28 December 2009


David Marr’s View of Separation of Church and State in Australia

In an article entitled Politics and Religion: Crossed Paths, in the Sydney Morning Herald December 26-27, David Marr noted that, although 84% of Australians believe in separation of church and state, the issue is not the live political issue in this country that it is in the United States. The Supreme Court in the United States has interpreted words nearly identical in both the American and the Australian constitutions to prevent public money being paid to religious institutions. He notes far more religious US where 92 % of Americans believe in God as against 68 % of Australians. Yet in the United States battles over church and state provoke continuous political flashpoints. He does not add that in America there is a strong tradition of non-conformist and dissenting Christians who settled America in the time of the religious wars of Europe. The Roman Catholic and Anglican or episcopal churches do not have the same power in that country that they have in Australia. This situation however, is changing in America.

Nor does he add that to date, the American Supreme Court was not dominated by members of these churches, although this situation is also changing in the United States.

Marr describes the Australian situation as follows:

Our High Court long ago ticked off on public money pouring into church schools, something almost unthinkable in the US. These billions are safer than ever since Mark Latham’s reform proposals were shot down in flames at the 2004 election. Last year the High Court declined to test if our constitution allowed Canberra to subsidise World Youth Day. Again unthinkable in the United States.

Marr appears to agree with Marion Maddox that Australians don’t have a strong grasp of what separation actually entails. He believes that it seems that large numbers of us are happy with a separation of church and state that allow huge sums of public money to flow to religions.

 He does not add that Australians have never been informed on the issues by the media. There was a deliberate blanket on the DOGS case over the period 1972 to 1981 and the only time it received coverage was after the DOGS lost the case. This blanket was deliberate. Ray Nilsen, the co-coordinator of the DOGS case was informed by the then editor of The Age that he would not give the State Aid issue or the case any ‘oxygen’. The only way the DOGS received media coverage was to pay for Advertisements in the major newspapers.

Chaplains in State Schools: A Step too Far?

David Marr wonders whether the Howard-Rudd decision to fund chaplains in state schools may be a step too far. Though it has caused some public unease, Rudd delighted the national conference of the Australian Christian Lobby in November by announcing that this Howard government initiative would be extended for another year at a total cost of $208 million. And its life in some form was promised thereafter.

Max Wallace, the author of The Purple Economy: Supernatural Charities, Tax and the State, is the front man behind a plan by the Humanist Society of  Queensland to challenge the funding of State school chaplains in the High Court. He says:

“This funding is for religion. We have them on record. They have compromised themselves completely.”

DOGS Position on State School Chaplains

DOGS are not anti-religion. Many of their members are practising Christians. But they are Christians who believe that entanglement of religion and the state is bad for religion and bad for the state. The DOGS case proved them correct.

They are against the funding of chaplains in State schools because State schools should be accessible to all children with offence to none. If parents want their children to receive instruction in their particular beliefs this is catered for in separate denominational classes. The problem has been that religious pastors have failed in this regard. Now those with theological training want the state to pay them. They cannot make their living from the voluntary giving from their flock. So what kind of pastors are they?

State schools require guidance officers and counsellors, not sectarian chaplains.


Section 116 of the Australian Constitution

Australians need to be informed about the proper interpretation of Section 116. The separation of religion and the State was enshrined in our Constitution by the Founding Fathers. They knew what it meant. So did Justice Murphy in his dissenting judgement.

The decision to fund State school chaplains is more than a step too far.

DOGS refer readers to his statement that:

23. The establishment clause was explained by Jefferson in the famous Danbury letter (to a group of Danbury Baptists): "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only, and not opinions, - I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties."

The co-author of the establishment clause, James Madison, in explaining his veto to a bill of Congress, stated it was:

"Because the bill in reserving a certain parcel of land of the United States for the use of the said Baptist Church comprises a principle and a precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that 'Congress shall make no law respecting a religious establishment.'"

(J.D. Richardson, Messages and Papers of the Presidents (1900)). The Annotated United States Constitution states " . . . the theme of the writings of both (Madison and Jefferson) was that it was wrong to offer public support of any religion in particular or of religion in general" 3rd ed. (1971), p. 912.


