• Introductory Remarks.
• Commonwealth Debates Pages 1769 - 1780.
• Concluding Remarks.

The actual pages of the debate have been photographically reproduced so that none can doubt the authenticity of the contents.

Most Australians know nothing about the discussions that resulted in the insertion of Section 116 into the Australian Constitution so that there would not be any infractions of religious liberty under the laws of the Commonwealth of Australia.

These discussions set the minimum standards of religious freedom under the laws of the Commonwealth of Australia. By reading the debate surrounding the insertion of Section 116 we are able to see that certain aspects were considered by the framers to be outside the powers of the Commonwealth Parliament. It should be noted that when Section 116 was first inserted it was known as Section 109 and therefore the debate about the insertion of Section 116 is actually the debate about Section 109.

A reading and understanding of this debate is basic to a full appreciation of the religious clauses of Section 116. Inadvertently, or by sloven scholarship or by intention by absenting the full evidence of this debate from discussions on Section 116 has often led to a different construction on the reasons for this section.

We must constantly remind ourselves, the public, press, politicians, pastors and priests that Section 116 is in the Constitution to furnish a safeguard against particular actions of the government itself, as well as to protect individuals and groups from each other.

Freedom of religion is not only something historically that is ours by the Constitution, but is also by practice over the years. Most of us who live today do nothing to preserve it. It is up to the public to see that violations however direct, or however subtle do not take place and establish precedents.

COMMONWEALTH OF AUSTRALIA BILL 2 MARCH 1898

COMMONWEALTH DEBATES PAGES 1769 - 1780

DEBATE ON WHAT WAS TO BECOME SECTION 116 OF THE AUSTRALIAN CONSTITUTION:

Question so resolved in the negative.

The CHAJRMAN.—The next question is Mr. Higgins’ proposed new clause in lieu of clause 109, which was struck out.

Mr. HIGGINS (Victoria).—I was not aware that this clause would come on so soon; but, inasmuch as I have spoken to the words in the preamble so recently, I think I shall be able to save honorable members the infliction of a long speech on this subject. My idea is to make it clear beyond doubt that the powers which the states individually have of making such laws as they like with regard to religion shall remain undisturbed and unbroken, and to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters. My object is to leave the reserved rights to the states where they are, to leave the existing law as it is; and just as each state can make its own factory laws, or its own laws as to the hours of labour, so each state should be at full liberty to make such laws as it thinks fit in regard to Sunday or any other day of rest. I simply want to leave things as they are. I do not want to interfere with any right the state has. I merely want to make it clear that, having inserted in the preamble of the Constitution certain words which, according to United States precedents, would involve certain inferential powers, there is no intention on the part of the Convention to confer even inferentially these powers on the Federal Parliament. I want, in this respect, as I said, to preserve the states’ rights intact, but upon my former amendment I went too far, according to the views of the members of the Convention, and, therefore, I am only going to the extent of making it clear that the Commonwealth Parliament is to have no such power. I went too far on my former amendment, inasmuch as I said that neither a state nor the Commonwealth was to have this power. I did that because the then existing clause 109 only referred to a state, and provided that— A state shall not make any law prohibiting the free exercise of any religion. Well, I did not know that the Convention was willing to go so far as it has gone, and strike out the whole of that clause as to the state. However, it has done so. I beg to move the insertion of the following new clause to replace clause 109 already struck out

The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. I may state that most of this clause, with regard to the making of laws, is already in the American Constitution, either in the original Constitution or by way of an amendment of the Constitution. In the Constitution of the United States there is a provision that the Federal Parliament is not to make any law prohibiting the free exercise of any religion, and there is also a clause, the very first amendment of the Constitution, that the Federal Parliament is not to make any law for the establishment of any religion. In the original Constitution you will find also a clause to the effect that there is to be no religious test required as a qualification for any post or office. The only difficulty, therefore, is in respect of these words about imposing religious observances, and that part, as I have already indicated this morning, is rendered necessary by the inclusion in the preamble of our Constitution of words which they have not got in the American Constitution. But in consequence of a decision of the United States in 1892, which went to the effect. that the United States of America form a Christian nation, the courts have held that the United States are able to make laws for the purpose of imposing Sunday observance all over the Commonwealth. I say, then, in brief, that I merely want to preserve to the individual states the absolute power of regulating all observances of this sort. They have the power as it is. They can make any factory laws they like, and I want to make it clear that there cannot be an overriding Cornmonwealth law which will interfere with the power the states now have. Therefore, I have moved this new clause.

Mr. REID (New South Wales).—If my honorable friend could point out in the Bill any subject allied with religion which would make it necessary to put such a clause as this in the Bill, I would vote with him.

