AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT SCHOOLS - D.O.G.S.
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|LIONEL MURPHY MEMORIAL LECTURE|
The following is the text of the Lionel Murphy Memorial Lecture delivered Monash University, Gippsland 26 October 2000
LIONEL MURPHY AND PUBLIC EDUCATION
"We are indebted to him. We are proud of him. We honour him. His reputation will endure Senator Murphy on the death of Dr. H.V. Evatt, Hansard Vol. S30 1965, p. 1358)
Lionel Murphy was a true child of the Enlightenment. Its values resonated in his being.The consistency of his determination to translate ideas into action set him apart from plastic, pragmatic politicians and fake illuminati of his generation. Because he was a man with enlightened values, he became a man of value. Uncommon consistency and courage explain his attraction for writers, commentators, and historians. It also explains why, if history is the story of liberty, it will eventually treat him more kindly than many of his contemporaries saw fit to do.
Although immortalised by a nebula named after him, Murphy was no saint. It is doubtful whether he believed in them anyway. His lodestar attraction for many historians lies in the consistency of ideas and ideals he exhibited when he came close to the top of the greasy pole of politics and law. He forged a link between his thought, ideals, and action and made a difference to the society in which he lived.
To illustrate the inner resonance of his dynamic activism, I wish to place him in historical context. I believe he was the inheritor of non-conformist Irish Catholic, radical Protestant and Enlightenment men and women of the nineteenth and twentieth century who created the public education system and university he attended in his youth. He did not reject this inheritance. He returned to his alma mater and patronised the public system. In 1986 students from these schools participated in the moving ceremony in the Sydney Town Hall, the civic centre of his home town, which honoured his passing. Unlike Barwick and Kerr, who shared the same public school heritage, Murphy sought to enrich and protect it.
He was the only High Court Justice in the DOGS case with historical sense and courage to understand the intimate connection between the First Amendment to the United States Constitution, and Section 116 of the Australian Constitution. He was the only Justice to confront fundamental issues of the relationship between Church and State, - the oldest libertarian issue of all.
Murphy paid grievously for his questioning of Church-school men seeking recognition, political influence and financial gain. He was not the first. Nor will he be the last. He died with his boots on, marvelling at the great evil he had encountered. A few intrepid souls were left to keep the faith and run the race.
I note with interest that in all the writings on Murphy since his death there has been muted comment on his judgement in the DOGS case. However, there are signs of disquiet. David Marr, in The High Price of Heavenhas described the upward curve of clerical institutional ambition in Australia. The Australian Education Union is once again taking a firm line on state aid to church schools. However, questioning of the growing nexus between Church and State is stronger in New South Wales than Victoria.
Tonight I invite you to have the courage to confront the evidence of growing ecclesiastical ambition, as Justice Murphy did, to travel back into some of the best parts of our educational history and discover what is now happening to the enlightenment inheritance in this country.
Lionel Murphy and Public Education : A Civic Interpretation:
Researching the history of public education in Australia is presently out of fashion. Given that history tends to belong to the victors, histories of wealthy independent schools and triumphal accounts of Catholic education systems and their founders tend to be in vogue. That is, when the study of history itself remains in vogue.
Most tertiary education institutions concentrate on presentist studies in educational administration, sociology, psychology, or economics. The mainstream media is responsive to laments over "Crises in Education", " lack of basics", "loss of confidence"; or evil "overcentralisation" of public education. Occasionally a conservative supporter of the public education system laments its passing. The assumption rarely challenged is the superiority of the private model and its popularity with parents. The other rarely challenged assumption is that "parental choice" takes precedence over the common good.
Concurrently, battles won by earlier generations for the right of all Australian children to a free, secular and universal education at public expense are being reversed. Statements of public education ideals and objectives are out of fashion. Or, to change the metaphor, are dismissed as part of a discredited paradigm.
Process talk has tended to dominate definitions of the agenda among public school pressure groups particularly if they in turn are dominated by self styled mainly sentimentalist "true believers" from the ALP. Parents and students have watched helplessly as they have been told that it is fine to close public schools so long as the "process" is right. In the 1980s and 90s we were told that public schools must not duplicate facilities provided by private institutions. Questioning of church school duplication of public facilities in the media was taboo.
Those associated with conservative political parties have often been less subtle, not even pretending to the precisionism of due process. With them, the auctioneers hammer just comes down or deals are done with private school operators behind the scenes. When Richmond Secondary College was occupied and run by the local community for a year police finally attacked them with batons. I know I was there. Friendly or not so friendly fascism take your pick. We have still lost many public schools.
I believe the time has come for friends of ethical, intellectual (and dare I say, religious,) enlightenment - to remind ourselves of our long and proud history in the field of public education. I know there are many and varied interpretations of this history I have written a revisionist one myself. Whatever the interpretation, - triumphalist; Marxist; revisionist; or denominationalist; I believe we need to reclaim the high ground and remind ourselves of the Australian contribution to the enlightenment strand of human history.
