4 AUGUST 2011


Parliament House New South Wales


This is a book about men and women of my generation, teachers, parents, lawyers and others who fought the good fight and kept the faith demanded by that most fundamental of human rights – the right of conscience, or religious liberty if you will. Some of us realised the importance of this fundamental ‘right’ as we dealt with its corollary  - the ‘right’ of every child, regardless of class, creed, colour, or geographic location, to a quality education. In other words, education is not a charity, or a creature of the market place,—but a ‘right’.


 Centuries of bloody religious wars in Europe, and sectarian tensions in Australia led men and women of the Enlightenment to erect a wall of separation between religion and the State. The Founding Fathers in Australia followed those in America in this endeavour. This was the intention behind Section 116  of the Australian Constitution which states:


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 for any office or public trust under the Commonwealth.


Inglis Clark, the Tasmanian Attorney- General and architect of the Australian Constitution,  placed this clause in his 1891 draft. He based it upon the American First Amendment which reads:


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


And also to Art V1 of the Constitution

   ‘…no religious test shall ever be required as a Qualification to any Office or Public Trust under the United States.


Inglis Clark was concerned that no religion should become an imperium in imperio, a State within a State. He looked back to the church dominated middle ages, the bloody wars of religion, and the settlement of the Enlightenment.  He fervently believed that religion was outside the business of any legislature. In his own experience in the nineteenth century, he had opposed State Aid to religion and religious schools. Both forms of aid had ceased in the second half of the nineteenth century. He inserted Section 116 in the draft  Constitution to make sure it would ever be so.


Similarly Henry Bournes Higgins, who was largely responsible for the insertion of Section 116 in the final document at the 1898 Constitutional Convention.  He understood the importance of separation of religion and the state.  The Constitutional debates clearly indicate that the Clause related to State aid to both religion and religious schools. As Edmund Barton said:


In Australia we have abolished state religion in all these colonies; we have wiped out every religious test, and we propose now to establish a Government and a parliament which will be at least as enlightened as the Governments and Parliaments which prevail in various states…


On the basis of their historical research members of the DOGS, particularly the President of the Victorian DOGS, Ray Nilsen and the Secretary Lance Hutchenson,  believed that the Australian High Court would abolish State Aid to religious schools as contravening Section 116 of the Constitution – if only they could get to the High Court.


The first efforts to go to the High Court went back to 1956. After almost two decades, however, the door of the court was finally opened by the Attorney General of Victoria in 1973, Vernon Wilcox. He should be given the credit for this, since no other Attorney General would permit the DOGS into the court through a relator action.


Did we fail? Well, we certainly lost, 6-1 in a critical High Court case in 1981 – the DOGS case. From another perspective however, given that we were dealing with such a fundamental right, the judges were on trial. Six of them failed.  Without being historical fundamentalists, DOGS felt that these six judges could have at least looked at the intention of Clark and Higgins. But no- they decided to read the clause down….


That left the other one that stood out against the six. If you do nothing else, please read Appendix One of this book, the dissenting judgement of that great dissenting voice in our generation – Justice Lionel Murphy. Like so many of his judgements, it stands as a searchlight for future cases.


Moreover, we proved the point. What was this point? The rationale behind the separation of religion and the State is that the entanglement of the two is bad for religion and bad for the State.


If you read this book and discover how basic rules of the legal system were undermined; how behind the scenes manoeuvres almost prevented the plaintiffs from reaching, or even  staying in court; how religious men dissembled in a Trial of Facts, you will realise that the DOGS more than proved the point.

If you read the Chapter on the Trial of Facts, Chapter Nine, you will discover evidence that never made it to the mainstream Press. But then, you discovered very little about the case  from the media  until the judgement came down. And, once again, if you read this book you will discover once again the dissembling skills of religious men.


As a good Catholic friend of mine once said:

    ‘Jean, never, never, never, get between a religious man and money.’


He was right. But then, as a Christian, or a follower of Christ, as opposed to a religious person, I refer you to what Christ himself said in Matthew Chapter 22 verse 21. When the Pharisees hoped to trick him, he called them hypocrites and said:


‘Render unto Caesar the things which are Caesar’s; and unto God the things that are God’s.’


