The Unconstitutionality of the Proposed Ban on Swan Valley Churches



This is a public statement by Dr Augusto Zimmermann regarding the local law proposed by the City of Swan that would prevent the development of new ‘places of worship’ in a special zoned rural area of the valley. The zone has only two churches, as well as a mosque and two Buddhist temples.

As a former Law Reform Commissioner and legal academic whose main area of expertise is constitutional law, I appear before this Council to make a statement regarding the proposed amendment n.176 to City of Swan scheme n.17.

In a comment made public by the local newspaper, the City of Swan CEO Mike Foley informs that the City’s priority is to ensure that the rural character of the Swan Valley is upheld. This, according to him, includes the ban on churches in the Swan Valley. 

My primary concern is to make sure the mayor of this City understands its obligation to not interfere with the fundamental rights of members of his local community. That being so, I start by stating that I certainly agree with Aaron Stonehouse MLC that ‘there is something totalitarian about a mayor of a city saying that there’s enough suppliers of a particular good or service in the city’. As Mr Stonehouse asks rhetorically: ‘Who is the Mayor to decide whether or not there’s enough of something in their city?’[1]

I attend this meeting in my capacity as a concerned citizen to inform that the proposed by-law to block new churches amounts to a disregard of community values and the rich Christian heritage of Australia. This is akin to something you may find in countries like North Korea, but it should never happen in a country such as Australia. The proposal clearly infringes on freedom of association and property rights, as well as free speech and the free exercise of religion.

The ban on churches perhaps ignores the fact that Christianity has been infused in both the legal and governmental institutions and customs of Australia. As with America and England, our country also possesses remarkable Christian influences – starting with the first British fleet departing for Australia in 1787, when Captain Arthur Phillip was instructed to enforce a due observance of religion and to take such steps as were necessary for the celebration of public worship.

Australian government and laws were first developed out of English legal-political institutions, which are deeply imbued with that important heritage.[2] At the time of British settlement in the continent, Christianity formed an integral part of the theory of English law and government.[3] Christian values were naturally manifested in the legal system, and applicable to the situation of the colonists. As Sydney lawyer Roy Williams points out:

All Western legal systems were grounded on two core assumptions, both of them Biblically based: man has free will, and morality is God-given. But the English went further. For centuries Christianity was recognised as an integral part of the law of the land. Chief Justice Sir Matthew Hale’s statement to that effect in 1676 – ‘The Christian religion is a part of the law itself’– was still received wisdom when the First Fleet arrived at Port Jackson. Such procedures continued to be followed long into the nineteenth century. It is therefore unsurprising that the notion that Christianity was central to English society and English law was widely held in the Australian colonies.[4]

This is evident in the decision of the courts and their direct recognition of Christian principles extending to the law of the land. This reception of Christian principles is perhaps best encapsulated in Justice Hargraves’s comment for the Supreme Court of New South Wales in Ex Parte Thackeray (1874):[5]

We, the colonists of New  South Wales, ‘bring out with us’ (to adopt the words of Blackstone) this first great common law maxim distinctly handed down by Coke and Blackstone and every other English Judge long before any of our colonies were in existence or even thought of, that ‘Christianity is part and parcel of our general laws’;– … as clearly explained by Blackstone Vol 1 pp. 42-43 and 43-60.[6]

These judicial pronouncements exemplify the official recognition of the Christian heritage of Australia. In Thackeray the court adopted and acknowledged Christianity’s embedment in the common law, and it even took the major step of declaring the supremacy of Christian legal principles over colonial laws. Thus the colonial courts recognised that principles derived from Christianity should be declared irrevocable by the local government and be objectively applied to all.

Upon the request of the colonies, on 5 July 1900, the Imperial (British) Parliament passed the Constitution of Australia Bill. Queen Victoria assented four days later and proclaimed in September that the Commonwealth of Australia would come into existence on the first day of the twentieth century (1 January 1901). On the occasion, one of the Constitution’s most distinguished co-authors, Sir John Downer of South Australia, solemnly proclaimed: ‘The Commonwealth of Australia will be, from its first stage, a Christian Commonwealth’.[7] Prior to this, in March 1898, during a debate at the Constitutional Convention in Melbourne, Downer commented:

The Christian religion is a portion of the English Constitution without any decision on the subject at all. It is part of the law of England which I should think we undoubtedly brought with us when we settled in these colonies.[8]

Sir Henry Parkes served as Premier of New South Wales and is known as ‘the Father of Australia’s Federation’ due to his efforts to bring Federation to fruition. Parkes believed that Christianity comprised an ‘essential part’ of our legal system.[9] In a column published in the Sydney Morning Herald on 26 August 1885, Parkes stated: ‘We are pre-eminently a Christian people – as our laws, our whole system of jurisprudence, our Constitution […] are based upon and interwoven with our Christian belief.’[10]

