Attorney-General (Vic); Ex Rel Black v Commonwealth

Attorney-General (Vic); Ex Rel Black v Commonwealth - [1981] HCA 2 - HCA 1981 case summary — Zoe

[36]

30. As I have already indicated, I find no ambiguity in the language of s.116. The meaning which "establishing" in relation to a religion bore in 1900 may need examination. But that is not because of ambiguity but to ensure that the then current meaning is adopted. However, whilst I have considered what was the current significance of "establishing any religion" in 1900, I am of opinion that there has been no real change in the significance of the words over the years which have intervened. Doubtless, because of our colonial origins and our remoteness from England, the reality of an established religion has not often been borne in upon the public of this country. Further, even in England, the ramifications or consequences of the existence of an established church have become both less and less apparent. But what would be involved in establishing a religion has, in my opinion, remained constant. In my opinion, as used in an instrument brought into existence at the turn of the century, establishing a religion involves the entrenchment of a religion as a feature of and identified with the body politic, in this instance, the Commonwealth. It involves the identification of the religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion. In other words, establishing a religion involves its adoption as an institution of the Commonwealth, part of the Commonwealth "establishment". One can perceive these concepts in the decision of the House of Lords in General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC 515 . I feel no doubt that this is the sense in which the relevant part of the language of s. 116 was used when our Constitution was formed. As I have indicated, I think the words would mean the same if constitutionally used today. Thus what s. 116 forbids is the passage of a law which will erect a religion into such a relationship to the body politic of the Commonwealth as I have attempted to describe. (at p582)

[50]

4. Non-government schools derive income from fees and other private sources, and receive financial assistance from the States as well as that which the Commonwealth provides under the statutes whose validity is now in question. The statutes passed from time to time vary in detail, but it is sufficient to take the States Grants (Schools Assistance) Act 1979 as an example. That Act provides that "financial assistance is granted to a State" in respect of expenditure in relation to government and non-government schools in the State. In the case of non-government schools, the expenditure may be in respect of an approved building project or equipment project (s.16). Such a project shall not be approved by the Minister if the sole or principal object, or one of the principal objects, of the project is to provide facilities for use, wholly or principally, for or in relation to religious worship: s. 15(2). The financial assistance provided may also be in respect of recurrent expenditure, whether of an approved school system (s.18) or of a non-systemic school (s.19) or in connexion with migrant education (ss. 21 and 22) or disadvantaged schools (ss.24 and 25) or special schools (s.27). The amount payable in each case depends on the discretion of the Minister, subject to specified statutory limits. No express restriction on expenditure for religious purposes, similar to that contained in s.15(2), appears in these sections. Each of the sections under which these grants may be made imposes conditions on the grant. These conditions oblige the State to pay to the approved authority of the school or school system as the case may be an amount equal to that paid to the State in relation to the project, school or school system. A further condition is that the State shall not make a payment unless the approved authority has agreed with the State to ensure that the money is applied for the purpose for which it was approved, and that if it does not fulfil any condition it will, if the Minister so determines, repay to the State such amount (not greater than that paid) as the Minister determines. By s.29 further conditions are imposed on the State-(a) to pay to the Commonwealth any amount repaid by or recovered from an approved authority under the conditions of the agreement and (b) to repay to the Commonwealth such amount (not greater than that paid to it) as the Minister determines if the State does not fulfil any of its conditions. The condition requiring an agreement of the kind mentioned above to be made between the approved authority and the State was first introduced by the Act of 1977; before that time, the relevant condition was that the State should make a repayment to the Commonwealth if the school authority did not fulfil the conditions of the grant. (at p588)

[54]

