chapter  7
20 Pages

The language of section 116

ByLuke Beck

This chapter begins by noting that there is a discordance between the expressed general purpose of section 116 to deny the Commonwealth power to make laws 'on the subject of' religion and the language of the provision. The language suggested by the Seventh Day Adventists is significant. Of particular interest for section 116 jurisprudence, is Andrew Inglis Clark's use of the expression 'for the purpose of' in connection to only one of the matters prohibited by his clause 46. Indeed, neither Clark nor Henry Higgins were particularly thoughtful in their choice of language, and neither the 1891 Australasian Convention nor the 1897-8 Federal Convention carefully considered and debated the precise language of the provision. The clause proposed by Higgins and accepted by the Convention is not the clause that is now section 116 of the Constitution.