The establishment of our public school systems took place from the 1830s to the 1890s. The men and women who established them did not do so without great struggle. The schools were initially modelled on the "Irish National System". This was a non-denominational attempt to wrench control of education from churchmen who subordinated education to sectarian objectives. It was intended to provide instruction which would be useful and religiously non-partisan (secular was the word often used) for every child regardless of their religious tribe. In the 1830s it was supported by prominent Roman Catholic laymen; radical protestants with memories of religious persecution in the Old World; liberal-minded Anglicans and Presbyterians, and men with enlightenment ideas.
These nineteenth century men and women were not in search of sainthood. But they were resolute and principled, and in that sense, heroes. I recommend to you John Hubert Plunkett, a prominent Irish Catholic layman who in the 1840s saw the advantage of such a system for the poor children - Catholic and other- of Sydney. I also recommend to you George William Rusden, and another William Wilkins. You can read about them in the works of A.G. Austin and C. Turney. Rusden was the radical son of an Anglican parson. He travelled throughout the bush in NSW and Victoria, listening to parents desperate that their children receive a basic education. He assisted in the establishing many schools. William Wilkins, a pauper born in an English infirmary, trained and taught in England. He learnt the art of teaching in institutions for orphaned and deserted children in British industrial towns. He was upwardly mobile and wanted his pupils to also improve themselves through educational opportunities. He became the first headmaster of the Fort Street Model School in Sydney, and set up the centralised administration of national schools of that colony. I ask you to remember the Scottish school inspector who, with his horse, perished trying to cross a flooded river. I call to your attention the thousands of public school teachers - men and women - who for generations have dedicated their life and skills to the education of children in Australian public schools. In particular I remember a teacher who in the early 1960s was labelled a "communist" because he went and lived with aborigines camped outside Lismore in humpies on the river. Many of these teachers throughout our history have consciously decided to serve those on the outer lanes of lifes relay race, widening their horizons, and empowering them with knowledge, rather than teaching the chosen few within the ethnic elite.
In the early years of the twentieth century Peter Board, Director General of the infant NSW educational administration, promoted extension of public education into the secondary sphere. Selective high and technical schools were established in the first decades of that century for a civic "meritocracy." This enabled many with academic "merit" to depend no longer upon religious charity for educational opportunity. What had been called elementary schools were now called primary schools. The brightest and best of the "lower orders" became more socially mobile. Lionel Murphy attended Kensington Public School and Sydney High School. He then went on to study Science and Law at Sydney University. He was a member of this meritocracy.
Later, in the 1960s another Director-General of the New South Wales public system, Harold Wyndham, presided over the process of opening up educational opportunities, not just to a meritocracy, but to all children, in a comprehensive secondary system. New South Wales developments were paralleled in all other Australian States.
As Wyndham told me in an interview in 1969, this expansive educational and social vision was severely undermined by the giving of State Aid to Church schools. Strident churchmen and a chorus of middle class parent voices were heard demanding subsidised "choice". But if you listened carefully in the late 1960s, amidst the "religious" choice arguments, other counterpointed voices could be heard. As in the nineteenth century, the deeper wish-list was expansion of subsidised clerical, bureaucratic control over educational institutions; and for insecure lower middle-class parents, stilling of their anxiety that their children gain the right ticket to heaven or the good job. Some have always felt that if their children rubbed shoulders with children from the "lower orders" this might jeopardise their life chances. As I listen to supporters of state assisted church schools on talk back shows, I am left wondering whether fear of contact and contamination with the "lower orders" is a major theme in the history of my country.
It is certainly interesting, to follow this question through a little, how many public educational idealists were compromised when it came to their own children. Professor Peter Karmel, the celebrated engineer of the Labor Partys State Aid settlement of 1973, later expressed regret for tensions between the public and private systems. In a 1987 interview with the Age, he said he believed that the tension between the interests of private and public schools could not be resolved. As a parent, he admitted that he sent his children to private schools, thus embodying a great contradiction of many in the left-leaning middle class. He was reported as saying:
Karmel is more honest than most.
In the 1970s and 1980s, many prominent politicians, academics and educationists whose background was in public education, but who had come to support State Aid to private schools, salved their consciences by pointing to the failings of the public system. They avoided analyses of the fundamental, civic enlightenment objectives of our public systems and turned to attacks on teacher education; the inspectorate; and above all the centralised administration. So now, the only flourishing centralised - and therefore efficient - bureaucracies left are those of the Church systems.
For those who attack our public systems as "centralised bureacracies" could I make this comment. The public education systems of this country, like the health and transport system, was centralised in the late nineteenth century for three major reasons. They enabled services to be provided for all citizens whether they were in the city or the country; in fact without them there would have been almost no country services; they were more cost efficient and economic; and they enabled politicians who, believe it or not, often took the Westminster concept of ministerial responsibility seriously, to provide accurate accountability to Parliament. They placed Australia in the forefront of the world as a "social laboratory", the basis of what one traveller, Metin, called "Socialism without doctrine". It is only a little over a century since public education systems were established. They have never been accepted by forces of reaction within Australian society: by large Church institutions with ancient bureaucracies of their own; and by wealthy men and corporations with a deeply entrenched culture of resisting payment of taxes for the common good.
