Great video once again! Have a lovely Christmas, and thank you for the work you've put in to this channel. Interesting to see how some in your constitutional deliberations tried nicking wording from ours, and how it (didn't) work out.
I have often mentioned to my students that one of the few times that plagiarism is allowed is when you are writing a Constitution, because you want to use phrases that have already been tested and interpreted by courts. Hence, the framers of the Commonwealth Constitution did 'borrow' quite a bit from the US Constitution (along with British laws and provisions in the Australian colonial Constitutions).
Professor Twomey, Ian Paisley Sr. was a Presbyterian minister and an MP in the UK Parliament for many years before 2001. Why did the clergy disqualification not apply to him?
The House of Commons (Clergy Disqualification) Act (1801) originally disqualified only ministers ordained in specific national churches (Church of England, Church of Scotland, Church of Wales) and the Roman Catholic Church from being elected to the House of Commons. It was repealed, piece by piece (1829 - Catholics, Church of Wales - 1914, Everyone 2001). Ian Paisley was a Presbyterian minister, but not a minister ordained in the Church of Scotland, (and he certainly wasn’t a Catholic). He was a minister (and co-founder) of the Free Presbyterian Church of Ulster.
@noelleggett5368 I thought that may be the case, but I couldn't find anywhere online that detailed which particular churches. Suppose I should've just read the Act. Thank you very much for your answer.
@@SmilingAbyssinianCat-ns3boAh! Paisley was a minister of the Free Presbyterian Church of Ulster - not the Church of Scotland. To avoid confusion and angry posts, I’ll correct my original reply.
Has anyone tried to use section 116 against the practice of declaring Christmas and Easter as public holidays, but not the sacred days of other religions?
I'm not sure. It's possible someone has - although I think these public holidays are declared by the States, not the Commonwealth, so they wouldn't be caught by s 116. In any case, the declaring of public holidays does not itself impose any religious observance. Both Christmas and Easter are primarily celebrated in a secular way these days - with Easter bunnies, chocolate, Christmas trees and presents, none of which are actually religious in nature.
It would almost certainly fail. Just because a public holiday is on a certain day does not compel you to observe any religious practices related to that holiday. For example, I celebrate Christmas/Hanukkah as the December Solstice, Easter as the March Equinox as they were before they were hijacked. Many of these holidays, plus others are also declared concurrently as State/Territory holidays, where S.116 doesn't apply.
These holidays are state and territory holidays by virtue of state and territory laws. Section 116 of the Commonwealth Constitution does not apply to the states.
@@constitutionalclarion1901It is an aside to the actual argument but Christmas trees and even the easter bunny do originate from Christian traditions. They are not secular in nature
Professor Twomey, I’m surprised you made no mention of the Church Act (1836), which effectively disestablished the Church of England in Australia, and is the foundation of our national notion of ‘separation of church and state’. I’m hoping that one day you might like to spend some time discussing the career of John Hubert Punklett and his enormous foundational influence on the law (and education) in Australia. In my opinion, he is the greatest figure of the Colonial Era. As our foundational ‘lawgiver’, he is as important to the early development of Australian society - and ultimately, our understanding of ourselves as Australians - as Moses is to the Jews.
Thanks. Yes, I probably should have mentioned it in the context of the DOGS case, as it allowed government funding to various religions. The problem is trying to fit everything in and not going for too long!
@ That’s true. This particular topic is strangely ‘oblique’, with tangential consequences firing out in all directions. Allowing public funding for Catholic and Presbyterian churches effectively disestablished the Church of England in New South Wales and instituted the doctrine separation of Church and State in Australia. 125 years later, in an effort to coax Catholic voters from Labor, the Menzies government established public funding for Catholic schools while promoting secularisation of public schools. This resulted in the rapid decrease of once dominant Anglicanism in Australia, and saw a corresponding increase in the number of Australians professing no religion, with Catholics taking over as the largest denomination. Daniel Mannix must be dancing on his cloud. 😉 Merry Christmas to you and your family.
The Texas Constitution of 1876 begins, "Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution." I don't know what debate, if any, resulted in the wording or the decision that a blessing was needed. I'm pretty sure the Texans were thinking about the Authorized Version God. The similarity at 6:48 was a "did I hear that?" moment.
Thanks Professor. The key words are actually 'humbly relying on...' which I think invoke our awareness (that perhaps all nations should have) of our vulnerability to the larger scale forces which enable prosperity and success. Donald Horne called it 'lucky' but 'blessed' is closer to historical awareness of what factors combine to createa Goldilocks era of national growth. Such blessing should keep Australians humble.
"The Lucky Country" was an admonishment of Australia, because we weren't doing things "properly", that our prosperity was just a fluke. But Napoleon Bonaparte said this: _"I'd rather have a lucky general than a good general!"_
Many thanks, Anne, for your incisive analysis of constitutional matters, along with some fascinating historical information. I also found your contribution to the discussion over the proposed misinformation legislation very helpful in clarifying my own thoughts on this very tricky issue. Merry Christmas, and all the best for 2025.
Fascinating ! I was interested to see how the Jehovah's Witnesses would fare with their reluctance to grant transfusions to their offspring. A difficult topic for all concerned - the parents have evidently had to look long and hard into the potential demise of their child; the state must judge how far parental powers can go before it becomes seen as abuse; and the public weigh in as they will to such debates. Your thoughts, as always, are much appreciated.
