Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943–1944)

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Title

[ Jehovah's Witness]: Investigations into Australian Activities – Adelaide Company of Jehovah's Witnesses Inc V The Commonwealth of Australia.

Series number

A467

Control symbol

SF43/39

Contents date range

22 Oct 1940 - 10 Jul 1944

Access status

Open

Location

Canberra

Barcode

99461 SPECIAL FILE NO 43 No.

COMMONWEALTH OF AUSTRALIA.

Attorney-General's Department.

FILE OF PAPERS.

BJECT: ADELAIDE COMPANY OF JEHOVAH'S WITNESSES INC.

THE COMMONWEALTH OF AUSTRALIA.

W 4236

S. L.21369/6

29th June, 1944.

The Crown Solicitor:

ADELAIDE COMPANY OF JEHOVAN'S WITNESSE'S v. THE COMMONWEALTH.

Herewith is forwarded a claim in the name of the Executors of the estate of the late E. M. Mitchell, K.C. for £142. 4. 0, being the amount due to Mr. Mitchell in respect of the several actions against the Commonwealth by various societies, corporations and adherents of the sect of the Witnesses's of Jehovah, in respect of action taken by the Commonwealth under the provisions of the National Security (Subversive Associations) Regulations.

The claim, which is correctly rendered, has been certified by me as correct, and is in order for payment.

GEORGE A. WATSON,

Deputy Crown Solicitor,

Encl.

The Secretary.

per . . .

Claim herewith for payment.

(H. F. E. WHITLAM)

Crown Solicitor

10/7/44.

mu W 4256

26th June, 1944.

ADELAIDE COMPANY OF JEHOVAH'S WITNESSES v. THE COMMONWEALTH.

Forwarded herewith are claims in the names of Mr. C.A.Weston, K.C., and Mr. A.R.Taylor, K.C., for £459. 4. 6 and £395.14. 6 respectively, being the amounts due to them for appearing for the Commonwealth in connection with actions instituted against the Commonwealth by the Witnesses of Jehovah and cognate bodies. The claims which are correctly rendered, have been certified by me and are in order for payment.

A claim form in respect of the fees payable to the late E.M. Mitchell, K.C., has been sent to the executors of his estate for signature, and, upon receipt by me of the signed claim, it will be forwarded to you.

GEORGE A. WATSON,

Deputy Crown Solicitor,

per 25

Claim herewith for payment please.

COMMONWEALTH ATTORNEY GENERAL'S

DEPT.

RECEIVED

2 : AUG 1943

CANBERRA

CR.

2416 August, 1943.

MEMORANDUM for -

The Secretary, Department of External Affairs CANBERRA. A.C.T.

JEHOVAH'S WITNESSES ; ADELAIDE COMPANY OF JEHOVAH'S WITNESSES INCORPORATED V. THE COMMONWEALTH.

In response to the request contained in the memorandum dated 2nd August,1943,to you from the Official Secretary, Office of the High Commissioner in Australia, I am forwarding herewith typewritten copy of the High Court Judgment in the above matter.

Secretary,

27 July, 1943.

MEMORANDUM for -

The Director-General of Security, CANBERRA, A. C. T.

JEHOVAH'S WITNESSES.

I refer to my memorandum dated 30th April,1943, returning certain papers made available by the Security Service for the purposes of the High Court proceedings as to the validity of the action taken by the Commonwealth against Jehovah's Witnesses and their associated bodies under the National Security (Subversive Associations) Regulations.

I now return herewith your file No. 16/5/395 regarding the withdrawal of certain wireless transmitting licences.

(Sgd.) Gen. 8. F. = 103.

Secretary. 817 the place so specified any meat to which this Order applies

(a) shall not dispose of or part with the possession of meat except in accordance with directions given by the Controller or an authorized person.

(b) shall, if so directed by the Controller or an authorized person, place in cold storage that meat or the portion thereof specified in the direction; and

THE SCHEDULE.

Persons to whom this Order applies.

Neme.

Address.

Dated this

day of

1943.

Controller of Meat Supplies.

MEMORANDUM for -

The Director, Investigation Branch CANBERRA. A.C.T.

I refer to the telephone message dated 24th June, 1943, from Inspector Williams in connexion with the handing over of Kingdom Hall to Jehovah's Witnesses.

I agree that Inspector Williams should take no action towards giving possession of the Hall to Jehovah's Witnesses until judgment is delivered by Mr. Justice Starke or until some arrangement is made with Jehovah's Witnesses for its earlier vacation.

Pending further instructions, Mr. Williams should continue in occupation of the Hall on behalf of the Commonwealth.

I made no arrangement in Melbourne with Mr. Alderman with regard to possession of this Hall but the matter was discussed in Canberra on 30th June.

If inquiries are made by Messrs. Alderman, Reid & Brazel, or by any other person, on behalf of Jehovah's Witnesses as to the use to which the Commonwealth has put or is putting the Hall, I see no reason why such information should be withheld.

(Snd.) Geo. S. Knowles

Secretary.

THE SCHEDULE—continued.

(3.) A Deputy Controller shall assist the Controller as directed by him in relation to matters arising in the regional area in respect of which the Deputy Controller is appointed.