Mr. HIGGINS—The preamble.

Mr. REID.—That can only be amended by reference to the people.

Mr. BARTON (New South Wales). I feel some hesitation about voting for this proposed new clause. It was proposcd originally in clause 109 that—

A state shall not make any law prohibiting the free exercise of any religion.

Well, that clause has been struck out. It was decided that we should not prevent any state from making a law prohibiting the free exercise of any religion. That was done partly on the ground that we did not desire to interfere unnecessarily with the states. But clause 109 was struck out on the more solid ground, that there was no likelihood of any state ever prohibiting the free exercise of any religion—that there had been nothing of the kind in the past, and that there was not the slightest reason to expect the occurrence of any such thing in the future ; that the more the institutions under which we live expanded, the less likelihood there was of any religious persecution of any kind. Now, if we hold that view with regard to the state, why should we not hold it in regard to the Commonwealth? If that is the reason which makes us strike out a clause prohibiting any state from making any law prohibiting the free exercise of any religion, why should we not hold that as a valid and sufficient reason against inserting any clause prohibiting the Commonwealth from making any law prohibiting the free exercise of any religion? If we feel secure from religious persecution under the Parliaments and the Governments of the states, what reason have we to fear that we shall be subject to religious persecution under the Federal Parliament, which it is supposed will be superior in character to the Parliaments of the states? If the fear does not exist in the one case—and we think so little of it as to cause us to strike out clause 9, as we did—why should we entertain the same fear with regard to the Commonwealth any more than we entertain it in regard to the states?

Mr. WISE—You might say the same thing as to Congress.

Mr. BARTON.—Certainly there is a decision in the United States to the effect that it is a Christian nation. What does that decision amount to. Is it not really a decision based on the fact that the institutions of England, under the common law, are Christian institutions, which, so far as they are not interfered with by any written Constitution, belong to citizens of the United States, as having been brought over by them as British subjects, and kept by them from that day to this i If that is the ground of the American decision, which I suspect it is, the same thing applies in some of these colonies. Decisions have been given to the effect that these colonies are Christian conmmunities. I remember a case in which that doctrine was expounded at length by the late Chief Justice Martin, of New South Wales. Now, if the colonies are Christian communities, the common law of England will apply to the Commonwealth, except so far as this Constitution alters that law ; and. if it is part of the common law of England that we shall be regarded as a Christian community, what fear is there of our suffering any dangers of the kind indicated in the amendment, simply because we are a Christian community ? I do not see any danger of the kind to be anticipated. I think that because we are a Christian community we ought to have advanced so much since the days of State aid and the days of making a law for the establishment of a religion, since the days for imposing religious observances or exacting a religious test as a qualification for any office of the State, as to render any such dangers practically impossible, and we will be going a little too far if we attempt to load this Constitution with a provision for dangers which are practically non-existent. -

Mr. Higgins.—That is the question— are those dangers non-existent?

Mr. BARTON—I do not think the fact that we may be held by law to be a Christian community is any reason for us to anticipate that there will be any longer any fear of a reign of Christian persecution—any fear that there will be any remnant of the old ideas which have caused so much trouble in other ages. The whole of the advancement in English-speaking communities, under English laws and English institutions, has shown a less and less inclination to pass laws for imposing religious tests, or exacting religious observances, or to maintain any religion. We have not done that in Australia. We have abolished state religion in all these colonies; we have wiped out every religious test, and we propose now to establish a Government and a Parliament which will be at least as enlightened as the Governments and Parliaments which prevail in various states; therefore, what is the practical fear against which we are fighting I That is the difficulty I have in relation to this proposed clause. If I thought there was any—the least—probability or possibility, taking into consideration the advancement of liberal and tolerant ideas that is constantly going on of any of these various communities utterly and entirely retracing its steps, I might be with the honorable member. If we, in these communities in which we live, have iio right whatever to anticipate a return of methods which were practised under a

different state or Constitution, under a less liberal measure of progress and advancement ; if, as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced; if we have no fear of a recurrence of either the ideas or the methods of former days with respect to these colonies, then I do suggest that in framing a Constitution for the Commonwealth of Australia, which we expect to make at least as enlightened, and which we expect to be administered ‘with as much intellectuality as any of the other Constitutions, we are not going to entertain fears in respect of the Commonwealth which we will not attempt to entertain with respect to any one of the states. Now, we have shown that we do not intend these words to apply to our states by striking out clause 109. That might be a provision that might be held to be too express in its terms, because there may be practices in various religions which are believed in by persons who may enter into the Commonwealth belonging to other races, which practices would be totally abhorrent to the ideas, not only to any Christian, but to any civilized community; and inasmuch as the Commonwealth is armed with the power of legislation in regard to immigration and emigration, and with regard to naturalization, and also with regard to the making of special laws for any race, except the aboriginal races belonging to any state—inasmuch as we have all these provisions under which it would be an advisable thing that the Commonwealth, under its regulative power, should prevent any practices from taking place which are abhorrent to the ideas of humanity and justice of the community; and inasmuch as it is a reasonable thing that these outrages on humanity and j ustice (if they ever occur) should be prohibited by the Commonwealth, it would be a dangerous thing, perhaps, to place in the Bill a provision which would take oat

of their hands the power of preventing any such practices.

