When there is no separation of church and state

Michael Gawenda’s comment in The Age (June 26, 2008) that “there is no constitutional separation of church and state in Australia” was the first time those words have appeared in any Australian newspaper under the by-line of a respected commentator. The former editor-in-chief of The Age could draw this conclusion as he had been reporting from the US for many years as a political correspondent. Living among American political culture and looking back at Australia from that standpoint, he could see what nearly every other Australian journalist or political commentator has failed to see.

It is passing strange that Australia follows the United States in many areas of policy - except its republicanism. The cornerstone of American republicanism is separation of church and state. But this central fact about the US has been completely omitted from the Australian debate.

In February 2006 Australians were asked in a Newspoll survey for the first time whether they believed there was a law separating church and state in Australia. In round figures 34 per cent did not know; 20 per cent said there is a law; 46 per cent said there is not.

The majority, surprisingly, got it right. There is no law separating church and state in Australia. We are, after all, a British constitutional monarchy, not a republic.

If we were to ask the 46 per cent why they believed there was no separation in Australia, it is very unlikely any of those surveyed would be able to explain their response. The majority’s answers, were, I suggest, intuitive, and spoke to their concerns about the developing influence of religion on our politics.

But there is no problem with religious figures and lobbyists trying to influence politics. In a free society, that is a right. The majority’s answer could be interpreted to mean they were uncomfortable with the perceived effects of that lobbying and influence.

Be that as it may, the majority’s answer stands paradoxically opposed to the views of the current and the previous prime ministers. When asked by a lone, Associated Press journalist for his view on the matter, John Howard, on March 2, 2006, said that “what the separation of church and state means in this country is that there is no established church … we don’t have the Anglican church as the official state religion, that’s what it means”.

On October 4, 2006 on Radio National’s Religion Report Kevin Rudd also equated the lack of an established church in Australia with separation of church and state. He added he was a “lifelong defender of separation of church and state”.

What John Howard said was an eloquent lawyer’s definition of the meaning of “establishment”. It was not a definition of “separation”.

In 1897 Australia’s first prime minister, Edmund Barton, had said something similar. During the Constitutional Convention in Adelaide he said that unless a state has an established church, the state is secular.

But that was before the religion section, s.116, was made part of the 1901 constitution, and before its meaning was finally clarified in the Defence of Government Schools High Court case in 1981 as Michael Gawenda noted.

Before recalling what the High Court found, it’s important to understand what s.116 says and what inspired it. In plain English s.116 says: