does amount to a limit on the power of law-making given by s 122. The High Court has now ruled in Wurridjal v Commonwealth (2009) 237 CLR 309 that s 122 is subject to the just terms limitation in s 51(xxxi). The Full Court of the Federal Court in Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (22 May 2023) has recently supported this view in some detail.

The specific question as to whether s 116 itself applies to the territories was discussed in Kruger v Commonwealth (the “Stolen Generations case”) [1997] HCA 27; (1997) 190 CLR 1, but not definitively resolved. Three members of the court held that it did apply, two that it did not, and the remaining member of the bench, Brennan J, did not say one way or the other (in that case even the members of the court who held that s 116 applied, did not think it was breached, so the resolution of the issue was not necessary for the disposition of the case.) One leading textbook states: “The court has not yet resolved the question whether s 116 applies to laws made under the territories power” (Bateman, Will, et al. Hanks Australian Constitutional Law : Materials and Commentary, 11th ed, LexisNexis Butterworths, 2021, at 9.7.6).

Still, in my view the case for the application of s 116 to the territories is very strong. The ACT Legislative Assembly only gains its power to legislate from the Australian Capital Territory (Self-Government) Act 1988 (Cth), an Act of the Commonwealth Parliament which is clearly limited by s 116. If the Commonwealth does not have the power to enact an undue interference with religious freedom, it cannot pass on that power to a subordinate body in the ACT.

While the legislation acquiring the Calvary Public Hospital seems on its face to be “neutral” as to religion, if the overall context of the law is considered, its purpose can be seen to impair the freedom of the Roman Catholic church to offer healthcare in accordance with its religious beliefs. It seems that this legislation, then, will be contrary to s 116 of the Commonwealth Constitution, and hence invalid. That, at least, is an argument that ought to be very carefully considered.