Mr. HIGGIN5.—DO you think that the Commonwealth has that power under the existing Bill?

Mr. BARTON.—I am not sure that it has not. I am not sure that it has not power to prevent anything that may seem an inhuman practice by way of religious rite.

Mr. HIGGINS.—I want to leave such matters to the states.

Mr. BARTON—But inasmuch as we have given to the Commonwealth the power of regulating the entry of that class of persons, and the power of regulating them when they have entered, is it not desirable that in that process there shall be left to the Commonwealth power of repressing any such practices in the name of religion as I have indicated? If it be necessary that there should be some regulative power left. tu the Cornnonwealth, then the argument that we should leave the matter to the states does not apply, because we give such a power to the Commonwealth.

Mr. HIGGINS—Then all crimes should be left to the Commonwealth?

Mr. BARTON.—No; because you do not give any power with regard to punishing crime to the Commonwealth, but you do give power to the Commonwealth to make special laws as to alien races; and the moment you do that the power of making such laws does not remain in the hands of the states and if you place in the halls of the Commonwealth the power to prevent such practices as I have described you should not defeat that regulative power of the Common-wealth. I do not think that that applies at all, however, to any power of regulating the lives and proceedings of citizens, because we do not give any such power to the Commonwealth, whilst we do give the Commonwealth power with regard to alien races; and having given that power, we should take care not to take away an

[Mr. Barton.

incident of it which it may be necessary for the Commonwealth to use by way of regulation. I have had great hesitation al)out this matter, but I think I shall be prevented from voting for the first part; and as to establishing any religion, that is so absolutely out of the question, so entirely not to be expected—-—Mr. SYMON.—It is part of the unwritten

law of the Constitution that a religion shall not be established.

Mr. BARTON.—It is so foreign to the whole idea of the Constitution that we have no right to expect it; and, as my honorable and learned friend (Mr. Symon) suggests by his interruption, I do not think, whatever may be the result of any American case, that any such case can be stretched for a moment in such a way as to give Congress power of passing any law to establish any religion. I do not suppose that there is a man in Congress who would suggest it; and I have no doubt that the same court that decided that the community was a Christian community would say that the United States Congress had no power to establish any religion. The only part of the matter upon which I have had the least doubt (having become more confirmed in my opinion since I have considered the matter further) is the latter part of the proposal, which is that no religious test shall be required for any place of public trust in the Commonwealth. I do not think that any such test would be required, and the only question is whether it is possible. I have come to the conclnusion that it is not possible. Therefore, my disposition is to vote against the whole clause.

Mr. REID.—I suppose that money could not be paid to any church under this Constitution?

Mr. BARTON.—No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.

Mi-. WISE (New South Wales).—I can conceive of no matter more fit for state control than that of religious ohservance, and, therefore, I am utterly unable to follow the leader of the Convention (Mr. Barton) in his contention. There should not be any opening for doubt as to the power of the Commonwealth to exercise control over any religion of the state. I wish I could share Mr. Barton’s optimistic views as to the death of the spirit of religious persecution. But we have seen in our own time a recrudescence of that evil demon, which, I fear, is only scotched and not killed. At any rate, the period during which we have enjoyed religious liberty is not long enough for us to be able to say with confidence that there will be no swinging back of the pendulum to the spirit of the times from which we have only recently emerged. Consequently there is some reason for the alarms which have been expressed by a very large body of people, who have not been represented in this Convention, by long petitions, but who none the less are entitled to be considered when we are framing this Constitution, and who, rightly or wrongly—for my own part, I believe rather more wrongly than rightly—believe that the agitation for the insertion in the preamble of the words which we have inserted to-day is sufficient to cause alarm among citizens of certain ways of thinking, and that there is an ulterior design on the part of some people in the community to give the Commonwealth power to interfere with religious observances.

Mr. HIGGINS.—We had 38,000 signatures to a petition from the people in Victoria against the inclusion of these words in the preamble.

