Common(wealth) Knowledge #96: Tasmania's radical approach to separation of church and state

The proposal that almost ended government funding for private schools.

Freedom of religion is one of the few human rights mentioned in the Australian Constitution. But, in 1897 and 1898, Tasmania came close to fundamentally challenging the relationship between Australia and the Church of England forever.

Freedom of religion is protected by Section 116 of the Australian Constitution, which imposes four limitations on the Commonwealth government.

The four limitations prohibit the Commonwealth government from creating or adopting state religions, enforcing beliefs and practices of a religion, preventing Australians from freely having and practicing their faith, and banning a religious requirement for any government office.

Today, the second limitation is also seen as the basis for ‘freedom from religion’ for secular or atheist Australians.

But, like every constitutional right, it has its limitations, focusing on the definition of ‘religion.’

In Krygger v Williams (1912), the High Court held that legislation requiring individuals with conscientious or religious objections to war could still be required to train in non-combatant roles did not violate the third limitation. Only an express and absolute belief preventing non-combatant training could be a valid exemption.

In Attorney-General (Vic); Ex rel Black v Commonwealth (1981), it was generally accepted the first limitation didn’t prevent the Commonwealth government from funding private religious schools.

Williams v Commonwealth (No 1) (2012) somewhat called this into question, significantly limiting Commonwealth funding for chaplaincy programs in government schools.

However, the version of Section 116 proposed by the Tasmanian government and Andrew Inglis Clark, both as Attorney-General and a judge, one of the key framers of the Australian Constitution, would have prevented AG (Vic) v Commonwealth.

Clark was a fan of the US constitutional model and was a republican. He opposed the reference to the Christian God in the preamble of the Constitution and believed that Protestantism was about a personal relationship with God, not a collective one, which he believed Catholicism was, and so there was no need to enshrine a relationship with God in the Constitution.

This is a question still being argued today, but it provides context for his approach, and thus the Tasmanian approach, to Section 116.

At the Sydney Australasian Federation Convention in 1897, the Tasmanian government put forward a revolutionary proposal. Both Tasmania and future High Court judge H.B. Higgins, a Victorian, wanted to apply Section 116 to the states.

Under today’s model, state governments are not bound by Section 116, meaning that the same constitutional protection is not offered at a state level, where constitutions act more like legislation.

However, Tasmania’s proposal went beyond Higgins’ amendment. It added a fifth limitation, stating “nor appropriate any portion of its revenues or property for the propagation or support of any religion.”

Unsurprisingly, this was not a popular addition, and so was voted down by representatives from the other colonies.

Had it been passed, all government financial support for organisations with a significant religious purpose would have been pulled. This would include the payments to schools covered in AG (Vic) v Commonwealth.

Justice Murphy, to the surprise of no one, dissented. His Honour argued that each of these religious schools “engages in instruction in its particular religion and engages in religious observances and practices … [and] the churches to which the schools are related exercise varying degrees of supervision over the conduct of the schools.”

This description intentionally mirrors the language of Section 116, with the conclusion that government funding for these schools violates the second limitation of “imposing any religious observance.”

Churches would also have likely lost their tax exemptions, but government support for religious hospitals would be less clear.

In contrast, Chief Justice Latham’s concern in Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) was weighing freedom of religion against public interests, which in this case would be funding education.

Sadly for Tasmania, Clark’s poor health prevented him from traveling to the mainland to attend the three Conventions, so he could not argue in favour of Tasmania’s proposal. But he was kept updated by telegraph.

Premier-turned-Chief Justice Samuel Griffith of Queensland, a major figure in the early 1890s was also absent from the conventions, but he had greater influence, and was also single-handedly writing the Criminal Code 1899 (Qld).

Clark’s health meant he was also passed over as a candidate for the High Court, to the disappointment of the other judges, all of whom were also framers.

Were it not for his poor health, which caused his death in 1907, the outcome in Krygger may have been very different, with Clark sitting alongside his fellow framers, Chief Justice Griffith and Justice Barton.

Instead, Clark gave his name to the Hare-Clark electoral system and the Division of Clark in federal elections, and he has had a more public influence on electoral reform and suffrage.

Although the Tasmanian model of Section 116 was unlikely to succeed from the outset, the fate of separation of church and state in Australia may have very well hung on Clark’s health.

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Sources:

Adelaide Company of Jehovah’s Witnesses v Commonwealth (1943) 67 CLR 116; [1943] HCA 12.

Alex Deagon and Benjamin Saunders, ‘Principles, Pragmatism and Power: Another Look at the Historical Context of Section 116’ (2023) 43(3) Melbourne University Law Review 1033.

Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559.

Benjamin Saunders and Dan Meagher, ‘Taking Seriously the Free Exercise of Religion under the Australian Constitution,’ (2021) 43(3) Sydney Law Review 287.

Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.

Krygger v Williams (1912) 15 CLR 366; [1912] HCA 65.

Williams v Commonwealth (No 1) (2012) 248 CLR 156; [2012] HCA 23.