Religious Freedom and the Australian Constitution

Origins and Future

Luke Beck

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351257749
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the origins of Australia's constitutional religious freedom provision. It explores, on the one hand, the political activities and motives of religious leaders seeking to give the Australian Constitution a religious character and, on the other, the political activities and motives of a religious minority seeking to prevent the Australian Constitution having a religious character. The book also interrogates the argument advanced at the Federal Convention in favour of section 116, dealing with separation of religion and government, and argues that until now scholars and courts have misunderstood that argument. The book casts new light to show how the origins of the provision lead to section 116 being conceptualised as a safeguard against religious intolerance on the part of the Commonwealth. Written in an accessible style, the work has potential to influence the development of constitutional doctrine by the High Court through its challenge of historical assumptions on which the High Court's current doctrine is based. Given the ongoing political debates concerning the interaction of discrimination law and religious freedom, the book will be of interest to academics and policy-makers working in the areas of law and religion, constitutional law and comparative law.

1 A sabbath breaker in the stocks

The presence of a provision in the Australian Constitution separating religion and government and offering some protection of religious freedom in Australia owes much to the civil disobedience – or perhaps wilful criminality – in 1894 of a bricklayer.¹

In the early afternoon of 29 July 1894, Constable Thomas Burke of the Sydney police witnessed a shocking crime. The constable saw Robert Shannon, later described by a newspaper as ‘an undersized man’, building a house on Albion Street in Leichhardt, in what is now the inner west of Sydney. The particulars of the crime were that Shannon was mixing mortar and laying bricks. It was a Sunday. Robert Shannon was a bricklayer by trade.

As was his duty, the constable remonstrated with the bricklayer. The constable asked the bricklayer if he knew the day was a Sunday and if he knew he was breaking the law by working in his usual calling on the Sabbath. Even though 29 July 1894 was indeed a Sunday, the bricklayer denied the day was the Sabbath. Shannon told the constable, ‘I don’t care about the law. I work here every Sunday, and will continue to do so.’

The law in question was a statute passed in England during the reign of Charles II and which was in force in New South Wales in 1894. The Sunday Observance Act 1677,² required that ‘all and every person and persons whatsoever shall on every Lords day apply themselves to the observation of the same by exercising themselves thereon in the dutyes of Piety and true Religion publiquely and privately.’³ Unfortunately for Robert Shannon, the Act also required that no ‘Tradesman, Artificer Workeman Labourer or other Person whatsoever shall doe or exercise any worldly Labour, Busines or Worke of their ordinary Callings upon the Lords day or any part thereof (Workes of Necessity onely excepted).’⁴ In other words, working on Sundays was a crime.

On 9 August 1894, Shannon was prosecuted at the Glebe Police Court before Mr G H Smithers, Stipendiary Magistrate. Given that a police officer had caught Shannon in the act, one might think that the case was open and shut and that the best course of action would be for Shannon to plead guilty. Shannon, representing himself, defended the charge.

Shannon admitted in court that he was indeed working on 29 July. However, he was not guilty, Shannon told the magistrate, because there is nothing in the Bible to justify calling Sunday the Lord’s Day. ‘I believe in keeping the seventh day’, Shannon told the magistrate, explaining that the Sabbath was actually Saturday. The magistrate told Shannon that the court would not be entering into a theological debate about which day was the Sabbath.

Shannon was one of about 80 members of a Seventh Day Adventist congregation that met at Chippendale. As a Seventh Day Adventist, Shannon believed that Saturday rather than Sunday was the Sabbath. The Seventh Day Adventists knew Shannon’s case was important. A number of them, including the head of the denomination in New South Wales, were present in the public gallery for Shannon’s trial.

Shannon had a second argument in his defence. He gave the magistrate a copy of a proclamation issued in 1858 by Queen Victoria. In part, the proclamation declared:

Firmly relying, ourselves, on the truth of Christianity, and acknowledging with gratitude the solace of religion, we disclaim alike the right and the desire to impose our convictions on any of our subjects. We declare it to be our royal will and pleasure that none be in any wise favored, none molested or disquieted, by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in authority under us that they abstain from all interference with the religious belief or worship of any of our subjects, on pain of our highest displeasure.

The magistrate told Shannon that the proclamation could not alter the Act. In any case, the proclamation was a ‘Proclamation to the Princes, Chiefs, and People of India’ and was never intended for New South Wales.

Shannon then asked the magistrate to postpone the case. The magistrate declined and brought the trial to its inevitable conclusion. Newspapers carried part of the trial’s transcript:

Shannon: Will you postpone the case?

The Magistrate: I cannot. You have practically admitted the offence.

Shannon: Not on the Lord's Day.

The Magistrate: I can only administer the law, but no doubt you were actuated by conscientious scruples. You are fined 2 shillings 6 pence and costs, or in default to be set publicly in the stocks for two hours.

Shannon: I will prefer the stocks to paying.

Police Sergeant: All right, you will find them ready for you!

The old legislation prescribed a penalty of a fine or ‘in default . . . or in case of insufficiency or inability of the said offender to pay . . . then the party offending shall be set publicly in the stocks by the space of two hours.’ Outside court, Shannon told reporters he was determined not to pay the fine.

