Ancestor Worship, Living Trees, and Free Exercise in the Australian Constitution
Paul T. Babie
The Australian Constitution, an Act of the Imperial United Kingdom Parliament which came into force in 1901, contains a seemingly comprehensive protection for religious freedom, found in Section 116:
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.
Two, and perhaps three, thoughts about this provision might strike the reader. First, it contains four protections, or guarantees, against establishment, the imposition of religious observances, and the requirement of a religious test for holding public office, and the prohibition of free exercise. Second, the guarantees read as individual rights or fundamental freedoms. And, finally, whatever it is, Section 116 applies only to “The Commonwealth”. To understand the meaning of this last thought, the non-Australian needs to know that the Commonwealth is the national or federal government, the equivalent to the United States federal government. Because Australia is a federal state, the protections found in Section 116 apply to the federal government, but not to the individual states.
Only two of those thoughts are correct. In fact, the four seeming guarantees are not considered to be individual rights. Instead, based upon the current interpretation of the High Court of Australia (the equivalent of the United States Supreme Court) they are “not, in form, a constitutional guarantee of the rights of individuals […]. Section 116 […] instead takes the form of express restriction upon the exercise of Commonwealth legislative power.”1Attorney-General (Vic.); Ex Rel Black v. Commonwealth (“DOGS Case”) (1981) 146 C.L.R. 559 (Austl.), 605 (Stephen J.), 653 (Wilson J.). Section 116 is, in short, “merely a lacuna in federal legislative power, a power which is limited only when the purpose of making a law is to prohibit the free exercise of religion.”2Stephen McLeish, Making Sense of Religion and the Constitution: A Fresh Start for Section 116, 18(2) Monash University Law Review 207, 209 (1992).
Why does it matter if Section 116 is interpreted as merely a limitation on legislative power rather than as an individual right? Because doing so allows the courts narrowly and restrictively to interpret these protections, meaning that they really provide no protection at all. Only three cases in Australia’s federal history, beginning in 1901, have given the High Court the opportunity to consider the free exercise guarantee, with the Court rejecting free exercise violations in the case of legislation imposing compulsory peacetime military training;3Krygger v. Williams (1912) 15 C.L.R. 366 (Austl.). providing for the seizure of real property of those whose religious beliefs might offend the wider community;4Adelaide Co. of Jehovah’s Witnesses Inc. v. Commonwealth (“Jehovah’s Witnesses”) (1943) 67 C.L.R. 116 (Austl.). and allowing for the compulsory removal of Aboriginal children, in turn denying access to traditional religion.5Kruger v. Commonwealth (1997) 190 C.L.R. 1 (Austl.). How could this be so? The words of Section 116 seem so clear. Moreover, such a restrictive outcome has not been the case with the very similar wording of Article VI and the First Amendment of the United States Constitution.
The narrow interpretation emerges from a fascination with a very Australian form of originalism, or “ancestor worship”, as Michael Kirby, a former High Court justice, has pejoratively called it.6See Michael Kirby, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?, 24 Melbourne University Law Review 1 (2001); Jeremy Kirk, Constitutional Interpretation and a Theory of Evolutionary Originalism, 27 Federal Law Review 323 (1999). When encountered in the United States, originalism tends to be associated with those on the right, used in conjunction with “strict construction” so as to reach outcomes “that conservatives like.”7Jack M. Balkin & Reva B. Siegel, Introduction: The Constitution in 2020, in The Constitution in 2020 5 (Jack M. Balkin & Reva B. Siegel (eds.), 2009). In Australia, however, appeals to originalism come from those of every political stripe, right and left, who together adhere to a consensus that what matters most when interpreting the Constitution in twenty-first century Australia is what the nineteenth century framers said about this or that provision when drafting it. The protagonists may disagree about what the framers said, but what matters, they say, indeed, all that matters, is the search for what the framers said and what they meant when they said it.
This strange ancestor worship began with the publication in 1901, contemporaneously with the coming into force of the Constitution, of John Quick and Robert Randolph Garran’s The Annotated Constitution of the Australian Commonwealth.8John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (1901, rev’d. ed., 2015). John Quick was one of the framers and Garran was a secretary to some of the delegates to the Constitutional Conventions at which the drafting took place. As such, Quick and Garran’s approach to the new constitution generally, which was merely a recounting of the Convention Debates which produced the draft text enacted by the United Kingdom Parliament, formed the roots of a fascination with originalism that took hold in Australian soil. It has served as the foundation to most of the interpretation of the Constitution ever since.9See Richard Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891-1906 (1976); Luke Beck, Religious Freedom and the Australian Constitution: Origins and Future (2019); Renae Barker, State and Religion: The Australian Story (2019) At its heart lies an unspoken assumption that one must always “return to the framers” as part of the process of interpreting what the Constitution means, and that doing so involves recourse to “Quick and Garran”. And the quest to return to the framers has, in a word, been distracting, diverting attention away from what a constitution ought to be and to do.
