Even Barry Jones Gets It Wrong…

From the Dean

A regular article written by Phillip Jensen in his role as Dean of Sydney at St Andrew's Cathedral.

Originally Published:
17th August 2012

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To disagree with Barry Jones feels like taking on the Encyclopaedia Britannica.  You know he knows more than you do before you start, and whatever you do know, he will be able to show you that you are wrong.

This, of course, is to do him a great disservice. As a previous Federal Minister for Science and a keen educationalist, Barry Jones has always promoted the idea of inquiry, challenging ideas and public debate.

So, with some residual reservation of a child listening to the quiz show where Barry’s prodigious knowledge first came to public attention, I would like to challenge the public intellectual’s understanding of the relation of church and state in Australia.

In media accounts of his recent Melbourne lecture advertised as: "Gough Whitlam in Context: A Revisionist Exercise", Barry Jones attacked the “serious decline in the quality of debate on public policy”1. He accuses all and sundry of “resorting to cherry-picking of evidence, denigration of opponents, mere sloganeering, leading to infantilisation of democracy, treating citizens as if they were unable to grasp major issues.”

Unfortunately, a few paragraphs later in the same article, it appears as if he was himself guilty of the same mistakes.  He said:

“The High Court's recent decision that Commonwealth funding for school chaplains was unconstitutional was immediately bypassed by a cross-party love-in, hurriedly passing new legislation to nullify the court's judgment.

This is a classic example of how a fundamental principle - the separation of church and state - is abandoned for fear of offending powerful interest groups and losing votes.”

These two paragraphs are wrong on several counts and are part of the sloganeering that is marginalising religion in the Australian community and the “Public Square”.

Firstly it is important to understand the High Courts’ judgement concerning the funding of school chaplains. As it stands, Barry Jones’ statement could imply that the chaplains’ funding was unconstitutional because it denied the fundamental principle of the separation of church and state. However this is unambiguously false.

The High Court considered two objections to the chaplaincy funding. The first, based on s61 of the constitution, was about the authority of the executive to fund activities without Parliamentary legislation. The second was based on s116 of the Constitution, about the authority of Government to legislate in respect of religion.

The court decided on s61 that the method of funding by executive decision without Parliamentary legislation was unconstitutional. It did not find that the school chaplaincy programme in any way breached s116 about the role of Government in religion. 

The Court’s judgement concerned the process and method of Government funding, not the relationship of church and state. Indeed, the court unanimously dismissed the contention that the chaplaincy programme breached s116 concerning the Government and religion.

The ruling on s61 was a problem, not just for religious programmes but for all Government programmes that had been funded on Executive Authority. Consequently, both sides of parliament worked together quickly to address the issue. Their action was not a ‘love-in’ just to protect the Chaplaincy programme but for the protection of many government programmes. This was not, as Barry Jones states, abandoning a principle “for fear of offending powerful interest groups and losing votes.” It is mischievous to say this action has something to do with church and state, implying that the church is a “powerful interest” group that bullied parliamentarians into abandoning fundamental principles and nullifying the constitution.

“The separation of church and state” is more of a slogan than a principle – certainly not a fundamental principle. We do not have in our Constitution or High Court rulings a “complete wall of separation” between church and state. The relationship between religion, the nation and the Government is considerably more complex and nuanced than that. Separation of Church and State is a slogan made popular by reference to the first amendment of the American Constitution. The High Court of Australia, in the case of State Aid to private schools back in 1981, defined ‘establishment of religion’ in a much more narrow fashion than the USA Supreme Court. As a result, for better or for worse, since 1981 the Government has funded religious schools to pay the salaries of teachers whose avowed job is teaching their religion. This is hardly a ruling of separation of church and state.

We may disapprove or have reservations about State Aid to private schools or to this Chaplaincy Programme, but they are manifestly not unconstitutional on a fundamental principle of Australian law. We may want to restrict and prevent Government from interfering with the free practice of religion and to protect Government from religious interference. But the Australian way of doing this has not been with the heavy hand of American judicial decisions about no prayer in school or Christmas pageants in post offices. Life is considerably more variegated than this and the Australian way of working together is suitably more sophisticated.

However, those people who oppose the influence of religion in society, and I am not suggesting that Barry Jones is one, use the simple slogan of the separation of church and state as a means to make sure the churches’ role and place in society is reduced to an absolute minimum. They will allow no religious views in public debate, even on highly religious subjects such as abortion, euthanasia, marriage, or polygamy - for they consider religious views as private and beyond reasoning. Thus the opinions of people – even majority opinions in a democracy – may be given no hearing. Even if such views can be backed up by scientifically gathered evidence, they are deemed to be not acceptable because of their biased source – namely religion.

Given the way that ‘separation of church and state’ is used to marginalize Christian thought and scholarship, it is sad that Barry Jones’ well timed call for improved quality in public debate, uses this slogan, especially in a way that misunderstands the Constitution and misreports the High Court’s decisions.

 

1B Jones, ‘Stupidity is on the rise in our age of enlightenment.’ The Age, 9 August 2012, http://www.theage.com.au="">