In Attorney-General (Vict.) v. The Commonwealth (the Pharmaceutical Benefits Case) [1945] HCA 30; (1945) 71 CLR 237, at p 272 , Dixon J. said that this statement expressed the settled doctrine of the Court, and himself restated the principle by saying that the Attorney-General of a State has "a locus standi to sue for a declaration wherever his public is or may be affected by what he says is an ultra vires act on the part of the Commonwealth or of another State". Those statements of principle would I think be applicable in the present case, where the Acts operate on the State of Victoria itself, and on schools within the State. It does not seem to me material that the State of Victoria has accepted the grants of financial assistance made under the Acts. The State is perfectly entitled to say that it will accept the financial assistance if the Acts are valid and the conditions are binding, but that it nevertheless wishes to challenge the validity of the Acts and the conditions. The Commonwealth however says that the Appropriation Acts under which moneys are paid for the assistance of schools in the Territories, and the Independent Schools (Loans Guarantee) Act 1969 under which guarantees are given to enable such schools to borrow money, have no operation in Victoria, and that the Attorney-General for Victoria has no standing to challenge their validity. With all respect I cannot agree. I remain of the opinion which I expressed in Victoria v. The Commonwealth and Hayden (the A.A.P. Case) [1975] HCA 52; (1975) 134 CLR 338, at p 381 , which was the case of a challenge to an Appropriation Act, that "it is involved in the very nature of the Constitution that either the Commonwealth or a State should have standing to institute legal proceedings when the other has exceeded its constitutional authority." Mason J. expressed a similar view in the same case (1975) 134 CLR, at pp 401-402 , but Stephen J. disagreed (1975) 134 CLR, at pp 387-390 and Murphy J. was inclined to agree with him, although he said that if it were claimed that the appropriation or expenditure were in breach of any constitutional prohibition then the position might be different (1975) 134 CLR, at pp 424-425 . In my opinion even where no question arises as to the limits interse of the powers of the Commonwealth and the State, the Attorney-General of a State may sue to compel the Commonwealth to observe the fundamental law of the Constitution, which the citizens of any State has an interest to maintain, although it may not be such a special interest as would enable them as individuals to bring the suit. On the other hand, as at present advised, I gravely doubt whether the other plaintiffs have standing to sue; I hardly think that the fact that they are taxpayers, and in some cases parents of children at government schools, gives them a special interest in the subject matter of the action within the principles stated in the cases collected in Australian Conservation Foundation Inc. v. The Commonwealth (1980) 146 CLR at pp 526-528 . However in Canada an exception to the general principle appears to have been recognized in constitutional cases (Thorson v. Attorney-General(Canada) (No. 2) (1974) 43 DLR (3d) 1 ) and since, for reasons which will appear, it is unnecessary to decide whether these individual plaintiffs have standing, I would express no concluded opinion on the question. (at p590)

[64]

The question is whether if the conditions of a grant of financial assistance require the State to which the grant is made to establish a religion within the meaning of that section, the Act by which the grant is authorized is invalid as contrary to s. 116. It is plain, as Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd. shows, that a condition may be imposed under s. 96 for the purpose of persuading a State to do something which the Commonwealth itself could not do. Pye v. Renshaw [1951] HCA 8; (1951) 84 CLR 58 provides another example. The cases show that the Parliament has wide power to fix the terms and conditions of a grant made under s. 96. In Victoria v. The Commonwealth (the Roads Case) (1926) 38 CLR, at p 406 , it was said that the Federal Aid Roads Act 1926 was "plainly warranted by the provisions of s. 96 of the Constitution, and not affected by those of s. 99 or any other provision of the Constitution", and the statement that grants made under s. 96 are not affected by any other provision of the Constitution was repeated in Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd. (1939) 61 CLR, at pp 763, 771 . On the other hand, in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, at p 123 , Latham C.J. said that s. 116 "prevails over and limits all provisions" (of the Constitution) "which give power to make laws", and McTiernan J. (1943) 67 CLR, at p 156 said that the section "imposes a restriction on all the legislative powers of Parliament". I consider that the ordinary rules of statutory construction should be applied, and that ss. 96 and 116 should be read together, the result being that the Commonwealth has power to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit, provided that a law passed for that purpose does not contravene s. 116. It is one thing to say that the Parliament, by a condition imposed under s. 96, could achieve a result which it lacks power to bring about by direct legislation, but quite another to say that the Parliament can frame a condition for the purpose of evading an express prohibition contained in the Constitution. As the Judicial Committee pointed out in W.R. Moran Pty. Ltd. v. Deputy Federal Commissioner of Taxation (N.S.W.) (1940) 63 CLR, at pp 346-347; (1940) AC, at pp 855 , the powers given by s. 51 of the Constitution are expressly made "subject to this Constitution" which includes s. 96. On the other hand, s. 116 is not expressed to be subject to the Constitution. Of course the same is true of s. 99, but that section speaks of "any law or regulation of trade, commerce or revenue" and a law under s. 96 cannot properly be regarded as such a law: see Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd. (1939) 61 CLR, at p 775 . However, whether or not the provisions of s. 51 can be "completely disregarded" in deciding upon the validity of a law made under s. 96 (as to which see W.R. Moran Pty. Ltd. v. Deputy Federal Commissioner of Taxation (N.S.W.)) (1940) 63 CLR, at pp 349-350 , I consider that the Parliament, acting under s. 96, cannot pass a law which conflicts with s. 116. To take an unlikely example, an Act which granted money to a State on condition that the State would prohibit entirely the exercise of a particular religion would, in my opinion, be a law for prohibiting the free exercise of that religion, and would be invalid. (at p593)

