AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT SCHOOLS

AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT SCHOOLS

PRESS RELEASE 431

MAY 26, 2011

THE HIGH COURT ON TRIAL

IN THE CHAPLAINCY CASE

 

The High Court are again being asked to look at separation of religion from the State in Section 116 of the Australian Constitution. The judges are being confronted with the Chaplaincy in State Schools issue by a Queensland parent.  Given the social the old-boy and political networks which have led to the majority of High Court  appointments, citizens should not expect too much.

George Williams,  the Anthony Mason Professor of Law at the University of NSW, has written an interesting commentary on the case in the Fairfax Press of May 24, 2011 . Like the DOGS, he is not promising too much from the High Court. He writes:

Australia's constitution does not separate church and state. The closest it comes is in section 116, which says the Commonwealth cannot make any law for ''establishing any religion'', ''imposing any religious observance'' or ''prohibiting the free exercise of any religion''.

That section also says ''no religious test shall be required as a qualification for any office or public trust under the Commonwealth''. A Queensland parent, Ron Williams, is relying on this in mounting his challenge. He argues the program is invalid because it sets a religious test for anyone who wishes to be a Commonwealth-funded chaplain.

He points to the  failure of the DOGS case in 1981 when the court rejected an argument that federal funding of religious schools amounted to ''establishing any religion''. The majority took a narrow view of these words in holding that they would stop the Commonwealth only if it sought to create a single, national religion for Australia.

The Queensland parent and his supporters hope to sidestep these cases by basing his attack on the unexplored ''religious test'' limb of section 116. To succeed, he will have to convince the court not to apply the narrow interpretation applied elsewhere. In other words, he would have to direct them to the dissenting judgement of Justice Lionel Murphy in the DOGS case.

The outrage at the current inequitable funding of private and public education may not have reached a sufficient pitch in this country to persuade the High Court to return to the original intention of the Founding Fathers when they inserted Section 116 in the Constitution – although the tide is on the turn.

But the plaintiff has a second bow to his Chaplaincy case.

The High Court has agreed to hear a second set of arguments based on the funding power of the Commonwealth.  In 2009 the High Court established the important principle that the Commonwealth can spend money only where it has legislative or executive power. The question in the school chaplain litigation will be whether the funding falls within such power. It is far from obvious that this is the case. George Williams’ commentary on this point , is of considerable interest.  He is prepared to admit that the constitutional protection of freedom of and from religion has been emasculated by the High Court. He writes:

Win or lose, the challenge reveals how little the constitution does to separate church and state. Maintenance of this democratic principle rests on the actions and good sense of our politicians.

Unfortunately, this has often proved a frail shield. Governments of all persuasions have shown themselves ready to mix politics and religion to win political favour.

In the chaplaincy program, this compromises the ability of parents and their children to choose a free and secular education.

Instead of trained counsellors, children in need are left to access services provided by people appointed because of their religious convictions.

Williams is getting close to the truth. DOGS note that religious men, women and parents have the right to their belief and the preaching of that belief to the faithful and the children of the faithful. They even have the right to proselytize.  But they do not have the right to have such religious activities paid for by the State. The fact that ministers of religion are now demanding taxpayer funding to pay them a salary to proselytise in our public school systems is a symbol of their decline.

State Aid for religion, religious men and women, and institutions is bad for religion and bad for our democratic state.

 

 

 

 

 

And

Listen to the DOGS program

3CR, 855 on the A.M. dial

12 Noon Saturdays

 

 

 

 

 

 

 

 

And

Listen to the DOGS program

3CR, 855 on the A.M. dial

12 Noon Saturdays