Max Wallace

In my talk today I am going to argue there is no separation of church and state in Australia and New Zealand. There is formal separation in the United States and France. While there is no separation in Australia and New Zealand it is also true there is no separation in England. But the situations in Australia, New Zealand and England have to be distinguished.

I will argue separation of church and state is a basic requirement of democracy. Any nation that has not formalised it remains to a lesser or greater degree under the influence of the churches and has compromised its taxing powers. I say that is undemocratic and unacceptable.

There is a very important principle here. Government temporal authority and church supernatural authority should be separate entities in a democracy. The separation between the two authorities should be seen as on a par with the separation of powers of the executive, the judiciary and the legislature within a government. Part of a government’s power is the power to tax. But that power is compromised when, following the traditional exemption of monarchies from taxation, churches are exempted from taxation as if they were part of government; they are given a free hand to accumulate wealth with a near total lack of public accountability while they remain private organizations.

That mostly unaccountable wealth, raised from all citizens, including those who have no affiliation to churches, can in part be surreptitiously recycled to favour the agendas of religious political parties; to pay for the mechanisms of informal influence of mainstream parties; proselytise for adherents at everyone’s expense; and maintain the images of churches as paradigms of virtue that no one in their right mind would question. Professor Hamilton notes that in the US, ‘religion, in its current genesis, is whitewashed as a do-good, trustworthy collective that can only assist the development of a moral fibre the government has despaired of providing.’

I will argue any semblance of separation of church and state in Australia was abandoned in the 1981 State Aid/DOGS case which concerned the constitutionality of legislation funding religious schools. I will allude to what the consequences of this lack of separation have been. The central argument I am making today about lack of constitutional church-state separation and its consequences cannot be read in any Australian history or political science text. This is a measure of our collective naïveté about separation of church and state.

I argue we should learn from the French example of la laїcité: secular government that, in Professor Renaut’s phrase, is situated ‘above cultural and philosophical differences’ creating a common citizenship that we all share. Separation of church and state in France is transparent. As Professor Émile Poulat noted sardonically last year, while the Catholic Church in France remains a social reality, a moral authority and a political force, the state
‘… n’enlève à l’église aucun pouvoir: elle cesse la considerer comme un pouvoir’: the state does not remove from the church any power : it ceases to recognise the church as a power.

I will conclude by starting a conversation about what might be done to move Australia in the direction of a complete republican democracy with a separation of church and state. I will assume no knowledge of these matters in my audience today and spell out the issues here as clearly and ably as I can. Separation? In the Senate on 28 February this year [2006] Senator Allison moved a Notice of Motion that, among other things, called on the government to ‘consider … ways of achieving a true separation of church and state’ in Australia. The vote on the Notice of Motion was lost 7-50. When questioned about Senator Allison’s Notice of Motion the Prime Minister said: What the separation of church and state means in this country is that there is no established church .. we don’t have the .. Anglican Church as the official state religion, that’s what it means.
For good measure he added that Senator Allison’s motion ‘shows a total misunderstanding of the nature of the separation of church and state.’ It is ironic that the Prime Minister said there is a separation of church and state in Australia after he appointed Anglican Archbishop Hollingworth as Governor-General in 2001. Interestingly, as we shall see, his appointee, the Archbishop, contradicted the Prime Minister prior to his appointment in 2001 by arguing that separation of church and state in Australia is not ‘clear cut.’ The next thing to note is that the Prime Minister was not referring to the Australian states, only Federal law. All Australian states have their own constitutions. With the exception of Tasmania there is no mention of religion in those constitutions. The Tasmanian section has never been judicially tested as to what it means. In 2005 the Labor Government of South Australia and the Catholic Church proved beyond shadow of doubt that there is no separation of church and state at a state level. The Government appointed Monsignor David Cappo, the Vicar-General of the Catholic Church in South Australia to three executive positions within the government.
In response to his appointment the Liberal MLC the Hon Julian Stefani said in the Legislative Council on 1 June 2005:

Monsignor Cappo has compromised his position with the church because of divided loyalties between state and church. He cannot serve two masters … The perception which the Vicar-General has created is not likely to be removed from the hearts and minds of thousands of Catholics who, like me, disapprove and, in the strongest terms, condemn the acceptance of [Monsignor Cappo’s] three appointments, because we believe in the total independence of separation of powers and functions between church and state.

The Australian of 4-5 February 2005 noted that

the appointment of a non-elected, non-government person to cabinet – let alone a senior church figure – is unprecedented in Australia.

To my knowledge one of the Hon. Stefani’s thousands of Catholics who should have disapproved of Monsignor Cappo’s appointment was Archbishop Pell. This is because he was quoted in The Australian of 23 May 2001 as saying

The separation of church and state in Australia is a blessing and we should preserve it.