While it may seem appealing,10I admit to sometimes succumbing to its allure: Paul Babie, The Concept of Freedom of Religion in the Australian Constitution. A Study in Legislative-Judicial Cooperative Innovation  Quaderni di diritto e politica ecclesiastica 259. my question in this brief essay is simple: why should we care what the framers had to say, and whether we can find support in what they thought about a provision for contemporary Australia? My answer is equally succinct: we shouldn’t care. I suggest in this essay that we need not and ought not be so bound when interpreting Section 116.11I am not alone: see Kirby, supra note 6; Kirk, supra note 6. Instead, I propose, rather boldly for Australia, that we look to the words of Section 116 to understand its meaning for contemporary Australia. Rather than originalism, I suggest, we should pursue a “large and liberal” “living tree” interpretation of the words. We might even go further, and look to the way in which very similar words have been understood in a somewhat analogous context. In other words, I suggest, boldly, that we might find the spirit of the words of Section 116 revealed in the American experience with the First Amendment. But taking a large and liberal approach, informed by American experience might show us that the correct approach is already to be found, hidden in plain sight, in a decision of the High Court handed down almost 80 years ago.
Three Alternatives to Ancestor Worship
Large and Liberal Living Tree
The High Court of Australia, in 1964, wrote unanimously that “we must remember that it is…a constitution we are construing and it should be construed with all the generality which the words used admit.”12R. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. (1964) 113 C.L.R. 207 (Austl.), 225 (Dixon C.J., Kitto, Taylor, Menzies, Windeyer and Owen JJ.). This might sound very familiar to American readers. So it is. Chief Justice John Marshall wrote over a century earlier, in McCulloch v. Maryland, that “we must never forget that it is a Constitution we are expounding.”13McCulloch v. The State of Maryland, 17 U.S. 316, 407 (1819). And Australian borrowing from America does not end there.14See Jemimah Roberts, Constitutional ‘Borrowing’ and Freedom of Expression: Can Australia Learn from the US First Amendment?, 44(1) Alternative Law Journal 56 (2019). The very power which allows the judiciary to construe or interpret the constitution—judicial review—flows from the same source in Australia as it does in the United States. In Australian Communist Party v. Commonwealth, Fullagar J wrote that
there are those, even to-day, who disapprove of the doctrine of Marbury v. Madison, and who do not see why the courts, rather than the legislature itself, should have the function of finally deciding whether an Act of a legislature in a Federal system is or is not within power. But in our system the principle of Marbury v. Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs.15Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1 (Austl.), 262-263 (Fullagar J.) (internal citations omitted), citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
If we take the words of the High Court at their face value—that the Constitution should be construed with all the generality which the words used admit—we might conclude that we should focus on the words themselves. And, indeed we should. But too often the High Court seems to have forgotten its own admonition, succumbing to ancestor worship, when exercising the power of judicial review.
But if judges remained true to treating the Constitution as a constitution, they could interpret its words in a “large and liberal” way, treating it as a “living tree”. These words come from Canada, which shares some of its earlier history with Australia, at least in the way in which both received their constitutions from the Imperial United Kingdom Parliament. In Canada’s case, this involved the enactment of the British North America Act, 1867 (“BNA Act, 1867”)16The British North America Act, 1867, 30 & 31 Vict. (U.K.), c. 3; now The Constitution Act, 1867, 30 & 31 Vict. (U.K.), c. 3.. And because it remained the final court of appeal for the British Empire well into the twentieth century, the Judicial Committee of the Privy Council (J.C.P.C.) had the power to interpret both constitutions until appeals to it were abolished (for Canada in 1949, and for Australia, progressively between the 1960s and the 1980s). Writing for the Privy Council in 1930, Viscount Sankey said that “The [BNA Act, 1867] planted in Canada a living tree capable of growth and expansion within its natural limits. … Their Lordships do not conceive it to be the duty of this Board—it is certainly not their desire—to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation.”17Edwards v. Canada (Attorney General),  1 D.L.R. 98 (Can.), 106-7 (Viscount Sankey). The Supreme Court of Canada, most recently in 2004, affirmed this “large and liberal” “living tree” approach: “one of the most fundamental principles of Canadian constitutional interpretation [is] that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”18Reference re Same-Sex Marriage  3 S.C.R. 698 (Can.), ,  (McLachlin J.).
