The Following is a transcipt from the Sally Lone Show. ABC Radio 2BL702 11:30AM April 26th 2001. (I missed the introductory sentences)
Prof: ... and one of these were actually the Jehovah's Witnesses and they passed this law that enabled them to disband the Jehovah's Witnesses and take their property. But unlike the Japanese residents of Australia and other groups the Jehovah's Witnesses challenged it in court.
Sally: Were the Jehovah's Witnesses a fairly benign group, I mean were they a political group, a religious group? How did they describe themselves, 'cos I note the Governor General of the day declared the Jehovah's Witnesses .. ah ... who claimed that all the organised political bodies were agents of Satan.
Prof: (giggling) .. that's right, I mean it was very strong language to use at the time. It wasn't so much that it was thought that they might actually sabotage anything or anything like that, but they didn't believe in the war and it was thought that perhaps their non-belief might act as a subversive influence in Australia and the fact that they were pacifists and didn't support the war effort was enough to lead the government to try and supress them and occupy their Kingdom Halls and try to stop the religion. And that's what lead to the High Court case. The government was quite confident it would win because during the second world war the High Court said pretty much anything goes, they realized the government had to have a free hand and it enabled the Curtin Government to enact the most stringent and comprehensive economic controls Australia has ever seen as a nation - this indeed was one of those types of efforts.
Sally: What was the out-come of the court case?
Prof: Well the Jehovah's Witnesses actually won. It was a very rare case in the second world war, where a government regulation was struck down by the High Court.
Prof: The Jehovah's Witnesses had two arguments. The first was that the constitution protects freedom of religion and they said that by being banned that obviously breeched their freedom of religion. The second argument was that the Commonwealth can pass laws about defence but they said this wasn't really a defence law. They are pacifists but you can't say that banning such an organization really helps the defence of Australia.
Now, they actually lost the religion argument because the High Court said that 'sure, religion is protected but (our forefathers) defined religion so widely to include in their own words religions relating to human sacrafice and other such abhorent practises, that in the end they weren't prepared to protect religion very much at all in Australia. But they ended up finding this (banning) didn't really help Australias defence, it went too far. So Jehovah's Witnesses got up their second argument and the law was struck down.
Sally: And this case has stood the test of time?
Prof: Yes it has.
Sally: Has it been used by other minority groups?
Prof: It has. It's a very important case because although the Jehovah's Witnesses did win, they only won on the defence power idea and that's something that was only really relevant during the second world war.
The case since then has been very important in showing that the High Court has been very very narrow in giving protection to religion and, in fact, nobody has ever suceeded in the High Court in arguing that a law is bad or invalid because it breeches religion and that's partly because of the Jehovah's Witness case. In that case the High Court decided that really not much protection will be given to religion at all.
Sally: mmm .. How many Jehovah's Witnesses were around in the 1940's? There couldn't have been too many.
Prof: Not many but Jehovah's Witnesses have actually played a very important part in Australia, even way back in the 1890's. It was thought at that time, if you go back and read the debates, that maybe we ought not have freedom of religion mentioned in the constitution. The framers were concerned that perhaps it might even end up protecting the Jehovah's Witnesses .. and they thought that they didn't want to protect groups such as that, with a very narrow percetion of what sorts of religion ought to be protected in Australia. And in the end they put it in, even though one of the framers said that you might end up having Music Hall and dance venues open on Sundays and all sorts of strange practices that they were concerned about. But their vision that they only wanted to protect the mainstream religions has been born out and minority religions really haven't had much success to the present day. Certainly to my own mind that says that the types of guarantees we have in our constitution protecting religion haven't really worked very well today.
Sally: mmm .. interesting, fascinating case, thankyou for that.
Prof: Thanks Sally.
Sally: Proffessor George Williams there, who's the head of the Gilbert and Tobeth Centre for Public Law at the University of New South Wales explaining to us another famous legal case that the High Court has decided on. And we're chosing one every week or two to bring to you in this year of the Centenary of Federation.
Uncle Bruces After-umble: There has been much discussion in Australia about it's constitution in recent times with the current Prime Minister trying to introduce a pre-amble to it. The ABC is the Government run broadcaster modeled on the British BBC. The High Court of Australia is our supreme legal body and passes binding Judgements on the Australian Constitution. Australia's constitution was enacted after ten years of debate at our founding as a Sovereign and independant nation in 1901.
I find it interesting that Russells Biblestudents and other mad sects help alert our supreme lawmakers against going down the path of legitimising every crank religious fruitcake, biblenut and jesusfreak. Thanks Pastor Russell, thanks Judge Rutherford, I just knew you guys were good for something
PS: As I look around and see the wonderfull Buddhist and Hindu temples springing up in Australia, I can't agree with the proffesor about our constitution not serving us well in the matter of religious freedom. (the Lakemba Mosque is a worry but)