Public school bureaucracies are now being constantly restructured: corporatised, politicised, and privatised to the tune of New Right rhetoric. This modern day rhetoric has eerie and sometimes contradictory echoes: of Adam Smithian free-trade romanticism, and eighteenth century ideas of a society ordered into forced social and religious ranks.
Many nineteenth century clergy presided over processes of selecting and dividing children, duplicating educational facilities uneconomically in larger urban centres using public funding of course. They often divided out children of the elite. Given denominational horizons, the needs of the less respectable "street arabs" were often ignored and schools for children in far flung hamlets were uneconomic.
In most of Ireland, the original Irish National System was defeated by the end of the nineteenth century and made subject to clerical management. The ongoing educational misfortune in that country of the ever warring tribes is well documented. In nineteenth century Australia too, ambitious churchmen attempted to subordinate State to Church in education. These were unsuccessful.
Yet what is a century of two for an ancient ecclesiastical bureaucracy? Will we look back in times to come at what proved to just be a wonderful experiment in promotion of the public rather than the private clerically defined good in the Antipodes?
The future is not written. As Lionel Murphy said : "Look for the action word." We can learn from him at this crucial time in the history of public education.
As noted above, he was a product of the New South Wales "meritocratic" system. This system often produces two kinds of person. It selects the abler young; gives them confidence in their ability; tells them that the sky is the limit; and provides them with opportunities to enter a tertiary institution. And then, after they receive that piece of paper, that degree which gives them upward mobility, they are confronted with a crucial, moral decision. What kind of person will they become?
Will they take the low road and become the servant of the rich and powerful, looking after the interests of their masters? Or will they take the high road and become the servant of those less fortunate than themselves, fighting to make the world a better place? Whereas State school graduates like Barwick and Kerr chose the former, Murphy chose the latter. In particular he had a deep and abiding concern for public education. This concern is on the record. In his maiden speech to the Commonwealth Parliament on 29 August 1962, Murphy urged the need for a national plan for education involving co-operation between Commonwealth and States. He pressed for an enquiry into education on 29 August 1963. In 1965 he used question time to advocate a National Education Conference. He presented petitions from public schools requesting a National Enquiry in 1968. In a comment on the 1968/69 Budget he said:
He returned to his old primary school at Kensington in 1982 and told those present:
As a teacher and parent, I felt that Lionel Murphy cared about our children. Let me share some of my personal recollections with you.
The first time I saw Lionel Murphy was in 1968. A group of teachers in New South Wales were alarmed at the decrepit state of some school buildings and staged a protest at the Kogarah Secondary School. Bricks were falling into the playground of the school from buildings fallen into disrepair. We wore helmets to make our point, and invited a large number of local politicians. The only politician who turned up and encouraged us, was Lionel Murphy. We were not important people. Some might have labelled us "agitators." But the children and their welfare were important for Murphy. It was important enough for him to come out to Kogarah. I believe it is still important enough for us to continue that battle three decades later.
In 1969 supporters of public education opposed the giving of State Aid to church schools and stood DOGS candidates in the federal election. They gained more votes in the seats contested than the DLP and a protest outside the swimming pool at a wealthy Bondi private school gained extensive publicity. The Secretary of the DOGS, Mrs Kath Taylor, received bomb threats against her and her children. She contacted Lionel Murphy. He gave advice and arranged protection.
A lot of ordinary citizens knew, loved and appreciated Lionel Murphy. You may have read about the thousands in the Sydney Town Hall at the Memorial Ceremony to honour him on 27 October 1986. But many more thousands stood outside in the streets, mourning the passing of the peoples judge. I vividly remember them saying to each other now he is gone, who will protect us?
He may be gone, but he has left both inspiration and a challenge. And the choices Murphy made are now before this generation with ever increasing urgency.
Murphy and the DOGS High Court Case
Why did a group of Australian citizens decide to put their assets on the line, running the risk that high costs would be awarded against them, when they argued in the High Court that State Aid to Church Schools contravened Section 116 of the Australian Constitution?
They believed they would succeed and that their arguments were strong. In the first place, it was received wisdom that State Aid to Church Schools was unconstitutional. Prime Minister Menzies said so. Even Senator Hannon, a fervent believer in aid to church schools recognised constitutional difficulties. In 1943 Chief Justice Latham in a lecture entitled "Education and War" noted the secular education provided in State schools and commented on Section 116 as follows:
Secondly, historical research revealed that in the second half of the nineteenth century many politicians had linked cessation of aid to religion with cessation of aid to church schools. An example was Edmund Barton, who was later Australias first Prime Minister and a judge on the High Court. On 2 March 1979, in a debate on the New South Wales Public Instruction Bill, referred to State Aid to both religion and religious schools .
Some of the founding fathers in the 1898 Convention Debates considered that Section 116 would have the same force in Australia as did the First Amendment in the United States Constitution. Research into the part played by the Tasmanian Attorney General Inglis Clark as well as Henry Bournes Higgins and the Seventh Day Adventists in having Section 116 inserted into the Constitution was published in 1976 by Richard Ely. This research also uncovered the highly questionable interpretation of Quick and Garren in their 1901 commentary on the Australian Constitution.