Thank you so many fascinating and informative videos across the year. As one of those notorious 'Priests of the Church of Rome' formerly banned from election, interestingly while Australian law would now permit such elections, the Catholic Church's own canon law prohibits it. The current Code of Canon Law (1983) notes "Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power." (Canon 285 §3)
Many people try to equate the religious tolerance clause in our Constitution with that of the USA. While they are similar, they are not identical. Even many Americans think that the First Amendment contains all that their Constitution says about religious freedom and never realise that the prohibition on any religious test for office is enshrined in Article VI of the original Constitution.
Another superlatively engaging video, as always fascinating hear the history and detail explained so wonderfully. Whoever downvotes these videos has 'issues'.
The King ceases to be an Anglican when he crosses the border into Scotland. In Scotland he is a member of the Church of Scotland (a.k.a. The Kirk in common parlance in the UK) There is no Head of the Church of Scotland; it is presbyterian by creed. The King can be present at the Kirk's important formal events - the late Queen often was.
As to the humbly relying on almighty god... I've been reading some US state constitutions, and a lot have that in their preamble. I must say I am glad that is not present in our constitution. As someone who rejects the existence of said deity, let alone the extent of their worldly power, it is somewhat infuriating that the supposed popular sovereignty is rejected in favour of a divine sovereignty. As for section 116, I am very glad it is one of the very few enumerated rights included by our framers. However, I wish the high court had not taken an absolute thrasher to its protections. A purpose test rather than a balancing test would at least give some protection to religious freedom, and by extent the freedom of conscience. It can be recognised that restricting the government's right to infringe on the free exercise religion does not allow the free exercise of religion to infringe on the natural rights of other citizens. Instead we let the government trample the free exercise if it at least has a half decent smoke screen to hide behind. Anyway, this is becoming a bit ranty. Happy holidays and merry Xmas professor.
“Crikey!” (Steve Irwin invoking Divine Providence). I remember Prime Minister Bob Hawke famously invoked Divine Providence when a fluorescent lamp exploded near him when he was giving a speech.
Happy Christmas and New Year. Thanks for an enlightened 2024. While watching this video I had a thought. Imagine someone in 80 to 100 years talking about current day cases. Things like Pauline Hanson and people fighting the state governments. How will these be judged? Maybe like people fighting against war restrictions on Christmas advertising. There may be a case for us not evolving as fast as we think. That was went through my mind while watching this installment.
would making Christmas and Easter public holidays technically be a violation of section 116, as it is 'imposing a religious observance' and by making it a public holiday does it not preference one religion over another?
Probably not as determining public holidays is a state govt function. It would be interesting to see how that would have went if the original intention for it to apply to the states was passed.
It's the States that ordinarily set public holidays, and s 116 doesn't apply to them. But in any case, having a holiday does not itself impose any religious observance. Most people enjoy the holiday without engaging in any religious observance at all.
Merry Xmas Prof Twomey, thank you for all your fascinating and educational talks this year. May 2025 bring you and yours all the very best you can hope for, and more. 😊👍🎄🎇✨️
Even though I’m not religious I’m thankful “Almighty God” is in the Constitution rather than Almighty Prime Minister, Politician or Dear Leader. No Human should ever have dominion over another.
Where Non Conformist & Catholic clergy under the same laws in the colonies as they where in the UK? An was the Catholic emancipation act 1829 in effect in Australia after it was signed into law in the UK & Ireland?
Recently, I was at a function where the guest speaker was a certain Senator from Western Australia. At the end of the speech, she asserted that Australia was a “Judeo-Christian nation”. (Can you hear the dogs barking?) Before asking a question, I quickly reminded her (and her audience) of section 116 of the constitution, that Islam is regarded as a “Judeo-Christian” or ‘Abrahamic’ faith, and that 40% of Australians profess to have no religion.
Sure you're not missing the context of that comment? Many of our laws in our Western culture were heavily influenced by Christian ideals. How many do/don't subscribe to it is irrelevant in that context. Islam is not regarded as part of Judeo-Christian, the term intentionally excludes it.
"No one of course is obliged by a Commonwealth law to participate in that prayer." I once argued in a paper that the prayer at the beginning of parliamentary sittings did impose a religious observance. Standing order 38 of the Standing and Sessional Orders of the House of Representatives prescribes the exact wording of prayers the Speaker shall read at the beginning of each sitting. The precise wording in the standing orders of the Lord's Prayer is not the wording found in the Bible which would make it generically Christian, but is unique only to the Church of England's Book of Common Prayer. The standing orders make it mandatory that the speaker read those words. I argued that in so doing the Standing and Sessional Orders imposes a religious observance to the Church of England. That argument was not accepted on the grounds that the standing orders of parliament are not a 'Commonwealth Law.' Commonwealth Laws are legislation including delegated or subordinate legislation and other instruments made under the authority of legislation. It includes 'rules' of court (Flaherty v Girgis). However, the rules of court are made pursuant to legislation, e.g., Judiciary Act 1903 but the standing orders are made pursuant to s50 of the Constitution. While the speaker is obliged to read an excerpt from the Church of England's Book of Common Prayer at the beginning of every sitting of the house, he/she is not obliged to do so by any Commonwealth law. Your statement is correct and my argument fails on the basis. It is quite an interesting thought though. Just thought I should explore that bit of reasoning.
Wish we could ban Christmas advertisements despite an absence of war. Or perhaps Aus and NZ could just pretend to be at war each December to achieve the same effect ? Regardless. Another 10 out of 10. Thanks.