To my knowledge, Archbishop Pell has not expressed dissatisfaction with Monsignor Cappo’s appointments. Perhaps, like the Prime Minister, he was only referring to separation of church and state in terms of Federal law.

So what does Federal law say about separation in Australia? First, we should note that there are three ways separation is achieved in any democratic or even socialist state. The first way would be that it is written into the state’s constitution.

The second is that legislation is passed entrenching separation. That is what happened in 1905 in France.

The third is that the constitution is interpreted to mean separation by the highest court in the land. That is what happened in 1947 in The United States in the Everson case which recognised Thomas Jefferson’s famous phrase that between civil government and religion there should be a ‘wall of separation.’ At the same time Everson helped initiate the US Courts’ tendency to finesse separation, to be equivocal about it.

Here is 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.

There is no mention of separation of church and state in that section. What we do find there are two principle ideas known as the ‘establishment’ and ‘free exercise’ clauses made bold here. Briefly, the free exercise clause is taken to mean that government should only interfere with a religion when a religion’s practices somehow threaten the national interest. That clause is not so relevant to what I am discussing today, which is the establishment clause.

So, given that separation has never been legislated for in Australia and s.116 does not say there is separation, as in the American case it became a matter for our High Court to interpret s.116 to decide, among other matters, whether it meant separation of church and state. So what did the Court say? Justice Lionel Murphy said that s.116 has the same meaning as the First Amendment of the United States on which it is based. It means separation. The other six judges disagreed with Murphy.

Justice Sir Ronald Wilson said:

The fact is that s.116 is a denial of legislative power to the Commonwealth and no more .. The provision therefore cannot answer the description of a law which guarantees within Australia the separation of church and state.

Justice Sir Ninian Stephen said s.116 …

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

Justice Sir Garfield Barwick agreed with the commentary of his brother Sir Ronald Wilson thereby endorsing the view that s.116 did not mean separation of church and state. I will come to his reasoning shortly. Justices Sir Harry Gibbs and Sir Anthony Mason were alive to the consequences of the 1947 Everson case in the United States confirming separation there and pointedly interpreted s.116 to prevent those consequences occurring here. Those consequences are endless battles in the courts, on a case by case basis, as to how the establishment and free exercise clauses apply in particular cases.

Justice Sir Keith Aickin’s contribution to the State Aid/DOGS case was a mere three lines where he threw in his lot with Gibbs and Mason. Perhaps he was appreciative of the situation he found himself in. He had earlier revealed on 20 July 1978 that while a Queen’s Counsel he had accepted a retainer from church solicitors with a view to his ‘possible intervention in the state aid hearings’ . His reluctance to fully participate in the case infers he should have stood down.

So given that six Knights of Her Majesty’s realm did not say outright that s.116 meant separation of church and state, what exactly did it mean?

If we go back to s.116 there are two critical words in particular that were used by the Court to distinguish s.116 from the American First Amendment. Here are the relevant words from the American First Amendment and s.116:

Congress shall make no law ‘respecting’ an ‘establishment’ of religion, or prohibiting the free exercise thereof;

116. The Commonwealth shall make 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.

Some, but not all, of the critical words for the Court in s.116 are made bold and put in inverted commas here.

Six of the Justices said that ‘establishing’ should be taken to mean that the Federal Government can never establish a national religion in the way the Church of England is the national religion of England. The Church of England has this status by virtue of an act of parliament thanks to Henry VIII’s split with the Catholic Church. It is not alone. A number of European states have established churches, for example, Denmark and Greece. Sweden has disestablished the state church. Norway is working towards a complete separation and the Fabian Society last year released a paper arguing for the disestablishment of the Church of England.

Quite critically, and in distinction to the US Court’s definition of ‘establishment’, the Australian Court decided on an extremely narrow definition. As Helen Irving has said today, the Court ‘depleted it of meaning.’ In the American case the definition of establishment is much wider. As US Professor William Rich noted in his paper contrasting the US definition with the Australian definition

The US interpreted [the establishment clause] to require separation between church and state. That decision sharply limited government assistance to religious schools and also led the Supreme Court to prohibit religious prayers during such activities as public school commencement ceremonies. In contrast a divided Australian High Court concluded that language of the establishment clause only prohibits Parliament from preferring one religion over another.

So, does the limitation on Parliament ‘preferring one religion over another’ mean separation of church and state?