Thirdly, a Memo of legal advice from Leo Pfeffer, a prominent Constitutional lawyer and scholar from the United States of America, indicated that the case was a strong one on both the substantive and the standing issue. He referred to American precedent in the unanimous Supreme Court decision in Flast v Cohen (1968) 20LED 2D 947 at 963 and 964 . The statement by Warren CJ was startlingly clear:
Finally, the plaintiffs were tragically naive and hopeful. They believed in the Rule of Law. They believed that once they reached the highest court in the land, the judges would have the wisdom, insight, sense of history and basic understanding of fundamental human liberties, to give them a proper hearing.
I would like to place it on record that when I sat in that High court in 1980 and listened to the judges interchange with legal representatives at the Bar table, I had a terrible realisation that with the exception of Justice Murphy,- they were men of dust. Unlike the justices of the American Supreme Court, they either did not, could not, or would not, understand the enormity of the issue before them. I make no apology for this statement. I believe a society is in a very dangerous position when the confidence of responsible citizens in the elites is eroded at this level.
In the event the complainants soon discovered that access to the High Court was astonishingly difficult. In the end, they were forced to traverse treacherous quicksands of political and administrative process in States and Commonwealth, suffer long years of procrastinations and tactical stand-offs, and incur ever increasing legal costs.
Behind many high court judgements are "agitators" with the temerity, courage,-some might call it stupidity, - to go to court in the first place.
The story of the struggle to have this particular case heard is a sad reflection on our judicial process, on our politicians, and above all, on many so-called men of God whose material and ideological interests were at stake. The case is referred to in the Australian Law Reform Commission Discussion paper 61 Who can Sue? It is also outlined in a small booklet published in 1981 entitled "The Erosion of the Judicial Process".
Before the plaintiffs could get to the High Court, they were forced to obtain fiat from an Attorney General. Their opportunity to get to court was thus in the hands of a minister of the Crown rather than the court. On their journey to the High Court the DOGS litigants were involved in an obstacle race in which they were forced into the quicksands of religious influence upon the political and legal process. The Federal and State Attorneys-Generals were unwilling. They were after all, politically compromised. The action was stopped before it could start in the 1950s. For example, Sir Neil OSullivan, the Federal Attorney-General in 1957, rebuffed an application
It was not until November 28, 1973, that the Victorian Attorney-General, Vernon Wilcox granted fiat. Victoria, in the interests of "States Rights", was prepared to support a challenge to the power of the Federal Parliament under Section 96 of the Constitution. It was not until 1979 that the matter eventually reached the High Court. The fiat from the Victorian Attorney General was never secure and many attempts were made to have it withdrawn. Only the very determined could have withstood pressures and obstacles placed in the way during the period 1973-1979.
I would be delighted, if there was more time, to tell you about the personalities involved: the pensioner who walked miles to give the first "widows mite" towards the costs; the newly married farmer and his wife, Robert and Sophie Child, who gave money saved for their new home to pay barristers for research done by the plaintiffs themselves; people who mortgaged their homes; the DOGS Secretary, Lance Hutchinson, who painted roof after roof, gave the final payment for the lawyers and then announced he would go to goal before he paid a penny to the defendants. Of Bill Hartley and Wally Curran who refused to take their names off the writ in spite of pressure to do so. And of Bob Santamaria, who, attempting to explain the sacrificial determination of the plaintiffs, claimed that the expenses were paid from Khemlanis "Arab money"! Then there was the intially willing, then reluctant plaintiff, Mrs Joan Kirner ; not to mention Justice Aickin of the High Court, who, as a barrister, had taken a brief from the Church School interest. Although he had a clear conflict of interest he did not disqualify himself. Nor could the plaintiffs QC be persuaded to question his bona fides. All good stuff for a novel.
A parallel action by individual plaintiffs suing in their capacity as taxpayers and parents of children attending public schools and residents in a state or territory was initiated alongside the Attorney-Generals relator action. As early as 1975, Murphy had noted in the A.A.P. case that
A fundamental right in a liberal democracy is access to the court for concerned citizens to test a constitutional guarantee. Yet Murphy was the only High Court Justice prepared to grasp this nettle. He turned to American precedents and in his finding set a precedent for future complainants wishing to test a constitutional guarantee:
Barwick CJ did not consider the problem important enough to put his mind to it. Stephen J. said that the question was "better resolved in a case which requires their determination." Justice Wilson who went on to be President of the Human Rights and Equal Opportunity Commission 1990 1997, indicated little interest in rights in this case. He said the question was only of "academic interest". This was small comfort to citizens who had survived difficulties and expense of a twenty-three year marathon.
On November 20, 1978, the Taxpayers obtained a foot in the door of the High Court when Chief Justice Barwick reluctantly permitted them to be joined as plaintiffs. He also directed that the church school interest be allowed to join as defendants. He said:
Well, that was something Barwick got right.