@@constitutionalclarion1901 Yes they are getting worse. Original Christmas carol tunes played quietly, sotto voce, in supermarkets are all right but speeded up and tinny, they can make you want to leave the shop as quickly as possible. As you say the shop staff have to endure them all day.
Happy Xmas Anne, 🎅 I was looking at the referendums last week. The way in which the mentioned were presented for voting on the s116 changes seemingly was multifaceted & messy. Commenting suggests that if it were broken up further, half of the changes would of been supported & the remaining not so. Being fear of no funding would of been given to religious schools as the concern & why it ended in defeat. A similar problem affected the outcome for the referendum involving trial by jury. I’m not sure if this is thought done deliberately, made messy to sneak one section through that’s bad under the banner of what was wanted & used as the sales pitch. The other thing with the mention topic, it’s recorded in stats 96% of the population was Christian at the time of the constitution & played part for why the public lobbied to add Almighty God in the preamble.
"it’s recorded in stats 96% of the population was Christian at the time of the constitution & played part for why the public lobbied to add Almighty God in the preamble." Yes, mostly. Although Christianity wasn't the only religion that believed in an almighty God.
Thanks. Yes, putting four different 'rights' in the one question did mean that objecting to just one would bring the entire lot down. It has been a problem in a number of referendums. Politicians are always tempted to hide the vegetables amongst the more appetising food. In the 1890s, the argument about the inclusion of reference to God in the Constitution was between popular support from religious groups on the one hand and concern about whether it is appropriate to refer to God in such a document on the other. The reason why many of the framers objected to it was that they were concerned about how it might be interpreted by a court down the track and whether it would result in the Commonwealth gaining unintended powers over religion.
Yet we hear parliamentarians quoting “ religious values” The values I hold are those of natural justice, which has nothing to do with any religion! Just do not ask me to define “ natural justice “, I could not do so anymore then one could define “ religious values “.
Thank you for your comprehensive and insightful explanation. The next step that we must take as a modern nation that values democratic rule and Common Law, is to include in our Federal and State Constitutions a new clause that also guarantees citizens the right to be free from religion(s). Considering that religiosity is in steady decline and that agnosticism, atheism and secularism are on the rise, it would be reasonable to invoke protections from religion and especially the fervently religious.
Provide a good argument for why "freedom from religion" would be a good law? Whilst your at it I'm curious to know your views on children's access to photographic websites?
Freedom of religion was one of the string of proposed changes put forward in the 1988 Referendum. It failed (of course). Among the arguments against it included: that it would endanger public funding of religious/Catholic schools; that it would put corporal punishment in religious schools out of the reach of government legislation, and that it could complicate discrimination legislation.
Once again, an excellent, educational presentation. A question that I have is, how do people justify swearing oaths on the bible, when it is contrary to the teachings in the bible, namely, Matthew 5:÷4 and James 5:12?
you're right that the Bible says you shouldn't swear on it, but in situations where you might be asked to swear upon the Bible, you can request to swap it with something else
@@ImInterestedInApathyII I wonder if those strange science fiction types could legally swear an oath while holding a copy of 'Hitchhikers guide to the galaxy' or a similar text?
*Dear Anne - a merry Christmas to you & your family* I will be in the company of my 11 grand-children. (7 Boys - 4 Girls) As an old man of 70 - I hope to bore them with the story of how Christmas was banned in Oliver Cromwell's time. In June 1647, Parliament passed an ordinance banning Christmas, Easter & Whitsun festivities, services & celebrations, including festivities in the home, with fines for non-compliance. The Christmas ban was so unpopular, there were riots in Kent and elsewhere. A popular songster's ballad of the time - called 'The World Turned Upside Down' was published decrying the ban. 🙂
Then how did Rev.Fred Nile and his "Festival of Light," get away with it? EDIT : - Aha! An amendment from 1902 gave him the "permission" to so outrageously mixing of "State and Church," that is, his Church.
Rev. Fred Nile and his band of disciples used to congregate in Hyde Park, Sydney, a few hours before the annual Sydney Gay and Lesbian Mardi Gras Parade, praying for rain. (Any Sydney-sider can tell you that praying for rain in Sydney in the first week of March is like praying for a Catholic to be elected Pope.) Nevertheless, on several occasions, I’ve witnessed the rain clouds dissipate shortly before the parade - held under a clear early autumn evening sky - only to return an hour or so after the parade to wash the streets clean. Fred, mate, I’m sorry. But you were clearly not on the side of the Divine.
Kind of. Although Queen Victoria probably grew up with the tradition (having a German mother). But Victoria and her husband certainly made the custom mainstream in Britain during her reign.
Section 115 has to be read in conjunction with s 51(xii), which allows the Commonwealth Parliament to expand what counts as legal tender. Ie including other forms of payment
Section 115 is confined to the States, which do not themselves coin money or determine legal tender. That's a matter for the Commonwealth, which has power over the currency and legal tender in s 51(xii). There has been lots of litigation with people claiming that anything other than payment in gold or civil coin is unlawful - but all of that litigation has failed.
Thank you very informative as always, reminded me of how glad i am we didnt end up with a shitty "house of lords" situation in Australia, always suprises me they didnt just whole heartedly copy the British system and clearly made some attempt to take good bits of the US system. Im a fan of section 116 but in practice it seems very weak & Shame we didnt end up with better separation from religion & our government but its better than it couldve been, luckily, Australian never went down the path of idiotic religious intolerance & fundamentalism like USA has 😢
It's worth remembering that even though there's no specific connection named in the constitution, our system of government is a product of a broadly Christianised culture.