These statements are far more than just rhetoric. They made its way directly into the Preamble of the Australian Constitution: ‘Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth […]’.[11] According to Dyson Heydon, a former judge of the High Court, the words in the Preamble ‘reflected what the elite of the Federation generation saw as fundamental’.[12] In fact, this explicit reference to God in the Constitution received the strongest popular support of any part of the nation’s foundational document. As noted by law professor Helen Irving:

During the 1897 Convention delegates have been inundated with petitions […] in which the recognition of God in the Constitution was demanded. The petitions, organized nationally […] asked for the recognition of God as the ‘supreme ruler of the universe’; for the declaration of national prayers and national days of thanksgiving and ‘humiliation’. But, the essence of their petition was that the Constitution should include a statement of spiritual—specifically Christian—identity for the new nation.[13]

The inclusion of the words ‘humbly relying on the blessing of Almighty God’ into the primary source of Australian law and government exemplifies the nation’s undeniable Christian heritage. It can, at the very least, be said that Judeo-Christian values are so embedded in Australia so as to necessitate the recognition of God in the nation’s founding document. When considered alongside the development of colonial laws, the adoption of the English common law tradition coupled with the American system of federation, which is deeply embedded in Calvinist theology, it is evident that the foundations of the Australian nation, and its laws, have discernible Christian roots.

Many people in this country, and undoubtedly many of our politicians, have become historically illiterate. So it is important for me to remind that Christianity still deeply permeate Australia’s legal-institutional traditions. Christian prayers are conducted prior to opening proceedings at both state and federal Parliaments. Standing Orders for the House and Senate determine that the Speaker must read a prayer for Parliament, which is followed by the Lord’s Prayer before calling for the first item of business.[14] With all Parliamentary members remaining standing, the Speaker concludes the opening proceedings with this prayer:

Almighty God, we humbly beseech Thee to vouchsafe Thy blessing upon this Parliament. Direct and prosper our deliberations to the advancement of Thy glory, and the true welfare of the people of Australia. 

It is therefore implied that religion – which in Australia implies primarily Christianity as the dominant religion – remains relevant in so far as it informs community values and inspires our political class to stand for Christian values and traditions. For such religious values, writes Murray Gleeson, sustain the law and this is most apparent in our parliaments. In an address at St. James Church in Sydney, Gleeson, one of our greatest legal minds and former Chief Justice of the High Court, reminded that Christian values still largely form the basis of community values in Australia. After considering to be irrefutable that Christianity plays a prominent role in our legal system, he went on to illustrate the close link between religion and community values in Australia. Chief Justice Gleeson stated:

It is the general acceptance of [Christian] values that sustains the law and social behaviour, not private conscience. Whether the idea is expressed in terms of teaching or communication, there has to be a method of getting from the level of individual belief to the level of community values. Religion is the method of bridging that gap.[15]

It is against this historical background that section 116 of the Australian Constitution must be interpreted. This section, which the American First Amendment obviously inspired, states that:

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 qualification for any office or public trust under the Commonwealth.[16]

This section contains several prohibitions: first, the establishment of any religion (in other words, the creation of an official religion); second, the imposition of any requirement to engage in religious observance; third, any law prohibiting the free exercise of religion; and fourth, the imposition of religious qualifications for public office.

In their authoritative commentary on the Australian Constitution, John Quick (one of the drafters of the Constitution) and Robert Garran (who played a significant role in the Australian Federation movement) elucidated the purpose and effect of the nation’s establishment clause:

By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship.[17]

Rather, Quick and Garran further elaborated upon the implications of this section to Christianity:

The Christian religion is […] recognised as a part of the common law. There is abundant authority for saying that Christianity is part and parcel of the law of the land[…] Consequently the fundamental principles of the Christian religion will continue to be respected, although not enforced by Federal legislation. For example, the Federal Parliament will have to provide for the administration of oaths in legal proceedings, and there is nothing to prevent it from enabling an oath to be taken, as at common law, on the sanctity of the Holy Gospel.[18]

These authoritative statements entirely dispels any possible claims that the Australian Constitution established “secularism” by virtue of section 116. As a matter of fact, two of our most esteemed historians, Professor Greg Melleuish and Dr Stephen Chavura, entirely dismiss the claim that Australia is somehow a uniquely secular country as an ‘illusion, brought on by an inadequate understanding of what religion, and the religious condition, mean, together with a dash of wishful thinking’.[19]

Far from seeking to banish religion from society, the Australian Founders intended a laissez-faire environment that ensured, as noted Stuart Piggin, the inter-dependence of church and state as they have co-operated considerably to build the nation. An accompanying benefit is that section 116 also protects religious bodies against unwanted intrusions of the government. Indeed, the primary object of this important constitutional guarantee is to preserve religious freedom from government encroachment.