Justice Sir Garfield Barwick noted that the American definition of ‘establishment’ came partly from the fact that the American Constitution includes a Bill of Rights spelling out the essential characteristics of American democracy. Australia, he pointed out, does not have a Bill of Rights. Given that was the case, he argued, one could only conclude that the language of the Australian section is quite different in meaning to the US text. It was wrong to draw an analogy between them. Focusing on the preposition ‘for’ he said that what ‘for’ means in the Australian text is quite different to what ‘respecting’ means in the US text. What s.116 is about, he said, was the making of a law ‘for’ establishing any religion. It means the Federal government cannot establish a national religion. In an extensive review of the StateAid/DOGS case in the Federal Law Review, Joshua Puls comments favourably that

Australia has benefited significantly from what may have been a quirk of drafting: the inclusion of the word ‘for’ in the section [116], giving the High Court a legitimate basis on which to inquire into the purpose of the impugned legislation [i.e. the legislation allowing funding to religious schools], thereby freeing it from a strict ‘wall of separation’ approach to the section.

The emphasis on ‘quirk of drafting’ here is mine and I will return to it.

So, given two High Court judges have said outright that s.116 does not mean separation; Justice Barwick agreed with one of them; and three other judges have said nothing to imply that s.116 means separation, then one has to ask of constitutional separation of church and state in Australia, although it is now a cliché: where the bloody hell is it?

We have seen the Prime Minister says that because Australia does not have an established church like England, there is separation. But the Court never said that non-establishment of a state church was equivalent to separation of church and state. It just said the section prevents the government from establishing a national religion. This is where, I believe, the Prime Minister is wrong.

Moreover, the plaintiffs in the State Aid/DOGS case specifically asked the Court to find s.116 meant separation and two judges with a third agreeing said specifically and deliberately that it did not. The Prime Minister should know this because, as the Treasurer in 1981, he was one of three ministerial respondents in the State Aid/DOGS case. To my knowledge, none of the specialist literature in this field argues otherwise.

This constitutional reality is what I suspect Archbishop Hollingworth was referring to when he said in June 2001 prior to his appointment as Governor-General, that separation of church and state in Australia was not ‘clear cut.’ He said:

Those who have raised [this question] have confused the Australian Constitution with the United States’ constitution. The only ‘separation’ of powers that applies here in Australia is to do with those pertaining to the Executive, the Legislature and the Judiciary of the Commonwealth itself. There is not a clear cut separation between church and state as is the case in the US tradition.

In fact, on closer examination what is ‘clear-cut’ is non-separation. If one looks at the historical display at Parliament House there is no mention of separation of church and state; it is not mentioned on the government’s webpage; the Prime Minister did not mention separation in his speech at the Centenary of Federation in 2001. Surely that was the time to raise it and celebrate it. Instead he said: ‘under God we can achieve so much more for our people and build upon the great inheritance and the great legacy of the years that have gone before us.’ Moreover, if I’m wrong in my analysis, why do we need a constitutional law-microscope to seek separation? Why isn’t it emblazoned on the front wall of parliament?

There are two other arguments to possibly gainsay what I’m arguing here. One could look to New Zealand, our colonial cousins across the Tasman. In fact, of course, New Zealand was considered part of New South Wales until 1841. If separation is hard to find here, maybe New Zealand, without the complication of state governments, has its separation up front. The other possible argument would be to say that while it may be true constitutionally there is no separation in Australia, in practice, in everyday life, there is. I will deal with both these arguments.

New Zealand

Is there legislation separating church and state in New Zealand? No. Has there been a constitutional case where the question has been addressed? No. What does the New Zealand Bill of Rights and their Human Rights Act say about separation? Nothing. Is there a reference to separation on the New Zealand Government’s website? No. New Zealand has two national anthems: ‘God Defend New Zealand’ and ‘God Save the Queen.’ That’s not what you would expect from a nation that has separated church and state.

Professor Rishworth, Professor of Law at the University of Auckland, recently wrote that at the signing of the Treaty of Waitangi, the founding document of New Zealand which formalised the agreement between the British government and the Maori tribes, a French Catholic priest witnessed the signing. He later wrote that a statement was read to the Waitangi assembly which said: ‘the Governor says the several faiths of England, of the Wesleyans, of Rome, and also Maori custom, shall be protected alike by him’. Professor Rishworth notes that from this

there may come a point at which it is claimed [the Waitangi Treaty] envisaged a state in which religion would be actively protected, and that a wall of separation was never envisaged.

What Australia and New Zealand have in common is that both are constitutional monarchies with the Queen as our Head of State, and she, of course, is the head of the Church of England in Britain. Like us, New Zealand appointed an Anglican archbishop as Governor-General: Sir Paul Reeves from 1985 to 1990. In an interview in 1998, reflecting on his appointment, he said that in his role as Governor-General, he foresaw he would be able to

… fulfil his clerical vocation in the new position.

Given that we’ve drawn a blank with New Zealand, isn’t it the case that churches don’t get their way in Australia, that the government is in effect secular?