Because the religion just happened to be Christianity. Our system of government would not be significantly different if the prevailing philosophy was Buddhism or Judaism or atheism.
@davidhoward4715 as neither Buddhism no Judaism has produced a system of government like ours your hypothesis remains untested and unprovable. Because the west lives and breathes a government and society that is heavily informed by a Christian worldview, it is sometimes difficult to see how Christian it inherently is, even while we grow increasingly secularised.
Is he though? Because aren't the monarchies of the Commonwealth Realms all distinctive, just occupied by the same person? So that Brian is only supreme governor of the CoE when he's wearing his UK glittery hat, as opposed to his Australian bling? Or whichever bling he happens to be wearing at the time?
The head of the church of England, but not the head of the church of Australia. But it does remind me of that yes prime minister episode. "So one wants;to take god out of the church, and the other wants the queen out?" "The queen is inseparable from the church." "What about god?" "He's what we call an optional extra."
Thanks to the Church Act (1836) there is no “Church of Australia”. Perhaps you’re thinking of the Anglican Church of Australia (formerly known as the Church of England in Australia and Tasmania)? It is lead by a ‘primate’ (who is not a monkey; (s)he doesn’t (usually) have a tail. The Primate is elected from among the five Anglican archbishops of each the ‘Australian’ provinces. (Sorry, Tasmania. I don’t quite know how you got left out.) The King of England is Supreme Governor of the Church of England. The King of Australia is an occasional visitor who takes no part in the governance of an independent arm of the Anglican Communion. This king, in particular, would not wish to do so.
@@noelleggett5368 I wasn't thinking of any church. The non-existent of said church is the point - the king has no religious connection under the Australian Commonwealth.
Another great video, thank you Anne. Can I ask why comments were turned off on the National flag video? I like reading the comments section on videos, but it was turned off? Merry Christmas 🎄
Yes, I normally like reading the comments too, as they help me understand what people want to learn about and where the misconceptions lie. I only turn off comments when they become abusive and defamatory and the load of them is too great for me to weed them out. Unfortunately the flag video produced too many of those comments, so I turned off the comments section, which then wipes out all of them, including the constructive ones.
@ How unfortunate that some people have to be like this. Please don’t stop your videos because of a few unsavoury people as I thoroughly enjoy learning about our constitution. Regards
PART V (s) 51 "make laws for peace, order and good government" Subversive activity: not a problem when in Commonwealth legislation for broadcast communication laws. Such as strengthening a community's social order. Nothing a jingle and free T shirt can't fix. Merry Christmas Professor, hope you have a blessed day of joy. 🎄🌏🇦🇺
Every country should never be so arrogant as to deny god....there's still no evidence of evolution, civilization we can't prove anything over five thousand years....darwins theory was just that....his theory, everything we need to know is in the bible...but we seem to like rejecting gods word, because those in power don't like to think of any other powerful entities than them selves....and having to answer to them for thier sins....
![Felix "Unfair" | [Stray Kids : SKZ-PLAYER]](http://i.ytimg.com/vi/Oswujxm2Ag0/mqdefault.jpg)
Great video once again! Have a lovely Christmas, and thank you for the work you've put in to this channel. Interesting to see how some in your constitutional deliberations tried nicking wording from ours, and how it (didn't) work out.
I have often mentioned to my students that one of the few times that plagiarism is allowed is when you are writing a Constitution, because you want to use phrases that have already been tested and interpreted by courts. Hence, the framers of the Commonwealth Constitution did 'borrow' quite a bit from the US Constitution (along with British laws and provisions in the Australian colonial Constitutions).
Thank you for this as ever interesting video, and I hope you have a happy Christmas, Professor Twomey!
Thank you very much - and a happy Christmas to you too.
Thankyou for your fabulous videos. Best wishes for the holiday season and new year.
Glad you enjoyed them. Cheers to you too.
Professor Twomey, Ian Paisley Sr. was a Presbyterian minister and an MP in the UK Parliament for many years before 2001. Why did the clergy disqualification not apply to him?
The House of Commons (Clergy Disqualification) Act (1801) originally disqualified only ministers ordained in specific national churches (Church of England, Church of Scotland, Church of Wales) and the Roman Catholic Church from being elected to the House of Commons. It was repealed, piece by piece (1829 - Catholics, Church of Wales - 1914, Everyone 2001).
Ian Paisley was a Presbyterian minister, but not a minister ordained in the Church of Scotland, (and he certainly wasn’t a Catholic). He was a minister (and co-founder) of the Free Presbyterian Church of Ulster.
@noelleggett5368 I thought that may be the case, but I couldn't find anywhere online that detailed which particular churches. Suppose I should've just read the Act. Thank you very much for your answer.
@@SmilingAbyssinianCat-ns3boAh! Paisley was a minister of the Free Presbyterian Church of Ulster - not the Church of Scotland. To avoid confusion and angry posts, I’ll correct my original reply.
Thanks for your analyses throughout the year! Merry Christmas
Thanks. Merry Christmas to you too.
Has anyone tried to use section 116 against the practice of declaring Christmas and Easter as public holidays, but not the sacred days of other religions?
