INTRODUCTION
Adjudication runs into the inadequacies of difficulty in interpretation and indeterminacy of legal
texts. Judges are forced to belabor with the task of interpretation of laws passed by legislators in
instances where there are discrepancies. Legal documents are not devoid of apparent or actual
gaps, conflicting provisions, ambiguous texts and obscurities. Tapping into established legal
principles on interpretation and judicial precedents influence interpretation of laws by judges. In
exceptional and novel circumstances, the existing judicial decisions are distinguished by the
courts. The distinguished precedents are referred to as per incuriam. Legalism is the cornerstone
of judicial decisions whether absolute or relative.
MIDDLE
Attorney-General (Vict.); Ex Rel. Black v The Commonwealth, 1 is a decision that was delivered
on 2 nd February 1981. The judgment was delivered by a seven-judge bench. The facts of the case
will be outlined hereunder.
Facts
The plaintiffs claimed that the commonwealth was providing funding to non-governmental
schools on fulfillment of certain conditions. The plaintiffs claimed that the State Grants Acts
resulted in “establishment of a religion,” due to the ubiquitous nature of religious schools in
Australia. It is worth-noting that most schools in Australia are religious, majority being under the
umbrella of the Roman Catholic Church. It was on this footing that the plaintiffs claimed that the
State Grants Acts were inconsistent with section 96 and 116 of the Constitution. 2 The defendants
asserted that the alleged impugned statutes were valid and constitutional. The plaintiff’s case was
premised on the intertwined nature of religion and schools.
1 (1981) 146 CLR 559.
2 Section 96 of the Australian Constitution, “During a period of ten years after the establishment of the
Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance
to any State on such terms and conditions as the Parliament thinks fit.”; section 116 of the Australian Constitution,
“ 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.”
On their part, the defence, stood the ground that the impugned statutes were valid and
constitutional. The defendants argued that the term “establishment of a religion” was not
ambiguous and as such the interpretation of the plaintiffs was flawed.
The issue of determination
The court was left with one major issue of determination. The issue was whether any of the
impugned statutes was a law tailored towards the establishment of a religion. The central
argument of the plaintiff was that the commonwealth was barred from providing any financial
support or otherwise to religion. The judges arrived at a majority decision of 6:1. Consequently,
the case was dismissed. Wilson J delivered the judgment of the court. The constituent ratio
decidendi for the decisions of the judges will be examined hereunder
The decision of the majority
The definition of the term, “establishing a religion” was critical in making a conclusive decision
by the judges. In determination of the meaning of the phrase “establishing any religion,” Gibbs J
first provided the literal meaning of “establish” when used in relation to religion. Gibbs J
attempted to define establishing a religion by providing four possible meanings. Firstly, she
referred to it as simply meaning to protect the law. For this definition, he relied on the case of
Evans v. the Chamberlain of London. 3 Lord Mansfield had stated as follows, “when, speaking of
the Toleration Act, he is reported to have said, that non-conformity is rendered by that act ‘not
only innocent but lawful’, and that the protecting clauses of the statute ‘have put it, not merely
under the connivance, but under the protection of the law – have established it’.”
Secondly, confinement of the title state religion or church on a particular religion. For this, he
relied on the decision Phillimore J in Marshall v. Graham (1907). 4 Phillimore said:
"The process of establishment means that the State has accepted the Church as the religious body
in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to its
decrees, if rendered under certain legal conditions, certain civil sanctions."
Thirdly, offering support to a religion in the observance of its principles and doctrines. The case
of General Assembly of Free Church of Scotland v. Lord Overtoun was referenced by Gibbs J. 5
3 (1842) 2 Burn’s Eccl Law 207.
4 2 KB 112, at p 126.
In the case, Lord Robertson, pointed out that the establishment principle can be held by churches
that are unlinked to the state, and are supported by voluntary contributions alone. 6
The last meaning was founding or setting up of a new religion. This was however not the
intended interpretation of the term by constitutional drafters according to Gibbs J. Gibbs J made
a determination that the most prudent meaning that was intended by the constitutional drafters
was the second meaning. This determination was premised on the meaning allocated to the term
in 1900. Following the crafting of section 116 of the constitution and its correlation with the first
amendment of the United States of America. Meaning given to “establishing a religion” was to
be anchored on the historical events surrounding the drafting of the First Amendment.
Gibbs J outlined some of the differences between the First amendment and section 116 and
dismissed the application of the plaintiff since the argument presented had not been proved.
