SECTION 116 OF THE AUSTRALIAN CONSTITUTION AND THE WHALE IN THE BAY OF AUSTRALIAN POLITICS

‘There’s an old whale in the bay in Australian politics. It’s been there since 1901. Few know it’s there. They prefer not to talk about it. Political life goes on without reference to it, even though its absence affects the whole raison d’être of our politics.

It is the fact, mostly thanks to a 1981 High Court decision, that there is no constitutional separation of church and state in Australia. That is when the Court interpreted s.116 of our 1901 Constitution to say that it does not mean separation of church and state. The Court’s decision in the Defence of Government Schools case flew in the face of what the founding fathers intended when they adopted the ideas of the American First Amendment to their Bill of Rights, which s.116 imitated.

In 1976, the University of Melbourne Press published Professor Richard Ely’s Unto God and Caesar where he carefully detailed the US-style separationist purposes of s.116. This painstaking research was totally ignored by the 1981 Court. In 1986, an exasperated Professor Ely critiqued the Court’s decision in the University of Tasmania Law Review, Vol. 8, No.3. He said that it was “an incontrovertible fact” that “the 1898 Federal Convention debates on s.116 largely took the form of considering whether or not, in Australian circumstances, a prohibition [s.116] like that in the First Amendment was needed”. They decided that it was.

However, in 1897, Australia’s first prime minister-to-be, Edmund Barton, remarked that there was separation of church and state in Australia because we did not have an “established” church, as is the case in England, where the Church of England is the official church of the nation, identifying with the state, formalised by an act of parliament. This comment still circulates like an urban myth. It has some credibility because it’s partly true. Lack of an established church is a necessary precondition of separation, but it is not a sufficient one. Barton’s remark was made before s.116 was incorporated into the Constitution and its meaning tested in 1981.

At this point, it is worth noting there is also no section separating church and state in any state constitution. No surprise there as the New South Wales Constitution was written in 1840, and the last state constitutions, Queensland’s and Western Australia’s, were written in 1859. Colonists understood themselves as British.

Highly significant points follow from these facts about the legal interface of religion and politics.

First, how can we consider ourselves to be a fully-fledged democracy when there is no constitutional separation of church and state? What we are, in fact, is a soft theocracy with strong democratic traditions. I have rehearsed supporting arguments for this claim elsewhere (“When there is no separation of church and state”, On Line Opinion, September 25, 2008).

Recently, a federal politician recognised this state of affairs. Rob Oakeshott was cited in The Australian on December 2, 2009 saying that “no separation of church and state exists in principle” in Australia.

However, this all-important issue stays under the surface for fear of the religious vote. One could hardly find better evidence of this claim than the behaviour of the Prime Minister before the recent federal election. Julia Gillard, who openly conceded she was an atheist, then:

attempted to calm Cardinal Pell’s fears by donating $1.5 million of taxpayers’ money towards celebrations of the canonisation of Mary MacKillop;
subjected herself to web-casted cross-examination by the Australian Christian Lobby’s Jim Wallace to confirm she would not even think about doing anything they would not like; and
confirmed her government’s willingness to throw yet more federal money at religious (mostly evangelical) chaplains in Australian state schools.

That does not mean, of course, that the religious lobbies get everything they want all of the time. Voluntary euthanasia and gay marriage are going to become issues.

Given these secular twists, the NSW government’s support (thus far) for ethics classes in state schools, the decriminilisation of abortion in Victoria, the reader might be inclined to think, well, so what?

Apart from the logical craziness of contemplating a republic without a US-style constitutional separation of church and state, another major problem with Australia’s lack of separation is that governments, state and federal, are free, as noted, to throw any amount of taxpayers’ money, big and small, at religious causes, whether we like it or not.

Another significant example was Catholic World Youth Day (week) in Sydney, July 2008. It cost in excess of $20 million of federal money and a whopping $100 million approx of NSW money. When the same event was held in Canada and Germany their governments dedicated only about a quarter of the Sydney sum, which is a measure of how supine our governments are (“Almighty cost of hosting pilgrims”, Sun Herald, June 22, 2008).

Interestingly, this federal spending was contested by disaffected Catholics who slapped a Writ, March 2008, on the federal government in an attempt to stop it. It didn’t get past first base despite the interesting arguments of their barrister, Peter King, former federal member for Wentworth (see my “Conflict of Interest? The High Court and the Vescio/Catholic World Youth Day Case”, forthcoming, Australian Humanist , October 2010).

Quite soon, the federal government will be facing another High Court Writ contesting the constitutionality of that federal funding for religious chaplains in state schools. Leading barrister, Bret Walker, will be asking the government to explain itself. (“Chaplains in schools challenged”, The Age, September 5, 2010).

Maybe the old whale will surface at this point and new whale watchers will be surprised to learn that it was there all along, and they never knew.’