I'm not sure. It's possible someone has - although I think these public holidays are declared by the States, not the Commonwealth, so they wouldn't be caught by s 116. In any case, the declaring of public holidays does not itself impose any religious observance. Both Christmas and Easter are primarily celebrated in a secular way these days - with Easter bunnies, chocolate, Christmas trees and presents, none of which are actually religious in nature.
It would almost certainly fail. Just because a public holiday is on a certain day does not compel you to observe any religious practices related to that holiday. For example, I celebrate Christmas/Hanukkah as the December Solstice, Easter as the March Equinox as they were before they were hijacked. Many of these holidays, plus others are also declared concurrently as State/Territory holidays, where S.116 doesn't apply.
These holidays are state and territory holidays by virtue of state and territory laws. Section 116 of the Commonwealth Constitution does not apply to the states.
@@constitutionalclarion1901It is an aside to the actual argument but Christmas trees and even the easter bunny do originate from Christian traditions. They are not secular in nature
@@JeanBaptiste_ So many of our Christmas and Easter traditions pre-date the arrival of Christianity to Europe and have pagan origins.
Professor Twomey, I’m surprised you made no mention of the Church Act (1836), which effectively disestablished the Church of England in Australia, and is the foundation of our national notion of ‘separation of church and state’.
I’m hoping that one day you might like to spend some time discussing the career of John Hubert Punklett and his enormous foundational influence on the law (and education) in Australia. In my opinion, he is the greatest figure of the Colonial Era. As our foundational ‘lawgiver’, he is as important to the early development of Australian society - and ultimately, our understanding of ourselves as Australians - as Moses is to the Jews.
Thanks. Yes, I probably should have mentioned it in the context of the DOGS case, as it allowed government funding to various religions. The problem is trying to fit everything in and not going for too long!
@ That’s true. This particular topic is strangely ‘oblique’, with tangential consequences firing out in all directions. Allowing public funding for Catholic and Presbyterian churches effectively disestablished the Church of England in New South Wales and instituted the doctrine separation of Church and State in Australia. 125 years later, in an effort to coax Catholic voters from Labor, the Menzies government established public funding for Catholic schools while promoting secularisation of public schools. This resulted in the rapid decrease of once dominant Anglicanism in Australia, and saw a corresponding increase in the number of Australians professing no religion, with Catholics taking over as the largest denomination. Daniel Mannix must be dancing on his cloud. 😉
Merry Christmas to you and your family.
The Texas Constitution of 1876 begins, "Humbly invoking the blessings of Almighty God, the people of the State of Texas, do ordain and establish this Constitution." I don't know what debate, if any, resulted in the wording or the decision that a blessing was needed. I'm pretty sure the Texans were thinking about the Authorized Version God. The similarity at 6:48 was a "did I hear that?" moment.
Thanks. That's interesting. The Australian one says 'humbly relying on the blessing of Almighty God'. There are certainly close similarities!
Thanks Professor. The key words are actually 'humbly relying on...' which I think invoke our awareness (that perhaps all nations should have) of our vulnerability to the larger scale forces which enable prosperity and success. Donald Horne called it 'lucky' but 'blessed' is closer to historical awareness of what factors combine to createa Goldilocks era of national growth. Such blessing should keep Australians humble.
Donald Horne was being ironic (or at least critical) when he described Australia as lucky.
"The Lucky Country" was an admonishment of Australia, because we weren't doing things "properly", that our prosperity was just a fluke.
But Napoleon Bonaparte said this: _"I'd rather have a lucky general than a good general!"_
I look forward to your videos. They are educating me in depth about our Constitution. Many thanks and the season's greetings.🙂
Thanks. Much appreciated.
You and the Clarion have had a great year. It follows that we have too. Thank you.
Thanks Bob. Merry Christmas to you.
Many thanks, Anne, for your incisive analysis of constitutional matters, along with some fascinating historical information. I also found your contribution to the discussion over the proposed misinformation legislation very helpful in clarifying my own thoughts on this very tricky issue.
Merry Christmas, and all the best for 2025.
Thanks - and to you too.
Remember folks it's a fine line between governing and dictating.
You decide 🇦🇺 Australia.
Fascinating ! I was interested to see how the Jehovah's Witnesses would fare with their reluctance to grant transfusions to their offspring. A difficult topic for all concerned - the parents have evidently had to look long and hard into the potential demise of their child; the state must judge how far parental powers can go before it becomes seen as abuse; and the public weigh in as they will to such debates. Your thoughts, as always, are much appreciated.
Thank you so many fascinating and informative videos across the year. As one of those notorious 'Priests of the Church of Rome' formerly banned from election, interestingly while Australian law would now permit such elections, the Catholic Church's own canon law prohibits it. The current Code of Canon Law (1983) notes "Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power." (Canon 285 §3)
Thanks. That's very interesting.
Many people try to equate the religious tolerance clause in our Constitution with that of the USA. While they are similar, they are not identical. Even many Americans think that the First Amendment contains all that their Constitution says about religious freedom and never realise that the prohibition on any religious test for office is enshrined in Article VI of the original Constitution.
Yes, the High Court has distinguished the Australian version from the US one, with a critical difference being the use of the word 'for'.
Another superlatively engaging video, as always fascinating hear the history and detail explained so wonderfully. Whoever downvotes these videos has 'issues'.
Glad you enjoyed it.
The King ceases to be an Anglican when he crosses the border into Scotland. In Scotland he is a member of the Church of Scotland (a.k.a. The Kirk in common parlance in the UK) There is no Head of the Church of Scotland; it is presbyterian by creed. The King can be present at the Kirk's important formal events - the late Queen often was.
