AUSTRALIAN COUNCIL FOR THE DEFENCE OF GOVERNMENT
SCHOOLS
PRESS RELEASE 437
‘CONTEMPT OF COURT’ BOOK LAUNCH IN SYDNEY:
SPEECH GIVEN BY AUTHOR
4 AUGUST 2011
BOOK LAUNCH SPEECH 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