Re Michael William Nelson v M Fish and R Morgan [1990] FCA 28 (9 February 1990)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL WILLIAM NELSON
And: M. FISH and R. MORGAN
No. WA G138 of 1989
FED No. 29
Constitutional Law (Cth)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Constitutional Law (Cth) - Commonwealth law providing for solemnisation of marriages by authorised celebrants - provision for proclamation of recognised religious denominations - registration of ministers of recognised denominations to perform marriages - whether law for establishing a religion - prohibition of solemnisation of marriages by unauthorised persons - whether law prohibiting free exercise of religion - Marriage Act 1961 - power to make laws with respect to marriages.

Words and Phrases "law for establishing any religion" "free exercise of any religion"

Marriage Act 1961 ss. 26, 29, 32, 39, 101 and 113

Federal Court Rules O.11 r.2

Commonwealth Constitution s.116

Quick and Garran - Annotated Constitution of the Australian Commonwealth p 951

Harrison-Moore - The Constitution of the Commonwealth of Australia 2nd Ed p 474

Attorney General (Vic) v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559

Attorney General (Vic) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529

Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116

HEARING

PERTH
9:2:1990

ORDER

The application is dismissed.

The applicant is to pay the respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

These proceedings, brought against two officers of the Attorney General's Department, were instituted by a writ filed in the High Court on 8 March 1989. That document was accompanied by another entitled "Claim re Writ of Summons with High Court Jurisdiction". On 17 October the respondents filed a Chamber Summons in that Court seeking an order striking out all documents filed pursuant to the writ and requiring the applicant to file a statement of claim. However on 27 October, Deane J. remitted the action into this Court and gave the applicant leave to amend the statement of claim generally or to file a fresh one. In so doing his Honour said that he had read the documents, that there were very grave difficulties about them and that he could see nothing in them as they then stood which could conceivably justify a claim for damages.

2. On 10 November the applicant filed a further document in the High Court entitled "Particulars of, and Fresh Claim". The papers were then transmitted into this Court. A directions hearing was fixed for 5 February 1990. On 1 February the respondents filed a motion seeking to strike out the application on the ground that no reasonable cause of action was disclosed. The motion came on for hearing on 5 February and was heard by consent, although the minimum time of 3 working days had not elapsed between its service and the return date. At the same time the applicant handed up in Court a "Notice of Counter Motion" which, in essence, asked for an order dismissing the respondent's motion.

3. The new "Statement of Claim", like its predecessor, gives little more than tantalizing hints as to the facts and events upon which the applicant brings his claim. It contains assertions of a general nature about the power of the Commonwealth to make laws relating to religion, the particular provisions of the Marriage Act 1961 relating to the recognition of religious denominations and the appointment of marriage celebrants and the administration of those provisions by officers of the Attorney-General's Department. Taken as a whole the document does not make much sense. It does not do what a statement of claim is required to do. The central requirement is set out in O.11 r.2 of the Federal Court Rules:

"... A pleading of a party shall contain, and
contain only, a statement in a summary form of the
material facts on which he relies, but not the
evidence by which those facts are to be proved;"

And in O.11 r.3 it is said:

"A pleading shall be as brief as the nature of the
case admits."

4. The difficulties facing some unrepresented litigants in expressing, in intelligible and concise form, the material facts underlying their claims are well known to the Courts. So too are their problems in distinguishing between material facts and argument. In an endeavour to ascertain the precise nature of the claim and the facts upon which it was based, I put a number of questions to the applicant. By reference to his answers, two letters from the Attorney General's Department which he handed up from the bar table, and the papers already filed, it appears that he makes the following allegations:

