44 The plaintiffs' claims include the proposition that the impugned legislation has the effect that the free exercise of religion is prohibited "in that the project, when operating, will prohibit the free exercise of other religions and faiths at the said institution or facility" (emphasis added): see paragraph 37(c) of the Amended Points of Claim. Again, on the plaintiff's approach, the Greek Orthodox Church, by establishing the prayers and practices of the Greek Orthodox religion at its churches, must prohibit or preclude the free observance of the Anglican faith or the Baha'i and other faiths in Australia. Adherents of the Catholic faith would no doubt be surprised to learn that by conducting a Mass at St Mary's Cathedral, the Catholic Church thereby prohibits the free observance of Judaism in Australia. To so state the propositions inherent in the plaintiffs' case demonstrates the flaws contained within it, both as to the free exercise provision and the imposition provision, which I shall deal with further below.
The imposition provision
45 It was agreed that there have been no cases to date dealing with the imposition provision of s 116 of the Constitution. The defendants pointed out that even in Black, no argument based on the imposition provision was maintained. Mr King drew my attention to what Latham CJ had said in Adelaide Company of Jehovah's Witnesses Inc. v Commonwealth (1943) 67 CLR 116 at 131:
"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." The word "for" shows that the purpose of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character."
46 I respectfully adopt the proposition that to impose by legislation a requirement that persons must perform or adopt any religious observance when they are of another faith or have no religion is wholly inconsistent with religious freedom, including the freedom to have no religious beliefs: see Jehovah's Witnesses at 123 per Latham CJ and Kruger at 160 per Gummow J.
47 Beyond that, however, there is no substance whatsoever in the plaintiffs' argument for these reasons:
(1) The approach taken in Black and Kruger requires the Court to consider whether the impugned law has as its purpose, end or object (or has as one of its purposes, ends or objects, on the approach of Toohey J and Gaudron J in Kruger ) one that is prohibited by s 116, that is, here, imposing any religious observance. I can see no reason in logic or principle why the approach taken in Black and Kruger would not be applied to this element of s 116;
(2) The impugned legislation does not expressly or impliedly, directly or indirectly, impose any religious practice on anyone in relation to denominational schools of the Islamic faith or any other faith or in relation to non-denominational schools;
(3) No one is required to send their children to the School, and no one is prevented from withdrawing their children from the School. To the extent that children are required to attend the School because their parents have enrolled them, they are in no different a position to any other child at any other school in Australia;
(4) A law does not impose any religious observance if it simply assists those of various faiths to educate their children in that faith, whilst providing an education that meets the requirements of the state education authorities; and
(5) If the legislation has the effect of assisting a particular religion, this is not sufficient on the approach taken in respect of the establishment provision: see Black at 584 per Barwick CJ, at 604 per Gibbs J, at 616 per Mason J, and at 653 and 656-657 per Wilson J (Aickin J agreeing with Mason J and Wilson J at 635).
48 I do not think that the passage from Jehovah's Witnesses at [45] above assists Mr King's argument. No one is suggesting that this Court cannot determine whether a particular law does or does not infringe s 116 of the Constitution. The point is that here it is clear that the impugned legislation does not infringe s 116. If there was a real argument that the legislation infringed s 116, then indeed it should go to trial, but there is no tenable argument for the reasons that I have outlined.
49 I set out a submission made by Mr King at T109.41-110.4:
"In particular, the argument that the first clause of 116 necessarily focuses on the notion of the national institution and therefore being Commonwealth focussed and not on issues of discrimination and difference in treatment, direct or indirect, on the ground of religious observance or prevention of free exercise of religion whether at the local level or the State level or the national level because we ask, what happens if a student does not wish to perform a strict observance and is mistreated as a result? Is the taxpayer funding educational services or mistreating the student or other person on the ground of religion? That sort of issue can arise any day in a local context or a national institution. We submit that none of those provisions were the subject of debate in those cases in that or similar context and there is no proper reason why those arguments are not available both from the text of section 116 and on the authorities."
The reference to the hypothetical question "what happens if a student does not wish to perform a strict observance and is mistreated as a result" suffers from three problems: first, it has not been pleaded as a fact; secondly, it cannot be pleaded as a fact; thirdly, it cannot be pertinent to the question of whether the legislation in question infringes s 116. The moral question of whether children of any faith should receive instruction in the faith of their parents and how they are to be dealt with if they do not wish to be so instructed may be an interesting one, but it is not germane to any question that this Court has to determine.