Subject to these Regulations and to any order or direction of the Minister made or given in pursuance of these Regulations—

(a) in the case of a regional area constituted by a State, or by a State together

with the whole or part of any Territory of the Commonwealth—the Governor in Council of that State; and

(b) in the case of a regional area constituted by the whole or part of any Territory or Territories of the Commonwealth—the Minister.

may make orders for the purpose of ensuring the adequate provision, for the purposes of these Regulations, in that regional area of stock and, without limiting the generality of the foregoing provisions of this regulation, for providing, in relation to that regional area, for one or more or all of the following :—

(i) The registration of the producers of any stock ;

(ii) The distribution of stock-feeds made available by the Minister or provided under any national scheme of fodder conservation or supplementary feeding;

(iii) The stimulation, regulation or restriction of production of stock; and

(iv) The control of the movement of stock within the regional area.

Notwithstanding anything contained in any law of any State or Territory of the Commonwealth, the Minister may, by order in writing, or by order published in the Gazette, require any person who produces or has control of any stock to supply and deliver to the Minister or to a person specified in the order, at such marketing place, slaughtering establishment or other place, and in such condition, as is so specified, such of the stock as is so specified, and that person shall, within such period as is specified in the order, supply and deliver that stock accordingly.

The Minister may, by order published in the Gazette, declare any area in the Commonwealth, or in any Territory of the Commonwealth, to be a controlled area for the purposes of these Regulations, and may, by the same order, or by a separate order, make provision for the regulation and control of the production, storage, canning, processing, marketing and distribution of meat in the controlled area.

The Minister may notify the proprietor of any abattoirs or other establishment where stock is slaughtered that the establishment has been registered for the purposes of these Regulations, and that establishment shall thereupon become a registered establishment for the purposes of these Regulations.

—(1.) The proprietor of any registered establishment, and any person who slaughters stock, or on whose behalf stock are slaughtered, at a registered establishment, may apply to the Minister, in a form approved by him, for a slaughtering licence.

(2.) The Minister may grant to any such person a slaughtering licence in such form as he thinks fit, or may refuse the application.

(3.) A licence under this regulation may contain such conditions and restrictions as the Minister thinks fit.

(4.) The Minister may at any time revoke any licence under this regulation.

(5.) A licensee shall not fail to observe and comply with the conditions and restrictions contained in the licence.

A person shall not, in a controlled area, slaughter, or cause to be slaughtered stock for the production of meat for sale for human consumption in any form except—

(a) in pursuance of a licence held by him ; or

(b) on behalf of a licensee in accordance with the terms and conditions of the licence.

The Minister may require the proprietor of a registered establishment, or a licensee who slaughters stock; to publish, in such manner as the Minister directs, the prices at which that registered establishment or licensee will slaughter or otherwise treat stock or meat on owner's account on a weight and grade basis.

Except with the approval of the Controller, or by his direction, a person shall not transport any meat in a regional area from an uncontrolled area into a controlled area.

CANTARA DE ESPAÑA

RECEIVED

24 JUN 2013

CANTARA DE ESPAÑA

Mr. Brazel, of Alderman, Reid & Brazel Counsel for Jehovahs' Witnesses has asked Inspector Williams whether Kingdom Hall can now be made available to Jehovahs' Witnesses for the purposes of holding meetings.

Inspector Williams informed Mr. Brazel that acting on legal advice he was retaining custody of the Hall until judgment was delivered by Mr. Justice Starke. Mr. Brazel said there was an arrangement made in Melbourne between Sir George Knowles and Mr. Alderman in regard to this Hall. Instructions are now sought by Inspector Williams as to whether he may now hand it over to Jehovahs' Witnesses. The Hall is in occupation by the military authorities as a Store, with the approval of Sir George Knowles. Mr. Williams has not informed the Solicitors of this approved arrangement.

A direction is sought by Mr. Williams as to whether, when the Hall is handed over, the Solicitors should be informed.

Mr. Brazel has not been told that the military authorities are at present using the Hall for their purposes.

E61.

COMMONWEALTH

2 4 JUN 1943

CENTRAL

INVESTIGATION BRANCH

The Solicitor-General.

Forwarded for your information and advice as desired by Inspector Williams.

ElBeggs 28 July, 42 W.1125

MEMORANDUM for:-

The Director, Investigation Branch. CANBERRA. A.G.T.

KINGDOM HALL. ADELAIDE - REPAIRS TO ROOF

I refer to your memorandum dated 28nd July, 1948, asking for authority to expend an estimated amount of £1.15.0 in repairing the roof to the above named building and, in reply thereto, desire to state that this expenditure is approved.

Secretary.

COMMONWEALTH OF AUSTRALIA.

COMMONWEALTH EMPLOYEES COMPENSATION ACT 1930 : CLAIM FOR COMPENSATION BY SPECIAL PEACE OFFICER W.H.T. EASTON.

In the matter of the claim of Special Peace Officer William H.T. Easton, under the Commonwealth Employees' Compensation Act 1930 for compensation in respect of injury by accident caused to him on duty on 1st June, 1942, I, Sir George Shaw Knowles, a Delegate of the Commissioner for Employees' Compensation, hereby determine as follows:-

(a) that Special Peace Officer William H.T. Easton is entitled to compensation under the said Act MUNICIPALITY ATTORNEY GENERAL'S DEPT.

RECEIVED

JUL 28 1942

CANBERRA

CANBERRA.

