'Our Father who art in Town Hall: Do local councils have power to pray?' by Luke Beck in (2021) 46(2) Alternative Law Journal comments
Many local councils in Australia commence their meetings with prayer. Case law in the United Kingdom holds that English local councils do not have power to commence their meetings with prayer. This article argues that the reasoning of the UK case law applies with equal force in Australia with the result that the practice of many Australian local councils of incorporating prayers into their formal meetings is unlawful. If you were to attend your local council’s next formal meeting you might find that the council opens its meeting with an official prayer read by the mayor. This article avoids the policy question of whether it is right that in a secular, multi-faith and multicultural society a government should engage in religious rituals as part of its official business. Instead, this article asks another question: is it legal?
Many local councils in Australia commence their meetings with prayer. This can be controversial. One example of controversy, discussed in this article as a mini case study, is a decision by a New South Wales (NSW) council to invite local Hindu leaders to say a prayer before a council meeting on the proviso that the Hindu leaders recite a Christian prayer. Council prayers, and associated controversies, take place in the context of the accelerating trend of Australians reporting having no religious affiliation (approximately 30 per cent of Australians at the 2016 census), a long term decline in the proportion of Australians reporting being Christian (88 per cent at the 1966 census and 52 per cent at the 2016 census), and Australians aged 18 to 34 being ‘more likely to be affiliated with religions other than Christianity (12 per cent) and to report not having a religion (39 per cent) than other adult age groups.’
Case law in the United Kingdom (UK) holds that English local councils do not have power to commence their meetings with prayer. The reasoning in that case law applies with equal force in Australia. xx The first part of this article examines the English High Court’s decision in R (National Secular Society) v Bideford Town Council (Bideford) holding that the legislation under which English councils operate does not give councils power to engage in prayers as part of their official business. The first part of the article also examines the legislative response to that decision to specifically empower English councils to engage in religious observances.
The second part of this article explains how the reasoning in Bideford is equally applicable to the case of local councils in all Australian states and how other features of Australian statutory regimes reinforce the conclusion that no legal power exists that would permit councils to incorporate prayers into their official meetings. xx The third part of this article extends the analysis by moving away from questions about the existence of power generally to focus on particular decisions to have council prayers. Using a number of examples to illuminate the analysis, this article argues that any decision by a council to incorporate prayers into its official proceedings is likely to be void for legal unreasonableness. The conclusion is that Australia’s local councils do not have power to pray.
