Luke Beck (Monash University - Faculty of Law) has posted A Question of Characterisation: Can the Commonwealth Facilitate the Imposition of Religious Observances? (Monash University Law Review, Vol 43, No 3, pp. 828-844, 2018) on SSRN. Here is the abstract:
The ‘religious observances clause’ of s 116 of the Australian Constitution provides that ‘[t]he Commonwealth shall not make any law … for imposing any religious observance’. In Hoxton Park Residents Action Group Inc v Liverpool City Council (‘Hoxton Park’), the appellants argued that Commonwealth legislation governing federal funding of private schools was, in its application to a particular Islamic school in suburban Sydney, a law for imposing religious observances. The general argument was that since the school imposed religious observances on its students and the federal funding enabled the school to operate, the Commonwealth law operated to facilitate the school’s imposition of religious observances on its students. It followed, so the argument went, that the Commonwealth law was a law for imposing religious observances.
The New South Wales Court of Appeal rejected that argument and the High Court refused an application for special leave to appeal saying there is ‘no reason to doubt the correctness [of] the conclusion of the Court of Appeal’. Whilst the Court of Appeal might have come to the correct conclusion, there are, as this article will show, three serious ﬂaws in the reasoning adopted by the Court of Appeal that deserve critical attention. Those ﬂaws concern the role of legislative purpose in s 116 analysis, whether s 116 prohibits laws that impose religious observances indirectly and the role of consent in determining a religious observances clause challenge. These ﬂaws need to be highlighted and critiqued lest they erroneously become accepted features of s 116 jurisprudence.