24. This interpretation of the establishment clause was well settled and accepted judicially in the United States prior to the framing of the Australian Constitution. In 1879, the Supreme Court of the United States in Reynolds v. United States [1878] USSC 141; (1878) 98 US 145, at p 162 [1878] USSC 141; (25 Law Ed 244, at p 249) in a unanimous judgment delivered by Waite C.J., referred to the history of the establishment clause:

"Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe."

The judgment later quoted the above passage from the Danbury letter, and then continued (1878) 98 US, at p 164 (25 Law Ed, at p 249) :

"Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured." 



25. Thus, an authoritative interpretation of the establishment clause had been given by the supreme tribunal in the United States shortly before the people of Australia were engaged in fashioning their own Constitution. Again in Davis v. Beason (1890) 133 US333, at p 342 [1890] USSC 41; (33 Law Ed 637, at p 640) the Court said:

"The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended . . . to prohibit legislation for the support of any religious tenets or the modes or worship of any sect."


Applicability of United States Authorities


35. In D'Emden v. Pedder [1904] HCA 1; (1904) 1 CLR 91, at pp 112-113 Griffith C.J., one of the framers of our Constitution said:

"So far, therefore, as the United States Constitution and the Constitution of the Commonwealth are similar, the construction put upon the former by the Supreme Court of the United States may well be regarded by us in construing the Constitution of the Commonwealth, not as an infallible guide, but as a most welcome aid and assistance.

There is, indeed, another condideration which gives additional weight to the authority of the United States decisions with regard to matters in which the two Constitutions are similar. We have already, in discussing the language of s. 51 of the Constitution, referred to the inference to be drawn from the fact that a legislature has deliberately adopted in its legislation a form of words which has already received authoritative interpretation. We cannot disregard the fact that the Constitution of the Commonwealth was framed by a Convention of Representatives from the several colonies. We think that, sitting here, we are entitled to assume - what, after all, is a fact of public notoriety - that some, if not all, of the framers of the Constitution were familiar, not only with the Constitution of the United States, but with that of the Canadian Dominion and those of the British colonies. When, therefore, under these circumstances, we find embodied in the Constitution provisions undistinguishable in substance, thought varied in form, from provisions of the Constitution of the United States which had long since been judicially interpreted by the Supreme Court of that Republic, it is not an unreasonable inference that its framers intended that like provisions should receive like interpretation." 


36. In Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129, at p 146 the Court held that the United States decisions were not standards to measure the respective rights of the Commonwealth and the States, because of "common sovereignty of all parts of the British Empire" and "the principle of responsible government". Those considerations are not present here, and we are not concerned with the respective rights of the Commonwealth and the States. (at p631)


37. Latham C.J. in Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth [1943] HCA 12; (1943) 67 CLR 116, at p 131 stated:

"There is, therefore, full legal justification for adopting in Australia an interpretation of s. 116 which had, before the enactment of the Commonwealth Constitution, already been given to similar words in the United States." 

38. The United States' decisions on the establishment clause should be followed. The arguments for departing from them (based on the trifles of differences in wording between the United States and the Australian establishment clauses) are hair-splitting, and not consistent with the broad approach which should be taken to constitutional guarantees of freedom. Even if the United States' decisions were set aside, the considerations to which I have referred show that the same interpretation is reached by applying ordinary constitutional principles of interpretation. 

39. The purpose of our establishment clause is the same as that in the United States' Constitution. There does not seem to be any real doubt that if the establishment clause is construed in Australia as it is in the United States, (and if the Commonwealth's argument about the non-applicability of s. 116 to financial appropriations and s. 96 grants is rejected) then the challenged laws are unconstitutional. Section 116 of the Constitution does not assert or deny the value of religion (including religious teaching). It secures its free exercise, but denies that the Commonwealth can support religion in any way what-so-ever. The Commonwealth cannot be concerned with religious teaching - that is entirely private.

Section 116 recognizes that an essential condition of religious liberty is that religion be unaided by the Commonwealth.

The dissenting judgements of Justice Murphy have again and again been followed in later cases. It is time that Australians returned to this particular judgement and set the relationship between religion and the State to rights in this country.

Freedom of and from religion does not mean toleration of the intolerant. It means that the State neither helps nor hinders. It means that if a person holds a strong belief, he or she is prepared to put their money where their mouth is.

It is time that Australians were informed about the issues of separation of church and state. DOGS commend David Marr for attempting to have the issue ‘given oxygen’ and hope that the Sydney Morning Herald does not nip it in the bud in the way that The Age did in the 1970s.


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