Thank you Professor and a Merry Christmas and a happy New year to you
Thanks. And to you too.
As to the humbly relying on almighty god... I've been reading some US state constitutions, and a lot have that in their preamble. I must say I am glad that is not present in our constitution. As someone who rejects the existence of said deity, let alone the extent of their worldly power, it is somewhat infuriating that the supposed popular sovereignty is rejected in favour of a divine sovereignty.
As for section 116, I am very glad it is one of the very few enumerated rights included by our framers. However, I wish the high court had not taken an absolute thrasher to its protections. A purpose test rather than a balancing test would at least give some protection to religious freedom, and by extent the freedom of conscience. It can be recognised that restricting the government's right to infringe on the free exercise religion does not allow the free exercise of religion to infringe on the natural rights of other citizens. Instead we let the government trample the free exercise if it at least has a half decent smoke screen to hide behind.
Anyway, this is becoming a bit ranty. Happy holidays and merry Xmas professor.
Another great episode as always
Merry Christmas/Happy Holidays fellow law nerds!
And to you too.
Really enjoying your videos! Happy Christmas 🌠
Thanks! And Happy Christmas to you too.
As always love your work.
Merry Christmas from a Clarionette!!!
Merry Christmas to you too.
“Crikey!” (Steve Irwin invoking Divine Providence).
I remember Prime Minister Bob Hawke famously invoked Divine Providence when a fluorescent lamp exploded near him when he was giving a speech.
Happy Christmas and New Year. Thanks for an enlightened 2024. While watching this video I had a thought. Imagine someone in 80 to 100 years talking about current day cases. Things like Pauline Hanson and people fighting the state governments. How will these be judged? Maybe like people fighting against war restrictions on Christmas advertising. There may be a case for us not evolving as fast as we think. That was went through my mind while watching this installment.
would making Christmas and Easter public holidays technically be a violation of section 116, as it is 'imposing a religious observance' and by making it a public holiday does it not preference one religion over another?
Probably not as determining public holidays is a state govt function. It would be interesting to see how that would have went if the original intention for it to apply to the states was passed.
It's the States that ordinarily set public holidays, and s 116 doesn't apply to them. But in any case, having a holiday does not itself impose any religious observance. Most people enjoy the holiday without engaging in any religious observance at all.
Merry Xmas Prof Twomey, thank you for all your fascinating and educational talks this year.
May 2025 bring you and yours all the very best you can hope for, and more. 😊👍🎄🎇✨️
Thank you so much.
Thank you for your tree of Knowledge... (we can always add bells & whistles)
That would certainly decorate the tree nicely at Christmas time.
Merry Christmas from The Clarionettes!
Thanks. I've just uploaded a present to the Clarionettes. Enjoy.
Even though I’m not religious I’m thankful “Almighty God” is in the Constitution rather than Almighty Prime Minister, Politician or Dear Leader. No Human should ever have dominion over another.
Where Non Conformist & Catholic clergy under the same laws in the colonies as they where in the UK?
An was the Catholic emancipation act 1829 in effect in Australia after it was signed into law in the UK & Ireland?
I would think so, as Australia only began making our own laws in 1901 due to the Australian constitution
Recently, I was at a function where the guest speaker was a certain Senator from Western Australia. At the end of the speech, she asserted that Australia was a “Judeo-Christian nation”. (Can you hear the dogs barking?) Before asking a question, I quickly reminded her (and her audience) of section 116 of the constitution, that Islam is regarded as a “Judeo-Christian” or ‘Abrahamic’ faith, and that 40% of Australians profess to have no religion.
Sure you're not missing the context of that comment? Many of our laws in our Western culture were heavily influenced by Christian ideals. How many do/don't subscribe to it is irrelevant in that context. Islam is not regarded as part of Judeo-Christian, the term intentionally excludes it.
"No one of course is obliged by a Commonwealth law to participate in that prayer." I once argued in a paper that the prayer at the beginning of parliamentary sittings did impose a religious observance. Standing order 38 of the Standing and Sessional Orders of the House of Representatives prescribes the exact wording of prayers the Speaker shall read at the beginning of each sitting. The precise wording in the standing orders of the Lord's Prayer is not the wording found in the Bible which would make it generically Christian, but is unique only to the Church of England's Book of Common Prayer. The standing orders make it mandatory that the speaker read those words. I argued that in so doing the Standing and Sessional Orders imposes a religious observance to the Church of England. That argument was not accepted on the grounds that the standing orders of parliament are not a 'Commonwealth Law.' Commonwealth Laws are legislation including delegated or subordinate legislation and other instruments made under the authority of legislation. It includes 'rules' of court (Flaherty v Girgis). However, the rules of court are made pursuant to legislation, e.g., Judiciary Act 1903 but the standing orders are made pursuant to s50 of the Constitution. While the speaker is obliged to read an excerpt from the Church of England's Book of Common Prayer at the beginning of every sitting of the house, he/she is not obliged to do so by any Commonwealth law. Your statement is correct and my argument fails on the basis. It is quite an interesting thought though. Just thought I should explore that bit of reasoning.
Thanks. Yes, that was the reasoning I had in mind - but it's great that someone has explained it.
It seems odd that that only on Good Friday, is it illegal to sell retail alcohol in (most states of?) Australia.
Odd? "Ridiculous" comes to my mind as a more appropriate description.