Mr. WISE.—I am very glad to hear it. That strengthens my argument. If 38,000 citizens of Victoria sent a petition against the inclusion of these words, not because they disapproved of the words in themselves, but because I suppose they were afraid that the inclusion of them would confer upon the Commonwealth some power to legislate with regard to religious observances, I say that fears of that sort should be respected. I know a considerable body of people in New South Wales, who, perhaps, have not made themselves heard in this Convention by petitions, who arc actuated by the same alarms. Now, why should we now meet the scruples of these gentlemen as we met the scruples and feelings of another class of the cornmunity, when we put the words to which I have alluded into the preamble? We none of us here believe in our hearts that these words added much to the preamble, but we put them in, as we thought, because they were a just satisfaction of a certain sentiment. May we not support this on the same ground? May we not say—" We will clear away once and for ever any doubts which you may feel by making it clear that all matters of religious observance and control over religion shall be left to the states to which they naturally belong." Is the fear which is expressed groundless? If it had not been for the speech of Mr. Higgins this morning we might say that the fear was absolutely groundless, and that it was impossible that the Commonwealth should exercise, or seek the power to exercise, any control over religious observances. Yet, when we have the example of the United States, not six years old, I do not think the leader of the Convention can carry the force of conviction to us here, when he asks us to believe that there is no fear whatever of the Commonwealth exercising a power which we cannot believe would be exercised by any state. Supposing the Commonwealth is swayed by some popular feeling, such as swayed Congress in 1892, and some law were passed, say, dealing with Sunday observance, which might reflect the wishes of the majority of the people, but which would be most distasteful and persecuting to a minority. In a matter of religious feeling, a minority are entitled to the utmost respect and should have their feelings guarded.

Mr. FRASER. Is not the majority entitled to respect

Mr. WISE—Certainly.

Mr. FRASER—A very small minority might shock the great majority of the people.

Mr. WISE—Let every one follow his own religious obseryances without shocking anybody and do not let him impose his rule on anybody else. I am pointing out that when we have got that example before us, we cannot shut our eyes to the fact that there is something in the argument which has been raised. When we find that the American Constitution took tbat power, without the words iii the preamble which we have inserted to-day—without even the support of that contention which we have given by putting these words in the preamble—we ought to take care to put plainly in the forefront of the Constitution the provision that the Commonwealth shall not interfere in any way with the rights of the states to regulate religious matters. How can it be said that the observance of Sunday in Northern Queensland would shock the people of Victoria ? There is no doubt the observance of Sunday is largely a matter of climate, and a great many religious observances are matters of climate. It might be that one rule should prevail in the tropical portion of this country, and another rule in the south. It ought to be made perfectly clear that the opinions of a large number of persons in one portion of the Commonwealth, as to adopting a certain method of observance of Sunday, shall not prevail in other states, and that those persons shall not have it in their power to impose a restraint on people in other districts, and that they shall not be able to impose a uniform method of Sunday observance. There are many other questions of a similar kind that might be referred to. What I fear is that we have not yet any sufficient security against a revival of the feeling which has existed for centuries, but which has not been able to make itself felt during the last 50or 60 years in British-speaking countries, but which I believe, still exists in the hearts of hundreds and thousands of men only waiting for an opportunity to assert itself. If we put in Mr. Higgins’ amendment we shall remove those fears and establish a sound principle, and, 1 believe, will commend the Constitution to a very large number of those who at present are doubtful as to its effects.

Dr. COCKBURN (South Australia).— May I ask the honorable member who moved the amendment whether there is any other power the exercise of which is forbidden to the Commonwealth?

Mr. O’Connor-----I do not think there is an express prohibition.

Dr. COCKBURN. — I think there is not. It seems to me that by making one exception we are introducing a whole atmosphere of ambiguities; that is to say, the Commonwealths at present can only exercise such powers as are explicitly vested in it. If, in addition to that, we forbid the exercise of some power, we leave an ambiguous area between the powers specifically vested in the Commonwealth and the powers forbidden. That opens out a whole circle of ambiguity in this respect.

Mr. HIGGINS. I think I was wrong in what I just now stated ; there is a prohibition with regard to the states in clause 108, and there was a prohibition as to the states in clause 109.

Dr. COCKBURN—There are many prohibitions with regard to the states. I am very much in sympathy with Mr. Higgins, and if lie can point out any case of this kind I would go with him.

Mr. O’CONNOR—Clause 109 was a prohibition, but it has been struck out.

Dr. COCKBURN.-—It seems to me that by passing this provision we shall open the door to the possibility of doubt as to the Commonwealth having more powers than we have vested in it.

 Mr. WISE. —There is a prohibition with regard to interference with trade and commerce.