(A.C.T.)

22nd July, 1942.

The Secretary, Attorney-General's Department, CANBERRA. A.C.T.

Repairs to Ceiling of Kingdom Hall, Adelaide Jehovah's Witnesses Organisation.

I have to advise that Inspector Williams recently reported the ceiling of Kingdom Hall was in need of repair and I instructed him to have an examination made by an officer of the Works Department in order that an estimated cost of effecting the necessary repairs could be obtained.

I am now informed that the Works Department estimates cost of repair at £1.15.0

In the circumstances I have to ask if Inspector Williams may be authorised to have the necessary repair work carried out.

Mr Littling \sqrt {\frac {2 3}{7}}

H. E. Jones

DIRECTOR TLS/HEW

SL.21369/6.

1st July, 1943.

The Crown Solicitor.

ADELAIDE COMPANY OF JEHOVAH'S WITNESSES INCORPORATED v. THE COMMONWEALTH.

I return herewith the files of papers forwarded to me by you and by the Secretary, Attorney-General's Department, for use in connection with this action.

GEORGE A. WATSON,

ENCL.

Deputy Crown Solicitor,

Mr Wilson Mt

5 JUL 1943 DOMINICAN REPUBLIC ATTORNEY GENERAL'S

EXPL

23 JUN 1943

Government

The Grown Solicitor. GAMBEREA.

22nd June, 1943.

ADelaide COMPANY OF JEHOVAN'S WITNESSES INCORPORATED v. THE COMMONWEALTH OF AUSTRALIA.

I enclose herewith two copies of the Order of the High Court herein.

(F. F. CLAUSEN) Deputy Crown Solicitor.

ENGS.

PFC. IW.

The Secretary Attorney-General's Department

For your information

Crown Solicitor

23 JUN 1943

M S

12 11 10 3

25 BETWEEN:

ADELAIDE COMPANY OF JEHOVAH'S WITNESSES INCORPORATED Plaintiff and THE COMMONWEALTH OF AUSTRALIA Defendant

BEFORE THEIR HONOURS THE CHIEF JUSTICE,

MR. JUSTICE RICH, MR. JUSTICE STARKE,

MR. JUSTICE McTIERNAN, AND MR. JUSTICE WILLIAMS.

MONDAY THE FOURTEENTH DAY OF JUNE 1943.

THE CASE STATED in writing by His Honour Mr. Justice Starke on the 10th day of February 1943 wherein certain questions of law were reserved for the consideration of this Court coming on for hearing before this Court on the 10th, 11th, and 12th days of March 1943 WHEREUPON AND UPON READING the said Case Stated and the annexures thereto AND UPON HEARING Mr. Fullagar K.C. and Mr. Alderman Plaintiff and Mr. Weston K.C. and Mr. Taylor of Counsel for the abovene and Dr. Louat of Counsel for the abovenamed/Defendant THIS COURT

DID ORDER that the said Case Stated should stand for judgment and

the same standing for judgment this day accordingly THIS COURT DOTH

DETERMINE AND ANSWER the questions reserved in the said Case Stated

as follows:-

QUESTION 1:- Is the Adelaide Company of Jehovah's Witnesses Incorporated a party competent to maintain that the National Security (Subversive Associations) Regulations, the said Order in Council, and the said Direction of the Attorney-General above mentioned contravene the provisions of Sec. 116 of the Constitution?

ANSWER:- Yes.

QUESTION 2:- Do the National Security (Subversive Associations) Regulations or any and which of those regulations con-travene the provisions of Sec.116 of the Constitution?

ANSWER:- No.

QUESTION 3:- Do the Said Order in Council and the said Direction of the Attorney-General above mentioned or any and what part thereof so far as they affect the said incorporated association or the association of persons known as Jehovah's Witnesses, contravene the provisions of Sec. 116 of the Constitution?

ANSWER:- No.

QUESTION 4:- Are the National Security (Subversive Associations) Regulations or any and which of those regulations, beyond the powers or authorities conferred by:- (a) The Constitution. (b) The National Security Act 1939-1940?

ANSWER:- As to (a)-As to Regulation 6A - Yes. As to Regulations 3 to 6 and 6B-No answer.

As to (b) - Yes.

QUESTION 5:- Is the said Order in Council or the said Direction of the Attorney-General or any and what part thereof so far as either affects the said incorporated association or the association of persons known as Jehovah's Witnesses, beyond the powers and authorities conferred by:-

(a) The Constitution.

(b) The National Security Act 1939-1940.

ANSWER:- As to (a) - No Answer.

As to (b)- In respect of the Order in Council and the Direction of the Attorney-General - Yes.

As to (c) - In respect of the said Order in Council-No answer. In respect of the said Direction of the Attorney-General - Yes.

QUESTION 6:- Do/the National Security (Subversive Associations) Regulations, upon their proper construction, extend to the said incorporated association or the association of persons known as Jehovah's Witnesses?

ANSWER:- Yes, as to both associations.

AND THIS COURT DOTH ORDER that the said Case Stated be and the same is hereby remitted with the answers aforesaid to His Honour Mr. Justice Starke AND that the costs of the said Case Stated be costs in the action.

BY THE COURT

(Sgd) J. G. HARDMAN

Principal Registrar.

