§ 461. “Nor Make anything but Gold and Silver Coin a Legal Tender.”

The provision of this section, that the States may not make anything but gold and silver coin a legal tender in payment of debts, would appear, at first view, to authorize a State to make gold and silver a legal tender, in the absence of Federal legislation, and consequently to give the States a concurrent power within those limits. It must be noted, however, that gold and silver coin can only be impressed with the quality of money by Federal legislation, and Federal legislation may withdraw that quality at any time. Then the power of the States to make gold and silver a legal tender would cease; gold and silver metal can not be made legal tender until it is converted into coin; it can only be converted into coin by the Federal authority. (Burgess, Political Sc. ii. 142.)

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Commonwealth not to legislate in respect to religion.

116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance462, 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.

UNITED STATES—No religious test shall ever be required as a qualification to any office or public trust under the United States—Art. VI. sec. 3.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.—Amendment I.

HISTORICAL NOTE.—Clause 16, Chap. V. of the Commonwealth Bill of 1891 was:—“A State shall not make any law prohibiting the free exercise of any religion.” This was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr. Higgins moved an amendment to make the clause read: “A State shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or imposing any religious test or observance.” Mr. Higgins argued that these words might be necessary to prevent an implication, arising out of the recognition of Almighty God in the preamble, that the Commonwealth had power to legislate upon religious matters. The objections raised to the amendment were that the “free exercise of religion” was too wide an expression, and might sanction objectionable rites; and that the provision was unnecessary, as the Federal Parliament had no power to legislate as to religion. Mr. Higgins' amendment was negatived, as was also a suggestion by the House of Assembly in Tasmania, to add the words “nor appropriate any portion of its revenues or property for the propagation or support of any religion.” The clause itself was then negatived. (Conv. Deb., Melb., pp. 654-64.) At a later stage Mr. Higgins proposed a new clause, in substantially the form of the above section. Mr. Symon moved, as an amendment, to substitute the following provision:—

“Nothing in this Constitution shall be held to empower the Commonwealth to require any religious test as a qualification for any public office or public trust under the Commonwealth.”

After debate, Mr. Symon's amendment was negatived by 22 votes to 19, and Mr. Higgins' clause was carried by 25 votes to 16. (Conv. Deb., Melb., pp. 1769-79.) Drafting amendments were made after the fourth report.