The J.C.P.C. said much the same thing about the Australian Constitution as it did about the BNA Act, 1867:
It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. It has been said that “in interpreting a constituent or organic statute such as the [Australian Constitution], that construction most beneficial to the widest possible amplitude of its powers must be adopted”. But that principle may not be helpful, where the section is … a constitutional guarantee of rights, analogous to the guarantee of religious freedom in sec. 116…. The true test must, as always, be the actual language used. Nor can any decisive help here be derived from evidence of extraneous facts existing at the date of the [Constitution]; such evidence may in some cases help to throw light on the intention of the framers…, though that intention can in truth be ascertained only from the language used. But new and unanticipated conditions of fact arise. … The problems, however, of the Constitution can only be solved as they emerge by giving effect to the language used.19James v. The Commonwealth (1936) 55 C.L.R. 1 (Austl.) (J.C.P.C.) 11-2 (Lord Wright). See Geoffrrey Sawer, Australian Federalism in the Courts 168-71 (1967).
Put simply, it is, after all, a constitution that the judges must interpret. And yet, since the 1980s, the words of Section 116 have been given a narrow, strict, technical reading, often appealing to ancestor worship to do so. This is seemingly the antithesis of what the J.C.P.C. meant in relation to both the Canadian and Australian Constitutions.
Taking a large and liberal and living tree approach to the words of the Australian Constitution would allow Australia to move past both originalism and strict construction. Having done that, the High Court might attempt to find the spirit embodied in the words used. We see that approach in Murphy J’s use of American jurisprudence, as enunciated in Attorney-General (Vic); Ex rel Black v. Commonwealth (Defence of Government Schools) (“DOGS Case”).20DOGS Case (1981) 146 C.L.R. 559 (Austl.).
It is curious that the High Court of Australia, even in professing to follow the intentions of the framers, has failed to make use of the available approaches suggested by the framers. High Court Justice Henry Bournes Higgins—one of the framers—wrote in obiter in 1926 that “I might add that, in my opinion, if abstention from voting were part of the elector’s religious duty, as it appeared to the mind of the elector, this would be a valid and sufficient reason for his failure to vote (sec. 116 of the Constitution).”21Judd v. McKeon (1926) 38 C.L.R. 380 (Austl.), 387 (Higgins J.). In other words, a law of general application which had the effect of infringing upon free exercise would be invalid due to Section116. But this statement, from one of the framers, has never gained purchase in the High Court’s interpretation.
What is concerning about this is that it is almost certain that the framers knew about and intended that the Australian Constitution would draw upon, both in drafting and in subsequent interpretation, American experience with very similar words,22D’Emden v. Pedder (1904) 1 C.L.R. 91 (Austl.), 112-3 (Griffith C.J.). See Harry Evans, The Other Metropolis: The Australian Founders’ Knowledge of America, Commonwealth of Australia, Papers on Parliament, No. 52 (December 2009). especially those cases that were decided prior to the coming into force of the Australian Constitution (on the basis that those cases were part of what would have been known by the framers).23Jehovah’s Witnesses (1943) 67 C.L.R. 116 (Austl.), 131 (Latham C.J.). Thus, if the High Court truly cared about the framers’ views, they would turn to American experience for guidance. Yet, notwithstanding the similarity of language, at least since the 1980s, the High Court has stood firm that the Supreme Court’s interpretation of the First Amendment is irrelevant to the meaning to be given almost identical words in Section 116.24DOGS Case (1981) 146 C.L.R. 559 (Austl.), 578-9 (Barwick C.J.), 598-600 (Gibbs J.), 609 (Stephen J.), 613-6 (Mason J.), 652 (Wilson J.). On the use of American authorities since, see Joshua Puls, The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees, 26 Federal Law Review 139 (1998). And on how the High Court might “borrow” from American jurisprudence, see Roberts, supra note 12.
Justice Murphy, however, in the DOGS Case, offers a rare glimpse into how Australian courts could make use of American jurisprudence as a means of interpretive guidance in the application of Section 116, one which would reject the strict construction of the words which characterises the current approach.25DOGS Case (1981) 146 C.L.R. 559 (Austl.), 619-30 (Murphy J.). Quoting Thomas Jefferson, Murphy J said this:
A reading of s. 116 that the prohibition against “any law for establishing any religion” does not prohibit a law which sponsors or supports religions, but prohibits only laws for the setting up of a national church or religion, or alternatively prohibits only preferential sponsorship or support of one or more religions, makes a mockery of s.116. Jefferson warned against this tendency. “Our peculiar security is the possession of a written Constitution. Let us not make it a blank paper by construction”…. We should heed his warning.26Id. at 633 (Murphy J.), quoting Thomas Jefferson, Writings 506 (Washington ed., 1859).
