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