The 1981 Australian High Court Constitutional Coup and its consequences


In 1981 there was a constitutional coup in Australia. The Court decided there is no separation of church and state in Australia. The effects of this decision have been much worse than the Whitlam sacking in 1975. At least Whitlam had a chance to be re-elected. In 1981 no newspaper understood or reported on what the High Court had done and academia was asleep at the wheel. Also, while conservative constitutional lawyers have to an extent muddied the waters concerning the constitutionality of the Whitlam sacking, there is nothing they can say to argue there is separation of church and state in Australia “ and they never have.

The case was the State Aid or Defence of Government Schools case. In order to explain this allegation and link it to the current surge in the phenomenon of religion in Australian politics it is necessary to sketch some history.

In the nineteenth Century Australian colonial governments were fairly secular. In particular there was a reluctance to fund religious, mainly Catholic, schools. Towards Federation there were debates as to where religion would fit in the Constitution. Eventually s.116 was drafted and it was clearly based on the US First Amendment, which states ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof

At roughly the same time the Australian founding fathers were wrestling with the draft of s.116 there was intense political activity in France that led to the formal separation of church and state in 1905 by legislation.

The Australian Constitution was formalised in 1901 – four years before the French legislation.

S.116 states that ‘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 for any office or public trust under the Commonwealth.’

Critically, there is no mention of separation of church and state in those words. The question was not directly addressed until the 1981 State Aid case. In the US, the First Amendment’s implied separation was recognised in the 1947 Everson case. It prevented religious school funding as had many of the various US state constitutions since the nineteenth Century, and it had other consequences.

The first event that provoked the State Aid case was the decision by Sir Robert Menzies to break with tradition and give some financial aid to Catholic schools in the 1950s. The Whitlam Government in the 1970s went much further and extended aid.

By that time a movement had arisen against state aid: the Defence of Government Schools led by a Protestant Dissenter, Ray Nilsen whose group believed religion would be compromised by State funding. There was widespread support for the movement from parents and teachers who saw the funding of mainly Catholic schools as a threat to their future viability.

Thanks to Peter Nicholson at the Australian

Thanks to Peter Nicholson at the Australian

It took nearly twenty five years before the movement achieved the legal right to go to the High Court to fight the case. What has not been recognised is that this case was a fork in the road for Australian democracy. If the Court decided for the plaintiffs they would have recognised that s.116 meant separation of church and state in Australia, a separation that would have made religious school funding unconstitutional, as in the US. It would have taken Australia to a more open, more democratic society. Lionel Murphy alone saw the link between the First Amendment and s.116.

The other six judges either saw an opportunity to close off the democratic option or they decided the case in the only way they knew. The only question that remains open here is the extent of their intentionality. But either way it was a coup. Here were six men steeped in the black letter law of the British legal tradition deciding whether Australia was a US-style democracy. There was no way they were going to put republican democracy before the interests of what they stood for: Constitutional Monarchy. Eventually, they were all Knighted by the Queen. In relation to the critical question of separation of church and state here is what two of them said:

Justice Wilson: ‘the fact is that s.116 is a denial 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 Stephen said s.116 ‘ cannot readily 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.’

Believe it or not, the Court partly focused on the prepositions ‘for’ and ‘any’ in s.116 to distinguish the Australian section from its American predecessor to justify their decision.

Twenty five years later we can see the consequences of this decision: parents of private school students are getting the best education secular taxpayers money can buy. Private school parents at the same time are paying onerous fees which are higher than they need be as there is no accountability for the tax exempt income of the religions that run the schools. Public schools, as you will know, face perennial inadequate funding and the consequences of that have been dramatic for many schools and teachers.

Equally importantly, the State Aid decision choked off the possibility for the public’s political education. It prevented an American/French style culture of debate about the inter-action of religions and the state from emerging. It kept us in the dark. Of course, for other reasons, the US is now on the constitutional brink of losing its last shred of credibility: its separation of powers between the executive and the judiciary, as it is expressed by Court support for separation of church and state.

So how come no one has argued this before? If you read Manning Clark there is nothing about separation of church and state. Also, the concept is almost totally absent from Australian academic and political discourse. For example, in Marion Maddox’s otherwise excellent, recently published, God Under Howard, the State Aid case is not discussed. But the Respondent in the case on behalf of the Government, as Treasurer, was none other than – John Winston Howard.

Now the possibility is there that the new religions can use their exponentially growing tax exempt wealth to fund political parties, in the American way, albeit indirectly and possibly legally, to transform the face of Australian politics forever by influencing the outcomes of elections.

Since the election of the Howard Government in 1996 a string of decisions have favoured and enriched religions starting with the abolition of the Commonwealth Employment Service in favour of US-style faith based organisations. If separation of church and state had been formalised in 1981 these decisions may not have been possible

I write these words in France having just spoken at a conference celebrating the 1905 legislation separating church and state. If there is a central difference between our two countries it is this: historical events and the debate surrounding the French legislation helped to educate enough of the public about the necessity for separation and state neutrality towards religion. A solid block of votes has mostly excised religious influence from government. Australians have little or no idea about separation even though our culture is secular and church attendance is low, as in France.

If we do not legislate to introduce separation of church and state in Australia, at both levels of government, we will remain what we are: secretive soft theocracies being overtaken by politically motivated religious parties who want to impose their will on us by undoing progressive legislation, coercing our culture towards fundamentalist ‘values’, with the ending of a woman’s right to abortion on their long term agenda. They will use the weight of their tax exempt income as they have in the US.

But this is not just a ‘left’ issue. As government minister, Joe Hockey, said in the Parliament on 21 August 2002:

‘I do not believe, as do some of my colleagues, that it is the role of government to preach and legislate morality. This is not a church and I am not standing in a pulpit. As an elected representative of the Australian people, it is not my role to exclusively impose my values on others this Parliament is not for moralistic crusades.’

(For the commercial revolt against religious privileges see Business Review Weekly 24-30 March 2005 and subsequent issues.)

I suggest the idea of legislating for separation of church and state in any Australian jurisdiction would give citizens concerned about what is happening about religions’ involvement in politics, an issue around which to coalesce. The debate would lead to questions too long ignored that demand answers. For example, what would separation legislation seek to achieve in republican terms? And, if political parties are not in favour of legislating for separation of church and state, what are their reasons?

I invite your response.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.