[101]

This third element is of comparatively recent origin and its inclusion was strongly criticized by White and Rehnquist JJ. in Roemer v. Maryland Public Works Board [1976] USSC 131; (1976) 426 US 736, at pp 767-768 (49 Law Ed 2d 179, at p 200) ; and since it appears to have suggested one of the arguments put by the plaintiffs in the present case, I may say immediately that it finds no support in the words of the establishment clause in s. 116. It would serve no useful purpose for me to discuss the cases on both sides of the borderline, in which the Supreme Court has considered the validity of legislative provisions which authorize the giving of financial aid to church schools, but it is clear that the Supreme Court has not taken the view that the establishment clause entirely forbids the grant of any financial aid to church schools. A few examples will suffice. The Supreme Court has held valid a statute which authorized grants to schools and universities for the construction of buildings and facilities used exclusively for secular educational purposes (Tilton v. Richardson [1971] USSC 158; (1971) 403 US 672 (29 Law Ed 2d 790) ), a statute whose purpose was to provide assistance, primarily through the issue of revenue bonds, for higher education in the construction, financing and re-financing of building projects, not including any facility used for sectarian instruction, religious worship or the study of divinity (Hunt v. McNair [1973] USSC 173; (1973) 413 US 734 (37 Law Ed 2d 923) ), a statute which provided grants to colleges provided that the moneys should not be used for sectarian purposes (Roemer v. Maryland Board of Public Works [1976] USSC 131; (1976) 426 US 736 (49 Law Ed 2d 179) ) and a statute reimbursing schools for performing various testing and reporting services required by state law (Committee for Public Education and Religious Liberty v. Regan [1980] USSC 22; (1980) 444 US 646 (63 Law Ed 2d 94) ), although, in each of these cases, church schools as well as secular schools benefited under the statutes. On the other hand there are many decisions of the Supreme Court which have invalidated legislation giving aid to church schools, and some of those cases are - at least for someone from another jurisdiction - difficult to reconcile with those to which I have just referred. (at p602)

[187]

15. Three meanings of "establishing" in s. 116 have been advanced. The first and narrowest means establishing one national church or religion. The second ("preferential") means preferring, by sponsorship or support, any religion over others (and therefore includes the first). The third ("separation") means any sponsorship or support of religion (and therefore embraces the first two). These meanings are therefore not mutually exclusive. The separation interpretation of the clause means that it forbids not only a national church, and any preference to one religion over others, but also sponsorship or support (including financial support) of any religion. The ordinary principle that constitutional provisions should be read not narrowly, but "with all the generality which the words admit", strongly supports the adoption of the more general reading, that is, the separation interpretation. There are other considerations which support the adoption of this interpretation. The guarantees of personal freedom against the imposition of any religious observance and the prohibition of free exercise of any religion and the requirement of any religious test should be read widely consistently with their brevity and with constitutional usage. As I said in Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth [1975] HCA 53; (1975) 135 CLR 1, at p 65 "Great rights are often expressed in simple phrases." It would detract greatly from the freedom of and from religion guaranteed by those clauses if they were to be read narrowly. In the same way the establishment clause should be read widely. To refuse to read the establishment clause with generality because so read it covers some of the ground covered by the other guarantees in s. 116 is to interpret s. 116 as if it were a clause in a tenancy agreement rather than a great constitutional guarantee of freedom of and from religion. It would be just as incorrect to narrow the broad meaning of free exercise of any religion because otherwise it would overlap with the clauses prohibiting imposition of religous observances and religious tests. Some laws would breach more than one, even all the clauses - for example a requirement that every candidate for office under the Commonwealth make a particular religious observance. The idea that the establishment clause should be read down so as not to overlap with the free exercise clause has been rejected in the United States (See Engel v. Vitale [1962] USSC 116; (1962) 370 US 421 (8 Law Ed 2d 601) ). (at p623)

[236]

