Recently, Toowoomba resident, Ron Williams, announced that he is launching a High Court Challenge against the government’s National School Chaplaincy Program on the basis that it is unconstitutional.  Is this move heroic or quixotic – and, does it really matter? **

 

** Update 1/1/2011  A Writ of Summons and Statement of Claim was issued out of the High Court of Australia on Tuesday December 20, 2010.  A date for the hearing is expected to be set after the High Court resumes on 31 January.  For more details on the specifics of the writ and/or to make a donation towards legal costs please visit: High Court Challenge

In 2006, former Labor NSW premier Bob Carr slammed the Howard government’s plan to put chaplains into state schools as “profoundly wrong” and “really frightening”. “It abandons the principal of the separation of church and state.  Taxpayers should not be asked to fund religious promotion. That should be left to members of churches to fund themselves,” Mr Carr told The Daily Telegraph.

But, while our political leaders tend to give lip service to the principle of church/state separation, they know full well that, since the defeat of the Defence of Government Schools High Court Challenge in 1981, the Australian Constitution provides no barrier to politicians pork-barreling in favour of religious institutions in exchange for votes.  In the case of the school chaplaincy program, the cost to Australian tax-payers will top $207 million.

Carr’s opinion on the government funding the National School Chaplaincy Program echoes that of Edmund Barton, Australia’s first Prime Minister and one of the authors of the Australian Constitution.  In the debates leading up to Australian Federation in 1901, Barton’s view on using tax-payers’ money to fund religion was unequivocal:

“I cannot support for a moment any system of education which in the name of denominationalism or under any other name, draws funds from the coffers of the State manifestly for the propagation of creeds and dogmas widely divergent.  Taxpayers ought not to be called upon to support a system of that kind. It ought not to be compulsory upon any man to support that which he believes to be untrue, but that is inevitable under a system which subsidises what to different minds must appear as truth and error in the various and discordant dogmas and beliefs.  …

If, as tax-payers, we are asked to support religion we say, “No; you must leave that to our consciences as individuals, and not impose it upon us as tax-payers.” That is really the opinion which the people have expressed with regard to the teaching of religion to the adult population, and I say it is inconsistent to deal with the teaching of youth on any other principle at variance with it.”

Barton was speaking here, principally, about state funding for religious schools, but I think we can fairly extrapolate from his comments what his attitude towards the National School Chaplaincy Program would be. Curiously, at the time, Barton would have felt no compulsion to push for secular education in Australian public schools – it was already in place.  Between 1872 and 1897, each of the Australian colonies introduced Education Acts which guaranteed “free, compulsory and secular” education in government funded schools and ceased (in most instances) to provide tax-payers’ money to religious schools.  Let me make this clear.  Australia moved into Federation with an already clearly established secular public school system.

There is no doubt that our founding fathers intended that Australia should have a wall of separation between church and state.  Australia’s first draft Constitution was written by Tasmanian attorney-general Andrew Inglis Clark in 1891 and eighty-six of his ninety-six draft clauses remain in the modern Australian Constitution. Clark traveled to America in 1890 to undertake research and his draft drew heavily on the United States Constitution.  The people Clark chose to consult with on his visit are significant.  One was Moncure Conway, formerly a Unitarian but, by then, an atheist and freethinker.  Another was Justice Oliver Wendell Holmes – an agnostic.  Neither is likely to have counseled Clark against a Constitutional separation of church and state!

We must view the intent of the Australian Constitution in its international historical context.  Secular education was established in France between 1881 and 1882 and further strengthened in 1886. Contemporaneously, between 1872 and 1893, after years of bitter disputes between religious denominations over who should control the public education system, every Australian state passed an Education Act removing state aid to Church schools and guaranteeing ‘free, compulsory and secular education’ (Queensland’s secular education was rescinded in 1910 and has never been reinstated).

At the same time that Australia was moving towards Federation, France was also involved in debates leading to the institution of their 1905 law which established the principle of laïcité – the separation of church and state. Unambiguously, the French law states “The Republic neither recognizes, nor salaries, nor subsidizes any religion”.  The drafting of our Constitution must be seen within an historical context in which the American Constitution and the move towards a French secular state would have been highly influential on contemporary ideas of state-making.

Accordingly, Clark’s draft Constitution, submitted to the 1891 Constitutional Convention, included the following clause:

46. The Federal Parliament shall not make any law for the establishment or support of any religion, or for the purposes of giving any preferential recognition to any religion, or for prohibiting the free exercise of any religion.

This clause specifically sought to appeal to those who did not want an established church and those who had no religion. Despite attempts by religious delegates to water down the separation of church and state at the 1896 convention, delegates voted firmly in favour of a secular state, as they had done in 1891. There were further debates on this issue at the 1897 convention  with both Protestants and Catholics seeking to minimize secularization.  Defending the separation of church and state, Edmund Barton said:

“The whole mode of government, the whole province of the state is secular. The whole business that is transacted by any community, however deeply Christian, unless it has an established church, unless religion is interwoven expressly and professedly in all its actions – is secular business as distinguished from religious business.”