Barwick J justified the dismissal of the application on the reasoning that, infringement of the
establishment clause could only be proved by the infringement of the prohibited objective as its
explicit and central purpose. Wilson J when delivering the judgment of the court acknowledged
the plaintiff’s move to distinguish Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R.
Moran Pty Ltd. 7 Considering the arguments presented by the plaintiff, Wilson J held that the
plaintiff had not discharged the burden to make the case distinguishable.
The decision of the minority (Murphy J)
Murphy J relied on the interpretation given to the establishment clause in United States prior to
framing of the Australian Constitution. He referred to the case of Reynolds v. United States
where the Supreme Court of United States had defined “establishment of religion” before 1900.
"Before the adoption of the Constitution, attempts were made in some of the colonies and States
to legislate not only in respect to the establishment of religion, but in respect to its doctrines and
precepts as well. The people were taxed, against their will, for the support of religion, and
sometimes for the support of particular sects to whose tenets they could not and did not
subscribe." In an earlier decision of Everson v. Board of Education Rutledge J. (said:
"The Amendment’s purpose was not to strike merely at the official establishment of a single sect,
5 (1904) AC 515.
6 Ibid at p 674.
7 (1939) 61 C.L.R. 735.
creed or religion, outlawing only a formal relation such as had prevailed in England and some of
the colonies. Necessarily it was to uproot all such relationships. But the object was broader than
separating church and state in this narrow sense. It was to create a complete and permanent
separation of the spheres of religious activity and civil authority by comprehensively forbidding
every form of public aid or support for religion. In proof the Amendment’s wording and history
unite with this Court’s consistent utterances whenever attention has been fixed directly upon the
question.” 8
Murphy J in dissenting held that the assertion that the funding to church school had little
assistance to the religious aspect did not respond to the plaintiff’s challenge.
ENDING
Springing from the dissenting opinion and the decision of the court, it is discernible that Gleeson
CJ’s definition of legalism contributes immensely in adjudication of cases. 9 Judicial legitimacy
and impartiality are the hallmarks of adjudication by judges. The decisions given by judges have
to be backed up by a reasoning. The reasoning deduces the legitimacy and impartiality of the
judge in making a decision. Adjudication can be summarized as opinions backed up by legal
doctrines and principles.
The drift between the majority and dissenting opinions by the judges may be a signifier of the
decision of the majority being more legalistic. Gleeson CJ’s definition of legalism however
encompasses both the decision of the minority and majority. Judicial legitimacy and impartiality
in decision making is the only key ingredient for Gleeson’s legalism.
Adherence to the universally accepted principles of constitutional and statutory interpretation by
the adjudicators is the main denominator is assessing delivery of a legalistic judgment. Sir Owen
Dixon advocated for strict compliance to legalism in determination of federal matters. 10 The
legalistic approach to determination of cases is the only decision-making tool utilized by judges.
The legalism may be absolute or relative, but it has to be embedded in universally accepted
statutory interpretation principles and rules.
8 Everson v. Board of Education (1947) 330 US 1 at pp 31-32 (91 Law Ed, at pp 731-732).
9 Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (Australian Bar Association Conference, New York, 2 July
2000) at https://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_aba_conf.htm .
10 SIR OWEN DIXON AND JUDICIAL METHOD – Hein Online
https://heinonline.org/HOL/LandingPage?handle=hein.journals/mulr15&div=47&id=&page= .
REFERENCE LIST
1. Attorney-General (Vict.); Ex Rel. Black V. The Commonwealth (1981) 146 CLR 559.
2. Section 96 of the Australian Constitution, “During a period of ten years after the
establishment of the Commonwealth and thereafter until the Parliament otherwise
provides, the Parliament may grant financial assistance to any State on such terms and
conditions as the Parliament thinks fit.”
3. Section 116 of the Australian Constitution, “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.”
4. Evans v. The Chamberlain of London (1842) 2 Burn’s Eccl Law 207.
5. Marshall v. Graham 2 KB 112, at p 126.
6. General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC 515.
7. Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty Ltd (1939) 61
C.L.R. 735.
8. Everson v. Board of Education (1878) 98 US 145, at p 162 (25 Law Ed 244, at p 249).
9. Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (Australian Bar Association
Conference, New York, 2 July 2000) at
https://www.hcourt.gov.au/assets/publications/speeches/former-
justices/gleesoncj/cj_aba_conf.htm.
10. SIR OWEN DIXON AND JUDICIAL METHOD – Hein Online
https://heinonline.org/HOL/LandingPage?handle=hein.journals/mulr15&div=47&id=&page=
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