COMMONWEALTH ATTORNEY GENERALS DEPT.

RECEIVED

21 JUN 1943

OANBERRA

The Crown Solicitor, CANBERRA.

16th June, 1943.

ADNLAIDE COMPANY OF JEHOVAH'S WITNESSES INCORPORATED V. THE COMMONWRALTH OF AUSTRALIA.

Herewith are forwarded two copies of amended page 2 of the Reasons for Judgment of His Honour the Chief Justice. Please substitute these for the page 2 of the copies already sent to you.

(F. F. CLAUSEN) Deputy Crown Solicitor.

ENCS.

FFG. IW.

The Secretary Attorney-General's Department

For your information History of the Law, vol. VIII, pp.402-420, has traced the development of the law towards religious toleration and it may be said that "religious liberty and religious equality are now complete", Maitland Constitutional History of England, p.

This, however, does not afford an unlimited licence to propagate or

An Service

An Sec. Rush has announced 142 ) his reasons for present his Scherahis witnesses can

WILL you please not bind this amended page forth the pace in the 17 sent 25 yrs

16643

s connection I would

d Sumner in Bowman v.

466, 467. "The words, or society differ from stable or insecure in members to be open to assault. a danger to society is a fact. Society has the from the dangers of the attitude of the law both

moment, whatever the

civil and criminal towards ___grons depends fundamentally on the safety of the State".

Any regulations, therefore, which empower the government to prevent persons or bodies from disseminating subversive principles or doctrines or those prejudicial to the defence of the Commonwealth or the efficient prosecution of the war do not infringe sec. 116. The peace, good government and order of the Commonwealth may be protected at the same time as the freedom of religion is safeguarded. Freedom of religion is not absolute. It is subject to powers and restrictions of government essential to the preservation of the community. Freedom of religion may not be invoked to cloak and dissemble subversive opinions or practices and operations dangerous to the common weal. Any competition between governmental powers and liberty under the Constitution can be reconciled and made compatible. They co-exist without invasion of their respective spheres of action. Accordingly I consider the regulations in question do not infringe the section.

I am not, however, satisfied that the National Security (Subversive Associations) Regulations are within the defence power History of the Law, vol. VIII, pp.

402-420, has traced the development of the law towards religious toleration and it may be said that "religious liberty and religious equality are now complete", Maitland Constitutional History of England, p. 520. This, however, does not afford an unlimited licence to propagate or disseminate subversive doctrines. In this connection I would adapt some passages from the speech of Lord Sumner in Bowman v. Secular Society Ltd., 1917 A.C. 406, at pp. 466, 467. "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. The question whether a given opinion is in a danger to society is a question of the times and is a question of fact. Society has the right to protect itself by process of law from the dangers of the moment, whatever that right may be. The attitude of the law both civil and criminal towards all religions depends fundamentally on the safety of the State".

I am not, however, satisfied that the National Security (Subversive Associations) Regulations are within the defence power

History of the Law, vol. VIII, pp. 402-420, has traced the development of the law towards religious toleration and it may be said that "religious liberty and religious equality are now complete", Maitland Constitutional History of England, p. 520. This, however, does not afford an unlimited licence to propagate or disseminate subversive doctrines. In this connection I would adapt some passages from the speech of Lord Sumner in Bowman v. Secular Society Ltd., 1917 A.C. 406, at pp. 466, 467. "The words, as well as the acts, which tend to endanger society differ from time to time in proportion as society is stable or insecure in fact, or is believed by its reasonable members to be open to assault. The question whether a given opinion is in danger to society is a question of the times and is a question of fact. Society has the right to protect itself by process of law from the dangers of the moment, whatever that right may be. The attitude of the law both civil and criminal towards all religions depends fundamentally on the safety of the State".

I am not, however, satisfied that the National Security (Subversive Associations) Regulations are within the defence power

CASE STATED FOR THE CONSIDERATION OF THE FULL COURT.

Question

Is the Adelaide Company of Jehovah's Witnesses Incorporated a party competent to maintain that the National Security (Subversive Associations) Regulations, the said Order in Council, and the said Direction of the Attorney-General above mentioned contravene the provisions of sec. 116 of the Constitution?

Do the National Security (Subversive Associations) Regulations or any and which of those regulations contravene the provisions of section 116 of the Constitution?

Do the said Order in Council and the said Direction of the Attorney-General above mentioned or any and what part thereof so far as they affect the said incorporated association or the association of persons known as Jehovah's Witnesses, contravene the provisions of section 116 of the Constitution?

Yes

Are the National Security (Subversive Associations) Regulations or any and which of those regulations, beyond the powers or authorities conferred by :-

As to (a) - as to reg. 6A-Yes. as to regs.3 to 6 and 6B No answer. As to (b)-Yes.

(a) The Constitution.

(b) The National Security Act 1939-1940?

Is the said Order in Council or the said Direction of the Attorney-General or any and what part thereof so far as either affects the said incorporated association or the association of persons known as Jehovah's Witnesses, beyond the powers and authorities conferred by :-

As to (a) - No answer.

As to (b) in respect of the order and the direction - Yes.

As to (c) in respect of the order - No answer:

in respect of the direction - Yes.

(a) The Constitution. (b) The National Security Act 1939-1940.

