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The NSW Teachers' Federation are to be congratulated for their investigation of a successor to the  Defence of Government Schools case in another  High Court Challenge to State Aid to religious schools . They have struck fear amongst the chief beneficiaries of taxpayer funding of religious organizations. DOGS note that on Thursday 12 August 2004 in the House of Representatives John Howard referred to the challenge against State Aid by teacher unions

        "..that strikes fear into the hearts of every director of Catholic education around Australia."

            (House of Representatives Hansard, 12 August 2004, p.32556).

DOGS believe that both John Howard and the Roman Catholic Church, alongside other religious schools have every reason to fear another High Court Challenge.

We refer to a number of statements by imminent persons  which indicate that there is a very good basis for their concern.

Consider the following:

1.    Sir Robert Gordon Menzies Prime Minister of Australia, 30 August 1960. ( House of Representatives Hansard p. 514)

In question time on that day, the following exchange took place:

Mr. James: My question is directed to the Prime Minister. Will he inform the House whether his government favours the provision of         financial assistance for denominational schools throughout the Commonwealth?

Mr. Menzies: The Honorable member puts to me a question that is outside the jurisdiction of this government.

2.    The Rt Hon Sir John Latham, Chief Justice of Australia 1943 ( Education and War) wrote:

" The Commonwealth can neither prescribe nor proscribe any religion. Religion is free in Australia because it is not compulsory and because   it is not controlled by any government. Such provisions as those I have referred to ( Section 116 Constitution) are the safeguards in Australia of one of the four freedoms: namely the freedom of religion....these principles are abandoned when the State supports any form of religion as such or opposes any form of religion as such."

3.      Edmund Barton, later Sir Edmund Barton, Prime Minister of Australia and High Court Justice - 3 December 1879: (NSW Hansard Debate on Public Instruction Bill 3 December 1879, p. 457.)

"The difference between the Denominational system and the public school system is all the difference between bolstering them up on the one hand and letting them alone on the other. Denominational education supported by the State bolsters them up. while the policy of the country, as affirmed in the abolition of State Aid to religion is to let all religions alone, neither to discourage nor support any of them. That principle is now the law of the land as applicable to public worship: if it is a wise principle when applied to teaching religion to adults, why in the name of common sense is it not a good principle to apply to the teaching of religion in the schools?..."

and later:

"..if, as taxpayers we are asked to support religion we say, 'No: you must leave that to our consciences as individuals and not impose it upon us as taxpayers'. That is really the opinion which the people have expressed with regard to the teaching of religion to the adult population and I say that it is inconsistent to deal with the teaching of youth on any other principle at variance with it."


4.   Brother Ronald Fogarty, in Catholic Education in Australia 1806-1950 Vol. 1 p. 121 (MUP 1959) 

Fogarty said that a

"any aid to these  schools (denominational schools) they looked upon as direct aid to religion"

Fogarty noted that this idea was enthusiastically taken up in all the colonies and became the guiding principle of those who pressed for reform. He pointed out that it was heard from such men as Sir Charles Lilley, Thomas Palmer, and (Sir) Samuel Griffith ( later First Chief Justice of the High Court of Australia). He also pointed to Sir George Higginbotham in Victoria. 

5.    Bob Santamaria in the Journal of the National Civic Council, Newsweekly, February 18, 1981.

Bob Santamaria soon after the finding in the DOGS High Court case in February 1981 expressed the fear of a possibility that the finding could be overturned in the future. He said:

"The purely legal and constitutional question has been decided at least for the time being. It is to be noted, however, that the High Court is not bound by its own precedents, so that, however one may judge future possibilities, there is no strict legal principle which stands in the way of what would be in practice, if not in theory, a reversal of last week's judgment.

To those who believe that such reversals are impossible, one can merely commend a study of the radically opposite traditions of high court judgments, in the matter of the conflict between Commonwealth and State governments which preceded and which followed the Engineers' Case (1920). The later tradition - in favor of the extension of Commonwealth powers at the expense of the States - reached the high point in the Uniform Tax cases.

Those who control the independent schools should take good notice of this reversal, whatever opinions they may receive from School Boards or similar authorities whose expertise extends to matters of educational administration and method, but who would not claim particular knowledge of legal or constitutional questions, or of the factors which influence manor changes in the political climate...

For what it is worth, the judgment of this paper is, as the total of public funds allocated to non-government schools grows to approximately two billion per annum , there will be a powerful political backlash which will create a demand for government control of the independent sector on the plea of 'no taxation without representation'....

Nevertheless, it is better to exercise foresight than to rue the day."

So John Howard, reflecting on the fear of the Roman Catholic Church authorities is also reflecting the foresight and fears of Bob Santamaria the week after the DOGS High Court case decision.

The State Aid bill is now at least twice what Santamaria anticipated. And the cost to the educational opportunities of the majority of Australian children in public schools is outrageous.


From the above it is obvious that past Chief Justices and  a Prime Minister and even a leading Roman Catholic historian and political figure recognized the relevance of the principles underlining Section 116 of the Constitution and its relevance to the State Aid debate.

It was recognized in 1981 that the majority finding in the DOGS case was a political one.

The dissenting judgment of Justice Murphy, like so many of his dissenting judgments was seminal. It was the only one grounded in the principles of religious freedom outlined by the chief draftsman of the Constitution - Inglis Clark not to mention the debates on Section 116 at the Constitutional Convention. Our Founding Fathers understood only too well the  nature of the issues at stake.

The crossroads between educating all the children in the interests of the common good as opposed to the sectarian and sectionalist education of the minority which confronted colonial educators once again confronts Australian citizens, taxpayers and educators.

If our politicians do not have the intestinal fortitude to call the bluff of religious men with their hands in the public Treasury to the tune of billions of dollars - at the expense of the opportunities of the majority of Australian children - then

DOGS say the time has  come to put the High Court Justices to the test once again.












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Last modified:Monday, 25 April 2005