The purpose behind the provision is to limit the role of government, and not to limit the role of the church or other religious grouping. Because liberty of conscience requires a government which is limited by the rule of law, religious freedom is a fundamental right that must be enjoyed by every citizen of this country. It is a fundamental right of the individual which recognises that every person should be able to pursue transcendent ends freely and without government interference. Religious freedom, above all, ‘is the bedrock for every human right and it provides a sturdy foundation for limited government’.[20] As Jennifer A. Marshall points out:

By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Conversely, limited government requires individual responsibility… In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.[21]

The task of community leaders in this country was once to uphold the Judeo-Christian values that underpin our legal institutions. Now, we can observe by the actions of some individuals who comprise this Council that Christianity is poorly understood and perhaps even considered negatively. It is either a case of antagonism towards Christianity or the deliberate attempt by this Council to disentangle the local community from its Christian heritage.

By seeking to prevent the building of churches, the Mayor of the City of Swan is rejecting an important element of the cultural heritage of the region. If this by-law is passed, the life and history of this local community will be considerably ignored. Indeed, the Christian religion is so integrated with our national life and history that to prohibit the development of churches in the region amounts not only to an attack on religious freedom and property rights, but also on the rich Christian heritage of our nation as a whole.

Prof Augusto Zimmermann

Perth, 13th March 2019


Dr Augusto Zimmermann LLB (Hon.), LLM cum laude, PhD (Monash) is Professor of Law at Sheridan College in Perth, Western Australia, and Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney. In addition, he is a former Law Reform Commissioner with the Law Reform Commission of Western Australia (2012-2017). He has also served as Director of Postgraduate Research (2011-2012 and 2015-2017) and Associate Dean, Research (2010-2012) at Murdoch University. Augusto is an internationally known legal scholar, a prolific writer and author of numerous articles and academic books, and is broadly recognised as one of the nation’s strongest proponents of free speech. His academic books include  include a three-volume collection on the Christian Foundations of the Common Law in England (Volume 1); the United States (Volume 2); and Australia (Volume 3) (Connor Court, 2018).

[1] Sarah Brookes, ‘Ban on Swan Valley Churches North-Korea Level Crazy’, The Advocate, March 11th, 2019, at

[2] ‘Discrimination and Religious Conviction’, A Report of the New South Wales Anti-Discrimination Board, 1984, p.35.

[3] David Mitchell, ‘Religious Tolerance Laws are not only a challenge to our freedom of speech but also to the under-girding of our historic legal system. Paper presented at Religious Tolerance Laws: A Challenge to our Freedom of Speech?, Christian Legal Society of Victoria, Melbourne/Vic, 2 June 2005.

[4] Roy Williams, Post God Nation? (Sydney/NSW: ABC Books, 2015), p 87.

[5] Ex parte Thackeray (1874) 13 SCR 1.

[6] Ibid.

[7] Ibid.

[8] Quoted in Graham McLennan, ‘The Hand of God: His History of Australia’ (2012), p.16, at

[9] Lee, above n.19, Lee, Francis Nigel. The Christian Foundations of Australia (August 2000) <>.

[10] McLennan, Graham. ‘The Hand of God: His History of Australia’ (2012), at

[11] Constitution of the Commonwealth of Australia 1900 (Cth) Preamble. (emphasis added).

[12] Dyson Heydon, ‘Liberalism Built on Christian Principles is Lost on Modern Elites’, The Australian, November 4, 2017, at

[13] Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge University Press, 1999), p 166.

[14] Senate Standing Order 50, House Standing Order 38.

[15] Murray Gleeson, ‘St James Church Sydney Christmas Service for Lawyers’. Speech delivered at the St James Church Sydney Christmas Service for Lawyers, Sydney/NSW, 2001.

[16] Constitution of the Commonwealth of Australia 1900 (Cth) s 116.

[17] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901), p 952.

[18] Ibid.

[19] Greg Melleuish and Stephen Chavura, ‘Utilitarianism contra Sectarianism’, in William Coleman (ed.), Only in Australia: The History, Politics, and Economics of Australian Exceptionalism (Oxford/UK: Oxford University Press), p 63.

[20] Jennifer A. Marshall, ‘Why Does Religious Freedom Matter?’, Washington/DC: The Heritage Foundation, p 8.

[21] Ibid.