Civil Government?

Another way of posing that question would be to ask, isn’t it true that Australian government is not ‘church government’ which ‘dictates to civil institutions’? When we look at our Parliaments we do not see, as one does with the House of Lords in England, a row of bishops appointed by the Prime Minister. Archbishop Pell does not sit on John Howard’s shoulder and the churches don’t always get what they want. The recent vote on RU-486 demonstrates that fact. But equally, two events in Queensland demonstrate otherwise. Firstly there was the scuttling of the recent overhaul of the Education Act which would have removed the obligation for state school students to attend religious education classes unless requested in writing by their parents (the ‘opt-out’ system). Secondly, the Queensland Government’s idea to have an ‘opt-in’ system for religious and other instruction including humanism, sent the Christian lobby into a spin. A phone call to Canberra by the Christian lobby had the Federal government threatening the funding of the State government who were also on the receiving end of an instant mass petition, and they stopped the legislation. About a week later, in the next Sunday’s Age it was revealed the Federal government prefers to go in the exact opposite direction: the Federal government wants to install full-time chaplains in government schools to ‘lift religious standards.’

But let us look briefly at the symbolic and structural relationships between religion and government. In the corner of the Australian flag is the Union Jack which contains the crosses of three Christian saints: St George, St Andrew and St Patrick. This flag flies over our Parliament; Christian prayers are said before parliamentary sessions including the Lord’s Prayer where the assembled pray for the Christian second coming to be realised on earth thereby abolishing the government of which the members are the elected representatives: ‘thy kingdom come’. Maybe this is politicians’ supernatural superannuation; a reference to ‘God’ was included in a verse of the national anthem in 1997; Federal funding was given for the construction of the Centre for Christianity and Culture – not religion and culture - located symbolically at the feet of Parliament in 2000. It was opened by Sir William Deane. He said at his opening of the building that it ‘will constitute one of, if not, the, most important things I do while I am Governor-General’ ; in 2005 judges marched in single file into St Mary’s Catholic cathedral in Sydney to have a mass to celebrate the 60th anniversary of the St Thomas More Society and the start of the legal year. Where’s the separation of church and state when the judiciary needs a Christian blessing?

A few weeks ago Australia celebrated its third National Day of Thanksgiving. The website of the National Day of Thanksgiving is instructive. If any more proof was needed that Australia has not only judicially but symbolically abandoned separation of church and state this is it. This Christian website, with government approval, has totally compromised the idea of Australia as a neutral, pluralistic state. On the Vision page, with the government’s approval, we read that our nation is to be called to prayer one day each year ‘to acknowledge our Christian heritage and the Lordship of Jesus Christ over our nation.’ How can the Prime Minister claim there is separation when he endorses this website? It is also endorsed by the Leader of the Opposition and the Governor-General. So much for those of other faiths or no faith at all. Consider ourselves out of the loop.

Those symbolic aspects are very important but they are much more visible than the structural relationship between government and religion which I will touch on here. The main dimensions of this structural relationship are firstly, the way religions have been awarded significant amounts of property in our past; secondly, how like government itself, religions are exempted from most taxation; thirdly, how they receive grants from the government and fourthly, they now receive contracts to participate in aspects of civil government. The exemption from taxation especially has created what I call the Purple Economy.

In fact, I say, seen in the abstract, the administration of government and the administration of religion in Australia and New Zealand are in fact opposite sides of the same coin. What unites these administrations especially is that they are both revenue takers by way of exemption from taxation. The government takes tax directly into consolidated revenue. The churches are income tax free with their investments and pay few other Federal, state or local government taxes. Their wealth can increase, as it has in the United States, exponentially, without public accountability.

The Queen’s face on our currencies, I suggest, symbolises the unity of church and state.

The vast amounts of property the churches received in the colonial period, and which they now sell off capital-gains tax free is a legacy of a past where it was assumed, in the words of the 1601 Statute of Charitable Uses, that ‘advancing religion’ was a form of charity. It was also the case that in previous centuries, and even today, European governments paid stipends to the clergy as if they were civil servants. As early as 1836, Professor Gregory notes, Governor Bourke in New South Wales wrote that he looked forward to a time when the churches would ‘role off State support like saturated leeches.’ A century later when he was introducing the 1936 Income Tax Assessments Act the Postmaster-General, a Senator McLachlan, said that because churches have ‘the advantage of escaping from income tax … they are apparently the cared-for darlings of the several tax commissioners of the Commonwealth and the States.’