Do the said National Security (Subversive Associations) Regulations, upon their proper construction, extend to the said incorporated association or the association of persons known as Jehovah's Witnesses.

Yes as to both Associations.

Latham No .

Rich Ys

Matthe

Hedeman

William

2 Katharine No.

Rich No.

Tathe

Messie man

William

Latham No . Yes with regard to 3 to 6 B .

4(a)

Latham 3 4 + 6 A 344 No. Yes 6 A. Minneapolis to answer

Rich Yes.

Smith Tennessee transier

Merceran

William

4 (B) Latham Rich Stace Wootton Williams

5(a) Latham No ( omc Yes ( as ) Rich Stame unnecessary to answer Kieseman Williams

5 ( c ) Latham No Yes ( a e g ) Rich Stache — Yes Moss Willcain

5 ( C ) Lotham No. 9n ( a g ) Rich Aaine - unnecessary to mention .

Catham Yes .

Rich

Pathe — Yes .

Mary

William V.

THE COMMONWEALTH OF AUSTRALIA.

REASONS FOR JUDGMENT.

LATHAM C.J.

This proceeding raises important questions with reference to the nature and extent of the protection which is given to religion under the Constitution of the Commonwealth. Section 116 of the Constitution is as follows:-

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

It is plain that by this provision it is intended to place some restriction upon the power of the Commonwealth to enact legislation which favours any religion, or which interferes with any reli gion. The principal questions which arise in the case are:- Does section 116 prevent the Commonwealth Parliament from legislating to restrain the activities of a body, the existence of which is, in the opinion of the Governor-General, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, if that body is a religious organisation? Is the answer to this question affected by the fact that the subversive activities of such a body are founded upon the religious views of its members? Can such a body be suppressed

In the first place, it is important to observe that section 116 is an express prohibition of any law which falls within its terms. The section deals with laws which in some manner relate to religion. The Constitution, however, contains no provision which confers upon the Commonwealth Parliament any power to make laws with respect to the subject of religion. Section 116 therefore cannot be regarded as prescribing the content of laws made with respect to religion upon the basis that the Commonwealth Parliament has some power of legislating with respect to religion. Section 116 is a general prohibition applying to all laws, under whatever power those laws may be made. It is an overriding provision. It does not compete with other provisions of the Constitution so that the Court should seek to concile it with other provisions.

It prevails over and limits all provisions which give power to make laws.

Accordingly no law can escape the application of section 116 simply because it is a law which can be justified under sections 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which section 116 imposes.

Section 116 applies in express terms to "any religion", "any religious observance", the free exercise of "any religion" and any "reliigious test". Thus the section applies in relation to all religions, and not merely in relation to some one particular religion.

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance. Section 116 must be regarded as operating in relation to all these aspects of religion, irrespective of varying opinions in the community as to the truth of particular religious doctrines, as to the goodness of conduct prescribed by a particular religion, or as to the propriety of any particular religious observance. What is religion to one is superstition to another. Some religions are regarded as morally evil by adherents of other creeds. At all times there are many who agree with the reflective comment of the Roman poet - "Tantum religio potuit suadere malorum".

The prohibition in section 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No federal law can impose any religious observance. Defaults in the performance of religious duties are not to be corrected by federal law - Deorum injurias Diis curae. Section 116 proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion.

It was suggested in argument that no system of beliefs or code of conduct or form of ritual could be protected under the section unless the general opinion of the present day regarded the belief or conduct or ritual as being really religious.

It is true that in determining what is religious and what is not religious the current application of the word "religion" must necessarily be taken into account, but it should not be forgotten that such a provision as section 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.

It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Common-wealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.

The scope of religion has varied very greatly during human history. Probably most Europeans would regard religion as necessarily involving some ideas or doctrines affecting the relation of man to a Supreme Being. But Buddhism, one of the great religions of the world, is considered by many authorities to involve no conception of a God. For example, Professor Gilbert Murray says: "We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the conception of God at all; in his stead it has Dharma, the Eternal Law." - "Five Stages of Greek Religion", chapter 1. On the other hand, almost any matter may become an element in religious belief or religious conduct. The wearing of particular clothes, the eating or the non-eating of meat or other foods, the observance of ceremonies, not only in religious worship, but in the every day life of the individual - all of these may become part of religion. Once upon a time all the operations of agriculture were controlled by religious precepts.

Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for a court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.

Thus in the early history of mankind it was almost impossible to distinguish between government and religion - Encyclopedia Britannica 14th Ed., Vol. 19, p. 105. A clear distinction between ruler and priest developed only at a relatively late stage in human development. Those who believe in a theocracy refuse to draw the distinction between government and religion which is implicit in section 116. The beliefs of the Anabaptists were similar to those of Jehovah's Witnesses, which the Court, as it will be seen, has to consider in the present case. The Anabaptists refused to take oaths, they refused to appear before civil law courts, they refused to bear arms or to make any resistance to wrongdoers. The civil governments of the world were regarded by them as pertaining to anti-Christ. Accordingly they would take no public office, and would render only passive obedience to Governments. Many of the early Christians hold similar beliefs. It cannot be said that beliefs upon such matters founded upon Biblical authority (as understood by those who hold them) are not religious in character. Such beliefs are concerned with the relation between man and the God whom he worships, although they are also concerned with the relation between man and the civil government under which he lives. They are political in character, but they are none the less religious on that account.