Dr. COCKBURN.—That is a limitation of power which is wholly vested and explicitly placed in the hands of the Cornmonwealth. It is simply a limitation of the exercise of its executive power, but this is of a different description. It seems to me that by introducing this clause we shall run the risk of indicating that there is all other sphere of powers which, though not specified as belonging to the Commonwealth, are not forbidden.

Mr. HIGGINs—The 117th clause says that a new state shall not he formed by the separation of territory from a state without the consent of the Parliament of that state. That forbids even the Federal Parliament forming a new state.

Mr. WISE. — Clause 95 provides that preferences shall not be given.

Dr. COCKBURN—That is a limitation of the executive power, and none of the instances advanced have satisfied me on the point I have endeavoured to lay before honorable members. I see clearly in my own mind that an exception in this respect will throw some doubt as to the whole scope of the powers of the Commonwealth. By inserting these words, it may be decided that there are some powers in the bands of the Commonwealth which are not explicitly recognised and stated.

Mr. FRASER (Victoria).—I entirely agree with our leader in this matter. I do not see that there is any necessity for this clause. We are now a homogeneous people, and the safer plan is to leave us so.

Mr. HIGGINs—That is what we want to do.

Mr. FRASER.—I .am not so very sure about that. If you pass this clause all sorts of extraordinary practices may be resorted to that would, as I have already interjected, shock the whole community.

Mr. WISE. --- Suppose the Federal Parliament passes a law allowing Sunday newspapers, would the Victorians like that?

Mr. I SAACS. They would have no jurisdiction

Mr. WISE.—Yes, they would, if this is struck out..

Mr. ISAACS --Under what clause

Mr. Wise. —— Under the sane clause as in America.

Mr. ERASE R—If the Fcderal Parliament chooses to act in this matter on Sunday newspapers, the people will he cognisant of all that is done.

Mr. WISE—We do not think them wrong in New South Wales.

Mr. FRASER—The probability is that a majority of the people of New South Wales think that it is wrong to allow Sunday newspapers, but they have not the courage to put them down. I believe that is the real fact. I believe that the public men of New South Wales have not the courage to tackle them. that is about the answer to that interjection. If the public men have not courage to deal with these matters, of course the public will follow them in various devious paths. I do not see the necessity for this clause. I hope that we are not going to be driven to accept all sorts (If extraordinary proposals simply because of something that has taken place in the United States. We are able to take care of ourselves, and I think the clause would do more harm than good.

Sir EDWARD BRADDON.—What harm would it do?

Mr. FRASER—It might offend the susceptibilities of a homogeneous people and in that way cause trouble and difficulty. There would be no danger it omitting the clause, but there may a danger in putting it in.

Mr. SYMON (South Australia).—I beg to move, as an amendment—

"That all the words down to "and" be omitted.with a view to the insertion in lieu thereof of the following :—" Nothing in this Constitutionshall be held to empower the Commonwealth to require any religions test as a qualdication for any office of public trust under the Commonwealth."

I do not oppose the earlier part of the clause oin the same ground as I put before, because I am satisfied in regard to those matters, to which attention was directed when clause 109 was under discussion that under the ordinary operation of the common lav any inhumanities and cruelties could be effectually stopped.

Mr. HIGGINS.—By which Parliament?

Mr. SYMON.—By either the state or the Commonwealth Parliament. I mention that to show that I do not change my view that that part of the clause is objectionable. But I hold strongly that in consequence of the insertion of the new words in the preamble it is desirable that some provision should be made to make it clear that these Words are not to overspread the whole Constitution.

Mr. ISAACS -. Would not your view be carried out by leaving the residuum of the clause just as it stands ?

Mr. SYMON.—I should have no objection to that, but I think it would be better to say that nothing in the Constitution shall empoWer the Commonwealth to impose any religious test. I sympathize with Mr. Higgins in his fear that the insertion of the words we put in the preamble might lead to an impression amongst a larger or smaller section of the cornmunity that it would be possible to impose some religious test, and that the sentiment conveyed by the words might overspread the Constitution in some way. My honorable friend desires that there should be something in the nature of a counterblast, for the satisfaction of those who may entertain that apprehension.

Mr. FRASER - There is no necessity for it.

.Mr. SYMON.—There is great force in what Mr. Fraser says, but there are a number of us who, for reasons which do not militate against our deep reverence and the deep faith that may be in us, think that the words inserted in the preamble are, at all events, open to misconstruction on the part of a larger or smaller section of the community. I do not wish to enter into the subject, but I felt that, and it is with a view of getting rid of any apprehension of that kind, and of securing every vote possible for this Bill, that I think it well to yield to the view that has been expressed So forcibly by Mr. Higgins.

Mr. FRASER—That is the only argument in its favour.