Now the justification for the government largesse is also partly that the exemption from taxation is seen as a form of ‘cross-subsidisation’: it is compensation for the charitable ‘good works’ of the churches. But when one looks at many charitable causes today one finds that a significant proportion of the costs of the organisations that religious charities run are heavily financed through government grants. With dramatic declines in attendance in the mainstream churches, the mostly government-funded bureaucracies the churches run have become their raison d’etre. The churches which are charities themselves – ‘supernatural’ charities - are all but empty but the church welfare bureaucracies have grown substantially.

Since the election of the Howard government in 1996, there has been a scaling up of religious involvement directly in matters that were formally the province of government: the destruction of the Commonwealth Employment Service and its replacement largely by religious, faith-based organisations with contracts worth hundreds of millions of dollars annually is the main example. But there is another one waiting to happen. More contracts worth hundreds of millions of dollars annually to provide counselling for parents involved in custody disputes under the new Family Law Act. The government rejected a recommendation from its own committee that parents with custody issues should have to present a parenting plan to a tribunal of experts and argue their case. The secular solution was vetoed by Howard in favour of bringing the churches into the fray. Their welfare arms will be getting the bulk of the contracts for the new ‘Family Relationship Centres.’

Just two weeks ago the Government said it would use its constitutional powers to override the Australian Capital Territory’s civil union legislation just as it overrode the Northern Territory’s legislation in 1996; as mentioned, a plan to introduce humanism into the Queensland state school curriculum was met by a threat from the Commonwealth to cut funding and the very next week the Government announced it is considering funding for chaplains in state schools. So humanism in unacceptable but Christianity can be promoted!

Also, we have seen recently that religious organisations will now receive $20M annually to provide abortion counselling services. Just a few months ago both the Federal government and the state government of NSW joyously announced they would each contribute $20M up front to the Catholic Church for the 2008 Youth World Day in Sydney to be attended by the Pope. Celebrating the announcement of the impending Pope’s visit in Rome was Malcolm Turnbull, former leader of the Australian Republican Movement. The Sydney Morning Herald reported on 16/17 August 2002 that Turnbull had converted to the Catholic faith. This was just some time prior to his hotly contested pre-selection for the Federal seat of Wentworth in Sydney.

Business Review Weekly estimated in March last year that the Catholic Church has an annual revenue stream in Australia of ‘at least’ $15B. No one knows for sure, for, as I’ve indicated, religions are not required to submit income tax returns. Why should taxpayers have to give them another $20M on top of what we already give them? If the Court had found there was separation of church and state in Australia in 1981 all this largesse could be unconstitutional. I will return to that point shortly.

In her paper ‘Free? Exercise’ published in 2001, Professor Marci Hamilton argued that ‘The United States is in the midst of the greatest wealth transfer from government to religious entities in its history.’ What has been happening there has been happening here from day one with grants of land; from 1884 when the churches were made tax exempt; from 1936 when the exemption was formalised in the first Federal tax act; and 1981, when the High Court approved what has now become annually in excess of ten billion dollars given to church schools, and much else at different levels of government in between.

In the time available, I will touch on the problems with all this and why Australian democracy has been and is compromised by a lack of constitutional church-state separation.

Tthe absence of separation and its consequences for democracy

It was in the hair-splitting interpretations of small words, trading on the alleged ‘quirk of drafting’, that separation of church and state was abolished in Australia in the State Aid/DOGS case as I’ve argued earlier. I suggest this was in effect a political coup more significant than the Whitlam sacking.

The consequences have been dire for three reasons.

The six Knights of Her Majesty’s realm decided the direction Australian democracy would take when presented with a fork in the road. One fork was recognition of separation of church and state and the beginning of American-style controversies over where to draw the line between the two authorities. That would have given separation a high profile and made it the subject of consistent discussion and debate. It would have dramatically raised the profile of Republicanism in the 1980s. Secondly, the other fork, which they chose, was to bury separation in favour of the sectional interests of religion and pass off these interests as if they were in the national interest.

I would argue that it is this very debate over what is constitutional in the relationship between church and state that stops the United States from formally tipping over into a formalised theocracy. American constitutional law interpreted through the Supreme Court says to America’s religions that, as much as they believe it to be so, government does not exist to enhance special privileges which they think are rightly theirs; nor does it exist to enforce their world view on others. Whether they like it or not, policy turns on the liberal democratic theory of the Enlightenment as it is expressed through separation.

It’s very educative for the Congress and the public to be constantly reminded that America is founded on the idea that religion does not have a mortgage over government policy. I’m putting the best gloss on this.

The legal interface between secular Enlightenment reasoning and religious belief does not happen in Australia. Thus we don’t see the critical importance of the issue. That is a very serious omission because it stunts the political education of Australians including opinion leaders and the media. We really don’t understand why liberal democracy turns on the question of separation and what the consequences of that are.