It is perhaps not out of place to mention at the present time that there are large numbers of people in Japan who believe that the Shinto religion, the Way of the Gods, affords a path to universal peace and prosperity under the guidance of the people of Japan. The worship of the Emperor as divine is represented to the Japanese people as the way of escape to happiness for the whole world.

At all periods of human history there have been religions which have involved practices which have been regarded by large numbers of people as essentially evil and wicked. Many religions involve the idea of sacrifice, and the practice of sacrifice has assumed the form of human sacrifice or animal sacrifice as appears in the Old Testament, and in many other sacred writings and traditions. So also religions have differed in their treatment of polygamy.

Polygamy was not re-proved in the Old Testament; it has been part of the Mormon religion; it is still an element in the religion of millions of Mohammedans, Hindus, and other races in Asia. The criminal religions in India are well known. The Thugs of India regarded it as a religious duty to rob and to kill. The practice of suttee, involving the immolation of the widow upon the funeral pyre of her husband, was for centuries a part of the Hindu religion.

These examples are sufficient to show that religious belief and practice cannot be absolutely separated either from politics or from ethics. An inconsistency between religious and political duty has often appeared in history. The early Christians refused to take part in the worship of the Emperor as divine, just as Christian converts in Korea refuse to take part in Shinto ceremonial. In each case the State view is that the ceremony which has been made obligatory is merely political in character - a form of "saluting the flag" - but the other view of the question is that it is something which requires a true believer to abjure part of his cherished faith.

Section 116, however, is based upon the principle that religion should, for political purposes, be regarded as irrelevant. It assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion.

The examples which have been given illustrate the difficulty of the problem with which a court is confronted when it is asked to determine whether or not a particular law infringes the constitutional provision by prohibiting "the free exercise of religion". Can any person, by describing (and honestly describing) his beliefs and practices as religious exempt himself from obedience to the law? Does section 116 protect any religious belief or any religious practice, irrespective of the political or social effect of that belief or practice?

It has already been shown that beliefs entertained by a religious body as religious beliefs may be inconsistent with the maintenance of civil government. The complete protection of all religious beliefs might result in the disappearance of organised society, because some religious beliefs, as already indicated, regard the existence of organised society as essentially evil.

Section 116 does not merely protect the exercise of religion, it protects the free exercise of religion. The word "free" is vague and ambiguous, as is shown by the many decisions in this Court and in the Privy Council upon the meaning of the word "free" in another place when it appears in the Constitution - in section 92, which provides for free trade, commerce and intercourse between the States. When a slogan is incorporated in a Constitution, and the interpretation of the slogan is entrusted to a court, difficulties will inevitably arise.

The word "free" is used in many senses, and the meaning of the word varies almost indefinitely with the context. A man is said to be free when he is not a slave, but he is also said to be free when he is not imprisoned, and is not subject to any other form of physical restraint. In another sense a man is only truly free when he has freedom of thought and expression, as well as of physical movement. But in all these cases an obligation to obey the laws which apply generally to the community is not regarded as inconsistent with freedom.

Freedom of speech is a highly valued element in our society. But freedom of speech does not mean that an individual is at liberty to create a panic in a theatre by raising a false alarm of fire, as was pointed out/the United States of America in the case of Schenck v. United States 249 U.S. 47 at p. 52. In James v. The Commonwealth, 1936 A.C. 578, the Privy Council dealt with the meaning of the words "absolutely free" in section 92 of the Constitution. It was there said (p. 627) "'Free' in itself is vague and indeterminate. It must take its colour from the context. Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law, as was pointed out in McArthur's Case (1920) 28 C.L.R. 530. Free love, on the contrary, means licence or libertinage, though, even so, there are limitations based on public decency and so forth. Free dinner generally means free of expense, and sometimes a meal open to anyone who comes, subject, however, to his condition or behaviour not being objectionable. Free trade means, in ordinary parlance, freedom from tariffs." Thus there is no dictionary meaning of the word "free" which can be applied in all cases."

In the Constitution of the United States there is a provision which is very similar to that contained in section 116 of our Constitution. The first amendment of the Constitution of the United States provides that Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. In the United States the problems created by this provision have been solved in large measure by holding that the provision for the protection of religion is not an absolute, to be interpreted and applied independently of other provisions of the Constitution. The Supreme Court said in Jones v. Opelika, 316 U.S. 583 with Reference to the constitutional guarantees of freedom of speech, freedom of press and freedom of religion: "They are not absolutes, to be exercised independently of other cherished privileges, protected by the same organic instrument." It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living "without which constitutional guarantees of civil liberties would be a mockery". A practical illustration of the application of this doctrine of accommodation is to be found in the case of Cox v. New Hampshire 312 U.S. 569. It was said:- "One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions".

The result has been that the Supreme Court of the United States has refused to regard the provisions relating to freedom of religion, freedom of assembly and freedom of speech as involving the invalidity of all laws which in any degree interfere with such freedom. For example, the right of assembly is a right to peaceable assembly, and not a right to organise or promote riots; De Jonge v. Oregon 299 U.S. 353 pp. 363 et seq. So also in Stomberg v. California 283 U.S. 159 it was held that the liberty of the person which is protected under the due process clause of the American Constitution, while it embraces the right of free speech, does not protect seditious speech; see p. 368. In Schneider v. State (Town of Irvington) 308 U.S. 147 it was held that, while the municipal authorities may control the streets in order to keep peace and order therein, they may not exercise their powers so as to interfere with a peaceable and non-obstructive distribution of literature in the streets.

