Section 116 of the Australian Constitution – The Known Unknowns

“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.” Donald Rumsfeld

It is often easy to assume that we know what section 116 of the Australian Constitution is all about — as if its meaning is made up of Known Knowns. Much ink has been spilled interpreting the High Court’s decisions as if we know what it all means– we don’t. Despite over 100 years of case law section 116 of the Australian Constitution remains a mystery. With just five reported High Court decisions which explicitly consider the provision there are more unanswered questions than ones with answers. The paper examines just three of those unanswered questions – the Known Unknowns:
1. What is section 116 doing in Chapter V “The States”?
2. What would constitute a breach of section 116, in particular what kind of law would be an “undue infringement” of religious freedom as proposed by Latham CJ in the Jehovah’s Witnesses Case?
3. What would constitute a law “for imposing any religious observance”?
In examining these three unanswered questions the paper views section 116 from a new perspective. Rather than trying to give meaning to this mysterious provision, this paper examines the questions themselves. It explores the reasons these questions have not been answered, and investigates and evaluates multiple solutions. The paper does not present final solutions. Instead it argues that in some cases only time will bring answers, when an appropriate case is brought before the High Court, while for others the answer may only ever be a matter of speculation. It suggests that recognising our inability to answer these questions is essential to inform a constructive debate around section 116. Our understanding of section 116 is full of holes, ignoring the holes does not make it anymore complete.