For example, there is no way any organisation could go to court and argue the $20M to be given to the Catholic Church for the Word Youth Day in 2008 with the Pope in attendance is unconstitutional, even though the $20M is clearly being used for a religious purpose. We cannot argue that this money helps ‘establish’ religion; similarly, there is no way anyone could argue in court that the $20M for abortion counselling by religious organisations, or the move to install chaplains in state schools is unconstitutional for the same reason. When the High Court said ‘establishment’ only means the setting up of a national religion in Australia it took away citizens’ rights to contest the blatant advancement – that is establishment in the American sense - of religion by government. Religion is insinuated into the fabric of government.

Secondly, we are vulnerable to a religious control of Australian politics by incremental changes and stealth. There is nothing to stop Family First, lubricated indirectly from wealthy tax-exempt evangelical churches whose commercial businesses are tax-exempt and unaccountable, becoming a surrogate DLP in the future. They could do this, not by getting themselves elected, but by standing candidates in all electorates and trading on their preferences to keep Labor out of power. Labor’s response to this has been to fawn at the feet of the perceived religious vote. If that continues without opposition, the difference between religion and civil government will further deteriorate in this country.

The paradox of this is that Australian society, notwithstanding the recent gains of the tax-exempt commercial evangelical religions, is clearly secular with dramatic downturns in church attendance and religious affiliation overstated by a biased census question. There is already a significant ‘no religion’ vote in Australia which could neutralise the Christian vote. In a Newspoll we conducted in February this year we found what I argue is significant disquiet with the phenomenon of the religious turn in our politics.

Thirdly, the State Aid/DOGS case approved the opening of the floodgates to religious school funding in Australia. In the State Aid case it was not argued by the plaintiffs that 37 of the 50 states of the United States are constitutionally barred from funding religious schools. In those states the church and the parents fund the schools, with some help from state governments but not all. In France, there is limited aid with strings attached. Since 1981 tens of billions of dollars have flowed into the mostly Catholic system in Australia with a lack of adequate accountability as to how the money is spent. Despite this vast flow of revenue, in 1990, just nine years after the State Aid/DOGS case, the Catholic Brigidine Sisters were saying the church should sell some of its huge property holdings to

… free up funds for systemic schools … the structure of the Catholic school system endorses the grouping of students into socio-economic classifications … through the provision of different schools for different students such that they are separated into rich, less rich and poor …

Ten years later in 2000 Senator Allison asked members of the National Catholic Education Commission in a Senate hearing about the distribution of Federal funding. She was told eight church authorities distributed the funds according to their own determinations and that the Commonwealth government, up to that year, had not recently sought details of the reasons for the actual distribution of dollars to individual schools.

The provision of multiple billions of dollars in funding to religious schools has seen the public school system slowly but surely sink into a slow crisis of under-funding. This slow crisis has expressed itself in larger class sizes; underpaid teachers who have seen their wages that were once equivalent to that of other professions become significantly less while their workload has increased; inevitably lower standards in many schools. In an increasingly competitive and meritocratic society that has resulted in parents following the money into private, religious schools.
In 1981 there was no argument about the tax exempt status of the church, no knowledge of its income and expenditure and no knowledge of the wealth of the Vatican which could, theoretically, have partly funded Australian and New Zealand schools.

But let me be clear about school funding. I don’t believe there should be poor schools of any kind. With total transparency and accountability we should be able to see how the needs of poorer schools of any kind could be addressed. But what has happened since government money started flowing in vast amounts to private schools is that public education has slowly withered on the vine. You can’t take out multiple billions every year from the education pool in real terms and expect public education to flourish. Now we have got to the stage, as The Age recently reported, public schools in Victoria are trying to raise funds by attracting overseas students. Mark Latham raised this question at the last election and got hammered for it. Recently, the obsequious Labor Party has raised the white flag over school funding instead of maintaining a more principled position.

Thirdly, church-state separation is an aspect of the debate about an Australian Republic. It is more than passing strange that it was never raised in the Constitutional Convention in 1998 which Archbishops Hollingworth and Pell attended as delegates. I suggest its absence in that debate is no accident. If separation is introduced into the Republic debate the question of funding for religious schools inevitably arises. That creates a vested interest, on behalf of the churches, in keeping it off the agenda. It is a very interesting question as to why the Australian Republican Movement has never addressed the question of separation of church and state.

Compulsory appropriation

Finally, I would like to say that a major problem with the lack of church-state separation is that secular taxpayers are compelled to subsidise religions whether they like it or not.