Mr. SYMON.—It is a strong argument. We have inserted certain words in the preamble, and we should put in as a solution, if you like, to those holding opinions in opposition to these words, something else on which they may rely.

Mr. DOBSON—Would not the amendment leave it open to the Federal Parliament to dictate to any state that it should not open its picture galleries and museums On Sunday ?

Mr. SYMON.----There is no power under the Constitution that would enable the Federal Parliament to do that. I am satisfied that it is embodied in the Constitution as a part of the unwritten law that no church establishment shall prevail, and that religious freedom shall be observed.

Mr. KINGSTON (South Australia).— I shall support the amendment in the form in which ‘ has been proposed by Mr. Higgins. ‘there is a great deal of force in the suggestion that, in view of the amendment in the preamble, we should make a declaration of this description us the broadest possible terms, for the purpose of allaying any apprehension that might otherwise be entertained on the subject. As the matter stands at present, the states have full power, if they so desire, to legislate. The Commonwealth will, undoubtedly, also have power to legislate in respect of a matter of this description, so far as the affairs of the people of any race for whom it is necessary to adopt special legislation are concerned. That power is expressly given to the Federal Parliament, and I have no doubt whatever that in the exercise of it a law might be passed concerning special races, and prohibiting the free exercise of their religion, or imposing something in the nature of a religious test. I do not think that power ought to be given to the Federal Parliament. It is a matter of purely domestic concern, with which the states are particularly qualified to deal. If we carry the amendment in the way in which it is now proposed, we shall secure to the states the power which they at present possess, and which they can be trusted to exercise with an intimate knowledge of all the local circumstances. We shall prevent any unnecessary interference by the Federal Parliament in a matter of domestic concern and we shall allay those fears which have been referred to by various honorable members. I trust, therefore, the amendment will be agreed to as proposed.

Mr. LYNE (New South Wales). — I voted this morning for the amendment of the preamble moved by the honorable member (Mr. Glynn), but in speaking upon that amendment I said that I had been struck by the remarks of the honorable member (Mr. Higgins), though I did not see how the amendment then before the committee could bring about the results he seemed to think possible. The amendment which the honorable member is now moving will, however, get rid of the possibility of danger. As was said by the honorable and learned member (Mr. Wise), Sunday observance is to a very large extent a matter of climate. In New South Wales we open our museums, our art gallery, and other places of public resort upon Sundays, though I think that in other colonies that is not allowed. It would be hard, however, if a state in the northern part of the continent, where, in consequence of the extremes of the climate, the people require some recreation upon Sunday, were prevented by the Commonwealth from doing what we have done. Then, take the case of Sunday newspapers. We in New South Wales do not object to the publication of newspapers upon Sunday, as the honorable mender (Mr. Fraser) would object here.

Mr. FRASER.—I did not say so.

Mr. LYNE.—That was the conclusion I drew from the honorable member’s interjections. However, that is beside the question. What I really want to impress upon honorable members is that it is not a wise thing, where you have a number of states to deal with, to allow the Commonwealth authority to decide how Sunday should be observed. ‘The (Commonwealth authority might have that power if this provision were not inserted in the Bill. To my mind, if the proposal of the honorable member (Mr. Symon) were carried, you might as well knock omit the whole clause, because it takes the kernel out of it. I hope that the Convention will carry the proposal of the honorable member (Mr. Higgins) as it stands.

Mr. WISE (New South Wales). —I should like, in two sentences, to put forward a matter to which I invite the attention of the honorable and learned member (Mr. Symon). If the arguments which prevailed in the Supreme Court of the United States in 1892 were to prevail in the Commonwealth Supreme Court, the Commonwealth authority would have an implied power to administer the common law in respect to the observances of Christianity. Of course, I may say at once that I cannot understand the decision of the United States court.

Mr. HIGGINs.—Still it exists.

Mr. WISE—Yes. Unless the amendmeut of the honorable member (Mr. Higgins) were carried, the Commonwealth authority might, under the ruling of the Supreme Court of the Commonwealth, have this implied power. For this reason, I appeal to the honorable and learned member (Mr. Symon) to withdraw his amendment, so that we may take a vote upon the clause as it stands.

 Mr FRASER:—The decision of the Supreme Court might be the opposite to what the honorable and learned member proposes.

Mr. WISE.—Of course it might.

Mr. FRASER—Why should we interfere at all ?

Mr. WISE.—That is what I think. I would leave it to each state to do as it pleases in regard to Sunday observance, but I would deprive the Parliament of the right to make any laws at all upon this subject.