The "real defendants" then forced to plaintiffs to go to a trial of facts to prove that church schools were what their initiators and promotors have claimed them to be for over a hundred years- that church-school instruction n eeded at all points to be permeated with the distinctive doctrines of the denomination in question- while the church school interests were to go to battle to prove otherwise. The faithful may have been astonished but they were not informed by either their internal or the mainstream media.
Justice Murphy presided over the trial of facts for what turned out to be twenty seven days. Mrs Joan Kirner who commenced her public career as President of the State School Parents Clubs, at this stage sought to be removed as one of the relators to the action. Although the Victorian Attorney General did not wish to consent to this, he left it to the court to decide. Murphy as judge in the trial of facts, disposed of this problem with the minimum of fuss. Church school representatives in the body of the court offered congratulations to Mrs Kirner on her removal. It could be noted that Justice Murphy did not however, withdraw her from any liability for costs incurred by the relators.
The Trial of facts involved fifty three witnesses, 116 exhibits, eleven profiles, statements of facts, and submissions on the facts and the law, and hundreds of thousands of dollars in legal fees.
The nature of a Church school as described in the court by the defendants bore almost little or no resemblance to what for more than a century churches had claimed to be their raison detre, or to what documents issued by churches before 1979 and subsequently, clearly claimed them to be.
In Church school testimony and submissions to the court the secular was separated from the sacred and the sacred reduced to a nebulous "feel-good" middle ground of values shared by Christian and non-Christian alike. All that remained as a characteristic peculiar to Catholic schools for example, was an " atmosphere, a spirit "created largely by the example of teachers." Under examination Father Doyle from the Victorian Catholic Education office extended the "middle ground" so far in a secular direction that the distinction between government and church schools became strangely blurred.
Justice Murphy from the bench, entered the fray.
Father Doyle responded that he did not think there was a dichotomy between the agnostic and Christian viewpoint but rather a substantial middle ground which both would share. He would find difficulty in describing a school as agnostic or Christian on those grounds. Indeed, he believed that there is such a large common ground between Christian and other values that it was to his mind slightly misleading to use either of those labels at all.
The plaintiffs were dumbfounded. Did this mean that the One hundred-year-old public face of church schools - of Catholic Truth permeating secular teaching at all points - was a charade, never meant by those in the know, to be taken seriously? Had Father Doyle extended his "middle ground so far that there was indeed a false dichotomy between church and state schools?
Or had the plaintiffs unwittingly proved one of the points of the whole litigation exercise: that entanglement of Church and State is not only bad for the State; it also encourages churches to betray their conscience for money?
Whatever the real nature of the Church, and this is in truth remains a mystery, an editorial from a Catholic paper, The Advocate on Thursday 26 March 1981 congratulated the witnesses and noted that they were "informed, articulate and most impressive". It should be noted that although the Church school representatives were witnesses called by the plaintiffs they were observed attending conferences in Owen Dixon Chambers, but, significantly, not in the rooms occupied by legal representatives for the plaintiffs. As Mr N.R.McPhee Q.C., referring to these coaching classes, put it:
The "true" defendants case together with the "plaintiffs witnesses" were co-ordinated by the Victorian Catholic Education Office. During the trial of facts, Catholic witnesses argued that the bishops had little to do with administration of church schools. This has since been contradicted by Anne OBrien in her description of the short sharp lesson learnt by Father Martin of the Catholic Education office when Cardinal Knox exerted his control over Catholic teacher education in 1972. In this generation Archbishop Pell is far from reluctant to show all parties who is the boss.
Justice Murphy did not find on the facts. He referred the matter to the Full Court.
On October 10, 1979, senior counsel for the church school interest told the court:
This invites the question: What did matter to them?
iv Judgements in the DOGS Case.
Before turning to an analysis of the High Court judgements in the DOGS case, the following points should be made. Much research provided to the barrister was done by well qualified members of the DOGS. Neil McPhee QC for the plaintiff, was a brilliant advocate, particularly in cross examination. This brilliance was a major reasons for choosing to brief him. But like many at the Bar, he presented the case as he believed it should be put. He did not always take instructions from his clients.
For example, McPhee was requested to ask Justice Aickin to withdraw from the case. The plaintiffs advised Neil McPhee and their Solicitor John Zigouras on August 31 1979 that when Mr Justice Aickin was at the Victorian Bar he was approached twice to be their senior counsel. He had refused. Yet on 30 July in a Preliminary Hearing before Justice Aickin it was revealed that Corr and Corr Solicitors for the Roman Catholic Church and others retained Mr K Aickin Q.C. as he then was. This was after the two unsuccessful approaches from the plaintiffs. They requested that this be raised in the Hearing before Justice Aickin.
McPhee responded that he would resign from the case if the plaintiffs insisted on even raising the matter. The plaintiffs were under the control of the Victorian Attorney-Generals fiat. If McPhee was sacked, the fiat would almost certainly have been withdrawn and a lot of time and money wasted.
Had the position had been reversed, and Justice Murphy had been in Aickins position but on the plaintiffs side, one can only wonder what the Churches and Press would have done with the situation.