See also Cantwell v. Connecticut 310 U.S. 296. In this case the power to regulate the conduct of citizens in the public streets was recognised, but it was said with reference to religious freedom and liberty of speech and of the press that "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom". This statement frankly recognises that the general protection given by the Constitution to the freedoms in question leaves it to the court to determine whether a particular measure which in fact limits complete freedom involves an "undue" infringement of that freedom. It is upon this principle that many cases have been decided in the American Courts. Willis, in his work on the American Constitution, states the effect of the constitutional guarantee by saying (p. 502) that its real purpose is to prevent religious persecution, but the cases show that "the Constitution does not protect religious liberty in the broad sense." It does not protect unsocial actions (p. 504).

The cases to which I have just referred are recent cases. But before the Constitution of the Commonwealth was adopted in 1900, decisions of the Supreme Court of the United States had dealt with the subject of the constitutional protection of religious freedom. These cases quite clearly determined that such protection was not absolute and that it did not involve a dispensation from obedience to a general law of the land which was not directed against religion.

In Reynolds v. The United States 1878 98 U.S. 145, a Mormon who had a religious belief in polygamy, and who had more than one wife, was indicted for polygamy. It was held that his religious belief could not be accepted as a justification for the commission of an overt act which was made criminal by the law of the land. Waite C.J., who announced the unanimous decision of the Court upon the relevant question referred to the history of legislation in favour of or directed against particular religions, and to the fact that polygamy had generally been a crime among the northern and western nations of Europe. He said, at p.166: "Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?

Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organisation of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." Upon this reasoning the Court refused to set aside a conviction for bigam

There are obvious difficulties in the principle laid down in the case cited. When the suggestion that religious beliefs should be superior to the law of the land is rejected as a matter of course, it may well be asked whether the very object of the constitutional protection of religious freedom is not to prevent the law of the land from interfering with either the holding of religious beliefs, or bona fide conduct in pursuance of such beliefs. But practical considerations persuaded the Court to give a practical interpretation to the constitutional provision and to abstain from giving it a meaning which was inconsistent with practical necessities.

In the year 1889 the case of Davis v. Beason 133 U.S. 333 was decided by the Supreme Court of the United States of America. This case also dealt with the polygamous beliefs and practices of the Mormon religion. Here it was contended that a statute disfranchising citizens and disqualifying them from holding office if they belonged to a Church which taught bigamy or polygamy as a doctrine of the Church was unconstitutional and void as prohibiting the free exercise of religion. Mr. Justice Field, after expressing strong views upon the subject of polygamy, said that it was never intended or supposed that the first amendment, which protected the free exercise of religion, "could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.

With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation."

This decision appears to make room for any kind of law thought proper by the legislature on grounds of peace and prosperity and the morals of the people, that is, in practice, upon any grounds at all, notwithstanding the constitutional protection of religion. The decision goes very far when it is said at p. 345; "Crime is not the less odious because sanctioned by what any particular sect may designate as religion." This method of approaching the question appears to me to treat the constitutional provision as it if were subject to the proviso which is to be found in, for example, the Constitution of New York of 1777, which is quoted in the report of Lavis v. Beason at p. 348. That Constitution provided as follows: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind; Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State." The opinion which in effect adds such a proviso to the absolute words of the Constitution may be good practical commonsense, but it appears to me to be difficult to justify it upon any basis of legal interpretation.

But the cases which I have cited do show that in 1900 it had been thoroughly established in the United States that the provision preventing the making of any law prohibiting the free exercise of religion was not understood to mean that the criminal law dealing with the conduct of citizens generally was to be subject to exceptions in favour of persons who believed and practised a religion which was inconsistent with the provisions of the law. The result of this approach to the problem has been the development of the principle which has been applied in the later cases, to which I have already referred, according to which it is left to the Court to determine whether the freedom of religion has been unduly infringed by some particular legislative provision. This view makes it possible to accord a real measure of practical protection to religion without involving the community in anarchy.

There is therefore full legal justification for adopting in Australia an interpretation of section 116 which had, before the enactment of the Commonwealth Constitution, already been given to similar words in the United States. This interpretation leaves it to the court to determine whether a particular law is an undue infringement of religious freedom. It is possible, however, in my opinion, to decide the present case upon a narrower principle which escapes the criticisms to which that interpretation may be open.

John Stuart Mill in his Essay on Liberty critically examines the idea of liberty, and his discussion of the subject is widely accepted as a weighty exposition of principle. The author had to make the distinction which is often made in words between liberty and licence, but which it sometimes very difficult to apply in practice.