1. The applicant is the High Priest of a religious
organisation called "Gods Kingdom Managed by his
Priest and Lord" abbreviated as "KMP/L".
2. As High Priest he applied to the Attorney General's
Department early in 1988 under the provisions of
the Marriage Act 1961 for registration as a
Minister of Religion authorised to solemnise marriages.
3. Registration was refused or deferred in April 1988
on the basis that KMP/L was not a recognised
denomination for the purposes of the Act. The
officer of the Attorney General's Department
dealing with the matter at that time was Mr M.
Fish, the first named respondent.
4. On or about 12 November 1988 the applicant wrote to
the Attorney General's Department seeking a
proclamation by the Governor-General of KMP/L as a
recognised denomination for the purposes of the
Marriage Act 1961.
5. On 16 December 1988 the applicant was advised by
letter from Mr R.J. Morgan of the Attorney-General's
Department, the second named respondent,
that organisations applying for proclamation as
recognised denominations were required to meet
certain guidelines which had been approved by
successive Attorneys-General. The guidelines were:
(a) the applicant organisation should be
independent of any other religious body;
(b) the organisation should have congregations in
more than one locality;
(c) some form of central administration for the
organisation should exist to act as a
nominating authority; and
(d) there should be some evidence that the
organisation is stable and likely to continue
as an entity.
Morgan advised the applicant that without examining
guidelines (a), (c) and (d) it was evident that
KMP/L would not satisfy guideline (b) "... and
hence it would be ineligible, at this time, to be
proclaimed as a recognized denomination pursuant to
Section 26".
6. In the meantime the Department, treating the
applicant as having made an application for
authorisation as a marriage celebrant under
sub-s.39(2) of the Act, requested the provision of
certain further information in relation to the
application.
7. The applicant was refused authorisation as a
marriage celebrant under sub-s.39(2).
8. The provisions of the Marriage Act 1961 relating to
proclamation of religious bodies as recognised
denominations are unconstitutional as a law
"establishing" a religion contrary to s.116 of the
Commonwealth Constitution.
9. By reason of the invalidity of the relevant
provisions of the Marriage Act, the conduct of the
respondents was unlawful. That conduct was their
refusal to effect registration of the applicant as
a minister of religion.
10. The applicant claims damages against the
Commonwealth Parliament (described in his
Particulars of Claim as "the Legislative") and
against the Executive, in which term he includes
the respondents.

5. Whether by reference to the papers filed in the matter or the summary of the applicant's position which I have set out above, there is no cause of action disclosed against the respondents which would entitle the applicant to recover damages.

6. The central point of his argument turns upon the constitutionality of those provisions of the Marriage Act 1961 which give a particular status to certain proclaimed religious organisations. The statutory scheme in which that status arises is found in Pts. IV and IX of the Act. Only a person authorised under the Act may solemnise a marriage and it is an offence for a person not authorised to purport to do so (s.101). And if two persons are already legally married to each other they are prohibited by s.113(1) from going through another form or ceremony of marriage with each other. Nor may an authorised celebrant purport to solemnise such a marriage (s.113(2)). That does not prevent such persons from going through a religious ceremony of marriage provided they produce to the person in whose presence the ceremony is performed a certificate of their existing marriage and a written statement to be witnessed by that person that they have previously gone through a form of marriage with each other, are the parties mentioned in the certificate and have no reason to believe that they are not legally married. A person who is not an authorised celebrant may perform a religious ceremony of marriage between parties who have complied with the requirements of sub-s.113(5) and does not commit an offence against s.101 in doing so.

7. Division 1 of Pt. IV of the Act establishes a Register of Ministers of Religion and in s.32 provides that a minister who is registered under the division may solemnise marriages at any place in Australia. Section 29 provides that a person is entitled to be registered if the person is:

(a) a minister of religion of a recognized
denomination;
(b) nominated for registration by that
denomination;
(c) ordinarily resident in Australia; and
(d) of or over the age of 21 years.

As can be seen, the entitlement is conditioned, inter alia, upon the person being a minister of a recognised denomination. Recognition is by proclamation as appears from s.26 which provides:

"The Governor-General may, by Proclamation, declare
a religious body or a religious organization to be
a recognized denomination for the purposes of this Act."

Section 39(1) provides for marriages to be solemnised by persons occupying the office of Registrar under State or Territory laws. And under sub-s.39(2) the Attorney-General may, by instrument in writing, authorise "other officers of a State or Territory or other fit and proper persons to solemnise marriages".

8. Section 116 of the Commonwealth Constitution provides:

"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."

