Publication of the Council of Australian Humanist
Societies New Series No. 77
AUTUMN 2005 $3.00
Max Wallace on
Is There a Separation of Church and State in Australia and New Zealand?
Australia and New
Zealand were settled relatively recently, only about two hundred
years ago. Being on the other side of the world and down under we
were isolated from the civilizing influences of the best ideas of
continental Europe and settled into imitating the culture of our
British heritage. That gave us parliamentary democracy and the rule
of law, but, I will argue, it did not give us separation of church
and state as a matter of course. We thus have flawed democracies.
We did not separate church and state like the Americans and the French perhaps because it never occurred to us to do so. The question is, why it did it never occur to us?
When the Federal constitution was drafted it included a Preamble and section 116, the only section referring to religion. It reads:
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.
Section 116 obviously drew inspiration from the First Amendment of the United States which states that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …
The First Amendment has been interpreted by their Supreme Court to require a separation of church and state. This meant in practice the curtailment of government assistance to religious schools, prayers in school ceremonies were unconstitutional. As of recently 37 of the 50 American states are constitutionally prohibited, at least in theory, from financing religious schools.1 The ‘wall of separation’ recognised that in principle government and religion should keep out of each other’s way as much as possible.
The question that arises is whether our constitutional monarchies have a separation of church and state, while retaining the Queen as the titular head of government, who is simultaneously the head of the Church of England.
In the Australian case it comes down to what the High Court decided section 116 really meant. Matters came to a head when Sir Robert Menzies, firstly in the 1950s and then the Labor government under Gough Whitlam in the early 1970s, decided that they would break with previous policy of abstaining from funding religious schools, especially Catholic schools. Opponents took the question of government funding for church schools to the High Court for a decision. It took them 25 years before they could attain the legal right, known as legal standing, to even ask the question. This became known as the State Aid or Defence of Government Schools (DOGS) case of 1981.2
In analysing what section 116 meant two judges referred directly to the question of church and state. 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 readily be viewed as a 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.
That is pretty unequivocal. The day after the case, none of the newspapers reporting the case published what the judges had said. Also, in many histories of Australia, these words, and the subject of church and state, do not appear. Textbooks on politics in Australia do not discuss it. We have an Australian Republican Movement that is arguing for a republic with no mention of church and state on their website. This is despite the fact that separation of church and state is the foundation stone of two of the leading republics in the world: the American and the French.
So how have legal experts interpreted the 1981 Australian high court case? Professor George Williams writes in Human Rights Under the Australian Constitution3:
Section 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.
In a recent article in a University of Sydney on-line journal 4 Michael Hogan writes:
Australia does not have a legally entrenched principle or even a vague set of conventions of the separation of church and state.
In the Federal Law Review 5 Joshua Puls wrote that as far as the High Court judges were concerned
Non-establishment [of a state church] rather than a wall of separation [was] the desired outcome.
I point out that ‘non-establishment’ is not equivalent to separation of church and state.
In 2001, prior to becoming Governor-General, and obviously in response to questions concerning his appointment, Archbishop Peter Hollingworth wrote6
Those who have raised the question [of separation of church and state] 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 no clear cut separation between church and state as there is in the case of the US tradition.
Of course, would Prime Minister John Howard have appointed an archbishop as Governor-General if he thought the appointment was unconstitutional or breached the principle of separation of church and state? I point out that John Howard, as Treasurer in 1981, was a Respondent in the State Aid case where the court decided, as the literature suggests, that there is no separation of church and state.
While Australia does not have an established church, it has many churches and religions that are all treated equally, at least for tax purposes, by the government. Legally, religions are charities and thus exempt from nearly all taxation7. Also, the core definitional criterion for a religion in Australia and New Zealand is that it have a ‘supernatural’ belief.8 Religions are, therefore, ‘supernatural charities’.
So, since we have no separation, and all religions are treated somewhat equally, what we have in effect is a de facto recognition of many religions. That neither amounts to establishment of religion, as it was defined by the Court, or separation of church and state. We are somewhere between democracy and theocracy. I suggest that is an unacceptable state of affairs for a modern liberal democracy. We can hardly criticise regimes that refuse the distinction when we have not formalised it ourselves.
If ever there was a time to mention separation of church and state in Australia the Centenary of Federation in 2001 was surely it. But silence and the Queen continued to reign.
Since there is no mention of religion in their constitutions, theoretically, Australian states could set up established religions. New South Wales could establish the Catholic Church as the religion of the state. Queensland could establish the Anglican Church, and so on. It follows that churches have no constitutional protection in the Australian states (with perhaps the exception of Tasmania). But importantly, no state government has introduced legislation to separate church and state.