The plaintiffs also requested, at the time of the preparation for the Full High Court hearing, that the barrister use the five or six dictionary definitions of "establishment" provided to him. He refused. Then, in the Court itself, he requested them! They had been left in Chambers as a result of his earlier decision. Nor did he push the argument that a religious right- the right not to be involuntarily implicated in commonwealth funding of religion - was involved in the Establishment Clause and that this had a significant bearing on the question of fiat. In addition, although the plaintiffs had access to relevant historical research, Neil McPhee arranged for his partner to do the historical presentation. This lay behind his reluctance to argue the relevance of the Federal Convention Debates which led to the insertion of Section 116 into the Australian Constitution.
There is an unwritten doctrine accepted by some judges, that they cannot find on an issue that is not raised from the bar table. This was not strictly applied by the Judges in the DOGS case, but I have heard it expounded by a retired New South Wales Supreme Court Judge when he was explaining his finding in the 1992 Scandrett and Dowling case. He considered barristers were responsible for failure to raise relevant matters. I have revealed some details of this inside story because I believe it illustrates the difficulties often confronting citizens caught up in the interstices of our legal system.
Now to the High Court Judgements. There have been some passing commentaries on this case, - for example, that by George Williams in his recent book, Human Rights under the Australian Constitution. Most of them attempt to dress in legalese what was essentially a Old Boys political decision. Some of the cartoonists in the press of February 1981, when the decision was handed down, got that right.
The six majority judges managed to severely limit the definition of the no religious establishment clause contained in Section 116 of the Australian Constitution. George Williams noted their deviation from Australian as well as American precedent together with their narrow definition of "establishing any religion.". Williams suggests readers compare their historical analysis with that of R. Ely in 1986. Ely argued that their answers were "historically flawed," even when they chose English rather than American precedents.
The majority judges chose their legal history. It could even be argued that they chose to invent it.
Stephen J. wrote:
Gibbs J. wrote:
The intention of the founding fathers evident in the Convention Debates. was not obscure. Barton said "The Commonwealth will have no power to make laws regarding religion"; Downer said: "By no straining of construction can you find that the Commonwealth has been given any power to legislate with regard to religion" O"Connor said: "Upon the face of the Constitution the Commonwealth has certainly no power whatever to deal with religion either directly or indirectly " Higgins said: "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] "There is no doubt that Reynolds v United States 1879, which expressed a strict separationist view of the US First Amendment, the strict "separation"view of the United States First Amendment was well known to many of the framers of our Constitution .
The majority judges in the DOGS case took it upon themselves to read a fundamental human right down and out of the Constitution by rewriting the Constitution. The Constitution says:
Barwick C.J. said
Gibbs J. said :
Mason J. said:
Stephen J. said :
If the meaning of "any religion" is translated as "a national church or State religion, or State Church ", then Section 116 becomes:
This means (so for as it does not verge into nonsense) that if no religion or Church is proclaimed to be in law a State Church or national religion, one or all religious groups in Australia could be both favoured or persecuted by the Commonwealth Government so long as they are all treated equally. Thus a shield against religious persecution has been turned into a sword.
In 1981, the High Court judges apart from Justice Murphy, - were telling the Founding Fathers that what they really meant was the opposite to what, in plain language they actually did mean.
Finally, what did Murphy say? Let him speak for himself:
Quoting extensively from American judicial precedent Murphy noted in the United States the "separation" interpretation as authoritatively declared in Reynolds v United States (1878) 98 US 145 (25 Law Ed 244) was well known to the framers of the Australian Constitution. He further argued that even if the American precedents were set aside, the same interpretation is reached by applying ordinary constitutional principles of interpretation
When Murphy came to the Australian situation, he referred to the situation at Churchill in the LaTrobe Valley.
Justice Murphy was the only member of the High Court, learning from history, to realise that
Finally, he asserted one of the fundamental lessons of the Enlightenment:
Extension of the meaning of "Religion" for Taxation Exemption Purposes.
It is a quirk of history that, while the framers of the Australian Constitution were seeking to separate Church from State, "State Aid" to religion and religious schools was being made available through the back door.
Direct aid from the Federal and State Treasuries to Australian church schools is the tip of a much larger iceberg. Indirect grants in the form of extensive taxation exemptions have been available to all religious institutions by virtue of their "charitable status " since the late nineteenth century.
These have never been fully quantified. They are rarely talked about. But Justice Murphy referred to them in both the DOGS and the 1983 Scientology case. This latter case turned upon the definition of "religion". If the Church of the New Faith was a religion, it could be classified as a "charitable institution" and thereby become eligible for taxation advantages. As Murphy pointed out,
In contrast to the DOGS case, Murphys fellow judges respected American precedents. Religion was interpreted very broadly indeed.
The Victorian Supreme Courts claim that "nothing in the way the ideas of scientology are exploited commercially suggests that it is a religion" led Murphy to air his enlightenment learning:
Along with his fellow judges, Murphy found that the scientologists were a religious institution. After noting that if greed and commerciality do not debar bodies from being counted as religions, and therefore tax exempt, then neither should scientologists be left out, he placed the sting in the tail of his judgement.
Whither Public Education?