Recently, the German Government has had to grudgingly concede that it was inappropriate that between eight and nine per cent of atheist’s incomes was garnisheed and given to churches through the ‘church taxes.’ The reason the Government had this direct deduction policy was that on 20 July 1933 a Concordat was signed between the Catholic Church of Pope Pius XI and Adolf Hitler’s government. The Concordat revived, formalised and fortunately made transparent the tax arrangement between the German state and the church. At the time Hitler was seeking credibility in diplomatic terms to cover for his worsening reputation in the wake of his criminal political tactics.

The pope had no problem with this. It came a few years after the 1929 Concordat with Mussolini that was the basis for the church’s contemporary wealth in terms of property ceded to the Vatican and the granting of tax exemptions.

After a defeat in a high court case the German government relented and said that it was inappropriate for those who did not belong to a church to have the eight to nine per cent of their taxes garnisheed to be given to churches. They said if citizens wrote to the tax office declaring they had left their church the deduction would cease. Since then Germans have been leaving mainly Catholic and Protestant churches in droves.

The point here is that the German situation was in citizens’ faces and hurt them financially in a direct way. In our case, we don’t see how we are subsidising churches we may not sympathise with, and their causes, through the historical tax exemptions and tax breaks at federal, state and local government levels. Those of us who have no religious sympathies are being ripped off by stealth. We pay unseen tithes through our taxes.

An obvious solution to this would be for the government to have an annual levy on all citizens’ income taxes with the option that citizens can opt to support whatever charity they wish. This is an Italian policy. This would work like a Medicare levy and government could review most, if not all of the hidden subsidies. I would call this the ‘Charity Levy.’ It would also catch those citizens who are now making no or little contribution to charity.

Interestingly, there is already a precedent for this approach. In 2005 the Howard Government claimed with righteous indignation that it recognised the inequity involved when some citizens are obliged to pay for services they may not want when it passed legislation which has made the payment of student union payments voluntary. With a rhetorical flourish, the then Minister for Education, Dr Brendan Nelson said:

From 2006, no student will be forced to join a student organisation, union or guild or pay a fee to an institution for non-academic amenities, facilities or services. This is the 21st century. Union membership should be voluntary and services should not be propped up by the compulsory appropriation of students’ hard earned money.

Paraphrasing this, one might say

From 2006, no secular taxpayer will be forced to pay hidden tithes to a church organisation for amenities, facilities and services. This is the 21st century. Church funding should be voluntary and churches should not be propped up by the compulsory tax appropriation of citizens’ hard earned money when they have no affiliation with churches and may indeed completely disagree with their beliefs.

It was such a relief to find the Howard government recognising that citizens should not have to pay for something when they have a philosophical or political disagreement with it. I feel sure Dr Nelson, Mr Howard and Mr Costello will immediately see the logic of this and set about reforming the tax system for the benefit of secular taxpayers. They will recognise a citizen’s human right to be free from religion. They will, won’t they? After all, during the last election campaign they said they would rule for ‘all of us.’

One place they could start would be the 2001 decision of the Tax Office which allowed a retired pastor to receive accommodation, the use of a car and $1,000 per week to be paid into a church credit card for his personal use, as a fringe benefit.

A newspaper advertisement featuring a bishop of the Anglican church modelling an expensive Italian suit demonstrates the Australian religious can live quite well.

Conclusion

In conclusion, I would like to say that there is no point in Australia becoming a republic without a formal separation of church and state. We have to understand that at the very basis of democracy is the idea that while these two authorities often interact they must be constitutionally separate. A democracy that does not separate them is compromised and is a ‘Soft Theocracy’. That is what a Constitutional Monarchy like Australia is: a Soft Theocracy. The tax-exempt supernatural charities may not be established in the legal constitutional sense, but their increasing number, rubber stamped by the Australian Tax Office, gets them in the financial back door; collectively they are a de-facto established church.

There is no point in changing Australia from a Constitutional Monarchy where churches – the supernatural charities - continue to be tax-exempt without accountability to what would be in effect, a Christian Republic where supernatural charities continue to be tax-exempt without accountability. A modern, pluralist society should be seen to be neutral in matters of belief, both symbolically, and, with reasonable qualification, in practice. As Professor Touraine argues ‘secularism isn’t simply one of the options of modernity, since it is one of its foundations.’ A secular society creates a pluralist forum such as this conference where we may have fundamental, irreconcilable differences, but we agree to discuss these differences and find ways that we can co-habit with justice and fairness.

This point does not seem to be appreciated by Archbishop Pell. In 1994 he wrote that ‘religious tensions in Australia today are … Christian churches/values versus neo-pagan secularism’ and that most of us ‘neo-pagans’ are ‘opponents of Christian influence and reject the one great God.’ That’s true. We are and we do.

But that’s our ‘neo-pagan’ democratic right.