He recognised that liberty did not mean the licence of individuals to do just what they pleased, because such liberty would mean the absence of law and of order, and ultimately the destruction of liberty. He expressed his opinion as to the limits of liberty when he said: "The sole and for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection". Essay on Liberty c.1 - 1871 Edition p.6. It may be going too far to say that self-protection is "the sole end" which justifies any governmental action. But I think it must be conceded that the protection of any form of liberty as a social right within a society necessarily involves the continued existence of that society as a society. Otherwise the protection of liberty would be meaningless and ineffective. It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community. The Constitution protects religion within a community organised under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organised. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth Parliament passes a law in the belief that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether or not such a law infringes religious freedom. The final determination of that question by Parliament would remove all reality from the constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringe it and by declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded as a law to protect the existence of the community, or whether, on the other hand, it is a law "for prohibiting the free exercise of any religion".

The word "for" shows that the purposee of the legislation in question may properly be taken into account in determining whether or not it is a law of the prohibited character.

The Commonwealth Parliament has power to make laws "for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States, and the control of the Forces to execute and maintain the laws of the Commonwealth" - Constitution sec. 51(vi). "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth" - sec. 61.

In pursuance of the powers so conferred, the Commonwealth can defend the people, not only against external aggression, but also against internal attack, and in doing so can prevent aid being given to external enemies by internal agencies. No organised State can continue to exist without a law directed against treason. There are, however, subversive activities which fall short of treason (according to the legal definition of that term) but which may be equally fatal to the safety of the people. These activities, whether by way of espionage, or of what is now called fifth column work, may assume various forms. Examples are to be found in obstruction to recruiting, certainly in war time, and, in my opinion, also in time of peace. Such obstruction may be both punished and prevented. So also propaganda tending to induce members of the armed forces to refuse duty may not only be subjected to control, but may be suppressed.

In Hamilton v. Pagents of the University of California 293 U.S.245, it was said at p. 262: "Government, federal and state, each in its own sphere owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and to assure the just enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend government against all enemies. Selective Draft Law Cases, 245 U.

S. 366, p. 378. Minor v. Happersett, 21 Wall. 162. 166. United States v. Schwimmer, 279 U.S. 644, involved a petition for naturalisation by one opposed to bearing arms in defence of country. Holding the applicant not entitled to citizenship, we said (p. 650): 'That it is the duty of citizens by force of arms to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution . . . . Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defence detracts from the strength and safety of the Government.' So also in this Court it was held in Krvgger v. Williams 15 C.L.R. 366 that a person who is forbidden by the doctrines of his religion to bear arms is not thereby exempted or excused from undergoing the military training and rendering the personal service required by the Defence Act 1903-1910; and that the provisions of the Act imposing obligations on all male inhabitants of the Commonwealth in respect to military training do not prohibit the free exercise of any religion, and, therefore, are not an infringement of section 116 of the Constitution.

It is a well established doctrine of constitutional law that it is for Parliament to choose the means by which its powers are to be carried into execution. In the absence of a relevant constitution prohibition it is not a proper function of a court to limit the method of exercising a legislative power.

Marshall C. J. said in a famous statement in M'Culloch v. State of Maryland 4 Wheat 316 - "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

This general proposition can in itself solve no particular constitutional problem, but it does effectively state the constitutional principle.

Parliament, for example, may legislate, not only for the purpose of punishing wrongful acts which have been committed, but also for the purpose of preventing the commission of such acts.

In the present case the validity of certain regulations made under the National Security Act 1939/1940 is challenged. The Act provides in section 5 that the Governor-General may make regulations for securing the public safety and the defence of the Commonwealth and the territories of the Commonwealth and for prescribing all matters which are necessary or convenient to be prescribed for the more effectual prosecution of any war in which His Majesty is, or may be, engaged. The National Security (Subversive Associations) Regulations, Statutory Rule No. 109 of 1940, as amended, were made under this power. It is contended that these regulations, or some of them, are not authorised by the National Security Act and, alternatively, that if they are so authorised, then that the Act itself exceeds the powers of the Commonwealth Parliament under the defence power.

I propose to take the regulations in turn and to state the objections which are made to them. In the first place, I direct particular attention to the fact that the regulations are concerned with the continued existence of certain bodies or associations. The regulations do penalise certain actions, but the object of the regulations, as is shown by the terms of the principal regulation, reg. 3, is to put an end to the existence of bodies the continued existence of which is regarded as being subversive of the war effort. Reg. 3 is as follows:- "Any body corporate or unincorporate, the existence of which the Governor-General, by order published in the Gazette, declares to be in his opinion, prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, is hereby declared to be unlawful." It was not contended in argument that reg. 3 taken merely by itself is invalid. The mere proclamation that in the opinion of the Governor-General the existence of a body is prejudicial to the defence of the Commonwealth, etc., creates no offence and imposes no duty upon any person. The terms of the regulation, however, become important by reason of other regulations which attach legal consequences to the order of the Governor-General.

For example, under reg. 4 a body declared under reg. 3 is dissolved and under other regulations the property of the body may be seized. These consequences depend in the beginning upon an order made by the Governor-General under reg. 3.

It is objected that when reg. 3 is read, as it must be, in conjunction with such other regulations as those which I have mentioned, the result is that legal consequences are made to depend, not upon the fact that the existence of a body is prejudicial to the defence of the Commonwealth or the efficient prosecution of the war, but upon the declaration of the opinion of the Governor-General to that effect. It probably would not be argued that the Commonwealth could not legislate, at least to some extent, against bodies the existence of which was in fact prejudicial in the manner stated. But it is said that regulations which make these consequences depend upon the opinion of the Governor-General are invalid.

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Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943–1944)