Alleged circumvention of section 116 of the Constitution
50 Mr King drew attention to three other High Court decisions: ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242, and Spencer. He submitted that ICM Agriculture and Arnold demonstrate that the legislative power of the Commonwealth conferred by s 96 of the Constitution to grant financial assistance to the states on such terms as the Commonwealth Parliament thinks fit is subject to constitutional guarantees - in those cases, the restriction in s 51(xxxi) of the Constitution: see T84. He submitted that the two decisions consider the possibility that funding legislation may be invalid because it attempts to circumvent constitutional guarantees and relied on the passage from Gummow J's judgment in Kruger at page 161 (set out at [41] above) to support the extension of the principles enunciated in ICM Agriculture and Arnold from s 51(xxxi) to the proscriptions contained in s 116 of the Constitution: see T104.27-30.
51 In Spencer, the plaintiff brought proceedings against the Commonwealth in the Federal Court. He argued that as a result of New South Wales legislation which imposed restrictions on the clearing of vegetation on his farm, property had been acquired from him other than on just terms and the acquisition had been made in furtherance of agreements between the State and the Commonwealth. He claimed that the Commonwealth laws which authorised those agreements were enacted for the purpose of acquiring property other than on just terms and therefore contravened s 51(xxxi) of the Constitution. The plaintiff argued that the arrangements between the Commonwealth and the State were a scheme or device designed to circumvent the restriction on the Commonwealth's legislative powers contained in s 51(xxxi).
52 Emmett J dismissed the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), which permits that Court to give judgment for one party if it is satisfied that the other party has "no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". The Full Court of the Federal Court rejected Mr Spencer's appeal. The High Court unanimously upheld Mr Spencer's appeal from the Full Court of the Federal Court.
53 The High Court was of the view that Mr Spencer's case raised a factual question as to whether there was any arrangement or understanding between the Commonwealth and the State beyond what appeared in the relevant inter-governmental agreement and applicable legislation, as well as an associated question as to whether there was any constitutional significance in such an arrangement. The latter point had been expressly reserved for future consideration in ICM Agriculture (at 168 per French CJ, Gummow and Crennan JJ), which was handed down after the decision under appeal in Spencer.
54 ICM Agriculture, Arnold and Spencer all consider the question of whether the Commonwealth, by the use of state legislation, has endeavoured to avoid a restriction in the Constitution. That is far removed from the situation in this case. Here, there is Commonwealth legislation enacted, and its purpose is plain. The Schools Assistance Act and the Education Act have the purpose, end or object of providing assistance to non-government schools, subject to various requirements. Since the Commonwealth legislation does not infringe s 116 of the Constitution directly or indirectly, expressly or impliedly, the State legislation cannot contravene s 116, even if the prohibitions contained in s 116 apply to state legislation, which they do not (a matter dealt with below).
State legislation and section 116 of the Constitution
55 To the extent that the plaintiffs attack the Education Act as an infringement of s 116 of the Constitution, they face an immediate problem: s 116 does not deal or purport to deal with state legislation. The proscriptions in s 116 are against laws of the Commonwealth: "The Commonwealth shall not make any law for…".
56 Reliance was placed on covering clause 5 of the Constitution (see T111.30-35) to assert that state legislation of any description should be seen as being brought impliedly within the guarantees contained in the Constitution in some general sense, but there is no authority to support this proposition and there is authority at an intermediate Court of Appeal level against it: see Grace Bible Church v Reedman (1984) 36 SASR 376 at 379 per Zelling J, at 385 per White J and at 389 per Millhouse J and R v Gorton [2001] QCA 43; see also Kruger at 124-125 per Gaudron J.
57 Mr King also drew attention to Attorney-General (WA) v Marquet (2003) 217 CLR 545. In Marquet, the High Court held by a majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, Kirby J dissenting) that a Western Australian law that sought to affect electoral boundaries and amend the Electoral Distribution Act 1947 (WA) had not been passed in accordance with the requirements of that Act and was invalid by virtue of s 6 of the Australia Act. Mr King submitted that Marquet demonstrates that the New South Wales Parliament is constrained by s 5 of the Australia Act: see T110.39-111.6. I accept that submission, but it does not assist his argument. The Education Act does not repeal or amend, and is not repugnant to, the Australia Act, the Constitution, or the Statute of Westminster 1931. However, Mr King further submitted that s 5 of the Australia Act has the effect that s 116 of the Constitution "voluntarily by State law applies and those protections apply": see T111.35. In my view, s 5 does not have that effect. It merely recognises that the legislative powers of the states are subject to, and cannot be inconsistent with, the legislative powers given to the Commonwealth by the Constitution.