Federal funding of religious schools : some constitutional history and recent case law

The Australian Constitution includes a freedom from religion provision. The relevant part of section 116 states: 'The Commonwealth shall not make any law "¦ for imposing any religious observance'. This presentation looks at the origins of the religious observances clause and recent case law in which it has been invoked to challenge federal funding of religious schools. The framers of the Constitution included the prohibition against imposing religious observances in response to lobbying by the Seventh Day Adventist denomination who were worried that the Australian Government might have power to impose mainstream Protestant religious observances on them. The first part of this presentation examines the concerns of the Seventh Day Adventists in pre-Federation colonial Australia and how the framers of the Constitution responded to those concerns. The second part of the presentation looks at a recent case concerning the scope of the religious observances clause. Hoxton Park Residents Action Group v Liverpool City Council is a challenge to federal funding of religious schools. The plaintiffs allege that legislation authorising federal funding of a Muslim school in suburban Sydney violates the religious observances clause because the school in question requires its students to participate in religious observances during the school day. The plaintiffs argue that federal funding of the school means that the Australian Government is facilitating the imposition of religious observances and is therefore, to that extent, invalid. The paper considers the similarities between the issues involved in that case and the original concerns underlying the religious observances clause.