PRINCIPLES, PRAGMATISM AND POWER: ANOTHER LOOK AT THE HISTORICAL CONTEXT OF SECTION 116.

• Date: 01 April 2020
• Author: Deagon, Alex

CONTENTS I Introduction II Beck's Safeguard against Intolerance Theory III The Theological Context: Mainstream Christian Views on Church, Religion an the State A Roman Catholic Perspectives B Historical Protestant Perspectives C Modern Protestant Perspectives and Presbyterianism IV Principle or Pragmatism? Constitutional Recognition of God and Protestant Political Theology V Separating Religion and the State A The Seventh Day Adventist Position: Strict Separation B The Mainstream Christian Response: Institutional Separation, Beneficial Interaction VI Conclusion I INTRODUCTION

At face value, the Australian Constitution imposes significant limitations on the Commonwealth's power to legislate in relation to religious matters. Section 116 provides:

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. The High Court has typically adopted a narrow interpretation of s 116, approaching it through the lens of federalism as a limitation on Commonwealth power, rather than as a guarantee of civil liberties. (1) Different approaches have been proposed by commentators. In 1992, Stephen McLeish challenged the High Court's approach, proposing in its place a 'neutrality' theory. (2) According to McLeish:

[U]nderlying s 116 there exists a general conception of state neutrality toward religion, reflected both in the avoidance of religious preferences and in respect for the autonomy of individuals in matters of religion, especially as participants in the wider community. (3) Most recently, Luke Beck has proposed a further alternative, which he calls the 'safeguard against religious intolerance' theory. (4) Beck argues that s 116 is best understood as a safeguard against religious intolerance, according to which the four clauses of s 116 exist to prevent the Commonwealth from attempting to legislate in a manner that is religiously intolerant, where religious intolerance is defined as the attempt to change or suppress religious beliefs or practices, or impose penalties for holding or following them. (5)

In articulating this view, Beck has undertaken a detailed consideration of the theological, political and legal factors at play in the Federation Conventions which eventually led to the recognition of God in the Preamble to the Constitution and the adoption of s 116--including the theological and political views held by contemporaries regarding church, religion and state, and the reasons why church groups devoted such energies to agitating for constitutional recognition and s 116. (6) This article examines the historical and theological background to the recognition of God in the Preamble and the insertion of s 116 into the Constitution, and challenges the interpretation of that context, and the implications for s 116, presented by Beck. We express no view in regard to Beck's claim that the historical context is necessary to understand s 116 properly. (7) We are not providing a normative argument about the importance of history or claiming that history is determinative for constitutional interpretation. Instead, we critique Beck's specific claims about the historical context and suggest implications for how convincing his proposed theory is. We argue that Beck has misread crucial aspects of that context, which significantly weakens his proposed safeguard against religious intolerance theory. In particular, Beck's account rests on a misunderstanding of the principles of Protestant political theology. The portrayal of the recognition campaign as unprincipled does not do justice to the real motivations of the petitioners. It ignores the principled theological reasons that formed the basis for the argument for recognition, which were consistent with standard Protestant political-theological convictions.

Secondly, broadly following the Seventh Day Adventists, the arguments made by Beck consistently conflate 'church' and 'religion, which were not, and are not, the same thing. Beck expressly characterises s 116 as a 'separation of religion and government provision'. (8) Many aspects of his argument are consistent with this characterisation, such as his argument that the recognition debate was about church leaders seeking political power. (9) In contrast, while contemporaries consistently argued for an institutional separation of church from the institutions of government, a prevailing view was that religion and the state remained closely intertwined. (10) This is an important feature of the historical context that Beck ignores in his theory of s 116.

We outline Beck's theory in Part II. Beck's treatment of the historical context contains a detailed analysis of the views of the Seventh Day Adventists and briefly considers the Council of Churches. One significant omission is his failure to consider mainstream Christian perspectives on constitutional recognition and s 116 in adequate detail. Given that such perspectives are more likely to have accurately reflected broader public opinion at the time of Federation, and consequently have exerted a greater influence on the framers' thinking than the views of the much smaller Adventists (or any other religions), these perspectives are necessary for an accurate understanding of the context. Accordingly, Part III considers Protestant theological views, and the views of the Council of Churches (the broad coalition of Protestant church groups who campaigned for constitutional recognition) together with two prominent mainstream Christian denominations (Roman Catholics and Presbyterians), regarding the relationship between church, religion and the state. Part IV draws on this analysis to argue that the campaign for constitutional recognition was based on deep principles and convictions stemming from Protestant and Roman Catholic theology, undermining Beck's contention that recognition was principally about power, politics and expediency.

Part V considers the views of the Seventh Day Adventists and their underlying theological principles. Beck's work demonstrates that the Adventists had an important influence in lobbying for the protection of religious freedom, and his argument is clearly sympathetic to their views. (11) However, the vast majority of the Australian people at the time of Federation did not accept the principles underlying the Adventist position. Contrary to the Adventist view, and the arguments made by Edmund Barton, the majority accepted the need for an institutional separation of church and state but rejected the idea that this required a total separation of religion and government. (12) Accordingly, although the Adventist proposal for a protection of religious liberty was ultimately adopted into the Constitution as a response to the recognition campaign, their views cannot be taken as the only reason for the incorporation of s 116 into the Constitution. In Part VI, we conclude that Beck's failure to appreciate that the campaign for constitutional recognition was principled and not pragmatic--and his failure to consider broader aspects of the historical context--significantly weaken his proposed theory of s 116.

II Beck's Safeguard against Intolerance Theory

Beck's proposed account of s 116 is a 'safeguard against religious intolerance theory'. (13) Beck follows the definition of intolerance set out by Melissa Williams and Jeremy Waldron, (14) arguing that religious intolerance is to be understood as the attempt to change or suppress religious beliefs or practices, or impose penalties for holding or following them. (15) Beck's theory explains the purpose of the four clauses of s 116. In summary, establishing a religion is intolerant 'because it frames those who are not members of the established religion as outsiders'; imposing a religious observance amounts to 'an attempt to change the religious practices of individuals'; prohibiting the free exercise of religion 'is explicitly the suppression of religious practices'; and imposing a religious test for public office 'penalises individuals who do not adhere to favoured religious beliefs ... by denying them access to public office'. (16)

Beck's proposed theory is 'a constitutive theory of the origins of s 116 and not a doctrinal interpretation of the constitutional provision's legal operation and effect'. (17) That is, his theory aims to answer the question: what kind of provision is s 116? It explains the purpose or foundation of the provision, and does not explain how courts ought to interpret s 116. The theory is proposed in contrast to the neutrality theory proposed by Stephen McLeish in 1992. (18) McLeish's neutrality theory is intended to construe s 116 as 'a guarantee of civil liberty' with an individual rights focus, assessing the impact of a law on individuals rather than as a limitation on federal power. (19)

Beck gives detailed reasons why the neutrality theory is wrong, (20) but devotes much less space to explaining why the safeguard against religious intolerance theory is correct. (21) Beck argues that a 'constitutive theory of the foundations of s 116 needs to have a negative direction and be conceptually modest in terms of its substantive content'. (22) Beck points out a number of similarities or characteristics that his theory shares in common with certain features of Australian constitutionalism or the drafting history of s 116. The first is that the theory does not give conceptual primacy to rights. (23) Secondly, the principal objective of the 1897-98 Federal Convention, according to Beck, was to deny power to the Commonwealth to legislate on the subject of religion; thus, the framers intended to prevent a vice, not imbue with a virtue. (24) As a result, any constitutive theory of s 116 must have a 'negative direction'. (25) Concern that any exercise of Commonwealth legislative...