Kieran Bennett

I, like many Australians, long believed that our constitution established an American style separation of Church and state. It turns out I was wrong.

When you compare the Australian and American constitutions, you can see why I might have thought that we might in fact be a secular state in the US sense. Separation of Church and State is established in Article VI and Amendment I of the US constitution, and the Australian constitution plagiarizes these clauses in it’s Section 116.

Article VI, part 3 of the US constitution (emphasis added):

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States..

Amendment I of the US constititon (emphasis added):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Now check out Section 116 of the Australian Constitution:

116. 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.

It would seem to be pretty explicit. Church and state are absolutely separate. But in reading Max Wallace’s The Purple Economy, my illusions were shattered. According to Australia’s High Court, the separation of church and state is not explicit, and it all comes down to what you mean by “establish”.

In 1981 the Australian High Court heard a pivotal case concerning the constitutionality of state funding to religious schools, Attorney-General (Vic); Ex Rel Black v Commonwealth (also known as the DOGS case).

In the United States the Supreme Court ruled in Everson v Board of Education that the prohibition on establishing a religion meant that church and state are strictly separate. But in Australia the High Court decided that establishment of a religion merely meant making one religion the official religion of the state, or preferring one religion over another.

In his book, The Purple Economy, Max Wallace explains the legal impact of this definitional hair splitting:

Chief Justice Sir Garfield Bariwck said the equivilant clause in the Australian constitution meant four things, which I shall paraphrase in plain english:

1. religion cannot be imposed on anyone
2. everyone should be able to freely exersize their religion
3. there should be no religious test for a government position, and
4. there should be no one religion that is identified with the government. That is, there cannot be an “established” church in Australia.

Critically, Sir Garfield Barwick did not say, as Justice Black had said in the Everson case, that when there is no one religion identifying with government, that means separation of church and state.

Justice Black’s critical words in the Everson case were,

In the words of [former president] Jefferson the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state’.
…
In the DOGS case, seperation of church and state in Australia was effectively eliminated. Justice Sir Ronald Wilson said:

“… [s.116] cannot answer the description of a law which guarantees within Australia the seperation of church and state.”

Justice Sir Ninian Stephen said s.116,

“… cannot readily be viewed as the repositry of some broad statement of principle concerning the separation of church and state, from which may be distilled the detailed consequences of such separation”

So there you have it. The words concerning church and state in the Australian constitution may be nigh on identical to those words in the US constitution that establish a separation of church and state, but as far as our High Court is concerned, they mean different things.

If we had a real separation of church and state we might finally be able to tackle the insidious problem of state funding to church based schools, among other things. But no, until we see some legislative action, non-religious tax payers will continue to subsidize religious indoctrination in this country.

And yes, I am enjoying the book. Unfortunately I can’t shill you a copy on Amazon, but you can contact the author directly.

Update: Turns out that AV over at Five Public Opinions and Ninglun are also debating the meaning of s.116 at this very moment.

Further Update: You don’t have to buy the book! Max Wallace has a great article at International Humanist and Ethical Union on this very issue.

1. The Catholic Established Religion
2. Religion and my upbringing
3. The idiocy of the Pope (or any religious leader) opposing a secular state
4. David Siminton gets 12 months jail
5. Saturday Quick Linking

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