That was the saying behind the title of the book by Richard Ely which he wrote in 1976. In this work he outlined the intentions of the Founding Fathers when they placed Section 116 in the Australian Constitution.


No account was taken by the majority judgement of those intentions. Instead, the majority judges re-wrote the Constitution, claiming that the words ‘any religion’ really meant ‘a particular religion’. All you have to do is replace any other references to ány religion’ in Section 116 with ‘a particular religion’ and you will see what I mean. The Commonwealth can do anything in relation to religion, so long as it does not do it to ‘a particular religion.


The Commonwealth shall not make any law for establishing a particular  religion, or for imposing  a particular religious observance, or for prohibiting the free exercise of a particular religion , and a particular religious test shall not be required as a qualification for any office or public trust under the Commonwealth.


So long a particular religion is not imposed, any religion may be established, imposed, endowed or required.

With the replacement of the word ‘any’ with the ‘a’ the original intention of the Founding Fathers who inserted Section 116 into the Constitution has been turned upside down. As Ray Nilsen said, the six judges turned Section 116 - a ‘shield’ - into a sword.


This book is the sorry saga of the journey through legal and political minefields to the Court and their disillusionment along the way. In it the unofficial voices, the ones that were not reported, are given a say. I hope you enjoy their company as much as I did.


It was not all bad. We had a great deal of good fellowship and fun and learnt a great deal about the frailties of religious men who preached one thing and did another. The book is based on the documents we gathered and the stories told around at least three dining tables.


I was honoured to be associated with people and organisations which represented those who were driven by the belief that history is the story of liberty. Aware of the past, looking to the future, they foresaw the current results of State Aid to private religious schools; the entrenchment of glaring inequalities in our education system and society alongside other adverse effects of entanglement of religion and state. Ray Nilsen, the person who co-ordinated the High Court Challenge to State Aid called this ‘the cancer in the body politic.’


The DOGS in New South Wales however, had their own peculiar way of doing things. Many of us were parents and teachers, outraged then, as now, at the inequities in resourcing between the public and private sector. The stories of our protesting exploits as told by Ernie Tucker, Reg Taylor, Esther Corkish and Stella Bath and the reproduction of Reg Taylor’s wonderful cartoons are found in Chapter Five ; Political Games. The NSW Teachers Federation gave generously of finance, research and teacher activitists. 


It is great to be back here in New South Wales, where the battle for public education began in 1844 and is still the strongest, thanks to the NSW Teachers Federation and Parents Organisations.  In the current climate in which the public system is under constant threat, let me remind you of the reason why the Anglican monopoly of 1825 and the denominational system of the 1830s was rejected by our nineteenth century forefathers. It was rejected for a very simple reason. It never did, never could, never would, and never should do the job of educating the children of a democratic nation.


Let me remind you of the findings of the 1844 Select Committee of Education in New South Wales :


1844: select committee recommends a general system of education:


1.The first great objection to the denominational system, is its expense; the number of schools in a given locality ought to depend on the number of children requiring instruction which that locality contains. To admit any other principle is to depart from those maxims of wholesome economy, upon which public money should always be administered.

It appears to your Committee impossible not to see, that the very essence of a denominational system, is to leave the majority uneducated, in order thoroughly to imbue the minority with peculiar tenets.

It is a system always tending to excess or defect, the natural result of which is, that wherever one school is founded, two of three others will arise, not because they are wanted, but because it is feared that proselytes will be made; and thus a superfluous activity is produced in one place, and a total stagnation in another. …Being exclusively in the hands of the Clergy, it places the State in an awkward dilemma… supplying of money whose expenditure it is not permitted to regulate, or of interfering between the Clergy and their superiors, to the manifest derangement of the whole ecclesiastical polity.


If this gives you a sense of déja vue, don’t despair. Our forefathers solved the problem and confronted religious men in search of power and taxpayer dollars. The mantle has passed to us. We exposed both the religious men and their supporters in the High Court. And now it is over to parents like John Williams to continue the battle.


Read what Ray Nilsen said in 1971 when he launched the High Court appeal, and go ahead in hope to do your best.

Jean Ely



Listen to the DOGS program

3CR, 855 on the A.M. dial

12 Noon Saturdays