The majority judgement in the DOGS case legally underpinned increasing Church/State entanglement in education and Health, Job Network, Community Services, and anything else the Australian Governments has decided to "tender out" since 1981
On the education front, one could be forgiven for believing that history repeats itself, walking, running, and finally hurtling backwards, through the nineteenth into the eighteenth century. In the period 1964 to 2000, Australian educational funding appears to have been turning back to an 1830s style Australian denominational system with religious groups of nearly every type receiving public funding to set up sectionalist schools. The Public system percentage of funding has suffered accordingly.
This development has been accompanied with a nineteenth, even eighteenth century rhetoric of free market ideology. Of course there are differences. Even Adam Smith regarded a national system of education as essential for the wealth of a nation.
Funding Facts and Figures
Private Schools: Direct Funding
Direct State Aid to Church schools existed in Queensland from 1899. It was given to secondary schools in that State through a "scholarship" system at the end of primary schooling. This system commenced in the Queensland grammar schools and was extended to all private schools. The result was that secondary education was not offered to 90% of Queensland children until 1961. Extension of secondary schooling was opposed by Church school interests seeking to retain public funding for an elite minority rather than extending educational opportunity to the majority.
In 1964/65 direct Federal assistance to private schools(which were nearly all church schools), was introduced with science grants of $2.7 million. By 1995/96 Federal aid alone to the private sector had mushroomed to $1.86 billion. By 2003-2004 it is projected to reach $3.83 billion per annum. If Federal and State direct assistance are added together, then by 2004, the conservative, total direct assistance from taxpayers funds will reach more than $5.8 billion per annum. Federal Treasury funding is provided with almost no strings attached. Professor Tannock, a mover and shaker in federal funding for church institutions for three decades described the situation very succinctly in 1994 when discussing "block funding" given to Catholic Education Commissions. He has been quoted as saying that the kind of state aid system which emerged in Australia,
On 22 August 2000 a Mrs Theresa Mary Temby a member of the National Catholic Education Commission attended the Senate Employment Workplace Relations, Small Business and Education Legislation Committee with Rev. Thomas Michael Doyle. The following interchange concerning distribution of block funding across the Roman Catholic sector occurred:
Not surprisingly, the detail in the last annual report to Parliament ceased to provide individual school data for all private church schools. One might see Australia as a world leader in non-accountability. As Brother Kelvin Canavan, Director of Catholic Education, Archdiocese of Sydney, has noted:
Public Schools : Direct Funding
Parallel to increased federal funding to Church schools and a small number of private schools, is the decline of percentage share of federal funding for public education. In 1964-5 this was 73.7%. By 1995/6 it had declined to 42.1%. If the States Grants Bill 2000 is passed as proposed, this share will decline further to 32.2% in 2003/2004. In 1999 the percentage share of pupil population in public schools was 69.9%.
An indicator of the comparative treatment of the private and public sector by all levels of government, for instance, between 1993/94 and 1997/98 private school funding by all levels of government increased by 23.5% in real terms, while funding for the public sector decreased by 5%. It is little wonder that the myth of the poor private school is giving way to the reality of impoverished State schools.
Recent million dollar bounties for "need" provided to elite Church schools like Geelong Grammar, Geelong College, Wesley College etc. and the odd position of the Catholic Education Systems vis a vis Federal Minister Kemps SES indicator of "need" has rubbed salt into public school wounds.
Indirect Benefits for Private Schools
Direct private school funding figures do not include indirect subsidies obtained through taxation relief granted to church schools as "charitable" institutions. Awareness of this hidden advantage emerged in recent disquiet over the GST on school materials. State school parents realised with some astonishment that public schools were not recipients of considerable taxation benefits bestowed upon private "charitable" institutions.
Can these hidden benefits be quantified?
Tax free public donations to Australias 2600 state assisted private, mostly church school building and library funds have been estimated at $320 million by the National Council of Independent Schools Associations. They are concerned that a federal government review of charitable institutions might place this in jeopardy.
There has not to date been any overall estimate of taxation concessions outlined by Murphy in the DOGS and Scientology cases and enjoyed at all levels of government by the private religious sector. Given the value of assets alone, local rates land tax, and stamp duty exemptions would prove an interesting calculation. Another interesting figure would be payroll tax exemption. The Scientologists considered it worth a challenge in the High Court. Will the Federal inquiry into charitable, religious and community service bodies inform taxpayers of the exact amount of this indirect largesse? On past form, these bodies can be expected to hope the Federal enquiry will fail to either reveal or hamper continued taxation advantages.
Diversity or Tribalism?
If public funding of church schools was intended to encourage religious diversity it has succeeded. There has been a mushrooming of religious schools from 1964 to 1999. Newcomers since 1964 include 4 Ananda Marga, 101 Christian; 21 Moslem; 7 Greek Orthodox; 2 Christadelphian, 1 Hare Krishna; 9 Brethren; 22 Pentecostal; 4 Scientology; 4 other Orthodox; 26 inter-denominational and 134 non-denominational schools. Other groups have expanded. The Lutheran system has increased from 28 to 80 schools; the Uniting from 27 to 42; the Seventh Day Adventist from 44 to 60.
