THE FOUNDATIONS OF SECTION 116 OF THE AUSTRALIAN CONSTITUTION: AN HISTORICAL AND CONCEPTUAL ANALYSIS

Abstract

This thesis seeks to understand and analyse the foundations of section 116 of the Australian Constitution by situating the provision in its proper historical and conceptual context. The thesis argues that section 116 can be conceptualised as a safeguard against religious intolerance on the part of the Commonwealth. The thesis begins by demonstrating that section 116 cannot be understood as a simply analogue of the religion clauses of the United States Constitution due to the very different constitutional cultures existing at the times the Australian and United States Constitutions were drafted. The thesis examines how the topic of religion came up for consideration in the period in which the Constitution was drafted and explores the motivations and machinations of those who ultimately succeeded in persuading the Australasian Federal Convention (‘Federal Convention’) held between 1897 and 1898 to include religious words in the constitutional preamble. It also explores the motivations and machinations of those who were opposed to that course of action and who persuaded one of the delegates at the Constitutional Convention, Henry Bournes Higgins, to pursue the inclusion of a religious freedom provision that eventually became section 116. The thesis interrogates the argument advanced by Higgins at the Federal Convention in favour of section 116, challenging the standard account of that argument and arguing that Higgins was concerned that the religious words of the preamble might somehow give rise to an implied Commonwealth power to legislate in respect of religion. The thesis investigates why the language of section 116 was chosen and shows that the precise language of section 116 was not the result of careful consideration, suggesting a disconnect between the purpose of the provision and its language. The thesis also shows that the meaning of the precise language of section 116 was not something to which the Convention gave any real consideration, and suggests that the Federal Convention seems to have believed that the limited language of section 116 amounted in some way to a complete denial of power to the Commonwealth to legislate ‘on the subject of’ religion. The thesis also asks how these foundations of section 116 can be conceptualised, concluding that the provision can be conceptualised as a partial safeguard against religious intolerance on the part of the Commonwealth. The thesis also considers official proposals to amend section 116 and considers whether the conceptualisation of section 116 would need to be revised had those proposals for constitutional amendment succeeded.