41. The fact is that under the Commonwealth laws vast sums of money are being expended for the support of church schools. The result of the capital grants Acts is that great and increasing sums are being given to churches to acquire property, which can then lawfully be used for religious purposes apart altogether from schooling. Although the States Grants (Schools Assistance) Act 1978 forbids approval of projects (for grants) "if the sole or one of the principal objects" is "to provide facilities for use, wholly or principally, for in relation to religious worship" (s. 15), this does not prevent a grant for a project as long as religious worship is not the sole or principal object, or one of the principal objects and the Act does not prevent subsequent use of the property for any purpose, even exclusive use for religious worship. The evidence showed that two Catholic parish school buildings, at Churchill and Corio in Victoria although not used wholly or principally for or in relation to religious worship, have been used for religious purposes (apart from schooling). Eighty per cent of the Catholic primary school building at Churchill in the Latrobe Valley, in Victoria was contributed by the payment of Commonwealth grants. The building is also used as the local parish church. A nearby street sign indicates that the building is a Catholic church. $127,000 of the $180,000 cost of construction of the parish primary school in Corio outside Geelong, was provided out of Commonwealth grants. Both these buildings have been used for celebration of mass for the local parish each Sunday, and for confessions eac Saturday, and occasionally for other religious services. There is nothing in the challenged Acts to restrict similar use of other property obtained with moneys given to the churches pursuant to these Acts. The effect of the Grants Acts is that the wealth of the churches is increased annually by many millions of dollars of taxpayers' moneys. They have the effect of establishing religion. As Douglas J. observed "In common understanding there is no surer way of 'establishing' an institution than by financing it" (Wheeler v. Barrera [1975] USSC 117; (1974) 417 US 402, at p 430 ). (at p633)

[310]

(4) In the exercise of its functions, the Commission shall have regard to such matters as are relevant, including the need for improving primary and secondary educational facilities in Australia and of providing increased and equal opportunities for education in government and non-government schools in Australia and the need for ensuring that the facilities provided in all schools in Australia, whether government or non-government, are of the highest standard, and, in particular, shall have regard to - (a) the primary obligation, in relation to education, for governments to provide and maintain government school systems that are of the highest standard and are open, without fees or religious tests, to all children; (b) the prior right of parents to choose whether their children are educated at a government school or a non-government school; (c) the educational needs of handicapped children and handicapped young persons; (d) the needs of disadvantaged schools and of students at disadvantaged schools, and of other students suffering disadvantages in relation to education for social, economic, ethnic, geographic, cultural, lingual or similar reasons; (e) the need to encourage diversity and innovation in education in schools and in the curricula and teaching methods of schools; (f) the need to stimulate and encourage public and private interest in, and support for, improvements in primary and secondary education and in schools and school systems; (g) the desirability of providing special educational opportunities for students who have demonstrated their ability in a particular field of studies, including scientific, literary, artistic or musical studies; and (h) the need, in relation to primary and secondary education and in schools and school systems, to promote the economic use of resources. (5) For the purpose of the performance of its functions, the Commission may undertake, or cause to be undertaken, such research as it thinks necessary into matters that relate to the functions of the Commission." (at p643)

[348]

30. In my opinion, the plaintiffs' argument concerning the application of s. 116 carries great weight. The section is clear and emphatic in its command, opening with the words "The Commonwealth shall not make any law . . . ". Quite clearly, it applies to laws enacted pursuant to the powers conferred by s. 51, including pl. (XXiiiA) which refers, inter alia, to benefits to students. I would expect it also to control the exercise of power pursuant to s. 122 relating to laws for the government of any territory, and this was the view taken by the full bench of this Court in Teori Tau v. The Commonwealth [1969] HCA 62; (1969) 119 CLR 564, at p 570 . The real difficulty arises in the case of fiscal laws of the Commonwealth, having their source of power in ss. 81 or 96. With respect to the latter section, the defendants argue that the reliance of the plaintiffs on the statements of Latham C.J. and McTiernan J. in Jehovah's Witnesses is misplaced because those statements were obiter dicta, and in so far as they could support the proposition that s. 96 is subject to s. 116 they are inconsistent with other decisions of the Court upon the effect of s. 96. It is said that in Victoria v. The Commonwealth (the Federal Aid Roads Case) [1926] HCA 48; (1926) 38 CLR 399 the Court decided that a grant of financial assistance to the States made by virtue of the provisions of s. 96 is "not affected by those of s. 99 or any other provisions of the Constitution", and that this formulation was adopted by Latham C.J. and Starke J. in Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd. [1939] HCA 27; (1939) 61 CLR 735, at pp 763, 775 . Despite the breadth of the dictum cited, these cases were concerned with the validity of a s. 96 law the terms and conditions of which related to a subject matter which was not within the legislative power of the Commonwealth, and also with the relevance to such a law of the express prohibitions relating to discrimination and preference found in s. 51 (ii) and s. 99 respectively. There is no doubt that they establish the proposition that the power conferred by s. 96 is well exercised although "the object is outside the powers of the Commonwealth" (per Dixon C.J. in Victoria v. The Commonwealth (the Second Uniform Tax Case) [1957] HCA 54; (1957) 99 CLR 575, at p 606 . But save as to s. 51 (ii) and s. 99, the focus was upon purposes in respect of which the Commonwealth lacked a positive power, not purposes the pursuit of which by the Commonwealth was expressly forbidden; in the case of the prohibitory character of s. 51 (ii.) and s. 99, the impact of these provisions in avoided by the express words of s. 96, the very terms of which contemplate preference and discrimination as between States. (at p650)