The historical record shows clearly that, despite numerous proposals and heavy lobbying against it, the various constitutional conventions maintained strong majority support for a strict separation of church and state. The separation of church and state was finally enshrined into the Australian Constitution at the 1898 Convention.  While a compromise with the churches was reached with the invocation to ‘Almighty God’ in the Constitution’s preamble,  Henry Bournes Higgins, a Victorian barrister, pushed for the inclusion of the clause which now appears in our Constitution as Section 116:

“The commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or for imposing any religious observance, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”

Again, in the context of contemporary debates, it is clear that Higgins’ aim was to support the Seventh Day Adventists’ argument against the Council of Churches’ push for secularization to be minimized.  The Seventh Day Adventists argued that:

Each [church and state] has its particular sphere and … the realm of one is in no sense the realm of the other…[W]e are opposed to anything and everything tending towards a union of religion and the civil power.

Fast forward now to 1963 when Prime Minister, Robert Menzies, determined that the only way to win the Catholic vote was to give in to their lobbying and promise limited financial assistance for Catholic Schools.  While support for private schools was initiated by Menzies and subsequent Liberal coalition governments, it was Prime Minister Gough Whitlam’s Labor government which began to directly fund private schools – again as a means of winning over the Catholic vote.  By blurring the lines between state/church separation, this provided the wedge which has ultimately led to the de-secularization of our state schools.

In 1973, the Whitlam Government, with the support of the Coalition parties, institutionalized government funding for private schools.  Bob Hawke’s Labor government continued and expanded the practice which was further expanded when the Howard’s Liberal coalition came to power in 1996.  It is now being further exploited by the Rudd Labor Government.  Edmund Barton, Andrew Inglis-Clarke and Henry Bournes-Higgins must be spinning in their graves!

Our founding fathers framed our Constitution and fought against pressure from the churches to make Australia a modern, secular nation in which freedom of religion was protected by being set apart from the workings of the state.  Anyone reading the views of those involved in the process of drafting and defending the Constitution must fairly conclude that this was their intention. However, because of the defeat of the 1981 Defence of Government Schools challenge against government funding of religious schools, the flood-gates were opened to allow state funding of all kinds of religious activities of a kind that would never be allowed in America or France.  This was clearly never the intention of those who framed our Constitution nor the conventions which routinely voted in favour of a secular state.

The seeds of what is now the National School Chaplaincy Program were sown deep in Queensland’s bible belt.  The original scheme was initiated at a state level by the Queensland Labor Government in the lead-up to the 2006 state election.  Toowoomba is a hot-bed of Christian fundamentalism and, at the time, Premier Beattie needed his candidate, Kerry Shine, to defeat self-declared moral crusader, Lyle Shelton.  That Beattie chose to announce funding for school chaplains in this particular electorate shows clearly that it was conceived as a $10 million carrot to induce Toowoomba’s religious right to elect Labor candidate, Shine.

In the same year, similarly motivated by the Christian vote, John Howard and his education minister, Julie Bishop, launched a $90 million plan to support chaplains in state schools.  This later ballooned to $165 million. During the ALP’s electoral campaign in 2007  it also announced that it would not only continue to honour Howard’s commitment to the National School Chaplaincy Program, but expand it at a further cost of a $42.8 million.  Importantly, the Rudd Government said that secular counselors may be supported, but only if a religious counselor was not available.  This is a clear case of discrimination based on religious belief.

Constitutional lawyer, Stephen McLeish,  suggests that the National School Chaplaincy Program breaches Section 116 of the Constitution in several ways, primarily by funding a program that directly promotes religion and the religious over the non-religious, and which privileges the Christian religion above minority religions.  According to the lobby group, Stop the National Schools Chaplaincy Programme, the scheme also breaches agreements incorporated into Australian Law through the operation of the Human Rights and Equal Opportunity Commission Act 1986.  In short, Howard and Rudd cheerfully ignored our constitution and our international commitments to human and civil rights along with their own publicly stated support of church/state separation in order to purchase the Christian right votes with hundreds of millions of our tax dollars.

For those of us who value secularism, it is clear that something must be done.  But what?  Every successive government, it seems, is intent on tearing down another brick in the wall of state/church separation.  Should this remain unchallenged? There are some who argue that nothing can be done.  Indeed, there are some who argue that another High Court challenge, if lost, will make it even harder to argue for church/state separation in this country.  But does that mean that such a challenge should never be made?

There are some who say that a High Court challenge is doomed to fail and that a winnable case cannot be made.  And yet, there are others who say that the National School Chaplaincy Program (NSCP) violates the Australian Constitution in a way that funding religious schools does not, and so the fact that the Defence of Government Schools case was lost does not mean that a case based on the NSCP will be argued, or lost, on the same basis.