9. The first limb, by which legislation establishing any religion is prohibited, was considered by the High Court in Attorney General (Vic) v The Commonwealth [1981] HCA 2; (1981) 146 CLR 559. In that case Commonwealth laws effecting grants to the States on condition that they be applied to aid the educational activities of Church schools, were held not to be laws establishing any religion. Upon their proper construction the key words "law establishing any religion" were variously said in the judgments to refer to laws "intended and designed to set up the religion as an institution of the Commonwealth" (at p 583 per Barwick C.J.), "(having) the purpose or effect of setting up any religion as a state church" (at p 604 per Gibbs J., Aickin J. agreeing), which effect "... the authoritative establishment or recognition by the State of a religion or a church as a national institution" (at p 616 per Mason J.) or require "statutory recognition of a religion as a national institution (at p 653 per Wilson J.).

10. The question whether a law is one for establishing a religion may, as Gibbs J. observed, be one of degree. Assuming that the legislation under attack in the Schools case had the effect not only of giving aid to those religions conducting schools in the various States but more aid to one than to another, it still did not follow that any religion was established by the legislation (at p 604). That is not to say that a certain level of statutory discrimination could not amount to establishment in the prohibited sense. Quick and Garran included in their definition of the establishment of religion "...the concession of special favours, titles and advantages to one church which are denied to another" - Annotated Constitution of the Australian Commonwealth p 951. But the judgment which is to be made in this regard cannot be divorced from a consideration of the content of the power under which the impugned legislation is enacted. And in that regard the scope of the constitutional power conferred on the Commonwealth to make laws with respect to marriage "should receive no narrow or restrictive construction" - Attorney General (Vic) v The Commonwealth [1962] HCA 37; (1962) 107 CLR 529 at p 543 (Dixon C.J.). As Professor Harrison-Moore observed in a passage cited by Dixon C.J. in the same judgment "it enables the Commonwealth to determine what marriages shall be recognised in the Commonwealth (and) the forms for the celebration of marriage..." - The Constitution of the Commonwealth of Australia 2nd Ed. (1910) p 474.

11. The assessment to be made of the legislation in this case is, in a sense, one of degree and in my opinion is not difficult. Having regard to the constitutional responsibility of the Commonwealth with respect to marriage a provision for the designation of particular religious denominations as bodies whose ministers may be registered to perform marriages could not reasonably be said to constitute the establishment of those bodies as religions within the meaning of s.116. That is not to say that the legislation could validly authorise a monopoly in religious marriages in favour of one particular denomination. But there is nothing in the applicant's complaints to suggest it is so applied and the criteria for recognition adverted to in the material submitted by him are evidence to the contrary.

12. I also refer briefly to the question whether the prohibition on the performance of marriages by persons other than those authorised under the Act could arguably constitute "a law prohibiting the free exercise of any religion" within the meaning of s.116. In that connection it is relevant to note the provisions of s.113(5) of the Act which enable performance of a religious ceremony of marriage by a person who is not an authorised celebrant where the persons undergoing the ceremony are already legally married to each other.

13. The freedom guaranteed by s.116 is not absolute. It is freedom in a society organised under the Constitution - Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, 131 (Latham C.J.), 155 (Starke J), 159 (Williams J.). It is "subject to limitations which it is the function and duty of the courts to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order" (p 155 per Starke J. - see also 132 per Latham C.J.). As Williams J. said at 159:

"...the meaning and scope of s.116 must be
determined, not as an isolated enactment, but as
one of a number of sections intended to provide in
their inter-relation a practical instrument of
government, within the framework of which laws can
be passed for organizing the citizens of the
Commonwealth in national affairs into a civilized
community, not only enjoying religious tolerance,
but also possessing adequate laws relating to those
subjects upon which the Constitution recognizes
that the Commonwealth Parliament should be
empowered to legislate in order to regulate its
internal and external affairs."

14. In the light of those principles the statutory scheme for regulating the class of persons who may solemnise marriages does not disclose any basis upon which it could be argued that it interferes with religious freedom in a way that conflicts with s.116. And the provisions of s.113(5) preserve in a way that is consistent with the free exercise of religious observance the right of persons married in the eyes of the law to undergo a religious form of marriage even where the religion concerned is not a recognised denomination and its minister not a registered minister.

15. In conclusion I am of the view that these proceedings have no prospect of success. To further prolong them would be to raise false expectations on the part of the applicant and impose unfair burdens of time and expense upon the respondents. In my opinion the application should be dismissed.