Federal Funding of Religious Schools: Some Constitutional History and Recent Case Law

Stream: Panel 93 - Public Policy & Social Justice: Education Policy 
Date: Wednesday, 28 September 2016
Time: 1.30 pm – 3.00 pm


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.


Luke Beck (Presenter), Western Sydney University
Luke Beck is Lecturer in Constitutional Law in the School of Law at Western Sydney University. He previously held a post at the University of Sydney. His doctoral thesis (University of Sydney), The Foundations of Section 116 of the Australian Constitution: An Historical and Conceptual Analysis, examined the history behind the separation of church and state provision of the Australian Constitution. He has published over a dozen articles on various aspects of Australian constitutional law. His research has been cited in Australian and international journals, in government reports as well as in a judgment of the High Court of Australia.