The New Zealand, like the Australian flag contains the union jack honouring the three Christian saints: St George, St Andrew and St Patrick. Parliamentary sessions are opened with prayers. There is no mention of separation of church and state on the New Zealand Government’s website. Sir Paul Reeves, an Anglican archbishop, was appointed Governor-General of New Zealand from 1985 to 1990. Blind to the concept of separation he has been reported as saying that he saw in his role as Governor-General he would be able to ‘fulfil his clerical vocation in the new position.’ 9 New Zealand has two national anthems: ‘God Save the Queen’ and ‘God Defend New Zealand.’
A search of the literature on republicanism in New Zealand does not reveal anyone arguing for separation of church and state. There is no other literature which discusses the constitutionality of church and state in New Zealand. You would think that in a book entitled God and Government: the New Zealand Experience10, published in 2000, one might find some discussion – but it is selective and off the point. Similarly, there is no mention of church and state in Sir Geoffrey Palmer’s 1992 book on constitutional matters in New Zealand.11 Sir Geoffrey is a former Prime Minister of New Zealand.
New Zealand has a Constitution Act 1986. There is no clause separating church and state. Given there is no New Zealand constitution as such and no equivalent of Australia’s section 116, where do we turn, in a constitutional sense, to see where New Zealand stands on separation of church and state? In 1956 in his evidence to the Education Committee of the House of Representatives on the matter of state aid to non-state schools, Professor Peter Bailey argued that separation of church and state was ‘Written into our statutes by the legislators of 1877 who enacted the first national system of education.’ But this is not so because separation would have to be specifically formalised through legislation as with the French in 190512 or recognised via a Court decision as occurred in the US Everson13 case in 1947 with their Supreme Court. New Zealand has had neither.
Church and State School Funding
On the 23 September 1948, the Reverend Dr Noel Gascoigne, a Bishop and Director of Catholic schools for the Wellington diocese addressed the Caucus of the New Zealand Labour Party on the question of state aid to private schools. He argued that since Catholics pay taxes they should be entitled to state aid for Catholic schools. The Catholic supernatural charity case for state aid was reviewed exhaustively in the Report of the Commission on Education in New Zealand in 1962.14 The authors argued that the church’s position could be characterised as ‘distributive justice’ and the ‘double taxation’ argument.
Distributive justice means those who did not use a service which was provided by the state and financed from public money, were in equity entitled to recompense from the public exchequer i.e. state aid. The Report argued that this principle is flawed because with the principle of distributive justice it would follow that citizens that do not have children at school would also have to be compensated. With the dramatic drop in the birth rate that is more true now than it was in 1962. Also, as Professor Sadurski has argued: ‘there is an infinite range of legitimate state actions which are secular but not anti-religious; protection of health, protection of environment, public transport etc.’15 His point is the distributive justice argument leads to an ‘incoherent’ outcome. For example, should the state fund Protestant buses and Catholic trains?
With respect to the double taxation argument, which argues religious parents were paying twice: (1) their taxes were going to governments partly for funding of state schools which they didn’t use and, (2) the state was saving revenue on not funding those supernatural charity schools which was to the benefit of society as a whole – we should recognise that while there has been a marked increase in children attending religious schools, many nominally religious parents are also sending their children to state schools.
In effect, the state’s subsidy, depending on the religious school, is giving a greater per capita benefit to those nominally supernatural charity but ‘needy’ schools, while the government continues to wear the cost of educating the children of those religious parents who cannot afford to, or choose not to, send their children to supernatural charity schools. The double taxation argument is now, to an extent, working in reverse.
This is complex. Briefly, state funding should be seen in the broader context of supernatural charities being exempt from all kinds of taxation which has enabled them to become multi billion dollar organisations from asset appreciation and investment.
In an absolute sense the supernatural charities should be paying totally for their own schools. It would be fascinating to see what would happen if it were possible to make a constitutional challenge to the 1975 Integration Act. This would be a re-run of the 1981 State Aid case in Australia. At first glance it would be hard to see how the Supreme Court could follow the Australian precedent as New Zealand has a Bill of Rights establishing equivalence between belief and non-belief. But given that is to all intents and purposes unlikely to happen, I believe we should look at the school funding question from a relative perspective.
It could be argued that while parents who have children at state schools are simultaneously paying for the subsidies of supernatural charity school parents through their taxes, one can also argue the old double taxation argument is superficially true: private school parents appear to be partly paying for state schools through their taxes while they do not use those schools.
I understand the argument, as it was expressed by the Commission on New Zealand Education, that religious parents are acting out of faith when they send their children to a religious school and thus, those who do not share that faith should not wear the cost of that faith and their choice in declining the available state alternative. I respect that argument and I think it is right in principle and I would favour a constitutional challenge to the 1975 Act. But even in France where there is the greatest appreciation of the neutrality of government argument, some mainly Catholic schools are funded on the proviso they limit religious education, conform to the state’s curriculum and take all comers irrespective of religion.16
Also, I would argue that the less wealthy and ‘needy’ private school parents are also being ripped off by the supernatural charity schools whose fees could be lowered if the relevant supernatural charities subsidised their schools from their tax exempt income.
