AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT SCHOOLS - D.O.G.S.
PRESS RELEASE 121#.
31 August 2005
PETRO GEORGIOU IN RELIGIOUS LIBERTY WONDERLAND
FOUNDING FATHERS INSERTED RELIGIOUS FREEDOM IN THE CONSTITUTION
THE HIGH COURT REMOVED IT 1981
Petro Georgiou, a Liberal politician, has seen fit to refer to the Australian Constitution's alleged guarantees regarding religious freedom . In The Age of August 31, 2005, he claimed that:
" Australians enjoy the right to free speech, so those calling for headscarf bans were entitled to express their views. But these calls reflect a profound ignorance of other fundamental Australian values. Among those values is freedom of religious expression, which is explicitly embodied in the Australian Constitution."
DOGS have news for Mr. Georgiou. The
Founding Fathers thought that they had enshrined religious freedom in
the Constitution when Section 116 was inserted in the final draft and
passed by referendum. However, in 1981, six High Court judges turned the
religious freedom clause from a shield into a sword.
BARTON:" The) Commonwealth will have no power to make laws regarding religion." (Convention Debates p. 661) 8 February 1898
DOWNER: "By no straining of construction can you find that the Commonwealth has been given any power to legislate with regard to religion". ( p. 663) 8 February 1898
O'CONNOR: "Upon the face of the Constitution the Commonwealth has certainly no power whatever to deal with religion either directly or indirectly" (p. 1778) 2 March 1898
HIGGINS: " My idea is...to make it clear that in framing this Constitution there is no intention whatever to give to the Federal Parliament the power to interfere in these matters" ( i.e. religion) ( p. 1769). 2 March 1898
REID: "....if my honorable friend (Higgins) could point out in the Bill any subject allied with religion which would make it necessary to put such a clause as this in the Bill, I would vote with him." ( p. 1770)2 March 1898
REID AND BARTON: (Discussing the financial implications of s 116) Reid said: I suppose that money could not be paid to any church under this Constitution." and Barton replied: "No, you have only two powers of spending money and a church could not receive the funds of the Commonwealth under either of them." ( p. 1772) 2 March 1898
BARTON: "I do not see any danger of the kind to be anticipated. I think that because we are a Christian community we ought to have advanced so much since the days of State Aid and the days of making a law for the establishment of a religion, since the days for imposing religious observances or exacting a religious test as a qualification for any office of the State, as to render any such dangers practically impossible, and we will be going a little too far if we attempt to load this Constitution with a provision for dangers which are practically non-existent."
HIGGINS replied: "That is the question - are those dangers non-existent?" ( p. 1770-1771). 2 March 1898
The Founding Fathers did not leave anything to chance. Constitutional protection of religious freedom was spelt out loud and clear and included protection from State Aid to both Churches and Church Schools.
Barton and O'Connor questioned the need for such a clause, because they took the view that the Commonwealth could not legislate in relation to religious matters. Higgins and others, influenced by the work of Inglis Clark, the major draftsman of the Constitution itself, wanted to protect future generations from the religious bickering and wars of the Old World and the early days of State Aid in the colonies . They left nothing to chance.
So, following the American Constitution's First Amendment they inserted Section 116 as follows:
" 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 of any office or public trust under the Commonwealth."
HIGH COURT JUDGES TURN A SHIELD INTO A SWORD
Section 116 stood as a guarantee of religious freedom and freedom from religion, together with the separation of church and state in the Federal sphere until it was judicially removed in 1981.
Six of the High Court judges ( Murphy J. in dissent) decided to neutralise the first "establishment" clause by defining "any religion" as " a State Church, A State religion, or a National religion."
The Founding Fathers could have used such words but did not do so.
If the reader substitutes "a State Church" for "any" in relation to religion or religious in the remaining clauses of Section 116 the concept of religious freedom and separation of Church and State is turned on its head as follows;
The Commonwealth shall not make any law for establishing a State Church, or for imposing a State Church religious observance, or for prohibiting the free exercise of a State Church religion. And no State Church religious test shall be required as a qualification of any office or public trust under the Commonwealth."
Under this re-writing of Section 116, the Commonwealth can establish every religion, it can impose any religious observance and prohibit the free exercise of any religion and apply religious tests for any office or public trust under the Commonwealth, so long as the Commonwealth Government does not officially declare a particular religion to be a State religion or Church.
So much for Petro Georgiou and what can only be regarded as his misunderstanding of what happened to separation of Church and State and religious freedom in 1981.
DOGS argument assumes that the High Court judges, with the support of the Roman Catholic Church faction and their powerful political friends and colleagues are consistent and honest in their application of the precedent which set by the High Court in 1981.
What price honesty and consistency?
FOR FURTHER INFORMATION GO TO HIGH COURT CASE ON THIS WEBSITE
DOGS ALSO REFER YOU TO OUR ADVERTISEMENT IN THE AGE, TUESDAY 30 AUGUST 1988 PP22-23
For further discussion on these matters, listen to 3CR, 855 on the am dial
12.30 p.m. next Saturday.
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