A Victory For Common Sense Atheism


When Ronald Wilson commenced his High Court challenge against the National School Chaplaincy Program (NSCP), Australia’s megaphone atheists flocked to his cause. The protest website Say No To Chaplains lists a number of reasons why the Commonwealth should renounce the NSCP. Among them is the "broader concern that placing religious (overwhelmingly Christian) operatives in state schools discriminates against children from non-Christian and non-religious families and represents an assault on the right of all Australian children to a secular (religion neutral) public education system."

The atheist hymn sheet should be familiar to everybody by now: Australian atheists (including me) are clearly persecuted by nefarious Christian "operatives" who hide in every classroom, who infiltrate every political party, and who are hell-bent on turning secular Australia into Jesus Land 2.0.

Even in the mainstream media Williams’ case was presented as an impassioned defence of the separation of church and state: the NSCP violated this sacred law by allowing religion into the secular public space. As Williams said on ABC’s 7.30 last year:

"Oh, no, I’m not anti-religion, no. I’m not anti-religion at all. I am a fervent believer in the constitutional separation of church and state. I do believe that our state schools should be secular spaces for our children."

In court, Williams argued that the NSCP was a violation of section 116 of the Constitution:

"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."

In the United States, the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…") has resulted in diabolical situations where religious groups have gone feral because the State has no power to curtail their excesses. The Westboro Baptist Church’s infamous funeral pickets blaming soldier deaths on God’s attitude towards homosexuals, for example, are protected speech in America.

We don’t have that in Australia because the High Court — unlike the Supreme Court of the United States — has a long and proud history of not putting up with crybabies. In 1912, when deciding a case in which a man complained that military service would interfere with his religious beliefs, the High Court (led by Williams’ fellow Queenslander, Sir Samuel Griffith CJ) ruled in Kryger v Williams that "to require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion". We don’t put up with the "Boohoo, what about my religion?" argument in Australia like they do in the United States.

Despite a few atheist malcontents (like Ian Plimer’s infamous court case in the 1990s which sought to have a creationist fined under the Trade Practices Act for false and misleading conduct) most of Australia’s few Church v State legal wars have been declared by theists

In the US, needlessly pedantic legal cases are raised by atheists groups semi-regularly, ranging from challenges to the use of nativity scenes in public buildings to the unimaginably important challenge to the use of prayer by NASA astronauts.

It would be a shame if Williams’ case was the start of a trend in Australian atheism where we start to see "Boohoo, what about my atheism?" cases. Although Williams won the case in the judgement handed down yesterday, it wasn’t because of a separation of church and state doctrine.

It was because the High Court found the government’s understanding of Executive Power (under section 61 of the Constitution) was mistaken. In other words, the High Court found there was nothing unconstitutional about funding chaplains in schools; the High Court found that the way in which they were paid was unconstitutional. The Government — no doubt supported by the Opposition — needs to pass a piece of legislation and then it’s business as usual for the NSCP.

But it is striking how at odds the High Court’s description of the NSCP is with the description provided by our atheist megaphones. Here’s Justice Heydon’s account of the program:

"[The Guidelines for the NSCP], read with the statement of the expanded ‘chaplaincy services’ program in the School’s application, conveys the impression that, at least at this school, neither the NSCP nor the qualification for "chaplains" had much to do with religion in any specific or sectarian sense. The work described could have been done by persons who met a religious test. It could equally have been done by persons who did not.

In ordinary speech a "chaplain" is the priest, clergyman or minister of a chapel; or a clergyman who conducts religious services in the private chapel of an institution or household. Those who are ‘school chaplains’ under the NSCP’s auspices fall outside these definitions. Their duties in schools are unconnected with any chapel. They conduct no religious services.

Perhaps those supporting validity committed an error in calling the NSCP a ‘chaplaincy program’ and speaking of ‘school chaplains’. The language is inaccurate and may have been counterproductive. Some vaguer expression, more pleasing to 21st century ears, like ‘mentor’ or ‘adviser’ or ‘comforter’ or ‘counsellor’ or even ‘consultant’, might have had an emollient effect. The plaintiff must have found the words ‘chaplain’ and ‘chaplaincy’ useful for his contention that the NSCP was void under s 116."

The joint decision of Justices Gummow and Bell was more blunt:

"Williams’ "case under s 116 fails at the threshold. […]The chaplain does not enter into any contractual or other arrangement with the Commonwealth. That the Commonwealth is a source of funding […] is insufficient to render a chaplain […] the holder of an office under the Commonwealth."

So Australia’s proud history of having a commonsense attitude towards church and state relations remains untarnished. While law nerds scramble to come to terms with a tweaked understanding of Executive Power, the New Atheist crowd can pat themselves on the back for their almost completely pointless legal victory.

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.