Mr. O’CONNOR (New South Wales).-—I hope that the honorable and learned member (Mr. Symon) will not withdraw his amendment. I intend to support it. It appears to me the only provision before us for which there is any justification. I do not know that it is absolutely necessary, but I think that it would be as well for us to have it. With regard to the provision suggested by the honorable member (Mr. Higgins), I think that it would tend to run us into danger rather thin, as the honorable member wishes, to enable us to avoid it. Upon the face of the Constitution the Commonwealth has certainly no power whatever to deal with religion, either directly or indirectly.

Mr. HIGGINS.—Will you explain why they have these words in the first amendment of the American Constitution l

Mr. O’CONNOR.—The provisions of the American Constitution in regard to the powers handed over to the Federal Parliament are not nearly so definite as the provison of our Constitution.

Mr. HIGGINs.—The American Constitution has no recital in the preamble such as we have just inserted in our Constitution.

Mr. O’CONNOR. —Yes. But the amendment of the American Constitution to which the honorable and learned member refers was rendered necessary by the fact that there is not the definite division of powers in that Constitution that we hay in our Constitution. I cannot imagine that clause 52 gives any ground from which it could be argued that the Federal Parliament has the right to interfere in regard to the exercise of religion, or to deal with religion in any way.

Mr. KINGSTON—Except in regard to special races.

Mr. O’CONNOR—Of course, in regard to special races the Federal Parliament could make any laws it liked, and I think it very desirable that it should have that power.

Mr. KINGSTON.—Would it not be better to intrust this power to the states?

Mr. O’CONNOR.—No, I do not thINk so. I think that the power to deal with alien races is given as an exclusive power.

Mr. KINGSToN—It was put back.

Mr. O’CONNOR—Directly it is exercised it becomes an exclusive power, and there is no doubt that it will be exercised. By putting into the Constitution words prohibiting the Commonwealth Parliament from making certain specified laws you create the implication that the Parliament has power to deal in other respects with religious observances. If you looked at the prohibition containing this provision, you will find that it deals expressly with Sunday observance, with the exercise of religion, with the establishment of religion, and with the imposition of religious observances. But it might very well be argued that the closing of places of public amusement on Sundays does not rest upon any of these grounds ; and if you inserted a provision of this kind in the Constitution, there would be the strongest possible implication that the Federal Parliament would have the power to legislate in regni-d to social questions which had a religious aspect other than those expressly excluded from its jurisdiction by this provision. That is the danger you are likely to run into by putting this limitation in the Constitution. The Commonwealth Parliament will have no right whatever to interfere with these matters unless by some implication arising out of a provision of this kind. With regard to the subject of the amendment of the honorable and learned member (Mr. Symon), there is no doubt that the Commonwealth might have the right to impose any form of oath which it thought fit as a qualification of office. I am quite willing, however, that some such provision as the honorable and learned member has suggested should be inserted in the Constitution, so that it would not be possible for the Commonwealth to require a religious test.

Mr. FRASER (Victoria).—I think that if we give the right to an infinitesimal minority to come here and indulge in extraordinary practices, under the pretence that this is a new religion, we may have all the theatres and all the music-halls in Australia open on Sundays. If that is possible we ought to do what we can to provide against it.

Mr. HIGGINS (Victoria).—I want if I can to recommend the Commonwealth Bill and get it carried. But why should we be faced with this difficulty? You have put in the preamble a religious recital which is not in the Constitution of the United States of America, but yen have not put in the safeguard against religious intolerance which they have there. I ask honorable members how I shall face that difficulty? There is a grave suspicion evidenced by what I said that there were 38,000 distinct signatures upon this very point. I do not think it is too much for me to say that we ought to re-assure those persons. They may be wrong. It may be right, as my friend (Mr. Barton) says, that there is no power by implication in the Commonwealth to pass this law. It may be right, as he says, that the Commonwealth ought to have the power. But I only say that it is a state matter, and it should be left to the states. My honorable friend (Mr. Fraser), with all respect to him, shows the current ignorance on this matter because he will not understand that the state, if my proposal is carried, will have the same power as it has now to stop any theatrical performances on Sunday.

Question—That the words proposed to be omitted stand part of the proposed new clause-—put.

The committee divided—

Ayes ... ... ... 22

Noes ... ... ... 19

 Majority against Mr. Symon’s ~ amendment: 3

AYES:

Berry, Sir G.
Braddon, Sir E. N. C.
Brown, N. J.
Clarke, M. J.
Deakin, A.
Dobson, H.
Douglas, A.
Downer, Sir J. W.
Fysh, Sir P. 0.
Glynn, P. M.
Gordon, J. H.
Henning, A. H.
Henry, J.
Holder, F. W.
Howe, J. H.
Kingston, C. C.
Lee Steere, Sir J. G.
Lewis, N. E.
Lyne, XV. J.
Trenwith, XV A.
Wise, B. B.