@@7ismersenne True. The poor Catholics who have to sit through the interminable three-hour Good Friday Mass deserve a drink afterwards.
Wish we could ban Christmas advertisements despite an absence of war. Or perhaps Aus and NZ could just pretend to be at war each December to achieve the same effect ? Regardless. Another 10 out of 10. Thanks.
And tinny Christmas songs played in shops. I feel so sorry for the workers who have to hear them all day.
@@constitutionalclarion1901 Yes they are getting worse. Original Christmas carol tunes played quietly, sotto voce, in supermarkets are all right but speeded up and tinny, they can make you want to leave the shop as quickly as possible. As you say the shop staff have to endure them all day.
Safe holidays & merry Christmas to you & yours Professor Anne
Thanks - and to you too.
merry christmas oh wise one...
Happy Xmas Anne, 🎅
I was looking at the referendums last week. The way in which the mentioned were presented for voting on the s116 changes seemingly was multifaceted & messy.
Commenting suggests that if it were broken up further, half of the changes would of been supported & the remaining not so. Being fear of no funding would of been given to religious schools as the concern & why it ended in defeat.
A similar problem affected the outcome for the referendum involving trial by jury.
I’m not sure if this is thought done deliberately, made messy to sneak one section through that’s bad under the banner of what was wanted & used as the sales pitch.
The other thing with the mention topic, it’s recorded in stats 96% of the population was Christian at the time of the constitution & played part for why the public lobbied to add Almighty God in the preamble.
"it’s recorded in stats 96% of the population was Christian at the time of the constitution & played part for why the public lobbied to add Almighty God in the preamble."
Yes, mostly. Although Christianity wasn't the only religion that believed in an almighty God.
Thanks. Yes, putting four different 'rights' in the one question did mean that objecting to just one would bring the entire lot down. It has been a problem in a number of referendums. Politicians are always tempted to hide the vegetables amongst the more appetising food.
In the 1890s, the argument about the inclusion of reference to God in the Constitution was between popular support from religious groups on the one hand and concern about whether it is appropriate to refer to God in such a document on the other. The reason why many of the framers objected to it was that they were concerned about how it might be interpreted by a court down the track and whether it would result in the Commonwealth gaining unintended powers over religion.
Happy Christmas Prof.
Thanks, and to you too.
Merry Christmas and a Happier new year dear professor.
Thanks very much - and to you too.
Yet we hear parliamentarians quoting “ religious values”
The values I hold are those of natural justice, which has nothing to do with any religion!
Just do not ask me to define “ natural justice “, I could not do so anymore then one could define “ religious values “.
Thank you for your comprehensive and insightful explanation. The next step that we must take as a modern nation that values democratic rule and Common Law, is to include in our Federal and State Constitutions a new clause that also guarantees citizens the right to be free from religion(s). Considering that religiosity is in steady decline and that agnosticism, atheism and secularism are on the rise, it would be reasonable to invoke protections from religion and especially the fervently religious.
Provide a good argument for why "freedom from religion" would be a good law?
Whilst your at it I'm curious to know your views on children's access to photographic websites?
Freedom of religion was one of the string of proposed changes put forward in the 1988 Referendum. It failed (of course). Among the arguments against it included: that it would endanger public funding of religious/Catholic schools; that it would put corporal punishment in religious schools out of the reach of government legislation, and that it could complicate discrimination legislation.
Thank you for your very informative videos on our sometimes bizarre constitution. Wishing you a very merry Christmas and all the very best for 2025.
You too - have a great break.
Thanx
You're most welcome.
I rather doubt anyone in Australia was aware of the term"Judeo-Christian" in the 1890s
OED says it was in use from the 1820s
What you doubt is irrelevant.
That's because it's a fake concept. There is no such thing as "Judeo-Christian". It's forced upon us by one part of that equation.
Anne for the next GG!
Thanks - but not my cup of tea, I'm afraid.
Once again, an excellent, educational presentation.
A question that I have is, how do people justify swearing oaths on the bible, when it is contrary to the teachings in the bible, namely, Matthew 5:÷4 and James 5:12?
Isn't the bible signifying truth?
you're right that the Bible says you shouldn't swear on it, but in situations where you might be asked to swear upon the Bible, you can request to swap it with something else
That's exactly why Quakers traditionally don't swear oaths.
@@ImInterestedInApathyII I wonder if those strange science fiction types could legally swear an oath while holding a copy of 'Hitchhikers guide to the galaxy' or a similar text?
Luckily people can choose to make an affirmation rather than take an oath on a bible. An affirmation has the same legal effect as a religious oath.
*Dear Anne - a merry Christmas to you & your family*
I will be in the company of my 11 grand-children. (7 Boys - 4 Girls) As an old man of 70 - I hope to bore them with the story of how Christmas was banned in Oliver Cromwell's time. In June 1647, Parliament passed an ordinance banning Christmas, Easter & Whitsun festivities, services & celebrations, including festivities in the home, with fines for non-compliance. The Christmas ban was so unpopular, there were riots in Kent and elsewhere. A popular songster's ballad of the time - called 'The World Turned Upside Down' was published decrying the ban. 🙂
Thanks. Merry Christmas to you and your family too.
Ah, the perennial "war on Christmas", what would we do without it...
Then how did Rev.Fred Nile and his "Festival of Light," get away with it?
EDIT : - Aha! An amendment from 1902 gave him the "permission" to so outrageously mixing of "State and Church," that is, his Church.