Some forms of diversity enhance a civil, enlightened society; others, we know from bitter experience, tend to undermine and destroy it. A necessary hard question is: when does "diversity" mean "division" into social and cultural isolates rather than enriching diversity? At what point does multiculturalism descend into tribalism?
A useful handle on this question in relation to education is a quote from the 1844 Select Committee on Education :
Listeners may wish to remind me that we are living in 2000 and not 1844. And they are quite correct. Whereas in 1844 it was acceptable to confront issues of Church and State in education, it is no longer politically correct to do so. Since the ALP "Karmel" settlement of 1973, openness on Church/State issues has been avoided at all costs. The "needs policy was designed to "take state aid out of politics". The Schools Commission which issued from the Karmel proposals proved to be a study in ambiguity and compromise. Notions of "equality of educational opportunity" are juxtaposed with latently antithetical notions of "parental choice" and "diversity"; qualitative objectives are quantified in a mystifying way while, ironically, "community involvement" and the decentralisation of state educational authorities were promoted by a rapidly centralising Catholic educational administration.
The Schools Commission, in retrospect, was asked to reconcile the irreconcilable. They were forced by their terms of reference to accept state and church schools as equally "needy". They were not required to determine the civic and educational basis for funding only public education or historical reasons for existing inequalities. Theirs was not to reason why; theirs was to supply a rhetorically effective rationale for extensive federal funding of a dual system.
If I had time, I would like to chart the inglorious history of the Schools Commission which presided over civically shabby bottom of the schoolyard schemes. These paralleled the bottom of the harbour taxation schemes of the 1970s and 1980s. Finally, the Teachers Federation representative on the Commission, Van Davy and the ACCSO representative Joan Brown, issued a dissenting Report in 1984. Whistle blowing could not be tolerated. The Commission was disbanded.
Simon Marginson in his recent publication Educating Australia has skilfully sidestepped analysis of the politically incorrect Church/State rhetoric. But his analysis of the politically correct New Right rhetoric and the reconstruction of our public educational institutions to suit the instrumental, market based ideology driving us into our present predicament has great value. It alerts us to dangers lurking in the shadows of current political rhetoric.
The Australian Council of State School organisations in a recent Submission into the States Grants (primary and Secondary Education Assistance) Bill 2000 expressed concern at the "market ideology "of Dr. David Kemp. On the basis of their research, they concluded that Kemp was promoting a "reform" process leading to a mere 30% of government owned schools. Parents of children in the public sector have every reason to be alarmed at both Conservative and Labor Party education policy. If they do not heed Lionel Murphys warning that supporters must fight for the preservation of our public system, in my view, they will find there is worse just around the corner.
We were saturated with news about the "violent" Protest outside the World Economic Forum at the Melbourne Casino September 11-13, 2000. What did not make the headlines was the report that Premier Bracks chaired a key session on the Role of Government in a Globalised World. He went along with the decision that the only core activities of government were defence, diplomacy, monetary policy, and fiscal policy. So what is on the Labor Party agenda for Education, Health, and other "residualised" services? Civically, we live in sad, bad times.
We are also learning from public education unionists and their Canadian counterparts that the General Agreement on trade in Services implemented by the World Trade Organisation, applies to education. Investment houses like Merrill Lynch predict that public education will be privatised over the next decade the way public health has been, and that there is an untold amount of profit to be made when this happens. The education industry has been called "the final frontier of a number of sectors once dominated by public control," and it is predicted that "for every 1% market penetration" achieved in public education, for-profit companies can add over $5 billion to their "top line".
And why should they not do this? We have privatised prisons, hospitals, gas and electricity, banks, roads, and transport. Nothing is sacred. Australian governments have already preferred the privatisation model in education. Billions of dollars of public money is given to transnational religious institutions to run schools. Why should international companies not demand the same level of subsidy for their institutions when they tender for our public schools?
I will tell you why. I sat with the young, non-violent, and idealistic who held the picket line down at the Casino. They were well informed and determined. They were unbelievably brave. When the police drove horses into their ranks they held the line, they danced, they played drums, and they pushed the horses back. When the police bashed them unmercifully, they did not respond in kind, but persevered and went back for more.
These young people are worth fighting for. They do not want their future sold for a mess of pottage to multinational profiteers. We owe it to them to stand beside them and give them back again that civil society which Justice Murphy and others before him struggled to create.
And all is far from lost. In New South Wales the old public school ideology has raised its head once again. On 10 October 2000 Dr. Ken Boston Director general of Education and Training wrote:
Similarly, the current President of the Australian Teachers Union, Denis Fitzgerald sees himself as a champion for the children in public education. Unlike his predecessors, he is uninterested in a career in the ALP or the ACTU; he is politically non-aligned; and he is prepared to revisit the old public - private divide. He says:
On this note I would like to end this memorial lecture to Lionel Murphy. For he could not have put it better himself. I believe that history is the history of ideas and liberty and I feel the active spirit of our Great Dissenter is still with us while our public school systems can produce a champion like Fitzgerald.
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|Last modified:Monday, 25 April 2005|