 Teller: Higgins, H.B.

NOES:

Barton, E.
Briggs, H.
Brunker, J. N.
Cockburn, Dr. J. A.
Crowder, F. T.
Forrest, Sir .J.
Fraser, S.
Hackett, J. W.
Hassell, A. Y.
Isaacs, I. A.
Leake, U.
Moore, XV.
O’Connor, H. E.
Peacock, A. J.
Quick, Dr: J.
VenN, H. XV.
Walker, J. T.
Zeal, Sir W. A.

Teller.: Symon, J. H.

Question so resolved in the affirmative. Question—That Mr. Higgins’ proposed new clause be inserted in the Bill—put. The committee divided—

Ayes: 25

Noes: 16

Majority for the clause: 9

AYES

Berry, Sir G.
Braddon, Sir E. N.
Brown, N. J.
Clarke, M. J.
Deakin, A.
Dobsen, H.
Douglas, A.
Downer, Sir J. XV.
Fysh, Sir P. 0.
Glynn, P. M.
Gordon, It. H.
Henning, A. H.
Henry, J.
Holder, F. XV.
Howe, J. H.
Isaacs, I. A.
Kingston, C. C.
Lee Steere, Sir It. U.
Lewis, N. E.
Lyne, W.J.
Moore, W.
Peacock, A. It.
Trenwith, XV. A.
Wise, B. H.

Teller: Higgins, H. B.

 NOES

Barton, E.
Briggs, H.
Brunker, It. N.
Cockburn, Dr. J. A.
Crowder, F. T.
Forrest, Sir It.
Fraser, S.
Hackett, J. W.
Hassell, A. Y.
Leake, G.
O’Connor, R. E.
Quick, Dr. J.
Venn, H. W.
Walker, J. T.
Zeal, Sir W. A.

Teller:Symon, J. H.

Question so resolved in the affirmative.

Mr. BARTON (New South Wales).—I beg to move, Mr. Chairman, that you report progress, and ask leave to sit again.

After drafting amendments and a change in number what was before discussed as Section

109— "THE COMMONWEALTH SHALL NOT MAKE ANY LAW PROHIBITING THE FREE EXERCISE OF ANY RELIGION, OR FOR THE ESTABLISHMENT OF ANY RELIGION, OR IMPOSING ANY RELIGIOUS OBSERVANCE, AND NO RELIGIOUS TEST SHALL BE REQUIRED AS A QUALIFICATION FOR ANY OFFICE OR PUBLIC TRUST UNDER THE COMMONWEALTH" became

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."

It is apparent that Mr. Higgins and others at the debate considered that Section 109 was a copy of the American Constitution either in the original Constitution or by way of the First Amendment which reads "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The drafting amendments of this section were passed without discussion. From the speeches of those involved in the debates it is apparent that the drafting amendments were alteration in form and not substance. They did not alter the intentions of the convention.

Comments on drafting amendments

"such alterations in mere form" P2439
"drafting committee has, in all instances endaavoured to faithfully interpret the
wishes of honourable members:’ P2440
"all that the drafting committee has endeavoured to do is put the wishes of
the convention in more concise and complete form". P2442
are merely drafting amendments and not alterations in substance". P2444
"drafted for clearness and conciseness of- expression". P2481

It is interesting to note that Mr. Barton the leader of the convention who strenuously opposed the adoption of the now Section 116, a few days later in a speech at the end of the convention drew attention of the delegates to two important points in the whole constitution. Remembering that there were hundreds of points he could make about the bill, one of the two points he singled out was what is now known as Section 116. He remarked "it was inserted so that there shall not be any infraction of religious liberty under the laws of the Commonwealth". P2474.

Are we not fortunate that Mr. Higgins convinced the delegates that the dangers which Mr. Barton claimed were practically non-existent, for which Section 116 was inserted to guard against, were real and could occur?

Are not the dangers we face now and in the future the very ones which the founders of Australia sought to avoid?

Religious freedom was secured for us by men of action, and if we are not to be robbed of what has been ours then men of action must still act?

In the light of the DOGS High Court case ( 1981)it should be noted that the High Court refused to take into account the above historical documents, namely the debates when they were invited to interpret Section 116. This meant that the obvious intentions of the Founding Fathers were ignored, particularly by High Court judges like Chief Justice Barwick who indicated that the words in the establishment clause meant what he decided to say they meant.

In 1981, after the DOGS case, the Acts Interpretation Act was passsed. This meant that the High Court judges would be required to take into account the debates and the intentions of the Founding Fathers if they were invited once again to consider the constitutionality of State Aid to Church Schools.