What mattered for Murphy J was that the Constitution “not be made a mockery” through a strict, technical parsing of words. Perhaps the true import, then, of following not so much American jurisprudence, but American experience, is it reveals a spirit, captured so succinctly by Jefferson at the birth of the American Republic, that the judges take care not, through technical and restrictive construction, to turn into a “blank paper” words which so clearly provide a guarantee against establishment. No less is true of the free exercise guarantee. And yet, the High Court has done just that.
Taking a large and liberal living tree approach, perhaps informed by American experience, would give a radically different reading of the free exercise guarantee of Section 116. Ironically, that approach might look very much like the approach already taken by the High Court in 1943, in Latham C.J.’s judgment in Adelaide Co. of Jehovah’s Witnesses Inc. v. Commonwealth (“Jehovah’s Witnesses”).27Jehovah’s Witnesses (1943) 67 C.L.R. 116 (Austl.).
Balancing Individual and Community Interests
Commentators treat Jehovah’s Witnesses as having done no more than affirm the approach taken to free exercise found in Krygger v. Williams.28Krygger v. Williams (1912) 15 C.L.R. 366 (Austl.). In the latter case, the High Court of Australia held that a law of general application would survive constitutional scrutiny provided its direct purpose was not to limit or otherwise infringe free exercise, even if the operation of that law might have that ancillary effect.
The belief that Jehovah’s Witnesses affirmed Krygger is based upon a misunderstanding of Latham C.J.’s judgement, but one which has now become entrenched in the way Australian lawyers think about Section 116. The truth is that Latham C.J. sets out a two-stage process for the application of Section 116, not dissimilar to strict scrutiny analysis pursuant to the First Amendment—a balancing of individual free exercise against a compelling governmental interest in limiting the free exercise right.29See Caleb C. Wolanek and Heidi Liu, Applying Strict Scrutiny: An Empirical Analysis of Free Exercise Cases, 78 Mont. L. Rev. 275, 275 (2017). The reason Latham CJ has been misunderstood, and the judgment hidden in plain sight is because the elements of that are intermingled with one another in what is a very complex judgment. But taking the time to separate the two strands of thinking reveals that in the first stage, Section 116 is concerned with
the exercise of religion, … protect[ing] from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion. … [A]lmost any matter may become an element in religious belief or religious conduct. … Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.30Jehovah’s Witnesses (1943) 67 C.L.R. 116 (Austl.), 124–5 (Latham C.J.).
And, having found the first stage, the second is readily identifiable:
the State [may] restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community. The Constitution protects religion within a community organized under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious freedom with ordered government.31Id. at 131–2 (Latham C.J.).
Of course, it is the Court, and the Court alone, which must apply this two-stage test for reconciling free exercise with ordered government. Indeed, allowing Parliament to police itself, Latham C.J. writes,
would remove all reality from the constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law ‘for prohibiting the free exercise of any religion.’32Id.
In short, Section 116 protects against the excesses of the Commonwealth Parliament. To allow otherwise would not only be problematic, but counterintuitive. Only the courts can perform that function.
A strange, and very Australian originalism holds the interpretation of the constitutional free exercise protection in its grip. Interpreting Section 116 thought the lens of this ancestor worship has limited its effectiveness throughout the course of Australia’s federal history. Here I propose that we leave the ancestors where they belong—in the past—and allow the words of Section 116 to speak for themselves, in a large and liberal way, a way that sees the constitution as a living tree, capable of growth and change to meet new conditions. And yet, that very interpretation, not unfamiliar to American ears, is one that lays hidden in the High Court of Australia’s own understanding of the free exercise guarantee. Chief Justice Latham, writing in 1943, understood the substance of Section 116, and the status of its protector—the courts—in the Jehovah’s Witnesses case. The spirit of American experience points us in the right direction. But careful attention to existing Australian precedent shows that a large and liberal reading of Section 116, one which treats its words as having planted a living tree in Australia, allows a balance of individual free exercise against the community interest.♦
Paul T. Babie is ALS Professor of Property Law, Adelaide Law School, The University of Adelaide, Australia.