[363]

42. Furthermore, it may be thought to be surprising that a prohibition of the kind that I have described was included in the absence of any express legislative power whereby the Parliament could ever have pursued such an objective. It may be that the explanation for any such incongruity is to be found in the chequered history of the clause in the constitutional conventions in the eighteen-nineties, and in an anxiety lest an inference of power was to be drawn from the acknowledgment of Almighty God in the preamble to the Commonwealth of Australia Constitution Act. While on present authority it is not permissible to seek the meaning of s. 116 in the convention debates, I may say that I find it interesting that in the course of the conventions the religion clause began as a denial of power to the States, then was re-addressed to both the States and the Commonwealth, and finally took its present form. The separationist view of establishment, for which the plaintiffs contend, does not sit well with the form of s. 116, addressed as it is only to the Commonwealth Parliament. The objective sought to be achieved by a clause construed consistently with the plaintiffs' contention could so easily be subverted by any of the State legislatures, which remain free to give such aid or support to religious bodies as they wished. But no State legislature could establish a national religion, and hence the prohibition was rightly directed to the Commonwealth. It will also be recalled that the 1898 Convention was invited to adopt a form of words for the religion clause which would have placed the present issue beyond doubt, when an amendment from Tasmania to the effect that the clause include the words "nor appropriate any portion of its property for the propagation or support of any religion" was proposed and defeated. Be these things as they may, I believe it would be wrong to attach undue significance to the history of the clause. The actual words of the text supply the only firm ground on which to base a conlusion. (at p654)

[367]

46. Given the interpretation of s. 116 that I have expounded, it would seem to follow as a matter of course that these contentions must necessarily fail. Nevertheless, it is appropriate that I should make some observations about the scheme embodied in the legislation. In my opinion, the summary of the provisions of the States Grants (Schools Assistance) Act 1978 that appears earlier in these reasons clearly reflects a secular legislative purpose, that of upgrading the quality and range of education in primary and secondary government and non-government schools throughout Australia. Even if one accepts the plaintiffs' submissions on the facts, it cannot be said that the primary effect of the legislation is to advance religion. It may be true that in many cases one effect may be to advance religion appreciably, but, even so, such a result is not central to the operation of the legislative scheme. It is an incidental or indirect consequence of the pursuit of the educational purpose. In no case is religion a criterion which attracts a grant. Even the most "religious" of the schools which have received assistance are first and foremost educational institutions which are required to strive for a range and quality of education which is at least comparable to government schools. The amount of time devoted to secular instruction in such schools is necessarily substantial, the cost of which obviously forms the major part of the recurrent expenditure of the school. Similarly, the fact that some school buildings may be used for religious instruction for some periods each week cannot obscure the predominantly secular user reflected in the general balance of the secular purpose to the religious goal. The third of the schedules which appear earlier in these reasons makes it clear that, notwithstanding increased contributions from both Commonwealth and State legislatures, non-government schools are still required to fund a substantial part of their expenditure from private sources. (at p656)

At a glance

Court

Decision date

Source

Judgment (388 paragraphs)

Attorney-General (Vic); Ex Rel Black v Commonwealth ("DOGS case") [1981] HCA 2; (1981) 146 CLR 559 (2 February 1981)

Parties

Legislation Cited (7)

Cases Cited (27)