Seen from this perspective we have done school funding in Australia and New Zealand back to front. If we had clearly delineated a constitutional separation of church and state from the start we could have worked back from that principle to reach some sort of accommodation of super-natural charity school funding as the French have done in a limited way. I suggest the confusion here is a function of the absence of separation of church and state that has been a missing concept in Australian and New Zealand politics and academia.
The fact that already the supernatural charities were exempted from all kinds of taxes, including, importantly, income and capital gains tax, and paid no tax even on commercial income, was simply overlooked in the State Aid decision. The idea that an already wealthy city-state Vatican could contribute to paying for Catholic supernatural charity schools in Australia and New Zealand never really arose as a point of argument.
In an absolute sense in Australia and New Zealand, the result has been billions of dollars lost to consolidated revenue in both our countries. Money that could in principle have been used, at least partly, to fund both government and supernatural charity schools more fairly.
Excluding a few religionists, academia has simply missed the point that there is no separation of church and state in Australia and New Zealand. This has been a major oversight. The issue has been out of sight and out of mind. It is as if the French Revolution and their 1905 legislation formally separating church and state never happened, not to mention separation in the United States.17 Our historians, political scientists and constitutional law academics have been asleep at the wheel or are turning a blind eye.
Finally, our Republican movements have never argued for separation of church and state. Why is that? In 1998 a Constitutional Convention was held in Old Parliament House in Canberra where it was decided that a Referendum should be put to the people as to whether Australia should become a Republic. Despite extensive debate, there was no discussion of separation of church and state as part of that Republic. At the end of the Convention a motion was passed ..‘That this Convention supports the adoption of a republican system of government ..’
It was proposed by the Most Reverend George Pell, now Archbishop of Sydney and a Cardinal of the Catholic Church.
What that tells us is that the Catholic Church, and the other major supernatural charities, can live with a republic so long as separation of church and state is kept out of the picture. Thus the question of the continuation of their tax exemptions and grants privileges does not arise. If even-tually Australia and New Zealand become republics, and the question of separation of church and state continues to be excluded, we will effectively be Christian Republics.
I suggest that is offensive to those of us who do not believe in Christianity or any other religion and to those whose beliefs are not Christian. And what of our major and smaller political parties and our republican movements?
If they are for Australia and New Zealand having a separation of church and state, what are they going to do about it? If they are against separation let us hear their explanations so we know who and what exactly we are voting for. Silence should no longer be an option.
Max Wallace is a Canberra academic and member of the New Zealand Association of Rationalists and Humanists. His book, The Purple Economy: Secular Essays on Culture and Religion, is nearing completion
1 ‘Overcoming state constitutional barriers’, US Conference of Catholic Bishops, Department of Education www.usccb.org/education/parentassn/barriers.htm
2 Attorney-General (vic) (Ex rel Black) v. Commonwealth (1981) 146 CLR 559.
3 Oxford, 1999, p.111.
4 The Drawing Board, 2000-2001.
5 (1998) 28, p.139.
6 Focus, Anglican Church of Brisbane, May, 2001.
7 ‘Legally, the advancement of religion is a charitable activity.’ Senator Walsh, the Minister representing the Treasurer, Senate Hansard, 1 May 1984.
8 Church of the New Faith v Commissioner of Pay-Roll Tax (vic) 1983 154 CLR 120.
9An interview conducted on 11 November 1998 for the PhD thesis of N.S.B. Cox, The Evolution of the New Zealand Monarchy, University of Auckland, 2001, p.286.
10 University of Otago, Dunedin, 2000.
11 Sir Geoffrey Palmer, New Zealand’s Constitution in Crisis, John McIndoe, Dunedin, 1992.
12 ‘Article premier: ‘La Republique assure la liberte de conscience … Elle garantit le libre exercice des cultes. Article 2 : La Republique ne reconnaît, ne salarie, ni ne subventionne aucun culte.’ [First article : The Republic guarantees freedom of conscience … it guarantees the free exercise of religion. Article 2 : The Republic does not recognise, nor funds, nor subsidises any religion.’] A. Boyer, Le droit des religions en France, PUF, Paris, 1993, p.55.
13 Everson v Board of Education of the Township of Ewing 330 US 1 (1947).
14 Report of the Commission on Education in New Zealand, Wellington, 1962.
15 ‘Neutrality of law towards religion’, Sydney Law Review, Vol 12, March, 1990, p.454.
16 C. Field, ‘France not as secular as it purports’, New Zealand Herald, 11 February 2004.
17 A recent Supreme Court case upheld 7-2 the state of Washington’s right not to fund a student in a religious course of instruction: Locke, Governor of Washington v. Davey, No 02-1315, 25 February 2004.
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