In 1897 during the debates about the formation of the Commonwealth of Australia another ‘neo-pagan’ said: ‘The whole mode of government, the whole province of the state is secular.’ That was Edmund Barton, Australia’s first prime minister and one of the first High Court judges who understood that democracy should be characterised by the first separation of powers: that of separation of church and state. Over a hundred years later we still haven’t achieved it.

What do Australia’s citizens think about this? In February this year, for the first time in Australian history, we conducted a Newspoll to ask them. When told there is no law separating church and state in Australia, and asking whether they would support such a law, in round figures

• 32 per cent strongly agreed
• 16 per cent partly agreed
• 18 per cent partly disagreed
• 19 per cent strongly disagreed
• 16 per cent did not know

That’s before there has been any debate. The central issue of the Australian republic is not whether we have an elected or appointed president. While that is very important, it is rather - will we have a genuine republic with a separation of church and state which the citizens, I suggest, already favour?

[1] M. A. Hamilton ‘Free? Exercise’, William and Mary Law Review, Vol.48, 2001, p.839.
[2] ‘ … par-déla leurs differences culturelles et philosophiques.’ A. Renaut & A. Touraine (eds) Un débat sur la laїcité, Stock, Paris, 2005, p.15,
[3] É. Poulat, ‘Faut-il changer la loi de 1905?’ Esprit, Juin 2005, p. 96.
[4] Associated Press, 2 March 2006.
[5] Everson v Board of Education of the Township of Ewing 330 US 1 (1947).
[6] Attorney-General (Vic) (Ex rel Black) v. Commonwealth (1981) 146 CLR 559.
[7] Ibid.
[8] J. Ely, Erosion of the Judicial Process: an aspect of church-state entanglement in Australia, Defence of Government Schools, Victoria, 1981, p.17. Out of print. Available at www.dogs.info/
[9] ‘Constitutional law in the US and Australia: finding common ground’, Washburn Law Journal, 1, 1995.
[10] ‘The Wall of Separation’: section 116, the First Amendment and Constitutional Religious Guarantees’, Federal Law Review, 139, 1998.
[11] For example ‘s.116 … embodies four distinct guarantees. However, neither individually nor collectively do these limitations on Commonwealth power amount to a requirement of separation of church and state.’ G. Williams, Human Rights Under the Australian Constitution, Oxford, 1999, p.111; M. Hogan ‘Separation of church and state: s.116 of the Australian Constitution’, Australian Quarterly, Vol. 52 No. 2, 1981; ‘Separation of church and state?’ The Drawing Board: an Australian Review of Public Affairs, University of Sydney, 2000-2001.
[12] Focus, [magazine of the Brisbane Anglican Church] June 2001.
[13] ‘Address at Centennial Ceremony, Sydney, 1 January, 2001.
[14] P. Rishworth, ‘Church and state in New Zealand: the legal framework and recent developments’, Unpublished Paper, Auckland, 2004.
[15] Cited in N. S. B. Cox, The Evolution of the New Zealand Monarchy, PhD Thesis, University of Auckland, 2001, p.286.
[16] S. Liesching, ‘Church and State’, M.A. Thesis, ANU, 1953, p.44.
[17] Courier-Mail, 15 April 2006.
[18] Sunday Age, 11 June 2006.
[19] Canberra Times, 3 June 1998.
[20] J. Gregory, ‘State and Religion in the Australian Colonies, 1788-1895’, Victorian Historical Journal, Vol. 70, No.2, November 1999, p.131.
[21] The Age, 11June, 2006, p.1.
[22] Hamilton, Op.Cit.
[23] For the benefit of foreign readers, the Democratic Labour Party was a Catholic activist-inspired split from the old Labour Party which kept them out of office for over twenty years from the 1950s by the use of Australia’s preferential voting system.
[24] www.secular.org.au. See ‘news’ then ‘details’.
[25] Sydney Morning Herald, 28 November, 1990.
[26] Senate Hansard, Employment, Workplace Relations, Small Business and Education Committee, 22 August 2000.
[27] ‘Slashing Up-Front Fees for Students – Voluntary Student Unionism Legislation Introduced’, Media Release, 16 March 2005.
[28] ATO Interpretive Decision ‘Fringe Benefits Tax Religious Practitioner’s Exemption’, 2001/332, 15 September, 2001. www.ato.gov.au.
[29] ‘Bishop George Browning wears Cantarelli’, advertisement, Canberra Times, 24 April 2005, p.10.
[30] Un débat, Op. Cit, p. 16.
[31] G. Pell, ‘The Catholic Church, freedom and anti-discrimination.’ www.exhibit.com.au 1994.
[32] This history is detailed in R. Ely Unto God and Caesar, MUP, 1976

Paper presented at:
Separating Church and State: Keeping God Out of Government
Melbourne University, 18 June 2006