<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

There is no effective separation of church and state in Australia. This is true for both Federal and State levels of government but for different reasons. The fact there is no real separation is one of Australia’s best kept political secrets.

Australia’s Federal Constitution dates from 1901, the time of Australia’s Federation, when the independent British states of the continent came together to form one sovereign nation. Prior to Federation there was much debate as to how the churches would figure in Australia’s government. Section 116 of the Constitution was drafted: 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 clearly echoes the intention of the First Amendment of the United States, which their Supreme Court has interpreted to mean a separation between church and state. Hence the heated political debate on separation issues in the US, which does not exist in Australia.

Section 116 was not judically tested until 1912 when the High Court decided that compulsory military training did not invalidate the free exercise of a believer’s religion. Not much happened after that until 1943 when the government felt obliged to raid the offices of the Jehovah’s Witnesses in Adelaide on the grounds that they were subverting the war effort. The Court agreed that course of action was reasonable under the circumstances but made no direct comment about the separation of church and state.

In the 1950s, Sir Robert Menzies, Australia’s longest serving Prime Minister, saw a political window of opportunity in granting state aid to Catholic schools. The policy was an electoral winner. It caused a backlash from supporters of public education who had to fight for some 25 years for the legal standing to have the constitutionality of state aid tested in the High Court.

But the plaintiffs walked into an ambush. The Court was staffed by six conservative Knights of the Realm. The Chief Justice was the late Sir Garfield Barwick, a former Attorney-General in the conservative Liberal government. There was only one judge who saw the clear relationship between the US First Amendment, its ‘wall of separation’ between church and state and Section

116: the late Lionel Murphy. The other six took a black letter approach to interpreting Section 116, and, believe it or not, the preposition ‘of ’ played a key role in delineating Section 116 from the First Amendment, thus no separation.

Their Honours concluded that all Section 116 meant was that no Federal Australian government could ‘establish’ a national religion, as in the British example with its Church of England. This was an odd conclusion since the Australian states had already had a century prior to Federation to establish state religions if they had wanted to. They had not done so. Clearly no Federal government would contemplate such an outrageous act at a national level. The Court’s conclusion piously asserted that an absurdity was a possibility.

The Court also argued that funds given to religious schools were not intended to advance the cause of the religion but merely to further children’s education. The results of this 1981 casuistry led to a slowly evolving decline in Federal funding for state schools which became more pronounced in the 1990s. The incremental effects are being played out now across Australia: state teachers have been abandoning the profession in droves because of poor wages, increasing workloads, and large class sizes. Recently the conservative Howard government has been giving further significant increases in grants to private, religiously based schools. Parents who wish to give their children a chance in life are flocking to the better funded schools while state schools are languishing from lack of adequate funding.

This has been a great benefit for Catholic schools especially, who have seen their enrolments increase dramatically while the number of Catholics attending Mass weekly has dipped equally dramatically. (A 1996 Church survey undertaken prior to many revelations of paedophile scandals found only 18% of Catholic Australians attended Mass weekly. A 2003 survey by a Christian research association now finds that figure down to 13%.)

At the state level, the constitutional situation is different but the result the same. All the states have their own constitutions. As noted, theoretically, any Australian state could ‘establish’ a state religion. It follows that they can also interfere in religious affairs if they so decide. As of February 2004, a member of the South Australian Legislative Council (Upper House) has introduced a Bill to make mandatory the reporting to relevant authorities the confessions of child abuse in confessionals. It is unlikely to be passed.

What is surprising about all this is that you will search in vain to find the above summary in any Australian history or political science university textbook. Church and state as an issue is off the political radar. However, the facts are all there in the religionist legal literature. Equally striking is the fact that the day after the 1981 state aid decision was handed down, none of the newspapers reporting the case were alert enough to realize that church and state separation had been effectively eliminated.

The Australian Republican Movement fails to argue that Australia should separate church and state within such a Republic. I suggest that is no accident. The hierarchy of the Catholic Church supports the model of an Australian Republic that keeps separation of church and state out of the picture. If the issue of separation were to arise, the question of the generous grants their schools and their charities receive and the tax exemptions that allow them to accumulate untaxed income indefinitely, with no regulation, might arise. Of course the Catholic Church was stung by French separation in 1905 and they are actively working to undermine the constitutional prohibitions that prevent funding to their schools in 37 American states – unlike the case in Australia. As the main player the Catholic Church knows where their interests lie. They understand the threat of Catholic votes helps to keep already compliant Australian political parties stalemated.

For the blindsided secular majority and the media that feeds them, not even the appointment of an Anglican archbishop, Peter Hollingworth, as Governor-General in 2001 was a clue to Australia’s non-separation. Hollingworth’s appointment ended after nearly two years of an 8-year term when his previous handling of paedophile scandals became public, and his remarks concerning a 14-year-old girl in a country school who had been sexually abused by an Anglican teacher, revealed more than he intended. He has retired to his entitlement: a huge office on the 21st floor of a Melbourne office block fitted out at a cost of $234,000, rented for $85,000 per annum, a secretary, a chauffeur driven car, a salary of $184,000 and first class air travel, for life. In 2001 he wrote that ‘one is consecrated as a bishop for life’. So now he has the best of both worlds. He continues as a living paradigm of the non-separation of church and state in Australia.

Max Wallace is a Canberra academic and a member of the New Zealand Association of Rationalists and Humanists. His book, The Purple Economy: Secular Essays on Culture and Religion, is nearing completion.