Rev. Fred Nile and his band of disciples used to congregate in Hyde Park, Sydney, a few hours before the annual Sydney Gay and Lesbian Mardi Gras Parade, praying for rain. (Any Sydney-sider can tell you that praying for rain in Sydney in the first week of March is like praying for a Catholic to be elected Pope.) Nevertheless, on several occasions, I’ve witnessed the rain clouds dissipate shortly before the parade - held under a clear early autumn evening sky - only to return an hour or so after the parade to wash the streets clean. Fred, mate, I’m sorry. But you were clearly not on the side of the Divine.
Don't worry. Queen Victoria started the idea of decorating the tree in their front yard one christmas.....times were boring and the idea took off.
Kind of. Although Queen Victoria probably grew up with the tradition (having a German mother). But Victoria and her husband certainly made the custom mainstream in Britain during her reign.
I looked up s116 but then noticed s115! Do I need to pay my parking fines in coins only!
Ahah! Google “Leonard William Clampett”
Section 115 has to be read in conjunction with s 51(xii), which allows the Commonwealth Parliament to expand what counts as legal tender. Ie including other forms of payment
Section 115 is confined to the States, which do not themselves coin money or determine legal tender. That's a matter for the Commonwealth, which has power over the currency and legal tender in s 51(xii).
There has been lots of litigation with people claiming that anything other than payment in gold or civil coin is unlawful - but all of that litigation has failed.
@ could be a fun April Fool’s video!
Thank you very informative as always, reminded me of how glad i am we didnt end up with a shitty "house of lords" situation in Australia, always suprises me they didnt just whole heartedly copy the British system and clearly made some attempt to take good bits of the US system. Im a fan of section 116 but in practice it seems very weak & Shame we didnt end up with better separation from religion & our government but its better than it couldve been, luckily, Australian never went down the path of idiotic religious intolerance & fundamentalism like USA has 😢
Thank you.
You're most welcome.
Thanks.
You're welcome.
It's worth remembering that even though there's no specific connection named in the constitution, our system of government is a product of a broadly Christianised culture.
Because the religion just happened to be Christianity. Our system of government would not be significantly different if the prevailing philosophy was Buddhism or Judaism or atheism.
@davidhoward4715 as neither Buddhism no Judaism has produced a system of government like ours your hypothesis remains untested and unprovable.
Because the west lives and breathes a government and society that is heavily informed by a Christian worldview, it is sometimes difficult to see how Christian it inherently is, even while we grow increasingly secularised.
Happy Holiday’s 😂
Thanks - and to you too.
The King of Australia is the head of The Church of England .
Is he though? Because aren't the monarchies of the Commonwealth Realms all distinctive, just occupied by the same person? So that Brian is only supreme governor of the CoE when he's wearing his UK glittery hat, as opposed to his Australian bling? Or whichever bling he happens to be wearing at the time?
The head of the church of England, but not the head of the church of Australia.
But it does remind me of that yes prime minister episode.
"So one wants;to take god out of the church, and the other wants the queen out?"
"The queen is inseparable from the church."
"What about god?"
"He's what we call an optional extra."
Thanks to the Church Act (1836) there is no “Church of Australia”. Perhaps you’re thinking of the Anglican Church of Australia (formerly known as the Church of England in Australia and Tasmania)? It is lead by a ‘primate’ (who is not a monkey; (s)he doesn’t (usually) have a tail. The Primate is elected from among the five Anglican archbishops of each the ‘Australian’ provinces. (Sorry, Tasmania. I don’t quite know how you got left out.)
The King of England is Supreme Governor of the Church of England. The King of Australia is an occasional visitor who takes no part in the governance of an independent arm of the Anglican Communion. This king, in particular, would not wish to do so.
@@noelleggett5368 I wasn't thinking of any church. The non-existent of said church is the point - the king has no religious connection under the Australian Commonwealth.
I believe one of the titles that gets added is protector of the faith to reference the kings role to his church & duties.
Could not have a King subject to the Vatican! Hence Church of England.
Until Henry VIII became king, English monarchs were Catholic.
@jossgower You have no idea about the history of the Church of England, do you? All you know is your religious bigotry.
Another great video, thank you Anne. Can I ask why comments were turned off on the National flag video? I like reading the comments section on videos, but it was turned off? Merry Christmas 🎄
Yes, I normally like reading the comments too, as they help me understand what people want to learn about and where the misconceptions lie. I only turn off comments when they become abusive and defamatory and the load of them is too great for me to weed them out. Unfortunately the flag video produced too many of those comments, so I turned off the comments section, which then wipes out all of them, including the constructive ones.
@ How unfortunate that some people have to be like this. Please don’t stop your videos because of a few unsavoury people as I thoroughly enjoy learning about our constitution. Regards
PART V (s) 51 "make laws for peace, order and good government"
Subversive activity: not a problem when in Commonwealth legislation for broadcast communication laws. Such as strengthening a community's social order.
Nothing a jingle and free T shirt can't fix.
Merry Christmas Professor, hope you have a blessed day of joy.
🎄🌏🇦🇺
Thanks. Merry Christmas to you too.
Every country should never be so arrogant as to deny god....there's still no evidence of evolution, civilization we can't prove anything over five thousand years....darwins theory was just that....his theory, everything we need to know is in the bible...but we seem to like rejecting gods word, because those in power don't like to think of any other powerful entities than them selves....and having to answer to them for thier sins....