Some say that public opinion must precipitate legal change and there is no such popular push, at this stage, for Constitutional change or reinterpretation.  But how many Australians actually realize that Australia has no legal guarantee of church/state separation?  And what will bring it to their attention and engage their interest in this omission?  A high profile court case with the attendant media coverage is a sure-fire way of raising public consciousness about this matter.  And, even if the case is lost, politicians will be forced to admit openly that Australia has no separation of church and state.  Perhaps this is what is needed to precipitate a popular push for Section 116 to be reworded.

Ron Williams is a musician, a video producer, a university student, a husband and a father of six.  Together with his friend, Hugh Wilson, Ron formed the Australian Secular Lobby in 2006 after finding (to his horror) the Queensland Education Act provided no guarantee of a secular education for his children. Ron attracted international media attention in 2008 when he lodged a complaint with the Anti-Discrimination Commission after his five year old daughter, Kathleen came home from school crying about the animals that were soon to drown in the ‘rain that God made’.  On investigation, he discovered, that despite his express wish that Kathleen receive no religious instruction, she had been exposed in her classroom to a movie and a craft project based on the story of Noah’s ark and that her classroom boasted a bookshelf full of children’s biblical titles.

Ron also withdrew his two oldest children from their school when it employed a chaplain.

Ron thinks that secular education in public schools is something worth fighting for and he has spent the last four years doing just that.  Now, he has decided to take on the government with a High Court challenge against the National School Chaplaincy Program.  Despite the naysayers who believe such a case cannot be won, Ron has an experienced and reputable team of lawyers and legal academics supporting him and the case will be argued by a high profile barrister (appointed, but yet to be named).  Who among us would have the courage to take such a step to defend a principle we believe in against such trenchant opposition?

Imagine yourself, with virtually no financial resources, challenging a government with boundless access to taxpayers’ money and the best legal minds in the land.  Of course, those of a religious bent might take comfort from the tale of David and Goliath.  (Those of us who eschew religion, might look instead to the triumph of Daryl Kerrigan in the movie, The Castle.) The odds of winning might be remote, but the little guy can defeat the big guy with guts and determination.  There’s a chance you might win and everything will be OK. Sure, but what if you knew that even if you win, the court may not award you costs, so even in victory, you might still be sending yourself and your family into a financial black hole.  How strongly would you need to feel about an issue in order to take that risk?

Now, let me ask you another question.  While you may not be willing, or able, to take such a risk, how far would you be prepared to go to support someone who is?  If you can’t even rouse yourself to send them a cheque for the price of a meal at a mid-priced restaurant, then you, I fear, are one of the ‘silent majority’ who are prepared to ‘do nothing’.

I wonder how many of us who espouse passionate convictions about social and political issues would actually be willing to risk everything in order to stand up for them?  And, if we balk at stepping off the precipice for our principles, are we at least committed enough to chip in for a parachute for someone who is willing to do it for us?

Whether Ron wins or loses and regardless of whether you accept the logic that Ron would not risk his family’s future on an unwinnable case, I think his cause deserves the financial support of every single Australian who believes in the principle of the separation of church and state.  The question is, how highly do you value it, and what are you prepared to sacrifice to see this case proceed to court?

Whether Ron Williams is heroic or quixotic remains to be seen, but, does it really matter?  Win or lose his quest will gain much needed exposure for the lack of a formal separation of church and state in this country.  Either way, I think Ron deserves our encouragement and practical assistance.  Sometimes windmills just have to be tilted and the very least we can do is chip in for a horse for a knight brave enough (and eccentric enough?) to do it.

Donations can be made by PayPal (and other means) on the High Court Challenge website.  Please note that all funds donated go directly towards legal costs and not to Ron, personally.

Chrys Stevenson

Further Action:

Visit the High Court Challenge website and donate as much as you can manage.

Important Sites:

High Court Challenge

Australian Secular Lobby

Stop the National Schools Chaplaincy Program

Let’s Get Secular Back in the Queensland Education Act

Defence of Government Schools High Court Case

Gladly’s Book Recommendations

Gladly agrees with David Nicholls, writing in the Sydney Morning Herald:

“If children in state schools need counselling, surely funding should go towards providing qualified counsellors, not those who bring only their blue card and religious bias to the table. What will be next? Will Medicare favour faith-healers, over doctors on the basis that they’re “more economical” and “just as effective”? If not, why are our children any less deserving of unbiased, professionally accredited counsellors?”

If you’re interested in this subject, you might enjoy the following books from Gladly’s favourite bookstore – Embiggen Books.

Realising Secularism: Australia and New Zealand by Max Wallace

The Australian Constitution by John Williams

God Under Howard: The Rise of the Religious Right in Australian Politics by Marion Maddox