The authorities faced a significant problem in carrying out the sentence. The use of stocks had fallen into disuse by 1894. No stocks were available. Unsure of what to do, officials at the courthouse wrote to the Department of Justice for advice.

Departmental officials had a solution. Stocks would be made. The Sydney Evening News described the solution:

[I]nstructions were issued to have a pair of what were known as trestle stocks prepared. These are simple in design, similar to the trestles used by carpenters, but in the middle of each there is a cavity about the size of a man’s ankle. Secured by bolts at one end, and working on hinges, are two hasps, semi-circular in shape, which can be padlocked over the cavity in question, thereby effectually securing a man’s ankles or hands in their iron grasp.⁵

Departmental officials also had ideas about where they would carry out the sentence. The Evening News reported: ‘It was proposed to carry the sentence into effect by seating the culprit on a form outside the Glebe Court and fastening his ankles in the manner described.’

Not surprisingly, there was public consternation at the prospect of the authorities placing a person in stocks. Public concern extended even to other colonies. In Melbourne, the leader of Australasian Union Conference – the governing body of the Seventh Day Adventists in Australia – an American called A G Daniells gave a protest speech before a large audience at Prahran Town Hall. In that speech, Daniells explained that Seventh Day Adventists like Robert Shannon could not pay fines for working on Sundays because paying would be admitting that they had done something wrong. It was wrong and contrary to scripture, Daniells said, for government to enact and enforce religious laws and right for people of conscience to ignore such laws.

Daniells also travelled to Sydney to continue his protests, including speaking at a public meeting at Leichhardt Town Hall. That public meeting was attended by a member of parliament. The politician complained that Shannon was a hypocrite because Shannon required the men who worked for him not to work on Saturdays. Daniells replied that the situation was entirely different. Shannon’s workers were not compelled by law to observe any Sabbath and had freely entered into Shannon’s employment knowing his business did no work on Saturdays.

Newspapers described the law as ‘odious.’ The Under-Secretary of the Department of Justice issued a public denial that there was ever any plan to construct stocks.

Ignoring the plans drawn up by officials, the government had its own solution to the problem of Robert Shannon’s sentence. The government advised the Governor to remit Shannon’s sentence. Shannon was let off.

Robert Shannon was not the only person prosecuted under the old Sunday laws. Enforcement of the law was, however, highly selective. What motivated the New South Wales government in enforcing the law was not any sense of religious piety or even any sense that the law should be obeyed simply because it is the law. Indeed, as newspapers pointed out, the government itself was among the worst offenders. Government railway services operated on Sunday, for example. Other habitual offenders included newspaper publishers who worked on Sundays preparing their Monday editions.

The leader of the Seventh Day Adventists in New South Wales complained in a letter to the editor of The Australian Star newspaper about why the law was being enforced in a selective manner. It was hardly a coincidence, Pastor M’Cullagh wrote, that the government began to enforce the Sunday observance laws shortly after a deputation of Protestant church leaders met with the Premier demanding enforcement of the law.⁶

The Seventh Day Adventists were not just small in number with little electoral clout. They also offended the religious sensibilities of Protestant church leaders. Adventists like Shannon were far from alone in working on Sundays but their crime was compounded in a way that Sabbath breaking by others was not. The Adventists took Saturday as the Sabbath and this offended some Protestant leaders even more than working on Sundays.⁷ Seventh Day Adventists like Shannon were convenient targets: prosecuting those most disliked by officious Protestant church leaders would give politicians some reprieve from lobbying and complaints by church leaders.

Constable Burke is unlikely to have just happened to come across Robert Shannon laying bricks and mixing mortar. After all, Shannon’s business practices were sufficiently well known that even a member of parliament knew the terms of the contracts under which Shannon’s employees worked. Constable Burke was almost certainly sent to catch Shannon in the act.

* * *

Federation occurred less than six years after Robert Shannon nearly found himself sitting in stocks on the steps of a Sydney courthouse because he did not conform to the religious observances endorsed by government. What if the new Federal Government had power to enact religious observance laws or other laws concerning religion? And what if the Federal Government could be persuaded to actually enforce laws concerning religion Australia-wide? The force of federal law would repeat the Robert Shannon story all over the country, potentially with worse consequences.

Robert Shannon’s story is a small story. Yet the contours of the much larger story of the separation of religion and government provision of the Australian Constitution – section 116 – parallel those of Shannon’s ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Acknowledgements
• 1 A sabbath breaker in the stocks
• 2 Arguing for a religious character to the Australian Constitution
• 3 Arguing against a religious character to the Australian Constitution
• 4 A constitutional recognition of God
• 5 A constitutional prohibition against religious laws
• 6 The argument for section 116
• 7 The language of section 116
• 8 The original understanding of section 116
• 9 Section 116 as a safeguard against religious intolerance
• 10 H V Evatt's attempts to amend section 116 in the 1940s
• 11 Post-war attempts to amend section 116
• 12 The future of section 116
• Bibliography
• Index